Opinion issued December 5, 2017




                                       In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                               NO. 01-17-00491-CV
                             ———————————
  IN THE INTEREST OF J.S.-A A/K/A J.S., AND J.B.S., JR., CHILDREN



                    On Appeal from the 314th District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-03173J


                           MEMORANDUM OPINION

      The mother and father of two young children appeal from the trial court’s

order terminating their parental rights. In her appeal, the mother challenges the legal

and factual sufficiency of the evidence supporting the finding that termination of her

parental rights is in the children’s best interest.          See TEX. FAM. CODE

§ 161.001(b)(2). The father’s appeal challenges the legal and factual sufficiency of
the evidence supporting the predicate grounds that the trial court found to support

termination as well as the appointment of the Department of Family and Protective

Services as sole managing conservator of the children. See id. §§ 161.001(b)(1)(E),

(O), 161.207, 161.208. We affirm.

                                    Background

      History leading to the Department’s managing conservatorship

      The mother’s history with the Department began when she was a child.

Because of her father’s his illegal drug use, the Department removed the mother and

her brother from the father’s custody and placed them in the foster care system. The

mother has given birth to five children. One is deceased and the two eldest, who are

not the subject of these proceedings, live with their father in San Antonio.

       In June 2010, when the mother’s eldest child was about seven months old,

the Department received a referral alleging that the mother and the child’s father

engaged in domestic violence, including an incident in which one parent threw a

dresser drawer that landed on the child. The parents were living in the San Antonio

area but did not have a stable home at the time. The Department took temporary

managing conservatorship of the child and referred the mother to participate in

Family-Based Safety Services (FBSS), but the mother did not cooperate and would

not complete the services. Over the Department’s objection, the San Antonio court

presiding over the case ordered family reunification.


                                          2
         The mother separated from the older children’s father and began a relationship

with J.B.S., Sr., the father in this case, sometime before the end of 2013. She gave

birth to Joann in July 2014 and John in June 2015.1

         By early 2016, the mother was pregnant and had the four children living with

her in her father’s home. The children’s maternal grandfather assisted the mother in

caring for the children; it does not appear that the father was involved with the

mother and children at that time. The mother’s brother, who had aged out of foster

care, also was living in the home. The mother left the children in his care while she

and the grandfather were at work.

         In late January 2016, the Department received a referral alleging neglectful

supervision, physical abuse, and physical neglect of the four children by the mother

and the grandfather. According to the referral, the mother left the children in a

vehicle unattended for five to ten minutes, then the grandfather left the children

unattended in a dental office waiting room for about ten minutes. The mother and

grandfather were observed striking the children on their heads and other body areas.

The two eldest wore dirty clothing and smelled like urine. One of the children stated

that his mother hits him in the head and pushes him to the floor.

         Another referral in March 2016 alleged that the mother’s brother had sexually

abused the children while the mother had left them in his care. It was reported that


1
    These are pseudonyms. See TEX. R. APP. P. 9.8.
                                            3
the brother also sexually assaulted Joann and John. The Department found the

children’s outcries to be credible. By the time the Department received the report,

the mother’s brother had left the home and could not be found.

      In mid-March 2016, while seven months’ pregnant, the mother’s vehicle was

rear-ended in a collision. The mother did not seek immediate medical care. She

prematurely went into labor the following day and gave birth to Paul.2 Around this

time, the father of the two eldest children learned of their sexual abuse by the

mother’s brother. One of the children also told him that their grandfather smoked

crack cocaine in front of them. The father immediately picked his children up and

brought them to live with him in his home.

      Paul remained in the hospital for approximately two months, until he weighed

six pounds. Paul died the day after he was discharged from the hospital, in mid-

May. That morning, the mother and father, who apparently had resumed their

relationship, picked up the grandfather and brought him to their home to watch Paul,

Joann, and John while they were at work. The grandfather drove with the children

to the mother’s workplace to pick her up when her shift ended at 1:00 P.M. The

mother, however, was unable to leave work until two hours later. While the

grandfather and the children waited in the car during that time, Joann soiled her

diaper, so after the mother left work, they stopped at a discount store to purchase


2
      This also is a pseudonym.
                                         4
items to clean her and change her diaper. When the mother returned to the car, she

bumped into Paul’s carseat and noticed that he did not respond, his color was not

right, and something was coming out of his mouth. EMS was contacted and

responded immediately, but the efforts to revive Paul were unsuccessful.

      The Department was notified of Paul’s death through a referral alleging

neglectful supervision. Its investigation into these circumstances did not reach a

definitive conclusion as to the cause of Paul’s death. Concerned with the welfare of

the two surviving children in light of the mother’s lack of stable housing and her

failure to cooperate with the Department’s previous efforts to provide services,

however, it continued investigating the family’s living conditions.

      A Bexar County investigator for the Department spent two days trying to

locate the mother.     When the investigator found the mother, she set up an

appointment for the family to visit her in the Department’s San Antonio office.

      The mother was staying at her cousin’s house and refused to allow the

investigator to visit the home. The mother resisted efforts to establish a safety plan

for the children and hung up on the investigator. She took the children to Dallas

after being warned not to leave town.

      Eventually, the mother orally agreed to bring the children to a maternal aunt’s

home in Dallas and allow the aunt, who had fostered children in the past, to supervise

the children. The Department approved the aunt as a monitor. The day after they


                                          5
moved in with the aunt, however, the father and mother took the children from the

home, over the aunt’s protest.        In speaking with the investigator about that

development, the aunt told her that the mother and father “did not want to have any

rules.”

      Next, the mother’s cousin contacted the Department. She told the worker that

the mother had asked her if she could care for her children for a while, but the mother

and children never arrived. After repeated efforts to contact the family, the

investigator finally reached the father by phone. The father said that the family was

staying with one of his cousins in Houston. The worker again explained the safety

plan. The mother told the investigator that she did not see the need for a safety plan

and did not agree to it. She and the father nevertheless agreed to let the caseworker

see the room in the cousin’s house where they were staying.

      The parents had no beds for the children, and further inquiry revealed that the

father’s cousin had a criminal record, making the placement unsuitable. The

caseworker found another relative placement, but shortly after the children were

placed there, that relative told CPS that the parents were not helping to support the

children with beds, food, diapers, clothing, and money as they had promised, and

they did not seem to take their responsibilities to their children seriously. As a result,

the relative told the caseworker that she could not care for the children.




                                            6
      The investigator told the mother that a monitor was no longer an option

because they had violated the earlier agreement allowing the Dallas aunt to serve as

monitor. The Department took the children into custody and brought this suit. The

trial court appointed the Department to serve as temporary managing conservator of

the children.

      Temporary managing conservatorship

      In June 2016, the Department prepared family plans of service for both the

mother and the father, which the trial court incorporated into an order. Under the

plans, the mother and father each were required to:

           Complete a drug and alcohol assessment and follow all
            recommendations;
           Participate in an approved parenting course;
           Undergo psychological evaluation and follow all recommendations;
           Begin treatment for domestic violence;
           Obtain and maintain stable housing for a period of at least six months,
            providing a copy of a leasing agreement;
           Provide paystubs showing stable income or employment for a period of
            at least six months;
           Attend all court hearings; and
           Submit to random drug testing twice monthly.

      In October 2016, an incident of domestic violence occurred between the

mother and the father. During the altercation, the father beat the mother and hit her

head on the floor, causing a subdural hemorrhage. As a result, the mother spent two

days in the hospital and the father was arrested and taken to jail. The father, who


                                         7
had begun his battering intervention program before the fight, missed two classes

while he was detained. Criminal charges were filed against the father but were later

dismissed based on mutual combat. By the time of trial, the parents were no longer

living together.

      Each parent tested positive for illegal drugs while the service plan was in

effect. The mother tested positive twice, once in June 2016 for cocaine and again in

October 2016 for codeine. The father tested positive on nine occasions for a variety

of illegal drugs, including cocaine, amphetamine, methamphetamine, marijuana, and

codeine. After a brief period of apparent sobriety, he relapsed, testing positive for

illegal drugs at least once monthly in the six consecutive months before trial.

Despite the numerous positive testing results and the father’s prior admissions to

drug use during the Department’s investigation, the father testified at trial that he

never used cocaine or methamphetamine. He blamed the positive results on testing

errors and inadvertent contact with drugs present at the home where he was staying.

      The mother failed to submit to the required psychological evaluation and did

not attend counseling. She was traveling back and forth between Houston and San

Antonio. She claimed to live in San Antonio and had a “welcome” flyer from an

apartment complex there, but she did not present a lease agreement as required by

the family service plan.




                                         8
      During this period, Joann and John were living with a foster family. John had

some developmental delays and was receiving occupational, physical, and speech

therapy. Joann had no special needs, but she had significant dental problems and

required crowns to prevent her baby teeth from falling out prematurely. CR 127.

      The foster parents were providing a safe and stable home for the children and

meeting all of their emotional and physical needs. John was doing well with his

physical therapy. The foster parents were working with him to help improve his

motor skills and to teach him to be more independent. Joann enjoyed helping her

brother too.

      The foster parents initially accepted the children with the intention of adopting

them, but had since decided not to adopt them. Since then, the caseworker testified,

a “very promising,” possible adoptive family had been located and a home study

completed.

                         Termination of Parental Rights

I.    Applicable law and standards of review for evidentiary sufficiency
      challenges to the termination of parental rights

      A parent’s rights to the “companionship, care, custody, and management” of

his or her child is a constitutional interest “far more precious than any property

right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982);

accord In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). We therefore strictly scrutinize

termination proceedings and strictly construe the involuntary termination statutes in

                                          9
favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Parental rights,

however, are not absolute and “[t]he rights of parenthood are accorded only to those

fit to accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361

(Tex. 2003). Recognizing that a parent may forfeit his or her parental rights by their

acts or omissions, the primary focus of a termination suit is protection of the child’s

best interests. Id.

      In a case to terminate parental rights by the Department under § 161.001 of

the Family Code, the Department must establish, by clear and convincing evidence,

that (1) the parent committed one or more of the enumerated acts or omissions

justifying termination and, (2) termination is in the best interest of the child. TEX.

FAM. CODE § 161.001(b). Clear and convincing evidence is “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.” Id. § 101.007; see In re

J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “Only one predicate finding under section

161.001(1) is necessary to support a judgment of termination when there is also a

finding that termination is in the child’s best interest.” A.V., 113 S.W.3d at 362

(footnote omitted).

      In reviewing the legal sufficiency of the evidence supporting a decision to

terminate parental rights, the appellate court looks at all the evidence in the light

most favorable to the finding to determine whether a reasonable factfinder could


                                          10
have formed a firm belief or conviction that its finding was true. J.F.C., 96 S.W.3d

at 266. We assume that the factfinder resolved disputed facts in favor of its finding

if a reasonable factfinder could do so, disregarding all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible. Id. If, after

reviewing the record, we determine that no reasonable factfinder could form a firm

belief or conviction that the matter that must be proven is true, then we must

conclude that the evidence is legally insufficient. Id.

      In reviewing the factual sufficiency of the evidence supporting a decision to

terminate parental rights, we determine whether, considering the entire record,

including evidence both supporting and contradicting the finding, a factfinder

reasonably could have formed a firm conviction or belief about the truth of the matter

on which the Department bore the burden of proof. In re C.H., 89 S.W.3d 17, 25

(Tex. 2002). We consider whether the disputed evidence is such that a reasonable

factfinder could not have resolved the disputed evidence in favor of its finding. In

re J.F.C., 96 S.W.3d at 266–67. “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 J.F.C., 96 S.W.3d at

266, quoted in In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).




                                          11
II.   Father’s appeal

      The father contends that the evidence is legally and factually insufficient to

support the trial court’s predicate findings for termination of his parental rights under

section 161.001(b)(1)(E) and (O) as well as its finding that termination of his

parental rights is in the children’s best interest. He also challenges the legal and

factual sufficiency of the trial court’s finding that the Department’s continued

conservatorship is in the children’s best interest.

      A.    Challenge to predicate findings for termination

             1.     Applicable law

      Subsection (E) allows termination when the parent has endangered the child.

Specifically, it provides that the court may order termination upon a finding, by clear

and convincing evidence, that a parent:

      (E) engaged in conduct or knowingly placed the child with persons who
      engaged in conduct which endangers the physical or emotional well-
      being of the child[.]

TEX. FAM. CODE § 161.001(b)(1)(E).

      “‘To endanger’ means to expose a child to loss or injury or to jeopardize a

child’s emotional or physical health.” Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex.

2010) (citing Robinson v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d

679, 686 (Tex. App.—Houston [1st Dist.] 2001, no pet.)); see In re M.C., 917

S.W.2d 268, 269 (Tex. 1996). Under subsection (E), the relevant inquiry is whether

                                           12
evidence exists that the endangerment of the child’s physical well-being was the

direct result of the parent’s conduct, including acts, omissions, or failures to act. See

In re J.T.G., 121 S.W.3d 117, 125 Tex. App.—Fort Worth 2003, no pet.); see also

TEX. FAM. CODE § 161.001(b)(1)(E). Additionally, termination under subsection (E)

must be based on more than a single act or omission; the statute requires a voluntary,

deliberate, and conscious course of conduct by the parent. J.T.G., 121 S.W.3d at 125

(citing TEX. FAM. CODE § 161.001(b)(1)(E)). It is not necessary to establish that the

parent intended to endanger the child, that the parent’s conduct be directed at the

child, or that the child actually suffer injury. See In re M.C., 917 S.W.2d 268, 269

(Tex. 1996); Tex. Dep’t Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987);

J.T.G., 121 S.W.3d at 125. The specific danger to the child’s well-being may be

inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re

K.P., 498 S.W.3d 157, 171 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

             2.     Analysis

      The evidence of father’s frequent use of illegal drugs during the pendency of

this case is legally sufficient, standing alone, to support the trial court’s

endangerment finding. “[A] parent’s use of narcotics and its effect on his or her

ability to parent may qualify as an endangering course of conduct.” In re J.O.A.,

283 S.W.3d 336, 345 (Tex. 2009). Illegal drug use may support termination under

section 161.001(b)(1)(E) because “it exposes the child to the possibility that the


                                           13
parent may be impaired or imprisoned.” Walker v. Tex. Dep’t of Family & Protective

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

banc). Because it significantly harms the parenting relationship, drug activity can

constitute endangerment even if it transpires outside the child’s presence. See

J.O.A., 283 S.W.3d at 345; Walker, 312 S.W.3d at 617. “[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, may support a finding that the parent engaged in conduct

that endangered the child’s physical or emotional well-being.” In re C.J.L., No. 01-

17-00283-CV, 2017 WL 4366010, at *7 (Tex. App.—Houston [1st Dist.] 2017, no

pet.) (mem. op.).

       The father also admitted to his history of domestic violence with the mother,

which further supports the endangerment finding. See In re S.C.F., 522 S.W.3d 693,

703 (Tex. App.—Houston [1st Dist.] 2017, pet denied) (evidence of parent’s drug

use and history of domestic violence supported finding that placement would put

children in emotional danger) (citing Cervantes-Peterson v. Tex. Dep’t of Family &

Protective Servs., 221 S.W.3d 244, 253–54 (Tex. App.—Houston [1st Dist.] 2006,

no pet.)).

       The father mainly left the children in their mother’s care. The evidence shows

that the mother subjected the children to physical abuse, neglected them, and left

them with her father and brother, who also abused and neglected them. Because the


                                         14
family lived together at times, the trial court could reasonably infer that the father

knew how the mother treated the children. This evidence is legally and factually

sufficient to support a finding that the father knowingly placed the children with

persons who engaged in conduct which endangered the children’s physical or

emotional well-being.

      In considering the disputed evidence in our factual-sufficiency review, the

record shows that the father denied any history of illegal drug use at trial and

suggested that the drug testing facility provided inaccurate results. At the same time,

evidence before the trial court shows that the father admitted to illegal drug use

during the course of the Department’s investigation and admits in his appellate brief

that his continued illegal drug use is a factor that weighs in favor of the best interest

termination finding. Considering the evidence both supporting and contradicting

this issue, the trial court reasonably could have formed a firm conviction or belief

that the father’s illegal drug use endangered his children’s emotional well-being. See

C.H., 89 S.W.3d at 25.

      A finding of one predicate factor, coupled with a finding that termination is in

the children’s best interest, is sufficient to support termination. See In re A.V., 113

S.W.3d 355, 362 (Tex. 2003) (“Only one predicate finding under section

161.001(b)(1) is necessary to support a judgment of termination when there is also

a finding that termination is in the child’s best interest.”); see also Latham v. Dep’t


                                           15
of Family & Protective Servs., 177 S.W.3d 341, 348 (Tex. App.—Houston [1st Dist.]

2005, no pet.) (“A court may base a termination of parental rights upon a finding

that a parent engaged in conduct described in one of the alleged grounds, plus a

finding that termination is in the best interest of the children.”). Having held that

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

endangerment under subsection (E), we need not address the father’s challenge to

the trial court’s predicate finding for termination under subsection (O).

       B.     Department’s appointment as managing conservator

       The father, although not challenging the finding that his illegal drug use makes

termination of his parental rights in the children’s best interest, contends that the trial

court’s appointment of the Department as managing conservator is not in the

children’s best interest. Conservatorship determinations made after a bench trial are

“subject to review only for abuse of discretion, and may be reversed only if the

decision is arbitrary and unreasonable.” In re J.A.J., 243 S.W.3d 611, 616 (Tex.

2007). To determine whether a trial court abused its discretion, the appellate court

must decide whether the court acted without reference to any guiding rules or

principles, that is, whether its decision was arbitrary or unreasonable. Low v. Henry,

221 S.W.3d 609, 614 (Tex. 2007) (citing Cire v. Cummings, 134 S.W.3d 835, 838

(Tex. 2004)). “An abuse of discretion does not occur when the trial court bases its

decisions on conflicting evidence,” nor does an abuse of discretion occur so long as


                                            16
there is some evidence of substantive and probative character to support the trial

court’s decision. In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010,

no pet.) (first citing In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig.

proceeding); and then citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.

2002)).

      The Department’s appointment in this case is based on the authority of section

161.207 of the Family Code, which provides, in pertinent part:

      APPOINTMENT OF MANAGING CONSERVATOR ON
      TERMINATION. (a) If the court terminates the parent-child
      relationship with respect to both parents . . ., the court shall appoint a
      suitable, competent adult, the Department of Family and Protective
      Service, or a licensed child placing agency as managing conservator
      of the child. . . .

The statute further provides that “the court that terminates a parent-child relationship

may not appoint the Department of Family and Protective Services as permanent

managing conservator of the child unless the court determines that . . . a relative

located by the department has had a reasonable opportunity to request appointment

as managing conservator of the child . . . . “ TEX. FAM. CODE § 161.208.

      The father first questions the diligence of the Department in locating a kinship

appointment for the children. Specifically, he criticizes the Department’s failure to

consider placing the children with their half-siblings in San Antonio. The record,

however, shows that the half-siblings’ father, who is not a blood relation to the


                                          17
children, is a registered sex offender and thus, the home does not qualify as a suitable

placement for the children.

      The father relies on Horvatich v. Department of Protective and Regulatory

Services, 78 S.W.3d 594 (Tex. App.—Austin 2002, no pet.), in urging this Court to

reverse and remand the case for a new trial on the issue of conservatorship.         In

Horvatich, the appellate court held that the evidence was insufficient to sustain the

termination of a mother’s parental rights, noting that the Department did not adduce

trial testimony from anyone with personal knowledge relating to the children or any

other evidence as to how the children were doing in foster care, whether they were

being considered for adoption, the likelihood of their adoption, the Department’s

plan for their placement, and whether the Department would attempt to place the

siblings together. Id. at 601–02.

      Horvatich is inapposite. The record in this case shows that the Department

has been diligent throughout the case in trying to locate a kinship placement for the

children. A few were found, but no qualified relative was able or willing to care for

the children on a long-term or permanent basis. At trial, the caseworker testified

that the children were in a licensed foster placement where they were able to live in

a stable and caring home environment through the pendency of the case. The

caseworker further testified that Department has tentatively identified a permanent

adoptive placement for the children, and she expressed confidence that the


                                          18
Department would not have any trouble in finding an adoptive placement for the

children. The lack of a definitive plan for the children’s permanent placement does

not preclude the trial court from appointing the Department as managing

conservatorship. Cf. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013) (holding that

lack of definite plans for child’s permanent placement did not bar conclusion that

termination of parental rights was in child’s best interest).

       The father also suggests that the trial court could have placed the children with

the mother while looking for an adoptive home. But the mother’s responsibility for

the children’s neglect and abuse, discussed below, shows that her appointment as

managing or possessory conservator would not be in the children’s best interest. See

TEX. FAM. CODE §§ 153.004(b), 153.131(a).

III.   Mother’s appeal

       The mother challenges the trial court’s predicate finding for termination of the

mother’s parental rights under section 161.001(b)(1)(E) and its finding that

termination is in the children’s best interest.

       The trial court found that the mother’s parental rights could be terminated

under section 161.001(b)(1)(E) and (O), and that termination was in the children’s

best interest. The mother concedes that the evidence is legally and factually

sufficient to support the predicate finding that she failed to comply with the family

service plan. TEX. FAM. CODE § 161.001(b)(1)(O). When one predicate finding for


                                           19
termination is conceded to be adequate, the reviewing court need not consider the

remaining grounds for termination. See In re A.V., 113 S.W.3d at 362. The mother

nevertheless challenges the legal and factual sufficiency of the evidence supporting

the trial court’s subsection (E) finding because of its negative collateral

consequences, including its binding effect on the best-interest determination. She

directs us to the Fourteenth Court of Appeals’ decisions reviewing subsection (E)

findings for this reason. See In re S.G.F., No. 14-16-00716-CV, 2017 WL 924541,

at *4 (Tex. App.—Houston [14th Dist.] Mar. 7, 2017, no pet.); In re J.J.G., No. 14-

15-00094-CV, 2015 WL 3524371, at *4 (Tex. App.—Houston [14th Dist.] 2015, no

pet.).

         Because the evidence supporting the trial court’s endangerment findings is

integral to its best-interest determination, we agree with our sister court’s approach

and begin by evaluating the legal and factual sufficiency of the evidence supporting

the endangerment finding.

         A.    The evidence is legally and factually sufficient to support the trial
               court’s endangerment finding.
         The mother has a history of domestic violence, both with the father of her two

older children and with Joann and John’s father. The record describes one instance

in which a drawer fell on a child and another that caused the mother to be

hospitalized for two days for a brain bleed. The record notes another instance of

domestic violence with the father, but does not detail the incident. Although the

                                           20
mother may claim that her separation from the father eliminates the possibility of

further domestic violence, her history with the older children’s father allows for a

reasonable inference that she is likely to continue to engage in domestic violence in

the future.

      The trial court also heard evidence that the mother and grandfather beat the

children on the head as punishment. The mother denies striking her children on the

head, but one of her children made an outcry that she did. The mother’s failure to

follow through with the psychological evaluation and individual counseling required

by her family service plan further indicates an unwillingness to change her behavior

in this regard. The trial court could reasonably find that the mother, as both a victim

and a perpetrator of physical violence, placed the children in emotional and physical

danger. See In re S.C.F., 522 S.W.3d at 703.

      The mother concedes that she tested positive for illegal drugs on two

occasions. She correctly observes that this evidence shows she is not a frequent user.

At trial, however, she categorically denied any drug use and denied knowing that the

children’s father used drugs. The record also shows that her father lost custody of

her and her brother because of illegal drug use, and he reportedly used crack cocaine

while the children were in his care. From this evidence, a reasonable factfinder could

form a firm conviction or belief that the mother either knew of the father’s and the

grandfather’s illegal drug use or was deliberately indifferent to their drug use when


                                          21
she left the children in their care. The mother’s denial that she had any knowledge

of the father or grandfather’s drug use does not create a dispute in the evidence so

significant that the trial court could not reasonably have formed that firm belief.

Although the mother testified she did not know that her brother would sexually abuse

the children, she left the children with him without any apparent regard for his ability

or willingness provide them with a safe environment. The trial court could infer that

the mother lacked concern for the children when leaving them with the grandfather,

who had his own children taken from him by the Department.

      Other evidence also supports a finding that the mother consciously

disregarded the children’s safety and well-being. The record shows that the mother

at times was “couch-surfing” with the children and that the family showed up at

relatives’ homes to seek shelter from time to time. As a general rule, subjecting a

child to a life of uncertainty and instability endangers the child’s physical and

emotional well-being. See In re J.O.A., 283 S.W.3d at 345 & n.4.

      The mother reportedly left the children, who were then one and two years old,

unsupervised on two occasions; once in the car and once in a dentist office, for five

to ten minutes at a time. The mother also failed to live up to her promise to provide

food, clothing, and money to the relative who tried to care for the children. As a

result of the parents’ failure to provide this basic support, the Department was

required to take the children into custody. We hold that the evidence is legally and


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factually sufficient to prove that the mother’s conscious course of conduct

endangered the children’s physical and emotional well-being.

      B.     Termination of the mother’s parental rights is in the children’s best
             interest.

             1.    Applicable law
      As a matter of public policy, “the best interest of a child is usually served by

maintaining the parent-child relationship.” J.F.C., 96 S.W.3d at 294. Despite this

important relationship, the Texas Supreme Court has held that “protection of the

child is paramount” and “the rights of parenthood are accorded only to those fit to

accept the accompanying responsibilities.” A.V., 113 S.W.3d at 361 (quoting In re

J.W.T., 872 S.W.2d 189, 195 (Tex. 1994). Appellate courts examine the entire

record to decide what is in the best interest of the child. In re E.C.R., 402 S.W.3d

239, 250 (Tex. 2013). There is a strong presumption that the best interest of a child

is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112,

116 (Tex. 2006). At the same time, “the prompt and permanent placement of the

child in a safe environment is presumed to be in the child’s best interest.” TEX. FAM.

CODE § 263.307(a).

      In assessing whether termination is in a child’s best interest, the courts are

guided by the non-exclusive list of factors set forth in Holley v. Adams. See 544

S.W.2d 367, 371–72 (Tex. 1976). These factors include (1) the desires of the child,

(2) the emotional and physical needs of the child now and in the future, (3) the

                                         23
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 to promote the best interest of the child, (6) the plans for the child by

these individuals or by the agency seeking custody, (7) the stability of the home or

proposed placement, (8) the acts or omissions of the parent that may indicate that

the existing parent-child relationship is not proper, and (9) any excuse for the acts or

omissions of the parent.       Id.   The statute also provides a list of relevant

considerations. TEX. FAM. CODE § 263.307. These include:

      (1) the child’s age and physical and mental vulnerabilities;
      (2) the frequency and nature of out-of-home placements;
      (3) the magnitude, frequency, and circumstances of the harm to the
      child;
      (4) whether the child has been the victim of repeated harm after the
      initial report and intervention by the department;
      (5) whether the child is fearful of living in or returning to the child’s
      home;
      (6) the results of psychiatric, psychological, or developmental
      evaluations of the child, the child’s parents, other family members, or
      others who have access to the child’s home;
      (7) whether there is a history of abusive or assaultive conduct by the
      child’s family or others who have access to the child’s home;
      (8) whether there is a history of substance abuse by the child’s family
      or others who have access to the child’s home;
      (9) whether the perpetrator of the harm to the child is identified;
      (10) the willingness and ability of the child’s family to seek out, accept,
      and complete counseling services and to cooperate with and facilitate
      an appropriate agency’s close supervision;
      (11) the willingness and ability of the child’s family to effect positive
      environmental and personal changes within a reasonable period of time;


                                          24
      (12) whether the child’s family demonstrates adequate parenting skills,
      including providing the child and other children under the family’s care
      with:
         (A) minimally adequate health and nutritional care;
         (B) care, nurturance, and appropriate discipline consistent with the
         child’s physical and psychological development;
         (C) guidance and supervision consistent with the child’s safety;
         (D) a safe physical home environment;
         (E) protection from repeated exposure to violence even though the
         violence may not be directed at the child; and
         (F) an understanding of the child’s needs and capabilities; and
      (13) whether an adequate social support system consisting of an
      extended family and friends is available to the child.

Id. The Department “need not prove all of the factors as a condition precedent to

parental termination, ‘particularly if the evidence was undisputed that the parental

relationship endangered the safety of the child.’” In re C.T.E., 95 S.W.3d 462, 466

(Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting C.H., 89 S.W.3d at 27).

            2.     Analysis
            Emotional and physical needs of the children

      At ages two and three, the children were too young to express their desires,

and so this factor is neutral. The children have been well cared for at their foster

home, receiving the physical and emotional support they need. John is receiving

services for his special needs. Because of John’s developmental delays, he will

require specialized services and care into the future. The mother’s general lack of

attentiveness to the children’s needs indicates that she would have difficulty

providing John the extra care he needs. This factor weighs in favor of termination.

                                        25
      Parental abilities of the individuals seeking custody and stability of the
      proposed placement

      The children have had a stable placement while in the Department’s

conservatorship, and the Department represented that it intended to move the

children to a permanent adoptive home as soon as possible. The Department had

tentatively identified potential adoptive parents who were both educators and had

completed a home study. These factors also weigh in favor of termination.

      The acts or omissions of the parent that may indicate that the existing
      parent-child relationship is not proper, and any excuse for those acts
      or omissions

      When the children were in the mother’s care, they were subjected to sexual

abuse, physical abuse, and neglect, as well as emotional abuse resulting from

exposure to family violence and caregivers under the influence of illegal drugs. This

history, the mother’s resistance to the Department’s offer to provide services while

she was in San Antonio, and her failure to complete the required services indicate

that she is not likely to provide better care in the future.

      The evidence supporting the endangerment finding against the mother shows

that she has not been able to provide the children with a safe, stable home and that

through her own treatment of the children and her indifference toward them, the

children have been subjected to physical and emotional harm. The mother claimed

not to have been aware of the father’s or grandfather’s drug use or that her brother

was a sexual predator, but she did not provide an explanation as to why she

                                            26
considered these individuals appropriate to care for the children. These factors

weigh in favor of termination.

      Accordingly, we hold that legally and factually sufficient evidence supports

the trial court’s finding that termination of the mother’s parental rights is in the

children’s best interest.

                                 CONCLUSION

             We affirm the judgment of the trial court.




                                              Jane Bland
                                              Justice

Panel consists of Chief Justice Radack and Justices Higley and Bland.




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