      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-16-00528-CV



                                          R. R., Appellant

                                                   v.

                Texas Department of Family and Protective Services, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
         NO. C2015-1680A, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                             MEMORANDUM OPINION


                This is an appeal from a final order, following a bench trial, terminating the parental

rights of R.R. to her son, F.R., and her daughter, C.R. In two issues on appeal, R.R. asserts that the

evidence is legally and factually insufficient to support the district court’s findings that she had

committed each of the alleged statutory grounds for termination and that termination of her parental

rights was in the best interest of the children. We will affirm the district court’s order.


                                          BACKGROUND

                The Texas Department of Family and Protective Services (the Department) brought

suit to terminate R.R.’s parental rights based on allegations that R.R. had, among other grounds for

termination, endangered her children’s well-being by using methamphetamine and exposing her

children to the threat of domestic violence. Following the termination hearing, which we discuss

in more detail below as it is relevant to R.R.’s issues on appeal, the district court found by clear and
convincing evidence that termination of the parent-child relationship was in the best interest of the

children and that R.R. had committed the following statutory grounds for termination: (1) engaged

in conduct or knowingly placed the children with persons who engaged in conduct which endangered

the physical or emotional well-being of the children; (2) constructively abandoned the children;

(3) failed to comply with the provisions of a court order that specifically established the actions

necessary for R.R. to obtain the return of the children; and (4) used a controlled substance in a

manner that endangered the health or safety of the children, and failed to complete a court-ordered

substance abuse treatment program.1 This appeal followed.


                                   STANDARD OF REVIEW

                In reviewing the sufficiency of the evidence supporting an order terminating parental

rights, we examine whether the Department proved, by clear and convincing evidence, that the parent

engaged in conduct that amounts to statutory grounds for termination and that termination is in the

children’s best interest.2 Clear and convincing evidence is a heightened burden of proof that requires

“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.”3 On appeal, we apply a

standard of review that reflects this burden of proof.4




       1
           See Tex. Fam. Code § 161.001(1)(E), (N), (O), (P), (2).
       2
           See In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).
       3
           Tex. Fam. Code § 101.007; see C.H., 89 S.W.3d at 25.
       4
           See In re J.F.C., 96 S.W.3d 256, 264-66 (Tex. 2002).

                                                  2
                   “In a legal sufficiency review, a court should look at all the evidence in the light most

favorable to the finding to determine whether a reasonable trier of fact could have formed a firm

belief or conviction that its finding was true.”5 “To give appropriate deference to the factfinder’s

conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence

in the light most favorable to the judgment means that a reviewing court must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.”6 “A

corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder

could have disbelieved or found to have been incredible.”7 However, “[t]his does not mean that a

court must disregard all evidence that does not support the finding.”8 The reviewing court must

consider “undisputed facts that do not support the finding.”9 “If, after conducting its legal

sufficiency review of the record 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.”10

                   In a factual sufficiency review, “the inquiry must be ‘whether the evidence is such

that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s




        5
             Id. at 266.
        6
             Id.
        7
             Id.
        8
             Id.
        9
             Id.
        10
             Id.

                                                      3
allegations.’”11 We “must give due consideration to evidence that the factfinder could reasonably

have found to be clear and convincing,” but we also “should consider whether disputed evidence is

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

finding.”12 “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.”13


                                                ANALYSIS

Statutory termination grounds

                   In her first issue, R.R. asserts that the evidence is legally and factually insufficient

to support the district court’s findings regarding the statutory grounds for termination. Although the

district court found that R.R. had committed multiple grounds for termination, it was required to find

only one statutory ground in order to terminate her parental rights.14 Therefore, so long as there is

sufficient evidence to support at least one of those grounds, we must uphold the finding.15 We will

focus our analysis on the ground stated in section 161.001(1)(E), which provides that parental rights

may be terminated if the parent “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.”

        11
             Id. (quoting C.H., 89 S.W.3d at 25).
        12
             Id.
        13
             Id.
       14
          See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); Spurck v. Texas Dep’t of Family &
Protective Servs., 396 S.W.3d 205, 221 (Tex. App.—Austin 2013, no pet.).
        15
             See A.V., 113 S.W.3d at 362.

                                                      4
                   “Under section 161.001(1)(E), the relevant inquiry is whether evidence exists that

the endangerment of the child’s physical well-being was the direct result of Appellant’s conduct,

including acts, omissions, or failures to act.”16 “Termination under subsection 161.001(1)(E)

must be based on more than a single act or omission; a voluntary, deliberate, and conscious

course of [endangering] conduct by the parent is required.”17 “The requisite endangerment may be

found if the evidence shows a parent’s course of conduct that has the effect of endangering the

child’s physical or emotional well-being.”18 Although “‘endanger’ means more than a threat of

metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not

necessary that the conduct be directed at the child or that the child actually suffers injury.”19 “Rather,

‘endanger’ means to expose to loss or injury; to jeopardize.”20 “Endangerment can occur through

both acts and omissions.”21 “[T]he conduct does not have to cause a concrete threat of injury to the




        16
             In re M.E.-M.N., 342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet. denied).
        17
          In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing
In re J.W., 152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied)).
        18
             Id.
        19
          Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (citing Allred
v. Harris Cnty. Child Welfare Unit, 615 S.W.2d 803, 806 (Tex. Civ. App.—Houston [1st Dist.]
1980, writ ref’d n.r.e.)).
        20
             Id. (citing Webster’s New Twentieth Century Dictionary of the English Language 599
(1976)).
        21
            In re W.J.H., 111 S.W.3d 707, 715 (Tex. App.—Fort Worth 2003, pet. denied) (citing
Phillips v. Texas Dep’t of Protective & Regulatory Servs., 25 S.W.3d 348, 354 (Tex. App.—Austin
2000, no pet.)).

                                                    5
child.”22 Nor does the conduct “have to occur in the presence of the child.”23 “And the conduct may

occur . . . both before and after the child has been removed by the Department.”24 “If the evidence

shows that the parent has engaged in a course of conduct which has the effect of endangering

the child, then the finding under subsection E may be upheld.”25 “Intentional criminal activity that

exposes a parent to incarceration is conduct that endangers the physical and emotional well-being

of a child.”26 This is true even when the criminal activity does not result in a final conviction.27 “As

a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the

physical and emotional well-being of a child.”28 Therefore, “a parent’s use of narcotics and its effect

on his or her ability to parent may qualify as an endangering course of conduct.”29 Additionally,



       22
         Id. at 716 (citing In re D.M., 58 S.W.3d 801, 811 (Tex. App.—Fort Worth 2001, no pet.);
Director of Dallas Cnty. Child Protective Servs. Unit v. Bowling, 833 S.W.2d 730, 733
(Tex. App.—Dallas 1992, no writ)).
       23
          Walker v. Texas Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617
(Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing Bowling, 833 S.W.2d at 733).
        24
          Id. (citing In re S.M.L.D., 150 S.W.3d 754, 757-58 (Tex. App.—Amarillo 2004, no pet.);
Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no pet.)).
        25
             W.J.H., 111 S.W.3d at 716 (citing D.M., 58 S.W.3d at 811).
        26
           In re V.V., 349 S.W.3d 548, 554 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
(citing Boyd, 727 S.W.2d at 533; Allred, 615 S.W.2d at 806; Avery, 963 S.W.2d at 553).
        27
          See In re T.G.R.-M., 404 S.W.3d 7 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing
In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.—Houston [14th Dist.] 2005, no pet.)).
       28
          In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied) (citing In re
S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied)).
       29
          In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (citing In re S.N., 272 S.W.3d 45, 52
(Tex. App.—Waco 2008, no pet.); Toliver v. Texas Dep’t of Family & Protective Servs., 217 S.W.3d
85, 98 (Tex. App.—Houston [1st Dist.] 2006, no pet.); R.W., 129 S.W.3d at 739); see also Walker,

                                                   6
“[d]omestic violence, want of self control, and propensity for violence may be considered as

evidence of endangerment.”30 The violence does not have to be directed toward the child or result

in a final conviction—“Texas courts routinely consider evidence of parent-on-parent physical abuse

in termination cases without specifically requiring evidence that the conduct resulted in a criminal

conviction.”31 Similarly, exposing one’s child to the risk of domestic violence from others may also

constitute endangering conduct.32

               Here, the evidence in support of the district court’s endangerment finding included

testimony tending to show that R.R. had a history of drug use. R.R. admitted to having used “meth”

approximately “three times a week” for the past eight years, although she denied that she had ever

used methamphetamine in the presence of her children. However, R.R. acknowledged that on one

occasion, methamphetamine was “still in [her] system” while the children were in her care. R.R.

also acknowledged that she had tested positive for methamphetamine use while the case was

ongoing, although she claimed that it had been “over three weeks” since she had last used.




312 S.W.3d at 618 (“Because it exposes the child to the possibility that the parent may be impaired
or imprisoned, illegal drug use may support termination under section 161.001(1)(E).”).
       30
           In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.);
see also In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—Eastland 2010, pet. denied) (“If a parent
abuses or neglects the other parent or other children, that conduct can be used to support a finding
of endangerment even against a child who was not yet born at the time of the conduct.”).
       31
          V.V., 349 S.W.3d at 556 (citing In re K.L.R., 162 S.W.3d 291, 305 (Tex. App.—Tyler
2005, no pet.); In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.); In re
M.R., 975 S.W.2d 51, 55 (Tex. App.—San Antonio 1998, pet. denied); Allred, 615 S.W.2d at 805).
       32
          See In re M.R., 243 S.W.3d 807, 818-19 (Tex. App.—Fort Worth 2007, no pet.); Sylvia
M. v. Dallas Cnty. Welfare Unit, 771 S.W.2d 198, 204 (Tex. App.—Dallas 1989, no writ).

                                                 7
               R.R. further testified that police officers had been called to her residence on

three occasions in response to reports of domestic violence involving her husband, who was also a

methamphetamine user, according to R.R. On the first occasion, R.R. testified, her husband “shoved

me onto the ground”; on the second occasion, “[h]e hit me in the jaw” with “[h]is fist”; and, on the

third occasion, “[h]e grabbed my face and pulled me out of my car and threw me on the ground and

was choking me.” R.R. also testified that she and her husband “were still together” while the case

was ongoing, although she claimed that her husband had “left [her]” in February 2016, several

months prior to the final hearing, and that she had not lived with him since that time. However,

R.R.’s mother, R.M., testified that on a previous occasion when R.R. and her husband had separated

and the children were in R.M.’s care, R.R. had chosen to return to her husband instead of staying

with R.M. and the children. R.M. also testified that she believed R.R. had a problem with drugs, that

R.R. had used drugs while the case was ongoing, and that R.R. had told her that she would continue

to use drugs and that using drugs was “okay.”

               Chris Willis, a caseworker for Child Protective Services (CPS), testified that the

“primary concerns” of CPS when creating the family service plan in this case were “drug use and

domestic violence.” According to Willis, R.R. had no “clean” drug tests while the case was ongoing,

nor did she complete court-ordered classes on domestic violence or court-ordered services to treat

her drug addiction.

               Viewing the above and other evidence in the light most favorable to the finding, it

tends to show that R.R. had regularly used methamphetamine for years, including when the children

were in her care, had continued to use methamphetamine while the case was ongoing, and had

done little if anything to demonstrate that she would stop using methamphetamine in the future.

                                                 8
Additionally, the evidence also tends to show that R.R. had a relationship with a man who had

assaulted her on multiple occasions and who was also a methamphetamine user, and that

her relationship with this man had continued while the case was ongoing. This and other evidence

supports the district court’s finding that R.R. had endangered the children’s physical and emotional

well-being. Accordingly, we conclude that the evidence is legally sufficient to support the

district court’s endangerment finding.33

                After giving due consideration to the disputed evidence in the case, we reach the

same conclusion regarding the factual sufficiency of the evidence. The disputed evidence consists

of R.R.’s testimony denying that she had used methamphetamine while the children were in her care

and denying that the children had been exposed to domestic violence. However, the district court

was free to disbelieve R.R.’s testimony. On this record, we cannot say that “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” that R.R. had endangered

the physical and emotional well-being of her children.34




       33
         See, e.g., J.O.A., 283 S.W.3d at 345; M.E.-M.N., 342 S.W.3d at 263; C.J.O., 325 S.W.3d
at 265; C.A.B., 289 S.W.3d at 885; Vasquez v. Texas Dep’t of Family & Protective Servs.,
190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); J.I.T.P., 99 S.W.3d
at 845; Robinson v. Texas Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686-87
(Tex. App.—Houston [1st Dist.] 2002, no pet.).
       34
            See In re J.F.C., 96 S.W.3d at 266.

                                                  9
                 Because we conclude that the evidence is legally and factually sufficient to support

the district court’s endangerment finding, we need not consider the sufficiency of the evidence

supporting the other alleged statutory grounds for termination.35

                 We overrule R.R.’s first issue.


Best interest

                 In R.R.’s second issue, she asserts that the evidence is legally and factually

insufficient to support the district court’s finding that termination of R.R.’s parental rights was in the

best interest of the children. When deciding the best-interest issue, we consider the well-established

Holley v. Adams factors, which include the children’s wishes, the children’s emotional and physical

needs now and in the future, emotional or physical danger to the children now and in the future, the

parenting abilities of the party seeking custody, programs available to help that party, plans for the

children by the party seeking custody, the stability of the proposed placement, the parent’s conduct

indicating that the parent-child relationship is improper, and any excuses for the parent’s conduct.36

The Department need not prove all of the Holley factors as a “condition precedent” to termination,

and the absence of some factors does not bar the factfinder from finding by clear and convincing

evidence that termination is in a children’s best interest.37 The need for permanence is the paramount




        35
             See Tex. R. App. P. 47.1; Spurck, 396 S.W.3d at 221.
        36
             See 544 S.W.2d 367, 371-72 (Tex. 1976).
        37
             C.H., 89 S.W.3d at 27.

                                                   10
consideration when determining the children’s present and future physical and emotional needs.38

Moreover, a parent’s statutorily offensive conduct is often intertwined with the best-interest

determination.39

               In addition to considering evidence regarding the statutory termination grounds,

summarized above, the district court also considered evidence regarding the children’s well-being.

Willis, the CPS caseworker, testified that the children were living with their grandmother, R.M.,

and that they “get along with their grandmother very well.” Willis also testified that the placement

was safe and stable and that R.M. was able to meet the needs of the children, both of whom, Willis

explained, required specialized care to address various health issues. According to Willis, the

Department had planned for the children to remain in their current placement, and R.M. had

expressed a desire to adopt the children if R.R.’s parental rights were terminated. Willis further

testified that in his opinion, R.R. could not provide a safe and stable home for the children, due to

her “continued drug use and domestic violence.”

               Shawn McCormick, a CASA volunteer who was familiar with the case, provided

similar testimony regarding R.M.’s ability to provide a safe and stable home for the children and

R.R.’s inability to do so. When asked why he believed that it was in the children’s best interest for

them to remain in R.M.’s care, McCormick testified as follows:



       38
         In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing
Dupree v. Texas Dep’t of Protective and Regulatory Servs., 907 S.W.2d 81, 87 (Tex. App.—Dallas
1995, no writ)).
       39
          Horvatich v. Texas Dep’t of Protective & Regulatory Servs., 78 S.W.3d 594, 601
(Tex. App.—Austin 2002, no pet.) (citing Holley, 544 S.W.2d at 372; Leal v. Texas Dep’t of
Protective & Regulatory Servs., 25 S.W.3d 315, 321 (Tex. App.—Austin 2000, no pet.)).

                                                 11
        She provides a very safe and loving environment for them. They also love being
        with their great grandmother who lives in the residence with them. They have told
        me that they get to do so many more things. They feel safe, that she takes them and
        does things with them, things that they never got to do before. And really in my
        opinion, they’re getting to experience a true—well, not just in my opinion. They
        shared with me that this was the first summer that they ever got to go and play
        outside and just be kids.


Finally, R.M. testified that, if possible, she would seek adoption of the children and that her plan was

to have the children live with her until they became adults.

                Viewing the above and other evidence in the light most favorable to the

district court’s finding, we conclude that the evidence is legally sufficient to prove that termination

of R.R.’s parental rights was in the best interest of the children. Based on the evidence of R.R.’s

continued drug use and history of domestic violence, the district court could have reasonably inferred

that the children were not safe in R.R.’s care and that the children’s current placement would provide

a more safe and stable environment for them.

                After giving due consideration to the disputed evidence in the case, we reach the

same conclusion regarding the factual sufficiency of the evidence. The disputed evidence on this

point consists solely of R.R.’s testimony claiming that she would be able to care for the children and

provide them with a safe and stable home. The district court was free to disbelieve her testimony,

particularly in light of the other evidence, summarized above, tending to show that R.R. had

continued to use drugs while the case was ongoing and thus continued to put her children’s safety

and stability at risk.

                We overrule R.R.’s second issue.




                                                  12
                                       CONCLUSION

              We affirm the district court’s termination order.



                                            __________________________________________

                                            Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: November 3, 2016




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