Opinion issued January 31, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-12-00736-CV
                           ———————————
                  IN THE INTEREST OF Z.L.W., A CHILD



                   On Appeal from the 314th District Court
                           Harris County, Texas
                     Trial Court Case No. 2011-04570J



                         MEMORANDUM OPINION

      This is an appeal from the termination of the parental rights of a mother,

K.E.W., with respect to her daughter, Z.L.W.        See TEX. FAM. CODE ANN.

§ 161.001 (West Supp. 2012). On appeal, the mother argues that the evidence is

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

committed a predicate act required for termination and that termination was in her
daughter’s best interests. The Department presented evidence that the mother used

and sold illegal narcotics both during her pregnancy and after her daughter was

removed from her custody.          This evidence was sufficient to support a

determination that the mother engaged in conduct which endangered the physical

or emotional well-being of the child, see id. § 161.001(1)(E), and, along with other

relevant considerations, that termination would be in the child’s best interest.

Accordingly, we affirm.

                                   Background

      Appellant K.E.W. was in jail when she gave birth to her daughter, Z.L.W.

The mother had been jailed on a conviction for delivery of cocaine, and she

admitted she had committed the offense while pregnant. The mother also admitted

she used cocaine during her pregnancy with her daughter—she admitted using

cocaine as late as January 2011, and the child was born in July 2011. After Z.L.W.

was born, the Department placed the infant in the same foster home as her older

brother, to whom the mother had previously relinquished her parental rights. That

same day, the Department filed a petition to terminate the mother’s parent-child

relationship with her daughter and requested that it be appointed temporary sole

managing conservator. Two days later, the mother was released from jail.

      Ten days after the filing of the termination action, the mother tested positive

for cocaine. After a hearing, the court ordered that the mother comply with a


                                         2
family plan of service in order to obtain the return of her child. The order also

specifically required that she complete parenting classes, maintain stable housing

and employment, and remain drug-free.          Nevertheless, she tested positive for

cocaine again eight months later, in May 2012.

      When the case was tried before the court, the mother presented evidence that

she had turned her life around after her release from jail.       She disputed the

evidence that she had used cocaine since that time, testifying that that the May

result was a false positive. She voluntarily submitted to two additional drug tests,

in June and August 2012, which resulted in negative results for drug use. She also

presented evidence that she had complied with the other aspects of the court-

ordered plan to obtain the return of her daughter. She had maintained stable

employment and housing. The child’s caseworker testified that the mother’s home

was appropriate and that she bonded with her daughter over the course of her

supervised visits. The mother successfully completed the required counseling

services and a psycho-social evaluation.

      Even considering the mother’s progress, the Department still contended that

termination of parental rights was in the child’s best interest. With respect to the

drug tests, a representative of the company that analyzed the results testified that

the amount of cocaine detected in the mother’s hair follicle collected in May 2012

was indicative of using cocaine “two or three days in a row,” and approximately

                                           3
half the amount that would indicate “a chronic cocaine user.” The witness also

testified that the later tests arranged by the mother did not undermine the positive

results obtained in May, because that test used a more sophisticated testing

technique and reflected a different period of time than the later tests.          The

Department also presented the testimony of a caseworker stating that Z.L.W. had

been with the foster parents almost her whole life and that she could remain with

her older brother if the foster parents adopted her, which they intended to do.

      The trial court found by clear and convincing evidence that the mother had

engaged in conduct that endangered her daughter’s physical or emotional well-

being, see TEX. FAM. CODE ANN. § 161.001(1)(E), and that the mother failed to

comply with a court order establishing the actions necessary for her to obtain the

return of a child placed with Department, see id. § 161.001(1)(O). Additionally,

the court found that termination was in the child’s best interest, see id. §

161.001(2), that appointment of a parent as managing conservator would not be in

her best interest, and that appointment of the Department as sole managing

conservator would be in her best interest. The mother filed a motion for new trial

challenging the legal and factual sufficiency of the evidence supporting the

termination decree, which the trial court denied. The mother then filed this timely

appeal.




                                          4
                                      Analysis

      In three issues, the mother challenges the legal and factual sufficiency of the

evidence supporting the judgment terminating her parental rights with respect to

Z.L.W. Protection of the best interest of the child is the primary focus of the

termination proceeding in the trial court and our appellate review. See In re A.V.,

113 S.W.3d 355, 361 (Tex. 2003). A parent’s right to the care, custody, and

control of her child is a precious liberty interest protected under the Constitution.

See, e.g., Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000);

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

Accordingly, termination proceedings are strictly scrutinized on appeal. Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence must

support the decision to terminate parental rights. In re J.F.C., 96 S.W.3d 256,

263–64 (Tex. 2002); see also Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92.

      Evidence is legally sufficient if it is “such that a factfinder could reasonably

form a firm belief or conviction about the truth of the matter on which the State

bears the burden of proof.” J.F.C., 96 S.W.3d at 265–66; see TEX. FAM. CODE

ANN. § 101.007 (West 2008). We review “the evidence in the light most favorable

to the judgment,” meaning that we “must assume that the factfinder resolved

disputed facts in favor of its finding if a reasonable factfinder could do so.” J.F.C.,

96 S.W.3d at 266. “If, after conducting its legal sufficiency review of the record


                                          5
evidence, a court determines that no reasonable factfinder could form a firm belief

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

conclude that the evidence is legally insufficient.” Id.

      Under factual sufficiency review, we must give due consideration to

evidence that the factfinder could reasonably have found to be clear and

convincing.      Id.   We consider whether the disputed evidence is such that a

reasonable factfinder could not have resolved that disputed evidence in favor of its

finding.   Id.    “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.” Id.

      In proceedings to terminate the parent-child relationship, the Department

must establish that one or more of the acts or omissions listed in Family Code

section 161.001(1) occurred and that termination is in the best interest of the child.

See TEX. FAM. CODE ANN. § 161.001. Both elements must be established, and

termination may not be based solely on the best interest of the child as determined

by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533

(Tex. 1987). “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. In this case, the trial court

                                          6
based the termination of the mother’s parental rights on the predicate grounds of

endangerment, see TEX. FAM. CODE ANN. § 161.001(1)(E), and failure to comply

with a court order, see id. § 161.001(1)(O).

I.    Endangerment (§ 161.001(1)(E))

      The mother challenges the trial court’s findings that she endangered her

daughter. The predicate condition of section 161.001(1)(E) is satisfied if the

parent has “engaged in conduct . . . which endangers the physical or emotional

well-being of the child.” Id. § 161.001(1)(E). In this context, “endanger” means to

expose to loss or injury or to jeopardize. Boyd, 727 S.W.2d at 533. The term

means “more than a threat of metaphysical injury or the possible ill effects of a

less-than-ideal family environment,” but “it is not necessary that the conduct be

directed at the child or that the child actually suffers injury.” Id. The Department

bears the burden of introducing evidence concerning the offense and establishing

that the offense was part of a voluntary course of conduct that endangered the

child’s well-being. In re E.N.C., 384 S.W.3d 796, 805 (Tex. 2012); see also

Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 616–17 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied). To determine whether termination

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

birth. J.O.A., 283 S.W.3d at 345. The conduct need not occur in the child’s




                                          7
presence, and it may occur “both before and after the child has been removed.”

Walker, 312 S.W.3d at 617.

      “[A] parent’s use of narcotics and its effect on his or her ability to parent

may qualify as an endangering course of conduct.” J.O.A., 283 S.W.3d at 345. A

mother’s drug use during pregnancy may be considered endangering to the unborn

child. See Latham v. Dep’t of Family & Protective Servs., 177 S.W.3d 341, 348

(Tex. App.—Houston [1st Dist.] 2005, no pet.); Robinson v. Texas Dep’t of

Protective & Regulatory Servs., 89 S.W.3d 679, 687 n.9 (Tex. App.—Houston [1st

Dist.] 2002, no pet.). Moreover, illegal drug use also may support termination

under section 161.001(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.

      The mother in this case relies on a recent decision of the Supreme Court of

Texas, In re E.N.C., 384 S.W.3d 796 (Tex. 2012), to argue that the fact she was

incarcerated at the time her daughter was born “does not in and of itself constitute

legally sufficient proof to support the endangerment finding.” But we need not

decide whether that fact alone was sufficient, because the record in this case

reflects much more. The mother admitted using cocaine as late as January 2011,

only six months before the birth of her child, at a time when she was pregnant.

The drug test results presented at trial also showed that the mother used cocaine

after the child was removed from her and at a time when she was subject to a court

                                         8
order requiring her to remain drug-free as a condition for the return of the child.

Using drugs under those circumstances subjected the mother to the general risk of

incarceration and also, in the context of the ongoing termination proceeding,

presented a specific risk that her parental rights would be terminated as a result.

The evidence of all of this conduct supports a finding of endangerment in the

relevant sense under section 161.001(1)(E). See, e.g., Latham, 177 S.W.3d at 348

(drug use during pregnancy); Walker, 312 S.W.3d at 617 (noting drug use during

pendency of parental termination proceedings as an endangering factor due to the

effect on a parent’s “life and ability to parent”).

      Although the mother denied using cocaine after the child’s birth, the trial

court, as factfinder, was the sole arbiter of the credibility of witnesses. See In re

H.R.M., 209 S.W.3d 105, 109 (Tex. 2006). In light of the evidence presented

about the positive drug test conducted in May 2012, the court was not required to

believe the mother’s assertion that the test produced a false positive. Accordingly,

we conclude that the evidence is both legally and factually sufficient for the trial

court to have reasonably formed a firm belief that the mother engaged in conduct

that endangered her child’s well-being. We overrule the mother’s issues relating to

the legal and factual sufficiency of the evidence to support the trial court’s finding

under section 161.001(1)(E). Accordingly, we need not address the sufficiency of

the evidence under section 161.001(1)(O), her second issue, because only one

                                            9
finding under 161.001(1) is necessary to support a judgment of termination. See

TEX. FAM. CODE ANN. § 161.001; A.V., 113 S.W.3d at 362.

II.   Best interest of the child (§ 161.001(2))

      The mother also challenges the legal and factual sufficiency of the evidence

to support the trial court’s finding that termination of the parent-child relationship

was in the child’s best interest.     In determining whether termination of the

mother’s parental rights was in the child’s best interest, we consider several

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

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

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

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

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

seeking custody, (7) stability of the home, (8) acts or omissions of the parent that

may indicate that the parent-child relationship is improper, and (9) any excuse for

acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976). The Department is not required to prove all of these factors, and the

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

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

interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence establishing one




                                         10
of the predicate acts under section 161.001(1) may also be relevant to determining

the best interest of the child. See id. at 27–28.

      The Department presented clear and convincing evidence supporting

termination under several of these Holley factors. Under the third Holley factor,

the mother’s pattern of continuing cocaine abuse and commission of criminal

offenses supporting that habit was evidence that there was current and future

danger to the child. See J.O.A., 283 S.W.3d at 346–47; Robinson, 89 S.W.3d at

687. Cf. TEX. FAM. CODE ANN. § 263.307(b)(8) (West 2008) (establishing family

“history of substance abuse” as a factor to be considered in determining the child’s

best interest). Additionally, the mother’s illegal drug use during pregnancy is itself

evidence of danger to the child. Robinson, 89 S.W.3d at 687 n.9 (citing Dupree v.

Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—

Dallas 1995, no writ)). Under the fourth Holley factor considering parental

abilities, the Department presented evidence that the mother had relinquished her

rights to her older child because she had difficulties caring for the child due to her

involvement in illegal drug activities.        Although mitigated by her successful

completion of parenting and counseling services, the mother’s positive drug test

was evidence that her difficulties caring for a child may continue because that

illegal drug involvement continues. Under the ninth Holley factor we consider any

excuses or explanations. The mother offered the explanation that her history of

                                          11
criminal convictions was due to her drug addiction which she had overcome, but

the positive test for a large amount of cocaine in her system suggested that,

contrary to her assertions, she had not successfully overcome her addiction.

      Other Holley factors weigh against the trial court’s best interest finding or

are neutral. The first and second Holley factors regarding the child’s desires and

needs are neutral because the child is an infant without expressed desires and there

was no evidence of any special needs or vulnerabilities. Under the fifth factor

concerning the programs available to assist the mother, there was evidence that the

mother had successfully taken advantage of family services and a job program.

Under the seventh factor regarding the stability of the home, there was evidence

that the mother’s home was satisfactory and appropriate, although, again, this is

mitigated by the evidence showing a history of drug abuse and prostitution. See

TEX. FAM. CODE ANN. § 263.307(b)(8). There was no evidence of any improper

parent-child relationship beyond the mother’s criminal history under the eighth

Holley factor.

      Finally, the Department offered evidence supporting termination under the

sixth and seventh factors regarding the plans for the child by the agency and the

stability of the proposed placement. The Department offered testimony that it

planned to place the child with her older brother in a foster home. The mother

admitted that the brother was doing well with the foster family, which had

                                        12
provided him with a safe home. The child herself was doing well with the foster

family and has been with them her entire life.

      In light of these factors, we conclude that a reasonable factfinder could have

formed a firm belief or conviction that termination of the mother’s parental rights

was in the child’s best interest based on the evidence the Department presented.

See TEX. FAM. CODE ANN. § 161.001(2); J.F.C., 96 S.W.3d at 272 (holding

reasonable factfinder can form firm conviction that termination in children’s best

interest in light of evidence weighing against termination when there is also

evidence favoring termination). We overrule the mother’s third issue.




                                         13
                                       Conclusion

      The Department presented evidence that the mother used and sold illegal

narcotics both while pregnant and after the newborn child was taken into the

Department’s custody. This was legally and factually sufficient to support the trial

court’s conclusion that the mother endangered the child’s well-being.          This

evidence was likewise sufficient to support the determination that termination of

parental rights was in the child’s best interest. Accordingly, we affirm the trial

court’s final decree of termination.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Jennings, Bland, and Massengale.




                                          14
