Opinion issued November 17, 2016




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-16-00561-CV
                            ———————————
 IN THE INTEREST OF B.P.E. AND R.W.S.E., AKA R.W.S.E, CHILDREN



                   On Appeal from the 313th District Court
                           Harris County, Texas
                     Trial Court Case No. 2015-04383J


                          MEMORANDUM OPINION

      In this accelerated appeal, S.E.C., a mother, challenges the trial court’s order

terminating her parental rights to her two sons, B.P.E. and R.W.S.E. S.E.C. appeals

the trial court’s judgment on the grounds that factually and legally insufficient

evidence supports the trial court’s conclusions that she committed three predicate
acts required for termination and that termination was in her children’s best interest.

We affirm.

                                     Background

      In July 2015, DFPS filed suit seeking conservatorship and termination of the

parental rights of S.E.C., a mother, and R.W.E., a father, with respect to their two

sons, B.P.E., born in April 2008, and R.W.S.E., born in October 2013.1 DFPS

asserted that S.E.C. committed one or more of the following acts or omissions:

             14.1 knowingly placed or knowingly allowed the
             children to remain in conditions or surroundings which
             endanger the physical or emotional well-being of the
             children, pursuant to §161.001(1)(D), Texas Family Code;

             14.2 engaged in conduct or knowingly placed the
             children with persons who engaged in conduct which
             endangers the physical or emotional well-being of the
             children, pursuant to §161.001(1)(E), Texas Family Code;

             14.3 constructively abandoned the children who have
             been in the permanent or temporary managing
             conservatorship of the Department of Family and
             Protective Services or an authorized agency for not less
             than six months and: (1) the Department or authorized
             agency has made reasonable efforts to return the children
             to the mother; (2) the mother has not regularly visited or
             maintained significant contact with the children; and
             (3) the mother has demonstrated an inability to provide the
             children with a safe environment, pursuant to
             §161.001(1)(N), Texas Family Code;



1
      R.W.E. voluntary relinquished his parental rights in June 2016 and is not a party to
      this appeal.

                                           2
             14.4 failed to comply with the provisions of a court order
             that specifically established the actions necessary for the
             mother to obtain the return of the children who have been
             in the permanent or temporary managing conservatorship
             of the Department of Family and Protective Services for
             not less than nine months as a result of the children’s
             removal from the parent under Chapter 262 for the abuse
             or neglect of the children, pursuant to §161.001(1)(O),
             Texas Family Code.

      DFPS attached to its petition the affidavit of caseworker Cassandra Sampson

detailing the facts forming the basis for removal of the children, the parties’ CPS

history, S.E.C.’s and R.W.E.’s criminal history, and DFPS’s conclusions and

requested relief. Sampson’s affidavit explained that the investigation began on June

16, 2015 when the children’s maternal uncle informed DFPS that the children had

been in his care for the past three weeks because their grandparents could not take

care of them anymore. The uncle stated that S.E.C. is on drugs and had been for a

long time and that he took the children to the CPS office because he did not want to

release them to S.E.C. He told the DFPS staff member that the children’s father was

in jail though they had a paternal uncle who would like to have the children placed

with him. Seven-year-old B.P.E. informed the staff member that he and R.W.S.E.

had been staying with S.E.C. and their grandfather before S.E.C. went to the hospital




                                         3
and that his grandparents did not want them to be in the home because S.E.C. is

using drugs.2

      S.E.C. also spoke to the CPS staff member that day and told him that she was

in the hospital because she had a seizure and her children were with her brother. She

stated that she was on Xanax and Suboxane for anxiety and pain and that her plan

was to place the children with their paternal uncle. She signed an Agreement for

Parental Child Safety Placement (PCSP), and the children were released to their

paternal uncle, pending the completion of the CPS investigation. The paternal uncle

initially agreed to take the children, but he later notified CPS that he could no longer

care for them. S.E.C. provided the names of friends of the paternal grandmother as

an alternate placement, but they too informed DFPS that they could not care for the

children.

      With regard to S.E.C. and R.W.E.’s CPS history, the affidavit details that

DFPS received a Priority 2 report in April 2013 alleging that S.E.C. had been abusing

pills for at least a few years. It notes that B.P.E.’s maternal uncle reported to DFPS

that S.E.C. and R.W.E. were both on pills at B.P.E.’s fifth birthday party. R.W.E.

was said to have been stumbling and falling and S.E.C. was said to have been sitting

like a zombie. The report specifies that S.E.C. was observed buying pills and



2
      B.P.E. first stated that he was not sure whether his mother was using drugs but later
      told the case worker that he was sure that his mother was not using drugs.

                                            4
slurring and that there had allegedly been 30 to 40 calls of domestic violence from

the residence. The section states that the house is sometimes “trashed.” The

affidavit explains that the case was then referred to Family Based Safety Services

from May 2013 to April 2014. S.E.C. and R.W.E. were ordered to participate in

substance abuse treatment. S.E.C. successfully completed treatment but, due to

being in jail, R.W.E. did not and was ordered to complete his services during

probation.

      According to Sampson’s affidavit, DFPS received another Priority 2 report in

October 2013 specifying that R.W.E. had a seizure and that test results revealed

R.W.E. had taken Xanax without a prescription. R.W.E. received the pills from

S.E.C. who had a prescription. The case was closed and addressed in the open

Family Based Safety Services case.

      Next, Sampson’s affidavit reflects that in March 2014, DFPS received another

Priority 2 report indicating that then seven-year-old B.P.E. walked to school with no

shirt or socks on in thirty degree weather. The report notes that B.P.E. wore dirty

clothes to school before and that he often claims S.E.C. is asleep when he leaves to

walk to school. B.P.E. claimed he did not have anything to eat at home and eats

breakfast, lunch and a snack at school. According to the affidavit, “the children

appear dirty and unkempt most of the time and frequently have lice.”




                                         5
      In October 2014, DFPS received a report that R.W.E. was in jail. The report

noted that R.W.E. uses heroin and S.E.C. uses Xanax and the maternal grandmother

and her boyfriend use crack and “whatever else they can get their hands on.” The

allegations were ruled out for S.E.C. She tested negative for drugs, and the case was

closed.

      In the Conclusions and Requested Relief section, the affidavit notes that

S.E.C. tested positive for benzodiazepine and cocaine in a June 2015 urinalysis and

amphetamines, methamphetamines, and cocaine in a June 2015 hair follicle test and

that she has a long history of drug use and a history with the agency. It reflects

DFPS’s opinion that there is an “immediate and continuing danger to the physical

health or safety of the children if they were returned to the care of the parents” and

that “reasonable efforts . . . were made to prevent and/or eliminate the need to

remove the children,” and “that there was not time, consistent with the circumstances

and providing for the safety of the children, for an emergency hearing prior to taking

possession of the children.”

      In July 2015, four days after DFPS filed its petition, S.E.C. filed a letter with

the court. In it, S.E.C. contended that she has never had a problem providing her

children with food and clean clothes. She acknowledged that she had a problem with

drugs in the past and stated that she was detoxing in June 2015 when she was

hospitalized for a seizure. According to the letter, S.E.C.’s brother notified her when



                                          6
she was in the hospital that their parents had left the children with him because they

could no longer take care of them. S.E.C. stated that she immediately left the

hospital and tried to have her brother take the children to their paternal uncle’s house,

however, he took them to CPS. According to S.E.C, she made repeated efforts to

call CPS to speak to and visit the children. She noted that she has a job at Sonic and

also applied to a job at Home Depot, is trying to go to AA classes, and looking for

an apartment. S.E.C. stated that she has been on benzodiazepine since she was

thirteen years old “due to being raised in an abusive home and raped as a child and

diagnosed with an irregular heartbeat.” She contended that she wanted to be

involved as much as possible with the children until they could return home.

      Thereafter, the court held an initial hearing in which it found that there was

sufficient evidence that:

             (1) there was a danger to the physical health or safety of
             the children which was caused by an act or failure to act
             of the person entitled to possession and for the children to
             remain in the home is contrary to the welfare of the
             children; (2) the urgent need for protection required the
             immediate removal of the children and makes efforts to
             eliminate or prevent the children’s removal impossible or
             unreasonable; and (3) notwithstanding reasonable efforts
             to eliminate the need for the children’s removal and enable
             the children to return home, there is a substantial risk of a
             continuing danger if the children are returned home.

Accordingly, the court ordered the appointment of DFPS as the temporary managing

conservator of B.P.E. and R.W.S.E. The court also ordered S.E.C. to submit to a



                                           7
drug test on that date and it was positive for methamphetamine, alprazolam, and

clonazepam. Pursuant to section 263.106 of the Texas Family Code, the court

ordered S.E.C. to comply with each requirement set out in DFPS’s Family Service

Plan (the “Plan”) which S.E.C. acknowledged in August 2015. The Plan laid out

goals, tasks, and services that S.E.C. was to complete. Among them, S.E.C. was to

refrain from engaging in criminal activities, submit to random drug screenings, and

participate in a substance abuse assessment.

      In December 2015, DFPS filed a status report with the court stating that S.E.C.

was in a treatment facility in California and R.W.E. was released from prison.

According to the report, the children were placed with a paternal relative in

Minnesota. DFPS requested that it remain temporary managing conservator and that

a permanency hearing be held in four months.

      In June 2016, the court held a bench trial of this matter. Cheryl Carver, the

caseworker assigned to B.P.E. and R.W.S.E.’s case since October 2015, testified on

behalf of DFPS. Carver testified that the children first came into care due to

“neglectful supervision” and that this was a “family based safety service case” in

which drugs were an issue. She explained that, to her knowledge, S.E.C. had not

completed any of the terms of the Plan in the nine months leading up to trial. She

stated that S.E.C. had not visited her children at all during this time and had only

spoken to them by phone until December 2015 after which she stopped calling them



                                         8
as scheduled. Carver noted that, though S.E.C. was not aware of it, the children’s

therapist recommended that they refrain from speaking to her because their

conversations disrupted the children’s behavior.

      Carver testified that S.E.C. was required to submit to drug testing as part of

the family service plan. She stated that S.E.C. had been tested multiple times

throughout the pendency of the case and had tested positive for a number of different

drugs including methamphetamines. S.E.C. was also tested numerous times during

DFPS’s involvement before suit was filed. During trial, the court admitted the

results of S.E.C.’s drug tests from 2013 to 2015. They reflect:

          S.E.C. tested positive for marijuana on April 18, 2013;

          S.E.C. tested positive for benzodiazepine on August 28, 2013;

          S.E.C. tested positive for benzodiazepine (alprazolam metabolite),

             hydrocodone, and hydromorphone on February 25, 2014;

          S.E.C. tested positive for benzodiazepine on October 31, 2014,

             however, based on a valid medical explanation the positive result was

             changed to negative for illicit drug use;




                                          9
        S.E.C.      tested     positive     in     a   hair   test   for   amphetamines,

           methamphetamines, and cocaine, and in a second urine specimen for

           benzodiazepine and cocaine on June 30, 2015;3

        S.E.C. provided three specimens that tested positive on July 29, 2015—

           the   first   tested   positive        for   methamphetamine,      clonazepam,

           benzodiazepine (alprazolam metabolites), and cocaine metabolites, the

           second (a hair specimen test) tested positive for amphetamine,

           methamphetamine, and two cocaine metabolites (benzoylecgonine and

           cocaine), and the third specimen tested positive for ethyl glucuronide

           and ethyl sulfate;

        Finally, S.E.C. provided three specimens for testing on September 16,

           2015—the first (a hair specimen) tested positive for marijuana,

           marijuana metabolite, and three cocaine metabolites (benzoylecgonine,

           cocaine, and norcocaine), the second specimen tested positive for

           benzodiazepine (alprazolam metabolites) and high for cocaine

           metabolite, and the third showed a positive result for ethyl sulfate but

           was invalidated for reasons not stated.




3
    The first urine specimen collected on this date was invalidated for being outside of
    the normal temperature range so a second urine specimen was taken under direct
    supervision.

                                           10
      Carver testified that based on results of the drug tests, she formed the opinion

that S.E.C. had engaged in conduct that endangered the physical or emotional well-

being of her children. She opined that termination was in the best interest of the

children in light of S.E.C.’s continued drug use even after her children went into

DFPS care, her continued engagement in criminal activity, and her failure to comply

with the Plan.

      Carver explained that the children had been placed with their paternal relative

(R.W.E.’s sister) in Minnesota, who was meeting the children’s physical and

emotional needs and wanted to adopt B.P.E. and R.W.S.E. She noted that the

children were doing well in school and B.P.E. in particular had shown a lot of

improvement. Carver explained that R.W.E.’s sister and her husband had been

screened and licensed for foster care, that she saw no impediments to adoption, and

that it would be in the best interest of the children to remain connected with the birth

family but have two responsible parents.

      The children’s guardian ad litem likewise testified that it was in the children’s

best interest to remain with their paternal aunt in Minnesota. He requested to remain

on the case to see it through the adoption process.

      In closing, S.E.C.’s counsel asked the court to allow him to try to obtain a

relinquishment from S.E.C. before entry of the order. In the alternative, he argued

that though S.E.C.’s conduct endangered the children before they went into DFPS



                                           11
care, the court should not consider S.E.C.’s subsequent conduct because S.E.C. acted

in their best interest when she told DFPS about potential placements.

      The trial court terminated S.E.C.’s parental rights pursuant to section

161.001(b)(1)(D), (E), and (O) of the Texas Family Code. S.E.C. appealed.

                                      Discussion

      In her first, second, and third issues, S.E.C. asserts that the evidence was

legally and factually insufficient to support the termination of her parental rights

under Texas Family Code sections 161.001(b)(1)(D), (E), or (O), respectively. In

her fourth issue, S.E.C. challenges the trial court’s determination that termination of

her parental rights was in the children’s best interest.

A.    Standard of Review

      In a case to terminate parental rights under section 161.001, DFPS must

establish by clear and convincing evidence: (1) that the parent committed one or

more of the enumerated acts or omissions justifying termination and (2) that

termination is in the best interest of the child. TEX. FAM. CODE § 161.001; In re

C.H., 89 S.W.3d 17, 23 (Tex. 2002). “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.” TEX.

FAM. CODE § 101.007; In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).




                                           12
      In conducting a legal-sufficiency review in a parental-rights-termination case

brought by DFPS, we must look at the entire record to determine whether the

evidence, viewed in the light most favorable to the finding, is such that a reasonable

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

on which DFPS had the burden of proof. In re J.O.A., 283 S.W.3d at 344–45 (citing

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We “must assume that the factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder could do so,”

and we “should disregard all evidence that a reasonable factfinder could have

disbelieved or found to have been incredible.” Id. at 344.

      In conducting a factual-sufficiency review, we view all of the evidence,

including disputed or conflicting evidence. Id. at 345. We should consider whether

the disputed evidence is such that a reasonable factfinder could not have resolved

that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. The

evidence is factually insufficient only 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” regarding the finding under review. In re J.O.A., 283 S.W.3d at 345

(quoting In re J.F.C., 96 S.W.3d at 266).

      DFPS bore the burden at trial to establish that the parent committed one of the

acts or omissions enumerated in section 161.001(b)(1) and that termination is in the



                                          13
best interest of the child. See TEX. FAM. CODE § 161.001; In re C.H., 89 S.W.3d at

23. 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).      However, “[o]nly 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.” In re A.V., 113 S.W.3d 355,

362 (Tex. 2003). “Thus, if multiple predicate grounds are found by the trial court,

we will affirm on any one ground because only one is necessary for termination of

parental rights.” In re T.G.R.-M., 404 S.W.3d 7, 13 (Tex. App.—Houston [1st Dist.]

2013, no pet.) (citations omitted).

B.    Termination under Section 161.001(b)(1)(E)

      1.     Applicable Law

      Texas Family Code subsection 161.001(b)(1)(E) provides that a parent’s

rights can be terminated when she has “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). Under

subsection (E), “[t]he relevant inquiry is whether evidence exists that a parental

course of conduct endangered the child’s physical or emotional well-being.” Jordan

v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

In this context, endanger means “to expose to loss or injury or to jeopardize.” In re



                                         14
D.J.W., 394 S.W.3d 210, 220 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)

(citing 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. (quoting Boyd, 727 S.W.2d at 533). “The

conduct need not occur in the child’s presence, and it may occur both before and

after the child has been removed [from the home] by the Department.” Id. (quoting

Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied)). Our Court has held that illegal drug

use may support termination under section 161.001(b)(1)(E) because “it exposes the

child to the possibility that the parent may be impaired or imprisoned.” Id. at 221;

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

      2.     Analysis

      S.E.C. argues that DFPS failed to prove that S.E.C. engaged in conduct that

endangered the well-being of the children as required to make a predicate finding

under section 161.001(b)(1)(E). She asserts that her last drug test was in September

2015, nine months before trial; thus, there is no evidence to prove she used drugs

from October 2015 through the time of trial. She contends that, “[m]ore importantly,




                                          15
DFPS failed to provide evidence to prove that drugs were an endangerment to the

well-being of her children.” 4

      The Supreme Court has explicitly held that, when conducting an analysis

under section 161.001(b)(1)(E), “endangering conduct may include the parent’s

actions before the child’s birth, while the parent had custody of older children,

including evidence of drug usage.” In re J.O.A., 283 S.W.3d at 345. Under this

reasoning, S.E.C.’s repeated drug use while she had custody of B.P.E. and R.W.S.E.,

before and after R.W.S.E. was born, and after DFPS removed the children from her

home is evidence of endangerment. See id.; see also In re D.J.W., 394 S.W.3d at

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

      The undisputed evidence at trial established that B.P.E. was born in April

2008 and R.W.S.E. in October 2013. S.E.C.’s history with DFPS dates back to April

2013 when her brother reported her drug abuse to DFPS, at which time she had

custody of B.P.E. but R.W.S.E. was not yet born. S.E.C. then failed a drug test in

August 2013, when she was pregnant with R.W.S.E., who was born two months

later. S.E.C. failed another drug test in February 2014 when R.W.S.E. was an infant

and B.P.E. was five years old. Thereafter, DFPS received a report of child neglect



4
      Notably, here, DFPS filed a status report with the court in December 2015 stating
      that R.W.S.E and B.P.E.’s caregiver believed R.W.S.E. was developmentally
      delayed and B.P.E. had been diagnosed with PTSD and anger reactive attachment
      and was behind in school but was getting the necessary help.

                                         16
after B.P.E. walked to school with no shirt or socks on in freezing weather, stating

that the children were dirty and unkempt and frequently had lice. On June 16, 2015,

S.E.C.’s brother took the children to DFPS based on his concern regarding S.E.C.’s

ongoing drug use. The children were released to their paternal uncle’s custody.

Nevertheless, two weeks later, S.E.C. tested positive for methamphetamine,

amphetamine, cocaine, and benzodiazepine, when R.W.S.E. was not even two years

old and B.P.E. was seven. DFPS filed a petition seeking conservatorship of S.E.C.’s

children and termination of her parental rights on July 21, 2015. Eight days later,

S.E.C. again tested positive for amphetamine, methamphetamine, clonazepam,

cocaine, benzodiazepine, ethyl glucuronide and ethyl sulfate. After DFPS was

appointed temporary managing conservator of S.E.C.’s children and S.E.C. agreed

to comply with the terms of the family service plan, she again tested positive for

drugs in September 2015. S.E.C. did not present any evidence to dispute the positive

drug test results or her history of encounters with DFPS.

      The Texas Supreme Court has held that “endangering conduct is not limited

to actions directed toward the child.” In re J.O.A., 283 S.W.3d at 345. Rather

“[e]vidence of narcotics use and its effect on a parent’s life and ability to parent may

establish that the parent has engaged in an endangering course of conduct.” Walker,

312 S.W.3d at 618; Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d

85, 98 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also Vasquez v. Tex. Dep’t



                                          17
of Protective & Regulatory Servs., 190 S.W.3d 189, 195–96 (Tex. App.—Houston

[1st Dist.] 2005, pet. denied) (terminating parental rights despite there being no

direct evidence of parent’s continued drug use actually injuring child). Here, DFPS

received at least six reports regarding S.E.C. over approximately two years. Despite

DFPS’s sustained involvement with S.E.C., she continued to test positive for

narcotics use—twice in the months before R.W.S.E. was born when she had custody

of B.P.E., again when R.W.S.E. was just a few months old in February 2014, two

more times after her children were removed from her custody in June 2015, and

again in September 2015 after DFPS was granted conservatorship over her children

and after S.E.C. had agreed to the terms of the Plan. Her continued drug use exposed

B.P.E. and R.W.S.E. to the possibility that she may be impaired or imprisoned and

evidenced a course of conduct which endangers the children’s physical and

emotional well-being. See Walker, 312 S.W.3d at 617.

      Considering all of the evidence in the light most favorable to the judgment,

we conclude that a factfinder could reasonably have formed a firm conviction or

belief that S.E.C. engaged in conduct which endangered the physical and emotional

well-being of her children. Thus, we find the trial court’s endangerment finding

under section 161.001(b)(1)(E) is supported by legally sufficient evidence.

      In reviewing the factual sufficiency of the evidence, we consider all of the

evidence, including disputed and conflicting evidence. In her letter to the court,



                                        18
S.E.C. contended that she has been on benzodiazepine since she was a child,

however, she did not allege or present evidence that she had a valid prescription for

this medication. Even assuming that one exists, S.E.C. does not dispute her other

continued illicit drug use—while she was pregnant, when she had an infant, when

she knew her parental rights were in jeopardy, and even after her children were

removed from her custody. S.E.C. also expressed her desire to maintain contact with

her children and regain custody. However, the undisputed evidence establishes that

she only had sporadic contact with the children for six months following their

removal from her custody, after which she stopped calling them as scheduled.

Additionally, while DFPS’s December 2015 status report states that S.E.C. was

enrolled in treatment in California, there is no evidence that she completed such

treatment. Rather, DFPS presented evidence at trial that S.E.C. did not comply with

any of the terms of the Plan and S.E.C. presented no evidence to dispute DFPS’s

contention. Finally, S.E.C. does not contend that she has stopped using drugs but

rather that the last drug test was conducted nine months before trial and thus, the

evidence was insufficient to support a finding of endangerment. However, the trial

court was not required to ignore her history of narcotics use merely because she had

not been tested in the few months before trial. See Cervantes–Peterson v. Tex. Dep’t

of Family & Protective Servs., 221 S.W.3d 244, 254 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (noting that trial court was not required to ignore mother’s



                                         19
history of narcotics use merely because she testified that it had abated before trial);

In re R.W., 129 S.W.3d 732, 741 (Tex. App.—Fort Worth 2004, pet. denied)

(holding that where father maintained he had not consumed alcohol for at least seven

to eight months before termination hearing, factfinder was not required to ignore

long history of dependence and destructive behavior where evidence established that

past substance abuse was more than just “remote and isolated incidents”). Thus,

viewing all the evidence presented, including any disputed or conflicting evidence,

we find that a reasonable factfinder could have resolved the disputed evidence in

favor of a finding that S.E.C. engaged in conduct that endangered the physical and

emotional well-being of her children. Accordingly, we overrule S.E.C.’s issues

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

finding of a predicate act pursuant to section 161.001(b)(1)(E). In light of our

holding, we need not reach her other issues which relate to the trial court’s findings

of other predicate acts pursuant to section 161.001(b)(1)(D) and (O).

C.    Best Interest of the Children

      1.     Applicable Law

      There is a strong presumption that the best interest of a child is served by

preserving the parent-child relationship. Wiley v. Spratlan, 543 S.W.2d 349, 352

(Tex. 1976). 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, 544



                                           20
S.W.2d 367, 371–72 (Tex. 1976). The factors include (1) the desires of the child,

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

emotional and physical danger of 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 which may indicate that

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

omissions of the parent. Id. These factors are not exhaustive. In re C.T.E., 95

S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Additionally,

DFPS “need not prove all of the factors as a condition precedent to parental

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

relationship endangered the safety of the child.’” Id. (quoting In re C.H., 89 S.W.3d

17, 27 (Tex. 2002)). However, the burden is on DFPS to rebut the presumption that

the best interest of the child is served by keeping custody in the natural parents.

Vasquez, 190 S.W.3d at 196.

      2.     Analysis

      S.E.C. contends that the evidence is insufficient to prove the termination of

her parental rights is in the best interest of B.P.E. and R.W.S.E. She asserts that

DFPS placed the children with R.W.E.’s sister in Minnesota, making it impossible



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for her to complete her Plan and continue a relationship with her children. DFPS

disagrees, arguing that the Holley factors weigh in favor of termination. While

evidence of the desires of the children was not presented by any party at trial, we

weigh the evidence in light of the other Holley factors.

      Under the second and third Holley factors, we consider the children’s physical

and emotional needs and the emotional and physical danger of the children, now and

in the future. 544 S.W.2d at 371–72. Section 263.307 of the Texas Family Code

admonishes that “prompt and permanent placement of the child in a safe

environment is presumed to be in the child’s best interest.” B.P.E. and R.W.S.E. are

currently residing with their paternal aunt and her husband in Minnesota. Carver

testified that the paternal aunt and her husband are fulfilling B.P.E. and R.W.S.E.’s

emotional and physical needs and would like to adopt them. Both children are doing

well in school and B.P.E.’s performance, in particular, has improved. The children’s

therapist recommended that B.P.E. and R.W.S.E. not have contact with S.E.C.

because it interfered with their behavior. Conversely, there is no evidence that

S.E.C. is drug-free or is otherwise able to provide a safe home, free of hazards for

the children. Additionally, evidence of past parental misconduct or neglect can be

used to measure a parent’s future conduct. See In re A.M., 385 S.W.3d 74, 82 (Tex.

App.—Waco 2012, pet. denied); Williams v. Williams, 150 S.W.3d 436, 451 (Tex.

App.—Austin 2004, pet. denied). Thus, the evidence discussed in support of the



                                         22
trial court’s finding under section 161.001(b)(1)(E), is probative of a finding as to

potential danger in determining the children’s best interest. See Walker, 312 S.W.3d

at 619; see also Robinson v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d

679, 688 (Tex. App.—Houston [1st Dist.] Houston 2002, no pet.) (finding pattern

and practice of drug abuse to be sufficient evidence to support best-interest finding);

In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.)

(finding pattern of illegal drug use suggested mother was not willing and able to

provide child with safe environment—a primary consideration in determining

child’s best interest).

       With respect to factors four, six, and seven, which relate to the parental

abilities of the individuals seeking custody, their plans for the children, and the

stability of the home or proposed placement, Carver testified that she is in contact

with the paternal aunt and a caseworker who is working with the family in Minnesota

and that she has received periodic reports. She testified that the children are both

doing well in school and B.P.E. has “really improved” and that the paternal aunt and

her husband are fulfilling B.P.E. and R.W.S.E.’s emotional and physical needs.

Carver explained that the paternal aunt and her husband have successfully been

screened and licensed for foster care and would like to adopt B.P.E. and R.W.S.E.

The children’s guardian ad litem stated that it would be in the best interest of the

children to remain in Minnesota with their paternal relatives and he offered to remain



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on through the adoption process. No evidence regarding S.E.C.’s living situation

was presented at trial. Likewise, there is no evidence that S.E.C. has complied with

the terms of DFPS’s Plan. Rather, the evidence reflects that S.E.C. failed drug tests

while pregnant, while caring for infant children, and even after she knew her parental

rights were in jeopardy and her children had been removed from her custody. S.E.C.

also failed to remain in contact with B.P.E. or R.W.S.E. six months after they were

removed from her custody and placed with paternal relatives in Minnesota.

      Next, there is limited evidence in the record regarding the fifth Holley factor—

programs available to assist S.E.C. in promoting the best interest of the children.

However, according to the Plan, S.E.C. was required to receive individual

counseling to address parenting skills and participate in a substance abuse

assessment. There is no evidence that she has complied with either of these

requirements.

      Finally, we consider the eighth and ninth Holley factors, which concern the

acts or omissions of the parent that may indicate that the existing parent-child

relationship is not a proper one and any excuse for such acts or omissions. S.E.C.

contends that she could not complete the terms of the DFPS Plan because her

children were in Minnesota. However, many parts of the Plan could be completed

by S.E.C. despite the children being out of state, i.e., obtaining a legal and verifiable

means of providing for her child, attending NA/AA meetings, participating in



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individual counseling, participating in a psychological evaluation and following all

recommendations, and refraining from engaging in criminal activities. There is no

evidence that S.E.C. made any effort to complete any task in the Plan. Rather, the

evidence establishes that even after DFPS was granted temporary conservatorship

of her children and S.E.C. had agreed to abide by the terms of the Plan, she tested

positive for drugs. Additionally, S.E.C.’s infrequent contact with the children once

they were removed from her custody disrupted the children’s behavior.

Furthermore, approximately six months after the children were removed from her

custody, S.E.C. stopped making regularly scheduled calls to them.

      After considering the entire record, we find that the trial court could have

reasonably formed a firm belief or conviction that termination of S.E.C.’s parental

rights was in the best interest of B.P.E. and R.W.S.E. Therefore, we hold that legally

and factually sufficient evidence supports the trial court’s finding that termination

of S.E.C.’s parental rights is in the best interest of B.P.E. and R.W.S.E. See In re

A.C., 394 S.W.3d at 642–43 (finding factually and legally sufficient evidence that

termination was in best interest of child where mother used illegal drugs during her

pregnancy, after undergoing a treatment plan, and a month after her child was

removed and no Holley factor weighed in her favor); Robinson, 89 S.W.3d at 688–

89 (termination in children’s best interest where mother continued to use drugs and

failed to offer evidence that she had resources to provide suitable home for children);



                                          25
see also Cervantes–Peterson, 221 S.W.3d at 253–54 (holding that continued illegal

drug use during pregnancy and after child’s removal when parental rights were in

jeopardy may be considered endangering course of conduct critical to determination

that termination is in best interest of child); In re M.R., 243 S.W.3d 807, 821 (Tex.

App.—Fort Worth 2007, no pet.) (“A parent’s drug use, inability to provide a stable

home, and failure to comply with a family service plan support a finding that

termination is in the best interest of the child.”).

      Accordingly, we overrule S.E.C.’s final issue.

                                      Conclusion

      We affirm the trial court’s final decree of termination.




                                                 Rebeca Huddle
                                                 Justice

Panel consists of Justices Massengale, Brown, and Huddle.




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