Affirmed and Memorandum Opinion filed April 18, 2019.




                                          In The

                      Fourteenth Court of Appeals

                                 NO. 14-18-00952-CV

              IN THE INTEREST OF A.R.G., A CHILD, Appellant


                     On Appeal from the 314th District Court
                              Harris County, Texas
                       Trial Court Cause No. 2016-04728J

                            MEMORANDUM OPINION

       The trial court terminated the parental rights of appellant, J.I.A. (Mother),
and A.G. (Father) to their daughter, A.R.G. (Alice),1 and appointed the Department
of Family Protective Services (the Department) as the child’s managing
conservator. Mother challenges the legal and factual sufficiency of the evidence to
support the trial court’s findings on the two predicate grounds and its finding that
termination is in the best interest of the child. Father has not appealed. We affirm.


       1
        We use pseudonyms to refer to appellant, the children, and other family members. See
Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8.
                   FACTUAL AND PROCEDURAL BACKGROUND

    A. The Department’s Investigation

      Three months before giving birth to Alice—the child at the center of this
parental-termination suit—Mother tested positive for cocaine. Mother was required
to submit to random drug testing as a part of her family service plan due to the
Department’s investigation into Mother’s care of her two sons, E.C.A. (Ethan) and
A.A.G. (Alex). At the time of Alice’s birth, Ethan and Alex were in a kinship
placement with their maternal grandmother (Grandmother).

      1. Ethan and Alex

      Mother gave birth to Ethan when she was sixteen years old and at the time of
trial Ethan was five years old. Mother gave birth to Alex less than two years after
giving birth to Ethan. The affidavit supporting removal of Ethan and Alex was
entered into evidence in this case. That affidavit alleges the Department received a
referral of Mother’s physical neglect of Ethan and Alex, stating the boys appeared
pale and weak. The boys had diaper rashes because Mother allegedly failed to
change their diapers. The boys had body rashes allegedly resulting from bed bugs.
The report further alleged Mother only fed the boys milk and fruit punch, and
sometimes the milk was stale. Additionally, the report stated that the home was
unclean, smelled like urine, and the couch was soaked in urine. According to the
affidavit, Mother left “blunts” containing synthetic marijuana in reach of the
children and was believed to have cared for the children while under the influence
of synthetic marijuana. The affidavit further states that on a subsequent visit, law
enforcement conducted a welfare check at Mother’s home and found both the
home and the children to be filthy.

      Due to these conditions, the Department referred Mother to Family Based


                                         2
Safety Services and Mother agreed to participate in services and signed a family
service plan. The boys were initially placed in separate homes with relatives.
Eventually, the boys were both placed in the care of their maternal Grandmother.
During the course of the investigation, Mother was evicted from her apartment,
and did not have adequate housing for the children. Mother admitted that she
previously smoked marijuana, specifically to smoking “kush,” or synthetic
marijuana, and admitted using synthetic marijuana while the children were in her
care.

        Mother agreed to a Family Based Safety Services Plan, but did not complete
the requirements of her family service plan—including failing to show up for five
required random drug tests. Mother failed to stay in touch with the Department and
failed to provide documented financial support for her boys.

        In January 2016, after months of ignoring the Department and her
responsibilities, Mother reached out to the Department when she found out she was
pregnant with Alice. Mother told the caseworker that she wanted to complete her
services and have the boys returned to her. Mother stayed in contact with the
caseworker for another month, before disappearing again, without completing her
service plan.

        In May of 2016, the trial court ordered Mother to follow the service plan,
which included Mother’s participation in random drug testing. On the same date
the family service plan became an order of the trial court Mother was ordered to
submit to a random drug test. Her hair sample tested positive for cocaine.

        One year later, the trial court terminated Mother’s parental-rights as to Ethan
and Alex on grounds of endangerment, abandonment, and failure to complete her
service plan, and granted temporary managing conservatorship to the Department.
Mother appealed, and the First Court of Appeals issued an opinion reversing the
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trial court’s judgment terminating Mother’s parental rights and remanded for a new
trial. See In re E.C.A., No. 01-17-00623-CV, 2017 WL 6759198, at *14 (Tex.
App.—Houston [1st Dist.] Dec. 28, 2017, no pet.) (mem. op.). The First Court of
Appeals held that Mother’s admitted use of synthetic marijuana in addition to her
failed drug test provided sufficient evidence that she endangered Ethan and Alex
under section 161.001(b)(1)(E) of the Texas Family Code. Id. at *8. The court did
not find, however, that it was in the boys’ best interest to have Mother’s parental
rights terminated. The court held that while the evidence was legally sufficient to
support the trial court’s finding on the best-interest determination, the evidence
was not factually sufficient to support the best-interest finding and reversed on
those grounds. Id. at *13.

       In its best-interest analysis, the court held that unsanitary conditions and
violation of a court order prohibiting unsupervised visitation by mother, were not
factually sufficient to support termination. Id. In addition, the court explained that
a significant consideration was the absence of any plans for the children’s future
and that the children were doing well in their current placement. Id. The court
reversed the judgment terminating Mother’s parental rights but affirmed the order
regarding the Department’s conservatorship of the boys. Id. at 14. The boys stayed
in foster care.

       2. Alice

       Three days after Mother gave birth to Alice, the Department received a
report of physical abuse of Alice by Mother. The report alleged that Mother tested
positive for cocaine three months before giving birth to Alice, as recounted above.
The report noted that Mother tested negative on all subsequent drug tests. The
report further alleged that Father is in jail and that there is a history of domestic
abuse between Father and Mother. Alice did not test positive for illegal substances

                                          4
when she was born.

      Upon being interviewed by a Department investigator, Mother denied using
cocaine and claimed to be perplexed regarding her positive drug test results.
Mother stated that Father used cocaine and that she could have tested positive as a
result of their sexual intercourse. The Department investigator noted in her report
that Alice was wrapped in a blanket and sleeping peacefully in her Mother’s arms
during their conversation. The investigator also spoke with Grandmother who
stated she was happy to help Mother with Alice and hoped Mother would do
whatever it takes to get Ethan and Alex returned to her custody. Mother voluntarily
placed Alice into the care of Grandmother. The trial court awarded the Department
temporary managing conservatorship of Alice a month later. Alice and her brothers
remained in the care of Grandmother for one year, until the Department discovered
Grandmother allowed Mother unsupervised overnight visitation with the children.
The Department placed all three children in a foster home after the unsupervised
visits were discovered.

      B. Trial

      The Department’s caseworker, Alisha Matthews, testified that the case
regarding Alice began when Alice was born, because Mother tested positive for
cocaine while Mother was seven months pregnant. Matthews testified that the
Department gave Mother a family service plan and, at the time of trial, Mother had
completed all her services. Matthews explained that a component of Mother’s
service plan was counseling on domestic violence, which Mother completed.

      According to Matthews, the Department’s goal for Alice is unrelated
adoption. Matthews testified that Alice is bonded to her current foster parents and
all her needs are met. Ethan, Alex, and Alice are all placed in the same foster home
where the foster parents have expressed an interest in permanent adoption. At the
                                         5
time of trial, Alice had been in the foster home for approximately one month and
Ethan and Alex had been placed there for approximately two months. Matthews
further testified that the current foster parents began visitation with the children
before the placements began.

      Matthews explained that Grandmother is not a suitable option for Alice
because she previously allowed for unsupervised visitation between Mother and
the children.

      Matthews testified that at the time of trial, Mother was living in her own
apartment, for which the Department had a copy of the lease, and Mother had
maintained employment as a tax preparer during the pendency of the case.
Matthews confirmed that Mother has only tested positive for drugs on a single
occasion.

      According to Matthews, Father has tested positive for numerous illegal
substances throughout the Department’s investigation. Father signed an irrevocable
affidavit relinquishing his rights to Alice before trial commenced. Father has a
criminal history dating back to 2012, which includes burglary of a motor vehicle,
evading arrest, and criminal trespass. Matthews confirmed that the father of Ethan
has a criminal history dating back to 2009, which includes burglary of a building,
possession of a controlled substance, evading arrest, burglary of a vehicle, and
assault on a public servant. Upon questioning, Matthews testified that by having
these men around as fathers, Mother endangered her children. At the time of trial,
Father was incarcerated.

      Next, Mother testified. According to Mother, she is in her second year of
employment as a tax preparer with the same employer. The only explanation
Mother could offer regarding her positive drug test was that she was living with
Father at the time of the test and that she may have tested positive due to their
                                         6
sexual intercourse. Mother adamantly denied using drugs. Mother testified that she
requested a new drug test when she learned she tested positive. According to
Mother, she completed all her services, has been living in her own apartment for
close to a year, and has held a stable job for close to two years. Mother testified she
has worked hard to make her life stable, so she could regain custody of her
children. Mother admitted to having unsupervised visitation with the children when
they were living with Grandmother and acknowledged that was in violation of the
terms of her family service plan.

      Mother said she never saw Father use drugs, but that she saw him “high” on
numerous occasions while they were living together, including while Mother was
pregnant with Alice. Mother testified that Father hit her in April and May of 2016,
just a few months before Alice was born. Mother testified that she and Father
ceased living together in May of 2016. Mother further testified that she never lived
with the father of Ethan and that he disappeared from her life when she informed
him she was pregnant. Mother explained that she does not want either father of her
children in her life because she now realizes they are “really bad influences.”
Mother admitted she was previously aware of Father’s criminal record.

      Next, Bruce Jefferies, an employee at the National Screening Center,
testified. Jefferies testified that he has received specialized training regarding
analysis of drug test results and has been employed by the National Screening
Center for twenty-six years. Jefferies explained that in May of 2016 Mother
submitted to an “extended opiate hair test” which showed positive results for
cocaine usage. Mother took a “zero tolerance hair test” the same day to confirm the
results, which also showed positive results for cocaine use. Jefferies testified that
Mother took the same tests one month later and the results came back negative for
use of illegal substances or alcohol. Jefferies further testified that based on the

                                          7
timing of the drug tests, and the date of Alice’s birth, there is no doubt in his mind
that Mother used cocaine twice during her pregnancy. Specifically, Jefferies stated
in regard to Mother’s cocaine use, “[m]y honest opinion it could have been just a
bad decision on a Friday and Saturday. And it was so small of amount that if Mr.
Ritter didn’t run that second test, the extended opiate—I mean the zero tolerance
with exposure it would have ran the same test, may have been 19870N, you might
have got a negative.” According to Jefferies, it is not possible for someone to pass
on positive drug results through sexual contact, as Mother theorized.

          The Department next called the Court Appointed Special Advocate Sara
Strom. Strom testified that she has been involved with this family since the
beginning of the case with Ethan and Alex. Strom believes it is in the best interest
of the children for Mother’s parental rights to be terminated because Mother has
shown consistent poor judgment. Strom testified about one instance where Mother
was in the restroom at the courthouse for a hearing in the boys’ case and got into a
fight with another woman who was pregnant with Father’s child. During cross
examination, Mother’s counsel asked Strom whether she knew that this other
woman was not required to be in court that day and had actually shown up at the
court house to “address” Mother. Both Mother and the other woman received
citations for “mutual combat” as a result of this incident.

          Strom further testified about evidence that was presented during the
termination hearing regarding Ethan and Alex. Strom explained that there was
evidence that while the boys were in Grandmother’s custody, Mother, without
supervision, took them to visit Father in jail. Storm testified that the trial court
ultimately terminated Mother’s parental rights to Alex and Ethan in that case,
largely due to her violation of the court’s order in taking the boys on unsupervised
visits.

                                          8
      According to Strom, Alice is currently in a “mature environment” with her
new foster parents. She is placed with her two brothers and the foster parents have
expressed interest in permanent adoption. Strom testified that Alice is bonded with
her foster parents and it would be detrimental to remove her from their home.

      After Strom’s testimony, the Department rested its case. Mother called
Grandmother to testify on her behalf. Grandmother testified that she allowed
Mother to take the boys on an unsupervised visit to be with their dying great-
grandfather. Grandmother denied any knowledge that Mother was taking the boys
to visit Father in jail. Grandmother testified that she has seen great changes in
Mother since Alice’s case began. Mother has been working hard to complete her
service plan and create stability in her life to regain custody of her children.

      Next, Officer Alvero Vallejo testified on Mother’s behalf. Officer Vallejo
testified that he has known Mother for the last nine years through his work with at-
risk-youth in the community of Gulfton. Officer Vallejo explained that he has seen
Mother mature and change significantly over the last year. He stated that Mother
previously made poor choices with regard to the fathers of her children, but that
she has since shown improvement by complying with her family service plan.
Officer Vallejo does not believe that the Fathers of the children represent a danger
to the children because they are incarcerated. Officer Vallejo testified that he does
not believe Mother’s parental rights should be terminated. According to Officer
Vallejo, Mother has always adamantly insisted that she does not use drugs.

      After Officer Vallejo’s testimony, both sides rested. The trial court indicated
it would like to further review the evidence regarding the criminal background of
the two fathers before hearing closing arguments, because the Department’s
counsel argued the fathers’ backgrounds helped to prove endangerment grounds.
The case was continued for closing arguments to be presented at a later date.

                                           9
      A month later, when the case resumed, the Department asked the court to
reopen the case because additional evidence had “come to light.” The Department
called the Court Appointed Special Advocate, Sara Strom, back to the stand. Strom
testified she viewed Mother’s Facebook page after trial recessed and discovered
evidence indicating that Mother intends to continue her relationship with Father,
despite her testimony to the contrary. Strom provided print-outs from Mother’s
Facebook page that were entered into evidence. One print-out reflects Mother’s
“relationship status” affirming that she is “engaged.” Another print-out shows a
post from Mother stating that Father is going to adopt Ethan and expressing her
love for Father. Strom testified that this post was made on March 27, 2018—trial
commenced March 6, 2018 and resumed April 10, 2018. A third print-out is a
picture of Father with the caption, “Free My Husband The Father of my 2 Kids.”
Strom did not testify as to the dates of the first or last Facebook print-out.

      The Department then presented closing argument, requesting the court
terminate Mother’s parental rights pursuant to Tex. Fam. Code Ann. §
161.001(b)(1)(D) and (E), based on Mother’s positive drug tests, Mother’s
continuing to allow Father around the children when Father was using drugs, and
was engaged in criminal activity, and good placement for the children, intended to
be permanent.

      Counsel for the Department further specified the criminal convictions and
drug test results of Father, including the positive results for marijuana and cocaine,
and argued that Mother allowed him around the children under those conditions,
endangering the children.

      Counsel went on to concede that there was no evidence that Father was
physically present in Mother’s or Alice’s life since the time Alice was born.
Despite his lack of past physical presence, counsel argued that the Facebook

                                           10
evidence shows that Mother intends to be with Father when he is released from
jail.

        Mother’s counsel argued the evidence presented by the Department was
insufficient to prove the predicate grounds. The guardian-ad-litem testified that
while it does appear Mother had made progress on her service plan, her alleged on-
going relationship with Father tends to prove that she has not implemented what
she has learned into her daily life. The guardian-ad-litem ultimately testified that
he concurs with the Department in requesting termination.

        The trial court terminated Mother’s parental rights to Alice on the two
endangerment predicate grounds. See Tex. Fam. Code Ann. § 161.001(b)(1)(D)
and (E). The trial court also found that termination of Mother’s parental rights was
in Alice’s best interest and appointed the Department sole managing conservator.
In this appeal, Mother challenges the termination of her parental rights.

                                 ISSUES AND ANALYSIS

        Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section
161.001(b)(1); and (2) termination is in the best interest of the child. Tex. Fam.
Code Ann. § 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
Mother raises three issues on appeal. In her first and second issues, Mother
challenges the trial court’s findings under sections 161.001(b)(1)(D) and (E). In her
third issue, Mother challenges the trial court’s finding that termination of her
parental rights is in the child’s best interest.

    A. Standard of Review

        Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);

                                            11
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). Despite the constitutional magnitude of parental rights, they are not absolute.
In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (stating “[j]ust as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right”). Due to the severity and
permanency of the termination of parental rights, the law imposes a heightened
burden of proof, requiring clear and convincing evidence. See Tex. Fam. Code
Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).

      “Clear and convincing evidence” means “the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007;
In re J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a
heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).

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

      In reviewing the factual sufficiency of the evidence, we consider and weigh
all of the evidence, including disputed or conflicting evidence. In re J.O.A., 283
S.W.3d at 345. “If, in light of the entire record, the disputed evidence that a

                                          12
reasonable fact finder could not have credited in favor of the finding is so
significant that a fact finder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” Id. We give due deference
to the fact finder’s findings and we cannot substitute our own judgment for that of
the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The fact finder is
the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at
109.

   B. Predicate Termination Grounds

       The trial court terminated Mother’s parental rights based on its predicate
findings under Texas Family Code sections 161.001(b)(1)(D) and (E). Termination
of parental rights is warranted under these respective sections if the fact finder
finds by clear and convincing evidence, in addition to the best-interest finding, that
the parent has:

       (D) knowingly placed or knowingly allowed the child to remain in
       conditions or surroundings which endanger the physical or emotional
       well-being of the child;
       ***
       (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 Ann. § 161.001(b)(1)(D) & (E).
       1.    Predicate Finding under Subsection E – Endangerment

       The trial court found Mother “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.” See Tex. Fam. Code Ann. § 161.001(b)(1)(E).
“Endanger” means to expose a child to loss or injury or to jeopardize a child’s
emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)


                                         13
(per curiam). Under subsection (E), the relevant inquiry is whether evidence exists
that the endangerment of the child’s physical and emotional well-being was the
direct result of the parent’s conduct, including acts, omissions, or failures to act. In
re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see also In
re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
A child is endangered when the environment creates a potential for danger that the
parent is aware of but disregards. In re S.M.L., 171 S.W.3d at 477.

      Termination under subsection 161.001(b)(1)(E) must be based on more than
a single act or omission—the evidence must demonstrate a voluntary, deliberate,
and conscious course of conduct by the parent. In re C.A.B., 289 S.W.3d 874, 883
(Tex. App.—Houston [14th Dist.] 2009, no pet.). “Although ‘endanger’ means
more than a threat of metaphysical injury or the possible ill effects of a less-than-
ideal environment, it is not necessary that the conduct be directed at the child or
that the child actually suffers injury.” In re C.J.S., 383 S.W.3d 682, 688 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). Danger to the child’s well-being may
be inferred from parental misconduct alone, and courts may look at parental
conduct both before and after the child’s birth. Id.

       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. The trier of fact also may consider evidence of domestic violence
as evidence of endangerment under subsection (E). See In re M.R., 243 S.W.3d
807, 819 (Tex. App.—Fort Worth 2007, no pet.). Likewise, illegal drug use may
support termination under subsection 161.001(b)(1)(E) because “it exposes the
child to the possibility that the parent may be impaired or imprisoned.” 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

                                          14
support a finding that the parent engaged in conduct that endangered the child’s
physical or emotional well-being. In re E.R.W., 528 S.W.3d at 264-65.

      The Department provided evidence regarding Mother’s endangerment of
Alice :

           Mother’s positive drug test results for cocaine while she was pregnant
             with Alice;

           The affidavit supporting termination of Mother’s parental rights to
             Ethan and Alex, which includes Mother’s admitted use of marijuana
             while caring for Ethan and Alex;

           Father’s drug use and domestic abuse of Mother while she was
             pregnant with Alice;

           Mother living with Father while he used drugs and physically abused
             Mother;

           Mother’s admission that she knew of Father’s criminal history while
             living with Father;

           Mother’s violation of the court ordered service plan; and

           Evidence of Father’s criminal record.

      Although, Mother contested the evidence regarding her use of cocaine, and
testified that she no longer intended to have Father present in her life, the factfinder
is the sole arbiter when assessing the credibility and demeanor of witnesses. In re
H.R.M., 209 S.W.3d at 109. We are not to “second-guess the trial court’s
resolution of a factual dispute by relying on evidence that is either disputed, or that
the court could easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003). Furthermore, there was ample evidence weighing against

                                          15
Mother’s credibility, including her agreement to complete a service plan with
Ethan and Alex, but failure to follow through; her testimony that Father was no
longer in her life, which was subsequently controverted by the Facebook postings;
and her failure to follow court orders in taking the children on unsupervised visits.

      The drug test results show that Mother used cocaine while she was pregnant
with Alice and under investigation by the Department regarding her two sons. The
possession of cocaine, under one gram, is a state jail felony. Tex. Health & Safety
Code Ann. §§ 481.115 and 481.102. Mother exposed Alice to loss or injury by
engaging in criminal behavior that could have resulted in her incarceration for up
to two years in jail. See Tex. Penal Code Ann. § 12.35 (providing that a person
guilty of a state jail felony shall be punished by confinement in a state jail for any
term of not more than two years or less than 180 days). Mother could have given
birth to Alice in a state jail facility as a result of incarceration. While mere
imprisonment will not, standing alone, constitute conduct endangering the physical
or emotional well-being of the child, it may contribute to a finding that the parent
engaged in a course of conduct which endangered a child’s physical or emotional
well-being. See Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34
(Tex. 1987).

      Mother knowingly subjected Alice to a life of uncertainty by taking risks
with her own health and that of Alice’s in using cocaine while pregnant and living
with a man who hit her. A person can overdose, have a heart attack or stroke, and
even die from even a small amount cocaine. See Rodriguez v. State, 31 S.W.3d
772, 778 (Tex. App.—Austin 2000), aff’d 104 S.W.3d 87, 92 (Tex. Crim. App.
2003) (doctor testified that cocaine is a lethal substance and that any amount can
cause of myriad of side effects, including death). The potential for overdose or
death exposes a child to loss or injury that constitutes endangerment under

                                          16
subsection (E).

      Moreover, Mother chose to live with a man with whom she had a history of
domestic violence. Domestic violence, want of self-control, and propensity for
violence may be considered as evidence of endangerment. In re M.R., 243 S.W.3d
at 819 (considering the fact that mother “exposed her children to domestic
violence,” including an incident where mother was “smacked” in front of child, as
evidence of endangerment under subsection (E)).

       Mother testified that Father came home “high” on at least five occasions
while they were living together and while she was pregnant. Mother admitted she
was aware of Father’s criminal record, but still chose to live with this man while
she was pregnant and had her two sons removed from her custody. Further, Mother
missed appointments and failed to follow an agreed service plan during the
Department’s investigation of Ethan and Alex.

      Ultimately, Mother’s behavior created potential danger for Alice, which
Mother consciously disregarded. This lack of concern for Alice’s well-being and
shirking of parental responsibilities with regard to Ethan and Alex, supports
termination under subsection (E). See In re S.M.L, 171 S.W.3d at 480.

      Because the record contains legally and factually sufficient evidence to
support the trial court’s finding under section (E), we need not address Mother’s
arguments that the evidence is insufficient to support the trial court’s findings
under sections 161.001(b)(1)(D). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)
(“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.”). We overrule Mother’s first and second issues.




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   C. Best Interest of Alice

      Texas courts presume that keeping children with their natural parent serves
the child’s best interest. In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston
[14th Dist.] 2003, pet. denied). The Department carries the burden of rebutting that
presumption. Id. Proof of acts or omissions under section 161.001(b)(1) is
probative of the issue of a child’s best interest. See In re S.R., 452 S.W.3d at 366.
The considerations the trier of fact may use to determine the best interest of the
child, known as the Holley factors, include:

      (1) the desires of the child
      (2) the present and future physical and emotional needs of the child;
      (3) the present and future emotional and physical danger to the child;
      (4) the parental abilities of the persons seeking custody;
      (5) the programs available to assist those persons seeking custody in
      promoting the best interest of the child;
      (6) the plans for the child by the individuals or agency seeking custody;
      (7) the stability of the home or proposed placement;
      (8) acts or omissions of the parent that may indicate the existing parent-
      child relationship is not appropriate; and
      (9) any excuse for the parents’ acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re U.P., 105 S.W.3d at
230; see also Tex. Fam. Code Ann. § 263.307(b) (listing factors to consider in
evaluating parents’ willingness and ability to provide the children with a safe
environment). A finding in support of “best interest” does not require proof of any
unique   set   of   factors,   nor   does      it   limit   proof   to   any   specific
factors. See Holley, 544 S.W.2d at 371–72.



      1. The Desires of the Child

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      When a child is too young to express his desires, the factfinder may consider
that the child has bonded with the foster family, is well cared for in the current
placement, and has spent minimal time with a parent. In re J.D., 436 S.W.3d 105,
118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Alice is too young to express
her desires, but the Department’s caseworker testified Alice is bonded in her
current foster home, with her brothers, and with foster parents who want to adopt
all three children. Other than the unsupervised visits with Mother in violation of
court order, Alice has spent minimal time with Mother.

      2. The Future Emotional and Physical Danger to the Child

      Although Mother testified that she wants nothing to do with Father, the
Department presented evidence to the contrary. According to the Court Appointed
Special Advocate, the Facebook post stating Mother loved Father was made in
between when trial recessed and continued—just shortly after Mother testified in
court that she no longer wanted to be with him. The trial court was free to discredit
Mother’s self-serving testimony and believe that of the court appointed advocate.
See H.R.M., 209 S.W.3d at 109 (fact finder is sole arbiter when assessing
credibility and demeanor of witnesses). The trial court was free to believe that
Alice’s future with Mother could involve a life parental domestic violence and
criminal activity.

      3. The Parental Abilities of the Persons Seeking Custody

      The Department’s caseworker testified that the foster parents are both
teachers, are able to provide financially for all of the children and want to adopt all
three of the children. Mother has just found some stability in her life after six years
of demonstrated immaturity and poor decisions—including physical neglect of her
two sons. Evidence of a recent turnaround should be determinative only if it is
reasonable to conclude that rehabilitation, once begun, will surely continue. In re
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M.G.D., 108 S.W.3d 508, 514 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied).

      4. The Programs Available to Assist those Persons Seeking Custody

      The Department’s caseworker testified that Mother has completed her
service plan. However, compliance with a family service plan does not render
termination impossible or trump all other termination factors. Id. “The elements of
a safe, stable, and happy childhood cannot all be reduced to a checklist in a service
plan.” Id. The guardian-ad-litem stated that while he commended Mother for
turning her life around and completing her services, he did not think her behavior,
specifically her relationship with Father, indicated that she was applying those
lessons into her life. While there are programs for Mother, the fact-finder was free
to believe that Mother would not make proper use of those programs. See H.R.M.,
209 S.W.3d at 109.

      5. The Plans for the Child by the Individuals Seeking Custody

      Mother did not testify what her plans were for Alice. Mother testified that
she has worked hard to secure an apartment and a steady job in order to gain back
custody of her children. However, there was also evidence that Father might be a
part of Mother’s future plans for Alice. Father’s long criminal history and history
of abuse threatens to destabilize the life Mother envisions for herself and her
children. Father also voluntarily terminated his parental rights. On the other hand,
all three children are thriving in the care of their foster parents who would like to
permanently adopt them. Texas courts recognize as a paramount consideration in
the best-interest determination the children’s need for permanence through the
establishment of a “stable, permanent home.” See In re K.C., 219 S.W.3d 924, 927
(Tex. App.—Dallas 2007, no pet.). Alice is currently in a safe, stable, and
potentially permanent home with her foster parents.
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       Despite Mother’s seeming turn-around, the totality of the evidence is such
that a reasonable factfinder could form a firm conviction or belief that termination
of Mother’s parental rights is in Alice’s best interest, notwithstanding Mother’s
turnaround and signs of sustained reformation. See In re M.G.D., 108 S.W.3d at
532. Under the current standard of review, the evidence is legally and factually
sufficient to support the trial court’s best-interest finding.

                                     CONCLUSION

       Having concluded the evidence is legally and factually sufficient to support
the trial court’s finding terminating Mother’s parental rights under section
161.001(1)(E) and that termination is in Alice’s best interest, we conclude that the
record evidence supports the trial court’s judgment. We affirm the judgment of the
trial court.




                                         /s/     Margaret “Meg” Poissant
                                                 Justice



Panel consists of Justices Christopher, Hassan, and Poissant.




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