Opinion issued May 26, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-15-01095-CV
                           ———————————
                       IN RE K.P., A MINOR CHILD,



                   On Appeal from the 314th District Court
                           Harris County, Texas
                     Trial Court Case No. 2011-00785J


                                 OPINION

      This is an accelerated appeal of a December 3, 2015 judgment terminating

Mother’s parental rights to KP, her 12-year-old son. On March 29, 2012, the trial

court denied an earlier petition to terminate Mother’s parental rights to KP and

instead named the Department of Public and Protective Services (referred here

throughout as “Department” or “DFPS”) as sole managing conservator and Mother
as possessory conservator. After the underlying November 2015 trial that is the

subject of this appeal, the court found that circumstances have materially and

substantially changed since the prior order denying termination was entered and

entered a judgment on December 3, 2015, continuing the Department as sole

managing conservator and terminating Mother’s parental rights. We affirm.

   TRIAL PROCEEDINGS AND EVIDENCE – TERMINATION TRIAL

      Several exhibits were introduced at the beginning of the November 2015

trial that provide background about the case.      One establishes, through DNA

testing, that the only person identified as potentially being KP’s father was not his

father. Mother testified at trial that she did not know who else might be the father,

and a search of the Paternity Registry did not reveal any notice of intent to claim

paternity of KP.

      A. Documents related to the 2012 Proceedings

      A February 2, 2011 affidavit in support of KP’s removal was entered into

evidence at the 2015 trial. It indicated that KP was, at that time, residing in a

medical facility, and that the Department had been unable to ascertain where, and

with whom, KP had lived the previous five years. It listed the following as “Facts

Necessitating Removal of the Child”:

            On September 15, 2009, the Department of Family and
      Protective Services received a referral alleging physical abuse of 7
      year old, [KY] (DOB 5/31/02) by the mother, []. The report indicated
      [KY] was hospitalized for a psychiatric evaluation, because she
                                         2
attempted to assault the mother, []. During the course of the
investigation, [KY] disclosed that she was spanked by her mother, [],
resulting in bruising on her lower back and upper buttocks. The
mother [] indicated she has a diagnosis of Bipolar Disorder and
Depression, and there were concerns of domestic violence between
the mother, [] and the step-father, [JL]. The case disposition was ruled
out, however risk indicated, and the case was transferred to Family
Based Safety Services.
      ([KP], the child the subject of this suit, was not mentioned in
the September 15, 2009 referral.)
       The parents, [Mother] and the step-father, [JL] were asked to
participate in parenting classes and domestic violence counseling.
[Mother] was also asked to complete a psychological evaluation and
follow the recommendations from the evaluation. [Mother] and [JL]
both completed parenting classes and domestic violence classes;
however [Mother] refused to cooperate with a psychological
assessment.
       In December 2010, the mother, [] and [step]father, [JL] were
involved in a domestic dispute resulting in [JL] being arrested and
charged with Assault Causing Bodily Injury to a Family Member, and
[Mother] moved into a Shelter in Galveston County with two of her
children, [KP] (D.O.B. 8/22/03) and [KY]. The third child, [EL]
(D.O.B. 11/2/07) was left in the care of a family member. [Mother]
was discharged from the shelter after [KP] started a fire in a trash can
at the shelter.
     On 01/14/11, [KY] was voluntarily placed with the paternal
grandmother, [KM].
      On 01/14/11, [KP] was hospitalized at Intra-Care Hospital as he
was believed to be a threat to himself and others. [KP] has been
diagnosis with Mood Disorder and ADHD.
       On 01/27/11, [EL] (age 3) was voluntary placed in the home
with the maternal great aunt, [DS].
      On 02/2/11, the mother, [] indicated KP will be discharged
from Intra-Care Hospital and does not have a place for [KP] to reside.
[Mother] indicated she was residing with relatives; however she is no
longer able to reside with relatives, and she is currently living in a
Motel. [Mother] indicated she was planning to move into a new

                                   3
apartment on 2/1/11; however she was unable to secure the apartment.
[Mother] previously self disclosed that she has been diagnosed with
Bipolar Disorder and Depression. She is currently not on any
medication for her diagnosis and is not under the direct care of a
psychiatrist currently.
....

CPS History

09/27/05 Allegations of Physical Abuse to [KP] and [KY] by
[Mother] and [JL]-Disposition Unable to Determine.
09/27/05 Allegations of Physical Neglect to [KY] by [Mother].
Disposition- Ruled Out.
02/18/09 Allegations of Neglectful Supervision to [KP] and [KY] by
[Mother], [ML] (Maternal Grandfather), and, [RL](Maternal Great
Uncle)-Disposition Ruled Out.
 02/18/09 Allegations of Physical Abuse to [KP] and [KY] by
[Mother]- Disposition Ruled Out.
02/18/09 Allegations of Physical Neglect to [KP] and [KY] by the
mother, [].- Disposition Ruled Out.
12/10/10-Allegations of Neglectful Supervision to [KP] and [KY] by
[Mother]-Disposition Ruled Out
12/10/10-Allegations of Physical Abuse to [KP] and [KY] by
[Mother]-Disposition Ruled Out
12/10/10- Allegations of Sexual Abuse to [KY] and [KP] by [Mother]
and Unknown l-Disposition Ruled Out.
12/10/10-Allegations of Sexual Abuse to [KY] by [GH] (maternal
cousin). Disposition- Ruled Out.
     The whereabouts and identity of [KP]’s father is currently
unknown.
      Removal from the home is in the best interests of the child [KP]
because the mother indicated she is unable to care to the child, the
mother does not have stable housing or employment and cannot meet
the basic needs of the child, the mother has mental health concerns
which are not being treated, and for all the additional reasons stated

                                  4
      above. The Texas Department of Family and Protective Services is
      requesting to be appointed Temporary Managing Conservator of [KP].

      On March 31, 2011, the court held a status hearing, at which the Department

proposed a service plan.     The proposed service plan listed the Department’s

concerns, “as of 3/3/11”:

      [Mother] did not complete FBSS services and currently has no place
      to live and no means of caring for [KP].
      There is considerable CPS history with this family.
      [Mother] currently does not have a home for [KP] to come home to.
      [Mother] was previously in a domestic violence relationship.
      Mother’s location is currently unknown and the step-father is refusing
      to accept responsibility for his actions.
      Neither parent has been cooperating with the agency.
      Mother is not willing or able to provide a safe or stable environment
      for [KP].
      Mother did not show up for the hearing, so the record reflects that the

proposed service plan had not been shown to her or explained to her; thus, there

was no agreement as to services.1 A permanency hearing was date was set for July

11, 2011.

      The March 29, 2012 judgment was also introduced as an exhibit in

underlying trial 2015 termination trial. In that prior 2012 order, the court found

that it was in the best interest of KP for DFPS to be designated as his Sole

Managing Conservator. The court found it in KP’s best interest for Mother to be


1
      There were later service plans in place that the Mother and the Department agreed
      to, but Mother apparently did not complete them.
                                          5
appointed possessory conservator, and that “the limited possession and access

provided by this order is required, and does not exceed the restrictions needed to

protect the child.”        The order allowed Mother access to KP only in supervised

visits.

          B. The September 22, 2015 CASA Status Report

          KP’s guardian ad litem prepared a report dated September 22, 2015

recommending        that     the   Department   be   granted   Permanent   Managing

Conservatorship of [KP] and that Mother’s rights be terminated. The report cited

the Department’s four requests, spanning from 2011 to 2014, for Mother to

complete a plan of service, which Mother never completed. The report noted that

Mother has not maintained regular contact with the Department, and has not

followed through on important visits for KP, leaving him to feel abandoned.

Specifically, the report states that Mother’s “lack of attentiveness and participation

has led to [KP] being emotionally and psychologically disturbed.” The report also

notes that KP’s therapist requested that parental visits be stopped after Mother and

her boyfriend tested positive for cocaine in drug tests on December 19, 2014, and

March 19, 2015.

          The report further recommended that KP remain in his current therapeutic

foster home placement, where he has resided since August 17, 2015. His needs are

being met educationally, physically, and emotionally. KP suffers from depression,


                                            6
ADHD, and Bipolar Disorder. He is in therapy. KP wants to be returned to his

Mother.   Although the original goal was family reunification, then long-term

facility placement, KP’s guardian ad litem reported that KP’s therapist of three

years has explained that Mother’s “inconsistencies in contacts and visits have been

traumatic for him” and the therapist’s “paramount concern is for [KP] to have

stability and consistency.”    The Guardian Ad Litem has been on this case since

2011, the year the Department was granted Temporary Managing Conservatorship.

In preparing the CASA report, the ad litem reviewed the following records: the

Department’s file, Drug Test results, Physiological and Psychiatric Evaluations,

School Records, and Therapy Notes.

      C. Mother’s testimony

      At the underlying trial, Mother testified that CPS first sought removal of her

son, KP, from her care several years ago. She acknowledged that she has tested

positive for drugs since the prior termination proceedings, but stated that the

positive drug test results were incorrect.     When asked for the basis of that

conclusion, she stated that the allegedly false drug test results were related to her

HIV status, her type 2 diabetes, and her being in and out of the hospital for

“chronic pain and sickness.”

      She conceded that she does not have a prescription for cocaine or marihuana,

nor was she given these substances at the hospital, although she had tested positive


                                         7
for both substances in her system. She admitted to having done cocaine and

smoked marihuana before, and to testing positive for marihuana on March 15,

2015.

        Mother also testified that, at the time of trial, she had worked for In-Home

Health Care for about nine months, and that she is ready to get KP back. He has

not lived with her since 2011; he has been in CPS’s custody. She has no idea who

KP’s father might be. Mother’s 13-year-old daughter, KY, has also been the

subject of a past case and has lived with Mother since 2009.2

        She identified TR as her fiancé. She stated that he does not use drugs either.

She acknowledged that TR tested positive for cocaine and marihuana in March

2015. She opined that all of TR’s failed drug tests since the prior termination

proceedings were wrong.        When asked, “So, he’s never used cocaine?,” she

responded with “I’m not going to say never, but he has not used drugs at this

current time.” She testified that, if KP was returned to her possession, she would

be living with TR as well.

        Mother agreed that it is not good to do drugs such as cocaine and marihuana

around a child, but insisted that fact is irrelevant here, as she and TR do not do

drugs. She acknowledged that she tested positive for cocaine and marihuana drug

use during an earlier CPS case involving a different child, KY, but maintained that

2
        It is not clear from this record where KY lived prior to 2010. The Department is
        actively trying to remove KY from Mother’s care.
                                            8
those tests were wrong as well. In sum, she stated that any test indicating that she

has done drugs after 2009 is incorrect.

      D. KP’s CPS caseworker

      M. Youngblood, KP’s caseworker, testified that KP is currently in a very

caring foster home. Youngblood stated that the Department wanted to terminate

Mother’s parental rights because of her use of cocaine and not following through

on required services. Youngblood asked her to take parenting classes, substance-

abuse counseling, and individual counseling.      She testified that Mother never

completed anything.

      Youngblood was asked why Mother’s 13-year-old daughter, KY, was

permitted to remain in the home with her mom testing positive for cocaine. She

explained the challenges the Department has faced in seeking KY’s removal:

      Well, she’s – there’s been a lot of uptakes on that, and there have been
      a lot of investigations trying to get K[Y]. They went to school. K[Y]
      will not talk. She would not give the correct address on where she
      lives. She said she lives in Fort Bend, but she told me when she came
      to my office she lives in a motel. The intake that was presently done
      about a month ago said she is in her car. So, it’s kind of hard for an
      investigator to follow through on getting K[Y].

      Youngblood explained that, over the years, the Department has tried to do

much to reunite Mother with KP. She unfortunately continuously either refused to

submit to drug tests or tested positive for drug use in 2013 and 2015.




                                          9
      Youngblood testified that “the Agency’s position [is] that by engaging in

drug use, illegal drug use during the course of this case, that [Mother] engaged in

conduct which endangered the physical and emotional well-being of [KP],” which

she asserts are sufficient grounds for termination under section 161.001(b)(1)(E).

She further testified that the Department made reasonable efforts to return KP to

Mother, and that Mother did not make an effort to regularly visit or maintain

significant contact with KP. Youngblood opined that Mother has “demonstrated

an inability to provide [KP] with a safe and stable environment” and stated that

Mother did not comply with conditions she was told were necessary to obtain

return of KP.

      Youngblood also opined that it is not in KP’s best interest to be returned to

his mother because there are concerns “that she’s taking drugs around the child and

trying to still supervise the child under the influence of drugs.” The agency has

concerns about her ability to parent, and also believe it is in KP’s best interest that

Mother’s parental rights be terminated so KP can eventually hopefully be adopted

by a family. One of the Department’s goals is for KP to achieve permanency. KP

has exhibited behavioral issues in his placements, has had issues with other

children at school, and he “responds poorly when he’s not in [a] structured

environment.”




                                          10
      Mother has not demonstrated to Youngblood that she is “capable at all of

providing a structured environment for KP.” Youngblood presumes that Mother

moves around a lot, because she has not once—through the entire case—

demonstrated that she has a residence.          That fact, coupled with KY telling

investigators “about different places she lived including a car in Fort Bend and

other places” leads the Department to believe that she cannot provide KP a

residence, much less a safe and stable residence.            Youngblood opined that

“Mother’s unstable home environment” was another reason that termination of

parental rights is in KP’s best interest because he has demonstrated that he

“requires a very stable, structured environment to thrive.”        She testified that, at

this point, KP is very psychologically unstable, suffering emotionally from the

uncertainty in his life, and acts out violently in response to instability.

      On cross-examination, Youngblood clarified that she had only been assigned

to the case for about one year, since December 2014. The only time she personally

called Mother to do a random drug test was in January or February 2015, and

Mother did not show up.        Otherwise Youngblood was just focused on trying to

get Mother to perform her services, but Mother did complain to Youngblood that

she was not asking her to take random drug tests more often. Youngblood testified

that Mother never called her — it was almost always Youngblood who reached out

to communicate.


                                           11
      Youngblood was also cross-examined about documents reflecting different

drug test results. The following exhibits related to these tests were admitted into

evidence:

             January 18, 2013 – Mother’s hair sample tested positive for
              Benzoylecgonine: 2208/pg/mg; and Cocaine 619 pg/mg
             March 8, 2013 – Mother’s hair sample tested positive for marihuana:
              0.27 pg/mg
             March 21, 2013 – Mother’s urine sample tested negative; Mother’s
              hair sample tested positive for marihuana: >50.0; and marihuana
              metabolite 0.2 pg/mg
             May 14, 2013 – Mother’s hair sample and urine sample both tested
              negative
             August 27, 2013 – Mother’s urine sample tested negative; Mother’s
              hair sample tested positive for Benzoylecgonine: 256 pg/mg; and
              Cocaine: 645 pg/mg
             December 12, 2013 – Mother’s urine sample tested negative
             March 21, 2014 – Mother’s urine sample tested negative
             June 18, 2014 – Mother’s urine sample tested negative
             December 19, 2014 – Mother’s urine sample tested negative;
              Mother’s hair sample tested positive for Benzoylecgonine: 547 pg/mg;
              and Cocaine: 1806 pg/mg
             March 19, 2015 – Mother’s urine sample tested negative; Mother’s
              hair sample tested positive for Benzoylecgonine 319 pg/mg; and
              Cocaine: 1535 pg/mg
      March 19, 2015 drug testing results for Mother’s fiancé, TR, were also

entered into evidence, reflecting a negative urine test and a positive hair test for

Benzoylecgonine, Cocaine, and Marihuana.3


3
      TR’s criminal record was also entered into evidence, reflecting convictions in
      2000 for evading arrest, in 2001 for unauthorized use of a motor vehicle and
                                         12
      When asked why the Department was seeking now to terminate parental

rights, i.e., what were the “changes in circumstances” since the 2012 order

appointing mother as possessory conservator, Youngblood testified it was (1)

Mother’s testing positive for cocaine, and (2) her failure to contact the Department

or work on services. She acknowledged that Mother did sometimes visit KP

before a court order was sought prohibiting contact after one of Mother’s failed

drug tests.

      Youngblood testified that the Department was waiting to seek a permanent

adoptive placement until Mother’s parental rights were terminated.                The

Department filed a petition for termination in March of 2015, but were still hoping

to give Mother a chance. In September 2015, when Mother’s stopped cooperating

with or attending appointments with the therapist that the Department lined her up

with that the final decision was made to pursue a termination hearing.

      Finally, Youngblood explained that parental termination would open up KP

for adoption broadcasting in the entire United States, not just Texas.

      E. Guardian Ad Litem’s Testimony

      An advocacy coordinator, Q. Smith, testified that Child Advocates has been

appointed as the guardian ad litem for KP, and that its position is that it is in KP’s

best interest to have parental rights terminated because:

      burglary of a habitation with intent to commit theft, and in 2009 for felony
      possession of a weapon,
                                         13
             Due to the positive drug tests that the mother’s had throughout
      the case, failed to complete family plan of service, unstable home
      environment, failure to maintain contact with the caseworker, and also
      reflect missed visits with [KP]. [KP] is emotionally fragile and the ups
      and downs that he's gone through with this case.

                     THE TRIAL COURT’S JUDGMENT
      When the Department attempted to offer Mother’s latest service plan at the

pre-trial hearing for use in demonstrating that Mother’s parental rights should be

terminated under Texas Family Code 161.001(b)(1)(o) (permitting involuntary

termination of parental rights if the court finds, by clear and convincing evidence,

the parent “failed to comply with the provisions of a court order that specifically

established the actions necessary for the parent to obtain the return of the child

who has 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 child’s removal from the parent under Chapter 262 for the abuse or

neglect of the child”), it realized, in response to an objection by Mother’s counsel,

that there was actually no court ordered service plan in effect, and conceded that it

could not seek termination on that ground:

              [MOTHER’S COUNSEL]: And, Judge, again, that’s an order.
      It -- that was issued in the prior case. There was a final order issued.
      So that clearly isn’t relevant to any issue in this case. And if the
      purpose of it is to try to show (o) then -- then, clearly it’s not
      admissible because the Court rejected the termination in the 2012.

             ....


                                         14
             Just to show for (o), you need a current order that tells a parent
      what they have to do in order to be reunified with their child; and you
      can’t use old orders that were already subsumed in a final decree.

               THE COURT: What are your intentions?

             [DFPS’S COUNSEL]: Judge, with respect to the (o) grounds,
      I’m actually going to need it, but the decree normally provides that
      any prior temporary orders shall continue in effect and the argument is
      that that includes family service plan. We're currently looking at the
      decree. I will have to withdraw the objection because I do not see the
      specific language in this old decree that says the prior temporary
      orders are to continue in effect. So . . . .

               THE COURT: So, you’re withdrawing 7 [the family service
      plan]?
               [DFPS’S COUNSEL]: Yes.
               THE COURT: All right.

            [DFPS’S COUNSEL]: I’m not withdrawing it, Judge. I'm just
      saying I’m not going to have grounds to terminate her on the family
      service plan, which I'm okay with.

           THE COURT: Okay. I’m going to go ahead and sustain
      [Mother’s counsel]’s objection to 7.
      After the close of the evidence, the trial court entered judgment continuing

DFPS as KP’s Managing Conservator, and terminating Mother’s parental rights

under two different sections of the Texas Family Code:

Texas Family Code § 161.004:

      Termination After Prior Termination Denied

             The Court finds that some of the evidence considered in this
      trial related to events occurring before a prior order denying
      termination, and that such evidence was admissible pursuant to §
      161.004, Texas Family Code.
                                         15
            The Court finds by clear and convincing evidence that the
     petition for termination in this case was filed after the date that an
     order denying termination of the parent-child relationship of [Mother]
     was rendered, that the circumstances of the children, parent, sole
     managing conservator, possessory conservator, or other party affected
     by the prior order have materially and substantially changed since the
     prior order was rendered, and that, before the prior order was
     rendered, said parent committed an act listed under § 161.001, Texas
     Family Code.

Texas Family Code § 161.001(e):

     Termination of Respondent Mother[]’s Parental Rights

            The Court finds by clear and convincing evidence that
     termination of the parent-child relationship between [Mother] and the
     child [KP], the subject of this suit is in the child’s best interest.
          Further, the Court finds by clear and convincing evidence that
     [Mother] 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, pursuant to § 161.001(1)(E), Texas Family
     Code.

                            ISSUES ON APPEAL

     Mother raises the following three issues on appeal:

     1.    “Was the evidence legally and factually sufficient to support the
           termination   of    appellant’s     parental     rights    under
           §161.001(1)(E)?”

     2.    “Was the evidence legally and factually sufficient to support the
           termination finding on best interest grounds?”

     3.    “Was the evidence legally and factually sufficient to support the
           removal of appellant as the child’s possessory conservator?”



                                       16
STANDARD OF REVIEW FOR TERMINATION OF PARENTAL RIGHTS

      Because parental-rights termination “is complete, final, irrevocable, and

divests for all time that natural right[,] . . . the evidence in support of termination

must be clear and convincing before a court may involuntarily terminate a parent’s

rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Santosky v.

Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1980)). 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 (West

2014). This heightened burden of proof results in a heightened standard of review.

      When determining legal sufficiency, we review “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.” In re J.F.C., 96

S.W.3d 256, 266 (Tex. 2002). To give appropriate deference to the factfinder’s

conclusions, we must assume that the factfinder resolved disputed facts in favor of

its finding if a reasonable factfinder could have done so. Id. We disregard all

evidence that a reasonable factfinder could have disbelieved or found to have been

incredible. Id. This does not mean that we must disregard all evidence that does not

support the finding. Id. Disregarding undisputed facts that do not support the

finding could skew the analysis of whether there is clear and convincing evidence.


                                          17
Id. Therefore, in conducting a legal-sufficiency review in a parental-rights-

termination case, we must consider all of the evidence, not only that which favors

the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).

       In determining factual sufficiency under the clear-and-convincing burden,

we must consider whether the evidence is sufficient to produce a firm belief or

conviction in the mind of the factfinder as to the truth of the allegation sought to be

established. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We consider whether

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

disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. “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.

       The natural rights that exist between parents and their children are of

constitutional dimension. Holick, 685 S.W.2d at 20. Therefore, termination

proceedings should be strictly scrutinized, and the involuntary termination statutes

should be strictly construed in favor of the parent. Id. However, “[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.” C.H., 89 S.W.3d at 26. For


                                          18
parental rights to be involuntarily terminated, it must be found by clear and

convincing evidence that the parent engaged in conduct set out in subsection

161.001(1) and that termination would be in the child’s best interest pursuant to

subsection 161.001(2). TEX. FAM. CODE ANN. § 161.001 (West 2014). Both

elements must be established, and termination may not be based solely on the

factfinder’s determination of best interest of the child. See Tex. Dep’t of Human

Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re L.M., 104 S.W.3d 642, 646

(Tex. App.—Houston [1st Dist.] 2003, no pet.).

         CAN TERMINATION BE AFFIRMED UNDER SECTION 161.004?

          As a preliminary matter, we must determine if the trial court’s reliance on

section 161.004 of the Texas Family Code can support its judgment terminating

parental rights, given that this section was not pleaded by the Department, and the

Department itself concedes that it was not seeking termination under this section at

trial.

          Section 161.004, which allows the trial court to terminate parental rights

after a prior denial of a termination petition if (1) “the circumstances . . . have

materially or substantially changed since the date the [prior] order was rendered,”

(2) the parent committed a violation under section 161.001 before the prior order,

and (3) termination is in the child’s best interest:




                                           19
      § 161.004. Termination of Parental Rights After Denial of Prior
      Petition to Terminate
       (a) The court may terminate the parent-child relationship after
      rendition of an order that previously denied termination of the parent-
      child relationship if:
            (1) the petition under this section is filed after the date the order
            denying termination was rendered;
            (2) the circumstances of the child, parent, sole managing
            conservator, possessory conservator, or other party affected by
            the order denying termination have materially and substantially
            changed since the date that the order was rendered;
            (3) the parent committed an act listed under Section 161.001
            before the date the order denying termination was rendered; and
            (4) termination is in the best interest of the child.
      (b) At a hearing under this section, the court may consider evidence
      presented at a previous hearing in a suit for termination of the parent-
      child relationship of the parent with respect to the same child.

TEX. FAM. CODE ANN. § 161.004 (West 2014).

      The Department urges us to affirm the trial court’s judgment under section

161.004, and points out that “it is unknown from the decree what act under Section

161.001 the court found the mother committed before the prior decree for its

finding . . . under Section 161.004.” But, it argues, “the evidence conclusively

establishes that the mother committed the act of Subsection O before the entry of

the prior decree. Consequently, with the other findings under Section 161.004, the

judgment for parental termination may be affirmed with a finding that termination

is in the child’s best interest, without considering the court’s general finding for

                                          20
parental termination under Section 161.001 of the Texas Family Code.” It further

asserts that “even though the Department did not ask for judgment for parental

termination under Section 161.004,” the trial court was authorized—under section

161.206(a)—to terminate under that section because section 161.206(a)

affirmatively imposes upon trial judgment the independent duty to decide whether

a parental termination judgment must be ordered by stating “(a) If the court finds

by clear and convincing evidence grounds for termination of the parent-child

relationship, it shall render an order terminating the parent-child relationship.”

         We disagree with the Department that the trial court’s termination of

Mother’s parental rights can be affirmed under section 161.004 of the Texas

Family Court on the theory that the trial court “could have” based its termination

on Mother’s pre-2012 failure to follow the pre-2012 service plan (i.e., under

section 161.004(b)(1)(o) permitting termination for failure to complete service

plan).

         Termination can be achieved after a prior order denying termination through

either section 161.004 or section 161.001. In re K.G., 350 S.W.3d 338, 350–52

(Tex. App.—Fort Worth 2011, pet. denied). When the Department does not plead

section 161.004 as grounds for termination, it is error to admit evidence from

before a prior decree denying termination. Id.




                                          21
        Here, (1) the Department did not plead section 161.004 as a grounds for

termination, (2) the Department specifically represented to the court that it was not

seeking termination for failure to follow a family service plan under subsection (o),

(3) Mother’s counsel objected that the service plan in place before the 2012

judgment should not be admitted into evidence because it terminated with that

judgment and was thus irrelevant to the current grounds for termination before the

court, and (4) the trial court sustained the objection to admission of the pre-2012

service plan on relevance grounds and it was not entered into evidence.

        The Department states in its brief that “the evidence conclusively establishes

that the mother committed the act of Subsection O of the Family Code before the

entry of the prior decree.” But the service plan the Department purports to rely

upon was excluded from evidence. And, although the Department insists that the

“evidence conclusively establishes that the mother” failed to comply with her

service plan pre-2012, nothing in the pleadings or trial would have put Mother on

notice to put on evidence about whether she complied with the pre-2012 service

plan.    This issue was not tried by consent, as Mother’s counsel successfully

excluded the service plan on relevance grounds and the Department affirmatively

represented to the trial court and Mother that it was not seeking termination under

the very service plan upon which it now seeks to rely. We thus cannot affirm the

trial court’s termination of Mother’s parental rights for failure to follow a service


                                          22
plan pre-2012, especially when the court refused to admit that service plan because

it was not relevant to a pleaded claim.

             SUFFICIENCY OF THE EVIDENCE TO SUPPORT
             TERMINATION OF PARENTAL RIGHTS UNDER §
                          161.001(b)(1)(E)
      Mother first challenges the sufficiency of the evidence supporting

termination of her parental rights under § 161.001(b)(1)(E).

A.    Applicable Law

      The sole ground for termination of Mother’s parental rights was section

161.001(b)(1)(e):

       § 161.001. Involuntary Termination of Parent-Child Relationship
      ....
      (b) The court may order termination of the parent-child relationship if
      the court finds by clear and convincing evidence:
             (1) that the parent has:
                    ....
                    (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(b)(1)(E) (West. 2014).

      Endangerment means to expose to loss or injury, to jeopardize. Boyd, 727

S.W.2d at 533; J.T.G., 121 S.W.3d at 125; see also In re M.C., 917 S.W.2d 268,

269 (Tex. 1996). Under subsection (E), the relevant inquiry is whether evidence


                                          23
exists that the endangerment of the child’s physical well-being was the direct result

of the parent’s conduct, including acts, omissions, or failures to act. See J.T.G., 121

S.W.3d at 125; see also TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Additionally,

termination under subsection (E) must be based on more than a single act or

omission; the statute requires a voluntary, deliberate, and conscious course of

conduct by the parent. J.T.G., 121 S.W.3d at 125; see TEX. FAM. CODE ANN. §

161.001(b)(1)(E). It is not necessary, however, that the parent’s conduct be

directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at

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

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

re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).

      B.     Analysis

      Mother concedes that “drug abuse and its effect on the ability to parent can

be part of an endangering course of conduct.” (citing J.O.A., 283 S.W.3d at 345).

She contends, however, that “in this case, the weight to be given to the positive

drug test results and, therefore, how mother’s drug use many have endangered

[KP] remains mainly speculative.” She points out that “DFPS failed to call any

expert to interpret the results” of her positive drug tests, and that “Youngblood [the

caseworker] agreed she was not competent to interpret them.”            Without such

evidence, Mother argues, “the fact finder could not determine the amount of


                                          24
frequency of usage; whether the positive reading could have been caused by mere

exposure or for some other reason.” In sum, Mother contends:

      [N]o rational trier of fact could have formed a firm conviction that
      mother’s conduct endangered [KP]. The record contains insufficient
      facts to determine how her four positive drug tests over a three-year
      period and her failure to complete individual counseling placed [KP]
      in danger. This is particularly true where the child has not resided
      with the mother since 2009.

       While it is true that it has been a long time since KP has resided with

Mother, the cases interpreting section 161.001(1)(b)(E) demonstrate that evidence

of a parent’s course of conduct, even when the parent is not in possession of their

child, can support a finding of endangerment. There is evidence here that Mother

has had trouble maintaining a stable living environment for several years. In fact,

a case worker testified that Mother had never been able to show her an actual

residence. Mother testified that, if she was reunited with KP, they would be living

with TR. There was evidence of a course of conduct of positive drug tests by both

Mother and TR between the time of the 2012 order and the 2015 termination

hearing.

      The supreme court has held that “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.” J.O.A., 283 S.W.3d 336 at 345.

Under this reasoning, Mother’s repeated use of drugs while she retains custody of

KY is evidence of endangerment as it relates to KP, even though KP was in the

                                        25
Department’s custody.4 See id.; see also In re S.R., 452 S.W.3d 351, 360 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied) (“Under subsection E . . . courts

may consider conduct both before and after the Department removed the child

from the home.” (emphasis added); see Avery v. State, 963 S.W.2d 550, 553 (Tex.

App.—Houston [1st Dist.] 1997, no writ) (considering persistent endangering

conduct up until time of trial).

        Moreover, we have held that “[c]onduct that subjects a child to life of

uncertainty and instability endangers the child’s physical and emotional well-

being.” Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.]

2010, pet. denied). Also, although “[m]ental illness alone is not grounds for

terminating the parent-child relationship, . . . untreated mental illness can expose a

child to endangerment . . . and is a factor the court may consider.” In re S.R., 452

S.W.3d at 363.

       Mother testified that she has had a job for several months, but did not testify

to having a residence. The record reflects that Mother has a diagnosis of bipolar

disorder and depression, but there is no indication that she is being treated, and she

refused to continue with the therapist that the Department arranged for her to see.


4
      Although Mother claimed that the results of any positive drug test relating to her
      or her fiancé TR were false, the trial could have believed that evidence was not
      credible. The trier of fact is the sole judge of the credibility of the witnesses and
      the weight to give their testimony. See City of Keller v. Wilson, 168 S.W.3d 802,
      819 (Tex. 2005).
                                           26
Given the evidence of (1) Mother’s course of conduct of drug use while still

maintaining custody of KY, (2) Mother’s long-term lack of residence or stable

living arrangements, (3) Mother’s sporadic and inconsistent visitation of KP, (4)

Mother’s untreated mental illnesses, and (3) Mother’s testimony that she and KP

would live with TR, who also failed drug tests shortly before trial, the trial court’s

endangerment finding under section 161.001(1)(b)(E) is supported by legally and

factually sufficiency evidence.

      We overrule Mother’s first issue.

 SUFFICIENCY OF THE EVIDENCE THAT TERMINATION IS IN KP’S
                      BEST INTEREST
      In her second issue, Mother challenges the legal and factual sufficiency of

the evidence that termination of her parental rights is in KP’s best interest.

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

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

the emotional and physical danger to the child now and in the future, (4) the

parental abilities of the individuals seeking custody, (5) the programs available to

                                          27
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. The Holley factors are not exhaustive.

In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet.

denied). “Moreover, the State 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)).

      The Texas Family Code also provides factors that can be used to assess

whether a child’s parent is willing to provide a safe, stable environment:

      § 263.307. Factors in Determining Best Interest of Child

            (a) In considering the factors established by this section, the
      prompt and permanent placement of the child in a safe environment is
      presumed to be in the child's best interest.
            (b) The following factors should be considered by the court and
      the department in determining whether the child’s parents are willing
      and able to provide the child with a safe environment:
             (1) the child’s age and physical and mental vulnerabilities;
             (2) the frequency and nature of out-of-home placements;
             (3) the magnitude, frequency, and circumstances of the harm to
             the child;
             (4) whether the child has been the victim of repeated harm after
             the initial report and intervention by the department ;

                                         28
           (5) whether the child is fearful of living in or returning to the
           child’s home;
           (6) the results of psychiatric, psychological, or developmental
           evaluations of the child, the child’s parents, other family
           members, or others who have access to the child's home;
           (7) whether there is a history of abusive or assaultive conduct
           by the child’s family or others who have access to the child’s
           home;
           (8) whether there is a history of substance abuse by the child’s
           family or others who have access to the child’s home;
           (9) whether the perpetrator of the harm to the child is identified;
           (10) the willingness and ability of the child’s family to seek out,
           accept, and complete counseling services and to cooperate with
           and facilitate an appropriate agency’s close supervision;
           (11) the willingness and ability of the child's family to effect
           positive environmental and personal changes within a
           reasonable period of time;
           (12) whether the child’s family demonstrates adequate
           parenting skills, including providing the child and other
           children under the family’s care with:
                  (A) minimally adequate health and nutritional care;
                  (B) care, nurturance, and appropriate discipline consistent with
                  the child’s physical and psychological development;
                  (C) guidance and supervision consistent with the child's safety;
                  (D) a safe physical home environment;
                  (E) protection from repeated exposure to violence even though
                  the violence may not be directed at the child; and
                  (F) an understanding of the child’s needs and capabilities; and
           (13) whether an adequate social support system consisting of an
           extended family and friends is available to the child.
           ....
TEX. FAM. CODE ANN. § 263.307 (West Supp. 2015).



                                        29
   B. Analysis

      Mother argues that the Holley factors weigh against termination of her

parental rights being in KP’s best interest. She notes the statement in the CASA’s

report that KP “has verbalized a desire to return home with his mother and

sibling.” She points out that the Department does not have an adoptive placement

for KP identified, that KP’s behavioral problems increased when Mother’s visits

were stopped, and that she is employed now and that KP could now come live with

her, KY, and TR. She acknowledges her repeated failed drug tests, but she argues

that evidence should be outweighed by her lack of a criminal record, stable

employment, and the fact that KY lives with her and has never been removed.

Mother also concedes that given KP’s “substantial emotional disorders” and her

“own illnesses, it is unlikely she would be able to provide him with adequate care

by herself.”     But she nonetheless argues that because there is no adoptive

placement in place for KP, and because KP’s behaviors deteriorated when Mother

was ordered to stop visiting him, the Department has not established that

termination of her parental rights is in his best interest.

      The Department disagrees, arguing that the Holley factors actually weigh in

favor of termination, and it points to the statutory presumption that “the prompt

and permanent placement of the child in a safe environment is . . . in the child’s

best interest.” TEX. FAM. CODE ANN. § 263.307. The Department emphasizes that


                                           30
Mother has engaged in behaviors that endanger KP’s emotional stability over many

years and has failed to take corrective actions to protect and be reunited with her

child, even with long-term active assistance from the Department.

      We agree with the Department that there is legally and factually sufficient

evidence that termination of Mother’s parental rights is in KP’s best interest. While

there is evidence favoring Mother when applying the first factor, i.e., desires of the

child, the following seven out of eight of the remaining factors weigh in favor of

termination being in KP’s best interest:

      -      child’s emotional and physical needs now and in the future (KP
             has been in the custody of the Department for seven years,
             without Mother ever demonstrating that she can meet his
             physical or emotional needs);

      -      child’s emotional and physical danger now and in the future
             (evidence demonstrated that KP needs stability and routine and
             is violently upset by uncertainty; Mother has no established
             residency and has shown a pattern of being under the influence
             of drugs while KP’s sibling remained in her care, and she has
             been inconsistent in her contact with KP, which greatly upsets
             him);

      -      the parental abilities of the individuals seeking custody (Mother
             has demonstrated an inability to remain sober, remain
             emotionally or mentally healthy, and she is living with a
             boyfriend that also has a pattern of drug use and a criminal
             record; in contrast, KP’s emotional and physical needs are
             being meet in his current therapeutic foster home);
      -      agency’s or individual’s plans (the Department plans to
             continue KP in his therapeutic foster home, and then seek a
             permanent adoptive placement; mother has no plan reflected in
             the record to obtain a stable residence or environment);

                                           31
      -      stability of home or proposed placement (Mother has offered no
             evidence of a stable home over the last seven years, only
             testifying that she has a job; the department has KP placed in a
             loving, stable home where his physical, emotional, and
             educational needs are being met);
      -      acts or omissions by parent indicating maintaining parental
             relationship is not proper (Mother’s failure to complete multiple
             service plans, rejection of the Department’s attempts to help her
             with her own mental illness, continued drug use, and failure to
             maintain consistent contact with KP or work towards obtaining
             a stable living arrangement qualify as acts and omissions
             weighing in favor of termination).5

      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.” KP has languished in the foster care system for seven years,

despite the Department’s multiple attempts at offering services for Mother to work

towards reunification.     KP’s caseworker and guardian ad litem opined that

termination of Mother’s parental rights was in KP’s best interest because Mother

had done so little to regain possession of KP over a period of seven years, had

demonstrated an inability to maintain a stable home environment, and had been so


5
      To the extent that the last Holley factor, i.e., excuses for the acts or omissions of
      the parent, applies, it falls between neutral and weighing in favor of termination
      being in KP’s best interest. Mother suffers from mental illness. She has, however,
      offered little in the way of plausible excuses for multiple failed drug tests, and she
      offered nothing in her testimony to explain why she had been so inconsistent in
      her visits with KP, why she has never secured stable suitable housing, or why she
      refused to complete numerous service plans. The excuse she offered for not
      availing herself of the assistance of the therapist the Department enlisted to help
      her in parenting and coping with her mental illness was simply that she decided
      she did not like the therapist.
                                            32
sporadic in her visitation as to cause him emotional distress. Depree v. Tex. Dep’t

of Protective & Regulatory Servs., 907 S.W.2d 81, 87 (Tex. App.—Dallas 1995,

no writ) (“The need for permanence is the paramount consideration for the child’s

present and future physical and emotional needs.”).        Further, the goal of a

permanent placement through adoption cannot be achieved until Mother’s parental

rights are terminated. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston

[14th Dist.] 2012, no. pet.) (“The goal of establishing a stable, permanent home for

a child is a compelling government interest.”). KP’s caseworker testified that she

could broadcast KP’s information to a larger number of potential adoptive parents

if Mother’s rights were terminated.

      For these reasons, we hold that there is legally and factually sufficient

evidence in support of the trial court’s finding that termination of Mother’s

parental rights is in KP’s best interest.

      We overrule Mother’s second issue.

       SUFFICIENCY OF THE EVIDENCE TO SUPPORT REMOVAL OF
          MOTHER AS POSSESSORY CONSERVATOR OF KP
      In her third issue, Mother argues that the evidence was insufficient to

support her removal as KP’s possessory conservator. Specifically, she contends

that the Department did not demonstrate that the “circumstances of the child, a

conservator, or other party affected by the order have materially and substantially

changed since the date of the rendition of the early order.” TEX. FAM. CODE ANN. §

                                            33
156.101 (West 2014) (setting forth “Grounds for Modification of Order

Establishing Conservatorship or Possession and Access).”

      As the Department points out, however, the Texas Family Code expressly

states that “an order terminating the parent-child relationship divests the parent and

the child of all legal rights and duties with respect to each other, except that the

child retains the right to inherit from and through the parent unless the court

otherwise provides.” TEX. FAM. CODE ANN. § 161.206 (West 2014); In re K.A.S.,

399 S.W.3d 259, 263 (Tex. App.—San Antonio 2012, no pet.) (“In a termination

case, the State seeks not just to limit parental rights but to end them permanently—

to divest the parent and child of all legal rights, privileges, duties, and powers

normally existing between them, except for the child’s right to inherit.”).

      In any event, the trial court’s finding of “endangerment” in support of

termination of Mother’s parental rights would serve as “materially and

substantially changed” circumstances. TEX. FAM. CODE ANN. § 156.101.

      We overrule Mother’s third issue.




                                          34
                                 CONCLUSION

      We affirm the trial court’s termination order.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.




                                         35
