Opinion issued April 23, 2020




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-19-00908-CV
                             ———————————
                     IN THE INTEREST OF J.T., A CHILD



                    On Appeal from the 313th District Court
                            Harris County, Texas
                      Trial Court Case No. 2015-07436J


                           MEMORANDUM OPINION

      The trial court terminated the parental rights of the mother and father with

respect to their son, J.T. The father has not appealed but the mother has done so. She

contends that the evidence is legally and factually insufficient to show that:

      •   she knowingly placed or knowingly allowed J.T. to remain in conditions
          or surroundings that endangered his physical or emotional wellbeing;
       •   she engaged in conduct or knowingly placed J.T. with persons who
           engaged in conduct that endangered his physical or emotional wellbeing;

       •   termination of her parental rights is in J.T.’s best interest.

We affirm.

                                   BACKGROUND

       This termination case was tried to the bench in October 2019. Several

witnesses testified for the Department of Family and Protective Services, including

two caseworkers, a drug-testing expert, J.T.’s guardian ad litem, and a person

interested in adopting J.T. The mother testified on her own behalf. The father was

not present at trial.

       J.T. was born in May 2012. The Department subsequently received several

allegations of abuse or neglect.

       The Department received allegations that J.T.’s parents “were using drugs and

blowing marijuana smoke in the infant’s face” in January 2013. But the Department

was unable to complete its investigation of these allegations because J.T.’s parents

moved, and the Department could not find them afterward.

       In April 2014, the Department received allegations that J.T.’s parents were

using methamphetamine and engaged in “constant marijuana use” in his presence.

Once again, the Department could not complete its investigation because the parents

moved, and the Department could not find them.



                                            2
      Later that year, in December 2014, the Department received allegations that

J.T.’s parents took him to a location known for drug-related activity and that his

father was using J.T. to panhandle. In addition, J.T.’s parents allegedly were unable

to feed him and were on the brink of homelessness. Like the prior allegations, the

Department was unable to complete its investigation because the parents moved, and

the Department could not find them.

      In May 2015, the Department received allegations that J.T. had been sexually

abused. J.T.’s mother alleged that his father was abusing him, but she did not want

J.T. to be examined. Based on these allegations and the Department’s perception that

the mother was slow to act on her suspicion of sexual abuse, which the mother

disputed, the Department removed J.T. from his parents’ home in December 2015

and placed J.T. in foster care. The mother satisfied the requirements of her family

service plan, which included education as to domestic violence because she had been

subject to domestic violence by J.T.’s father. J.T. was subsequently returned to his

mother’s sole custody in January 2017.

      About a month later, in February 2017, the Department received allegations

of neglectful supervision, drug abuse, and domestic violence in J.T.’s presence. Its

investigation did not corroborate the allegations of neglectful supervision or drug

use. The mother took a drug test, and her test results were negative. J.T. looked

healthy.


                                         3
      But the mother confirmed the accuracy of the domestic violence allegation.

Her boyfriend, Fabian, broke windows and broke down her apartment’s door while

J.T. hid in a bedroom. Once inside the apartment, the mother’s boyfriend hit her in

the lip, the left side of her face, and one of her arms. According to the mother, J.T.

did not witness the actual assault, which happened in the living room. The police

arrested the boyfriend for domestic violence. As a result, the mother’s family service

plan once again included counseling for domestic violence.

      In April 2017, when the assigned caseworker spoke with the mother by

telephone, her speech was slurred, and she was “saying things that didn’t make

sense.” Drug testing was added to the mother’s service plan.

      The Department received allegations that the mother was drinking and doing

drugs with her boyfriend’s twin brother in May 2017. She took a drug test that same

month and her test results were positive for methamphetamine. She did not dispute

the test result. The Department placed the mother into an inpatient substance abuse

program in which she was allowed to keep custody of J.T.

      The mother remained in this inpatient facility until July 2017, at which point

the substance abuse program wished to remove her. The mother testified that the

program ultimately transferred her to another facility—one that did not allow

children—based on three concerns: she had left the facility for 24 hours on one

occasion, J.T. was acting out sexually with other children, and the program thought


                                          4
that she might be sexually abusing J.T.

      As to the 24-hour absence, the mother testified that she had to fill a

prescription at a hospital and that it took her a full day to do so. The caseworker

testified that the program thought the mother was dishonest. According to the

caseworker, the mother eventually admitted that she had been with her former

boyfriend’s brother, Adrian, with whom she had a relationship. The mother’s

absence violated the program’s rules.

      During the mother’s absence from the facility, J.T. reportedly performed oral

sex on another boy. The mother testified that she did not believe that J.T. had done

so. But this was not the sole report that J.T. had acted out sexually. The Department

had been informed that J.T. had drawn pictures of genitalia, talked about sex, and

exposed himself to girls who also resided on the property. The mother also

acknowledged that J.T. previously had displayed “inappropriate behavior towards

animals,” including once inserting a finger into a cat’s anus.

      As to the concern that the mother might be sexually abusing the boy, the

caseworker testified that the oversexualized behavior exhibited by J.T. usually

indicates abuse. The caseworker stated that she had counseled the mother about

inappropriate sexual behavior because the mother “wanted to be naked with the child

in the tub.” The mother conceded that “there were concerns” but denied that she had

bathed in the nude with J.T. She said she had asked if it would be okay to bathe with


                                          5
him if she wore a bathing suit.

      By this point, the caseworker testified, the Department thought that J.T.

needed to be placed elsewhere for his own safety. In addition to the preceding

concerns, the caseworker stated that she had doubts about the mother’s mental health

due to things the mother would say. J.T. was placed with a maternal great aunt and

her husband in July 2017 when his mother transferred to the other inpatient facility

that did not house children.

      The mother successfully completed that inpatient substance abuse program in

August 2017. She then refused a recommended outpatient substance abuse program

that would have provided her with transitional housing. As a result, the mother was

homeless for several months. Despite her homelessness, she eventually did complete

the outpatient program.

      In December 2017, the caseworker met with the mother to encourage her to

fulfill the requirements of her family service plan. As part of this plan, the mother

had a psychiatric evaluation and was diagnosed as having a mood disorder. She

participated in a domestic violence program but was expelled for noncompliance; in

February 2018, she began participating in another domestic violence program that

she completed.

      The Department received a report of domestic abuse in February 2018. The

caseworker testified that the mother’s face was bruised, which the mother initially


                                         6
attributed to a car accident. The mother later admitted, however, that Adrian had

punched her for losing something unspecified that he had told her to hold for him.

The caseworker testified that neighbors said that Adrian and the mother were living

together. The police arrested him for assault of a family member based on this

incident.

      The following month, March 2018, the caseworker saw the mother walking

down the sidewalk arm-in-arm with Adrian. The mother, however, denied that it was

Adrian and insisted that the man “was a look alike.”

      In June or July 2018, the caseworker visited the mother’s apartment. An

unknown, half-naked man answered and said he was housesitting.

      The mother was evicted from her apartment that summer. The nature of the

eviction was disputed. The Department contended that she failed to pay her rent and

that many people were in and out of the apartment. The mother said that a neighbor

was responsible for the traffic and that she was wrongfully evicted. For the next year

or more, she lived with friends, moving from place to place. She testified that she

had difficulty finding another landlord willing to rent to her due to the eviction.

      In October 2018, the Department moved to terminate the mother’s parental

rights due to her unstable housing situation and concerns that she remained involved

with Fabian or Adrian, both of whom were violent. At this point, a new caseworker

was assigned to the case in place of the original one.


                                           7
      The mother’s drug tests since May 2017 were negative. But in March 2019,

she tested positive for cocaine. An expert testified that the results were consistent

with a weekend binge. The mother denied using cocaine intentionally. She attributed

the positive test result to her association with “unsavory individuals.” She explained

that methamphetamine, not cocaine, had been her drug of choice. According to her,

someone must have “put it maliciously in something” she ingested.

      J.T. continued to live with his great aunt and her husband through trial. He

was in therapy during this period for anger issues. J.T.’s anger can be explosive,

frightening, and atypical for a child. The Department concluded that J.T.’s

behavioral problems resulted from being sexually abused by his father and that the

mother had not done so. According to the second caseworker, J.T.’s great aunt and

her husband have been able to manage his anger and provide him with “a normal

childhood.” J.T. is well cared for in their home, but they cannot provide for J.T. in

the long term due to their advanced age.

      The maternal great aunt’s stepdaughter and her family would like to adopt J.T.

The stepdaughter testified that her family—consisting of her, her husband, and their

three children aged 20, 16, and 13—“would love to have” J.T. live with them. They

consider him family. They have known J.T. for two to three years. During this

period, J.T. has spent summers with them and stayed over with them for a week

every other month. She stated that they are aware of J.T.’s anger issues and want to


                                           8
ensure that he continues to receive the therapy he needs. The stepdaughter testified,

“I don’t want him to end up in a prison as an adult because nobody cared enough to

intervene.”

      The mother testified that she has “a great relationship” with J.T. and will place

his best interest first. Since he was removed from her care, she has visited him once

a month and talks with him by telephone once every other day or so. The mother

stated that she is not using drugs, and that she has done everything that the

Department has required her to do. She testified that she has been employed at one

restaurant for about two years, has a second job at another restaurant, and works

about 60 hours a week. The mother stated that she had signed a lease and was

scheduled to move into a new apartment the day after trial concluded.

      The Department did not agree that the mother had fulfilled all requirements

of her service plan. The initial caseworker testified that the mother was

unsuccessfully discharged from individual therapy and thus never began family

counseling with J.T. as a result. In addition, she noted that even when the mother did

satisfy the requirements of her plan, she did not necessarily change her lifestyle for

the better; for example, the mother continued seeing one of her abusers after

completing counseling for domestic violence. The initial caseworker attended all

visits between the mother and J.T. through mid-October 2018. While the caseworker

did not dispute that the mother loved J.T. and wanted him to be returned to her, the


                                          9
caseworker testified that the mother generally did not get along very well with J.T.

during their visits.

       The second caseworker gave similar testimony. She stated that the mother

failed to satisfy her family service plan’s requirement to maintain stable housing.

She testified that securing a lease for an apartment beginning the day after trial did

not satisfy this requirement. The mother’s March 2019 cocaine use also violated her

plan. Though the caseworker acknowledged that the mother had fulfilled her service

plan in most other respects, she likewise testified that the mother had a pattern of

compliance followed by reversion to undesirable behaviors that required the

Department to repeatedly intervene. For example, the mother had a pattern of drug

relapse and being involved with abusive men.

       The second caseworker testified that the Department had concluded

termination was in J.T.’s best interest. Supporting factors included:

       •   the mother kept J.T. in an environment in which he was sexually abused
           and exposed to domestic violence;

       •   the mother did not maintain a consistent lifestyle;

       •   the mother did not maintain stable housing;

       •   the mother had a pattern of drug abuse; and

       •   the mother failed to support the child financially, including when he was
           in the care of relatives.

More generally, the caseworker testified that the mother was not truthful about her


                                          10
living arrangements and that her behavior put J.T. “in an emotional state where he

can’t really be a normal child.”

      J.T.’s guardian ad litem also recommended termination. She recommended

that J.T.’s current placement with his great aunt be maintained until the great aunt’s

stepdaughter could adopt him. J.T.’s current placement “provided a tremendous

amount of stability” and met all his needs. Removing J.T. from this stable

environment would be harmful because he “is still healing from the trauma he went

through” and this healing process “could take years.” The ad litem concluded that

the mother’s “ability to make rational decisions for the child is questionable” and

that her “ability to be protective” of J.T. is “doubtful.”

      J.T. has said that he wants to stay with his great aunt and the great aunt’s

stepdaughter’s family. The mother did not dispute that J.T. had said so, but she

testified that J.T. did not have an accurate understanding of her present

circumstances and “the changes” that she had made.

      The trial court terminated the father’s and mother’s parental rights. With

respect to the mother, the court found that there was clear and convincing evidence

that the she had:

      • knowingly placed or knowingly allowed J.T. to remain in conditions or
         surroundings that endangered his physical or emotional wellbeing;

      • engaged in conduct or knowingly placed J.T. with persons who engaged in
         conduct that endangered his physical or emotional wellbeing;


                                           11
      • not complied with provisions of her court-ordered family service plan; and

      • used an illegal drug in a way that endangered J.T.’s health and safety and
         continued to abuse an illegal drug after the completion of a court-ordered
         substance abuse treatment program.

See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (O), (P). The trial court further found

by clear and convincing evidence that termination of her parental rights was in J.T.’s

best interest. See id. § 161.001(b)(2).

      The mother appeals.

                                    DISCUSSION

      The mother contends that the evidence is legally and factually insufficient to

support the trial court’s findings that she knowingly placed or knowingly allowed

J.T. to remain in conditions or surroundings that endangered his physical or

emotional wellbeing and that she engaged in conduct or knowingly placed J.T. with

persons who engaged in conduct that endangered his physical or emotional

wellbeing. The mother also contends that the evidence is legally and factually

insufficient to show that termination of her parental rights is in J.T.’s best interest.

                Legal Standard for Termination of Parental Rights

      A parent’s rights to the care, custody, and management of his or her child are

constitutional in scope. Santosky v. Kramer, 455 U.S. 745, 758–59 (1982); In re

M.S., 115 S.W.3d 534, 547 (Tex. 2003). But parental rights are not absolute; the

Department may terminate the rights of those who are not fit to accept the


                                           12
responsibilities of parenthood. In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). The

primary focus in a termination suit is protecting the child’s best interest. Id.

      To terminate parental rights under the Family Code, the Department must

establish that a parent committed one or more statutorily enumerated predicate acts

or omissions and that termination is in the child’s best interest. TEX. FAM. CODE

§ 161.001(b)(1), (2). The Department need only establish one of these predicate acts

or omissions, along with the best-interest finding. See id.; A.V., 113 S.W.3d at 362.

But the Department must make these showings by clear and convincing evidence.

TEX. FAM. CODE § 161.001(b). Clear and convincing evidence is “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.” Id. § 101.007.

      Section 161.001(b)(2)’s best-interest finding is a separate inquiry from section

161.001(b)(1)’s predicate acts and omissions. In re S.R.L., 243 S.W.3d 232, 235

(Tex. App.—Houston [14th Dist.] 2007, no pet.). But evidence used to prove

predicate acts or omissions may be probative in deciding a child’s best interest. In

re A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).

      Multiple non-exclusive factors bear on a child’s best interest. Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include:

      •   the desires of the child;

      •   the emotional and physical needs of the child now and in the future;


                                           13
      •   the emotional and physical danger to the child now and in the future;

      •   the parental abilities of those seeking custody;

      •   the programs available to assist them to promote the child’s best interest;

      •   their plans for the child or the plans of the agency seeking custody;

      •   the stability of the home or proposed placement;

      •   the acts or omissions of the parent that may indicate the existing parent-
          child relationship is not proper; and

      •   any excuse for the parent’s acts or omissions.

Id.; Yonko v. Dep’t of Family & Protective Servs., 196 S.W.3d 236, 243 (Tex.

App.—Houston [1st Dist.] 2006, no pet.). These factors are not exhaustive, no one

factor is controlling, and a single factor may be adequate to support termination on

a particular record. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); In re J.M.T., 519

S.W.3d 258, 268 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

          Legal and Factual Sufficiency Review in Termination Cases

      Because of the elevated burden of proof required in termination cases—clear

and convincing evidence—we do not apply the traditional formulations of legal and

factual sufficiency on appeal. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).

      In conducting a legal-sufficiency review in a termination case, we cannot

ignore undisputed evidence contrary to a finding, but we must otherwise assume the

factfinder resolved disputed facts in favor of the finding. Id. at 630–31; see In re

K.M.L., 443 S.W.3d 101, 112 (Tex. 2014) (reviewing court credits evidence that
                                         14
supports finding if reasonable factfinder could have done so and disregards contrary

evidence unless reasonable factfinder could not have done so). The evidence is

legally insufficient if, viewing all the evidence in the light most favorable to a finding

and considering undisputed contrary evidence, a reasonable factfinder could not

form a firm belief or conviction that the finding is true. A.C., 560 S.W.3d at 631.

      In conducting a factual-sufficiency review in a termination case, we must

weigh disputed evidence contrary to a finding against all the evidence in favor of the

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

factfinder could not have resolved it in favor of the finding. Id. The evidence is

factually insufficient if, in light of the entire record, the disputed evidence a

reasonable factfinder could not have credited in favor of a finding is so significant

that the factfinder could not have formed a firm belief or conviction that the finding

is true. Id. In reviewing for factual sufficiency, however, we must be careful not to

usurp the role of the factfinder. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).

      Deciding whether and to what degree to credit the evidence introduced at trial

is the factfinder’s role, not ours. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). The

factfinder is the sole arbiter of witness credibility. Id.; In re J.S., 584 S.W.3d 622,

634 (Tex. App.—Houston [1st Dist.] 2019, no pet.). In a bench trial, the trial judge

is the factfinder who weighs the evidence, resolves evidentiary conflicts, and




                                           15
evaluates witness demeanor and credibility. In re R.J., 579 S.W.3d 97, 117 (Tex.

App.—Houston [1st Dist.] 2019, pet. denied).

                  Appellate Review of Endangerment Findings

      The Family Code enumerates more than twenty predicate acts or omissions

that may support termination of parental rights. See TEX. FAM. CODE

§ 161.001(b)(1). Two of these concern child endangerment. Id. § 161.001(b)(1)(D),

(E). Under section 161.001(b)(1)(D), a trial court may terminate parental rights

based on a finding that the parent knowingly placed or knowingly allowed the child

to remain in conditions or surroundings that endanger the child’s physical or

emotional wellbeing. Id. § 161.001(b)(1)(D). Under section 161.001(b)(1)(E), a trial

court may terminate parental rights based on a finding that the parent engaged in

conduct or knowingly placed the child with persons who engaged in conduct that

endangers the child’s physical or emotional wellbeing. Id. § 161.001(b)(1)(E).

      Child endangerment findings can have collateral consequences because a

parent-child relationship may be terminated on the basis that the parent had his or

her parental rights terminated with respect to another child for child endangerment.

See id. § 161.001(b)(1)(M). Due to these collateral consequences, due process

requires an appellate court to review challenged endangerment findings even if the

evidence suffices to support findings of other predicate acts or omissions justifying




                                         16
termination. In re N.G., 577 S.W.3d 230, 234–37 (Tex. 2019) (per curiam). We also

must detail our analysis as to challenged endangerment findings. Id. at 237.

      Subsection (b)(1)(D) focuses on the child’s environment, while subsection

(b)(1)(E) focuses on a parent’s conduct. TEX. FAM. CODE § 161.001(b)(1)(D), (E);

In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).

But because both subsections concern endangerment, the evidence pertinent to each

may overlap. S.R., 452 S.W.3d at 360; see also Jordan v. Dossey, 325 S.W.3d 700,

721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (parental conduct can create

environment that endangers child). Thus, we usually consider predicate findings

made under these two subsections together. See S.R., 452 S.W.3d at 360.

      To endanger means to expose a child to loss or injury or to jeopardize a child’s

emotional or physical health. Id. Endangerment may be inferred from parental

misconduct even if the conduct it not directed at the child, does not occur in the

child’s presence, and does not actually injure the child. Walker v. Tex. Dep’t of

Family & Protective Servs., 312 S.W.3d 608, 616–17 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied). Physical danger is not required. S.R., 452 S.W.3d at 360.

The possible ill effects of a family environment that is less than ideal are not enough

to show endangerment. Walker, 312 S.W.3d at 616. But conduct that subjects a child

to a life of uncertainty and instability suffices to show endangerment. S.R., 452




                                          17
S.W.3d at 360. Inappropriate, abusive, or illegal conduct by persons who live in the

child’s home can create an environment that endangers the child. Id.

                                       Analysis

                            Predicate Acts and Omissions

      The trial court found that four distinct predicate acts and omissions supported

termination of the mother’s parental rights. The mother challenges the trial court’s

endangerment findings. See TEX. FAM. CODE § 161.001(b)(1)(D), (E). But she does

not challenge the other two findings—that she did not comply with provisions of her

court-ordered service plan and that she used an illegal drug in a way that endangered

J.T.’s health and safety and used drugs again after completing a court-ordered

substance abuse program. See id. § 161.001(b)(1)(O), (P). These unchallenged

findings, which are supported by the evidence, satisfy the predicate-acts-and-

omissions requirement for termination. See id. § 161.001(b)(1); see also In re K.R.P.,

80 S.W.3d 669, 675 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)

(unchallenged findings supported by evidence are binding on appeal).

      As to the endangerment findings, the mother argues that she neither

anticipated nor had reason to anticipate the unfortunate events that precipitated J.T.’s

most recent removal from her care, such as domestic abuse by her boyfriend. She

also argues that her minimal drug use does not rise to the level of endangerment.




                                          18
      The evidence shows that about a month after J.T. was returned to his mother’s

care in February 2017, her boyfriend Fabian violently broke into her home and

physically attacked her while J.T. hid in a bedroom. The Department required the

mother to receive counseling for domestic violence, but J.T. remained in her care.

      Two months later, the mother’s behavior indicated that she was abusing drugs.

Her speech was slurred and insensible. The Department thus required her to be drug

tested. When she was tested the next month, her results were positive for

methamphetamine. The mother conceded that she had used methamphetamine,

which she described as her drug of choice. Afterward, the Department placed her in

an inpatient substance abuse program where J.T. was allowed to remain in her care.

      But J.T. was removed from her care two months later in July 2017 because

the inpatient program wanted her out of its facility. The program’s desire to expel

the mother arose in part from her failure to comply with its rules. Specifically, she

left for a 24-hour period and the program did not believe the excuse she gave for her

absence. One of the caseworkers testified that the mother eventually admitted that

her excuse had been false and that the mother acknowledged that she had left to

spend time with her former boyfriend’s twin brother, Adrian.

      Another reason the program wanted to expel the mother was because J.T. was

acting out sexually with other children at the facility. Though the mother knew her




                                         19
son had been sexually abused by his father years before, she did not believe the

program’s claim that her son was acting out sexually with other children.

      At the same time that J.T. was removed from his mother’s care, his mother

was transferred to another facility run by the inpatient substance abuse program. She

successfully completed the inpatient program about a month or so afterward.

      The mother was then offered but refused placement in an outpatient program

that included housing. She became homeless for several months but eventually—the

record is not clear when exactly—moved into an apartment complex.

      The mother completed an outpatient substance abuse program. She was

expelled from one domestic violence program but successfully completed another.

      The mother had begun seeing Adrian romantically at some point and they

reportedly were cohabitating. In February 2018, he assaulted her. She initially

attributed her resulting injuries to a car accident, but later admitted the assault.

      Several months later, the mother was evicted from her apartment. From that

point on, she stayed with various friends, moving from place to place.

      In October 2018, the Department sought termination of the mother’s parental

rights due to her unstable housing situation and her continued involvement with

either Fabian or Adrian, both of whom had previously assaulted her.




                                           20
      Though the mother had tested negative for drug use for more than a year, she

tested positive for cocaine in March 2019. The mother claimed that someone must

have surreptitiously placed cocaine in something that she had consumed.

      Based on this record, we conclude that there is legally and factually sufficient

evidence of endangerment to satisfy subsections 161.001(b)(1)(D) and (E). In

particular, the record shows that the mother has repeatedly abused illegal drugs,

continued to associate with a violent boyfriend, and has a longstanding history of

unstable housing that is not attributable to financial inability. Taken together, these

circumstances are clear and convincing evidence of child endangerment.

      As to the mother’s drug use, she used methamphetamine before J.T. was

removed from her care. Illegal narcotics use supports a finding that a child’s

surroundings endanger his physical and emotional wellbeing. In re J.T.G., 121

S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). After J.T.’s removal, the

mother tested positive for cocaine. Repeated illegal narcotics use supports a finding

that a parent has engaged in a course of conduct that endangers the child’s physical

and emotional wellbeing. In re N.J.H., 575 S.W.3d 822, 831 (Tex. App.—Houston

[1st Dist.] 2018, pet. denied). Though the mother denies that she intentionally

ingested cocaine, the trial court, as factfinder, reasonably could have disbelieved her.

Id. at 832; In re S.C.F., 522 S.W.3d 693, 700 (Tex. App.—Houston [1st Dist.] 2017,




                                          21
pet. denied). The trial court also could have reasonably found that the mother’s

dishonesty as to her drug use made relapse and future endangerment more likely.

      The mother argues that there is no evidence that she used methamphetamine

in J.T.’s presence or that he was actually harmed by her drug abuse. In the absence

of contrary evidence, however, the trial court reasonably could have inferred that

any drug use occurred while J.T. was in her care based on her status as the child’s

primary caregiver. See Toliver v. Tex. Dep’t of Family & Protective Servs., 217

S.W.3d 85, 100 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Moreover, it is well

settled that drug use need not occur in front of a child to constitute endangerment.

N.J.H., 575 S.W.3d at 831. Illegal narcotics use endangers children by rendering the

parent too impaired to care for them and is accompanied by the possibility of

prolonged and unplanned separation due to incarceration. Id. at 831–32.

      Though the mother is correct that the record shows limited instances of drug

abuse, these limited instances are sufficient to show endangerment. We note in

particular that the mother’s cocaine use occurred after the Department sought

termination of her parental rights. A parent’s use of illegal narcotics during the

pendency of a termination suit supports a finding that the parent engaged in conduct

endangering the child’s physical and emotional wellbeing. Id. at 832. We further

note that the mother’s cocaine use occurred after lengthy treatment for substance

abuse, which the trial court reasonably could have found called into question her


                                        22
willingness or ability to improve and cease endangering her child. See In re A.M.,

495 S.W.3d 573, 581 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

      With respect to domestic violence, we agree that there is no proof that the

mother had reason to anticipate any violence before it occurred. But there is evidence

that she continued to see at least one of her abusers after he had assaulted her and

after she had been repeatedly counseled for domestic violence. A parent’s continued

association with a known abuser is a conscious choice that endangers a child’s

physical and emotional wellbeing because it exposes the child to the possibility of

violence. See S.C.F., 522 S.W.3d at 700; Jordan, 325 S.W.3d at 721–22.

      The mother denied the continued association, testifying that the caseworker

was mistaken that she continued seeing Adrian romantically after he assaulted her.

Once again, however, the trial court, as factfinder, was free to credit the caseworker’s

testimony over the mother’s version of events. See J.O.A., 283 S.W.3d at 346.

      The evidence also showed that the mother had not had stable housing for a

year or more before trial. The mother disputed the cause of this instability, claiming

that she had been wrongfully evicted, but she did not attribute her situation to

financial inability. In addition, before her eviction, she chose to be homeless rather

than enter an outpatient substance abuse program that provided transitional housing.

The trial court reasonably could find that the mother’s conduct endangered J.T.

because behavior that subjects a child to a life of uncertainty and instability is


                                          23
sufficient to show endangerment. See S.R., 452 S.W.3d at 360; see also In re K.P.,

498 S.W.3d 157, 172 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (long-term

lack of residence and stable living arrangements supported endangerment finding);

Wyatt v. Dep’t of Family & Protective Servs., 193 S.W.3d 61, 71 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) (evidence of long-term unstable housing situation

not outweighed by evidence that parent moved into apartment days before trial).

      Viewing all the evidence in the light most favorable to the trial court’s

endangerment findings and considering undisputed contrary evidence, we conclude

that a reasonable factfinder could have formed a firm belief or conviction that these

findings are true. In light of the entire record, we conclude that the disputed evidence

that a reasonable factfinder could not have credited in favor of these endangerment

findings is not so significant that the factfinder could not have formed a firm belief

or conviction that they are true. We thus hold that the evidence is legally and

factually sufficient to support these findings. See A.C., 560 S.W.3d at 630–31.

      We overrule the mother’s first issue.

                               Best Interest of the Child

      The mother likewise argues that the evidence is legally and factually

insufficient to support the trial court’s finding that termination of her parental rights

is in J.T.’s best interest. An evaluation of the Holley factors refutes her argument.




                                           24
      The mother concedes that J.T. has expressed a desire to live with his maternal

great aunt or her stepdaughter rather than return to his mother’s care. She argues that

J.T.’s preference is uninformed, but she concedes that there is little evidence as to

what J.T. knows about his mother’s present situation. J.T. did not testify.

      As to J.T.’s emotional and physical needs now and in the future, the record

contains undisputed evidence that he was sexually abused by his father at a very

young age and consequently has significant anger issues requiring therapy. The

second caseworker testified that his great aunt and her husband have been able to

manage J.T.’s anger and give him a normal childhood. The great aunt’s stepdaughter

testified that she and her family are committed to ensuring J.T. receives the therapy

and support that he needs. In contrast, the mother discounted a report that J.T. had

sexually acted out with other children despite her knowledge of the prior sexual

abuse. From this evidence, the trial court reasonably could have found that J.T.’s

mother did not understand J.T.’s needs and was unprepared to meet them, which

supports its best-interest finding. See Wyatt, 193 S.W.3d at 69.

      The evidence of the mother’s repeated drug use, continued association with a

violent boyfriend, and history of unstable housing not attributable to financial

inability bears on the emotional and physical danger to J.T. now and in the future.

Because we have reviewed this evidence at length in connection with the trial court’s

endangerment findings, we will not repeat ourselves here. See A.A.A., 265 S.W.3d


                                          25
at 516 (evidence of predicate acts and omissions may be probative of child’s best

interest). We note, however, that evidence of endangerment is especially probative

of J.T.’s best interest. See Vasquez v. Tex. Dep’t of Protective & Regulatory Servs.,

190 S.W.3d 189, 198 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); see also

Walker, 312 S.W.3d at 619 (evidence of endangerment relevant to endangerment

finding also probative in assessing child’s best interest).

      As to the mother’s parenting abilities, there is some evidence in the mother’s

favor. When the Department investigated allegations of neglectful supervision in

February 2017, its investigation did not substantiate them. J.T. looked healthy. But

there also is unfavorable evidence. While the mother was in an inpatient substance

abuse program, she abandoned her son for 24 hours to spend time with a boyfriend.

A caseworker also testified that the mother had to be told not to bathe in the nude

with J.T. during this timeframe. Though the mother denied doing so, the trial court,

as factfinder, reasonably could have believed the caseworker instead of the mother.

      Regarding programs available to promote J.T.’s best interest, there was little

or no direct evidence as to what programs could assist the mother in the future. But

the mother did not satisfy all requirements of her family service plan. In addition,

she used cocaine after completing both inpatient and outpatient substance abuse

programs. There also was evidence that she continued to associate with a known

abuser despite completing domestic abuse counseling. The trial court, as factfinder,


                                          26
reasonably could have found that the mother was unlikely to benefit from any

services available to promote J.T.’s best interest based on her failure to complete all

the requirements of her family service plan and her additional failure to change her

behavior after completing other programs. See N.J.H., 575 S.W.3d at 835

(noncompliance with court-ordered service plans bears on whether parent will

benefit from programs available to assist in promoting child’s best interest); Wyatt,

193 S.W.3d at 70 (noting that parent didn’t benefit much from classes and programs

in assessing whether she’d benefit from ones promoting child’s welfare).

      The record contains evidence that J.T. was well cared for by his great aunt and

that her stepdaughter wanted to adopt him. The stepdaughter and her family have

known J.T. for two or three years and have spent substantial time with him. They

consider J.T. family. J.T.’s guardian ad litem testified that his current placement

gave him stability and that returning J.T. to his mother’s care would jeopardize this

stability. The trial court reasonably could have credited the evidence that J.T.’s

current and planned placement were safe, stable, and loving—in contrast to his life

in his mother’s care—in considering his best interest. See N.J.H., 575 S.W.3d at 835;

In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

      The mother provided various explanations for her acts and omissions, which

the trial court, as factfinder, reasonably could have rejected. Of these explanations,

one is especially notable as to J.T.’s best interest. Regarding her March 2019 drug


                                          27
test result showing that she had ingested cocaine, the mother testified that she had

been associating with “unsavory individuals” and asserted that one of them must

have dosed her without her knowledge. Even if the trial court credited her

explanation, which it was not obliged to do, her explanation is an admission that she

was spending time with people who possessed illegal narcotics. The trial court could

have reasonably found that the mother’s voluntary association with persons who

were engaged in criminal activity like narcotics possession was not in J.T.’s best

interest, particularly given the mother’s own history of drug abuse. See In re T.G.R.-

M., 404 S.W.3d 7, 15 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (involvement

with person known to engage in criminal activity endangers child’s wellbeing).

      Viewing all the evidence in the light most favorable to the trial court’s best-

interest finding and considering undisputed contrary evidence, we conclude that a

reasonable factfinder could have formed a firm belief or conviction that this finding

is true. In light of the entire record, we conclude that the disputed evidence that a

reasonable factfinder could not have credited in favor of this best-interest finding is

not so significant that the factfinder could not have formed a firm belief or conviction

that it is true. We thus hold that the evidence is legally and factually sufficient to

support this finding. See A.C., 560 S.W.3d at 630–31.

      We overrule the mother’s second issue.




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                                CONCLUSION

      We affirm the trial court’s judgment.




                                              Gordon Goodman
                                              Justice

Panel consists of Chief Justice Radack and Justices Kelly and Goodman.




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