Opinion issued August 31, 2018




                                       In The

                                Court of Appeals
                                       For The

                            First District of Texas
                             ———————————
                                NO. 01-18-00193-CV
                             ———————————
                   IN THE INTEREST OF A.D.N., A CHILD



                     On Appeal from the 314th District Court
                             Harris County, Texas
                       Trial Court Case No. 2017-00520J


                           MEMORANDUM OPINION

      This is an appeal from a decree terminating a mother’s parental rights. The

mother contends that the evidence was legally and factually insufficient to support

the termination of her parental rights. Because the evidence is sufficient to support

the trial court’s decree, we affirm.
                                    Background

      Appellant’s daughter, A.D.N., who is the subject of this parental-termination

proceeding, was born in the spring of 2012. From infancy the child lived with her

maternal grandmother and her step-grandfather. In May 2016, the Department of

Family and Protective Services received a referral regarding the child. According to

the Department’s removal affidavit, the referral source stated that A.D.N. lived with

her grandparents because appellant had a “drug problem” and had been unable to

provide a stable home environment for her daughter. According to the affidavit’s

description of the referral allegations, appellant visited A.D.N. at the grandmother’s

home and sometimes spent the night there. In May 2016, however, for the first time,

appellant tried to remove A.D.N. from the grandmother’s home.

      The referral alleged that appellant had shown up “high” at the grandmother’s

home several days in a row at 4:00 a.m., and she caused disturbances there. It was

reported that appellant then attempted, unsuccessfully, to remove A.D.N. from

school. Later, accompanied by law enforcement officers, appellant went to the

grandmother’s home and demanded that A.D.N. be given to her. Although the

grandmother had temporary custody of the child, and she informed the police that

appellant did not have a home and was in possession of drugs, appellant was

permitted to take A.D.N.




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       The removal affidavit further reported that appellant then “got high on bars”

and left A.D.N. with a friend while she went out for the night. The friend contacted

the grandmother, who retrieved A.D.N. and took her home. It was further alleged

that appellant had a history of leaving A.D.N. with friends, but without necessary

supplies to care for the child. When A.D.N. was a few weeks old, appellant allegedly

left her with a friend and did not return for two weeks.

       The Department conducted an investigation, and approximately nine months

after receiving the referral it filed a petition seeking temporary managing

conservatorship of A.D.N. and termination of parental rights if reunification with the

parents was found to be unsuitable. According to the removal affidavit, appellant

initially had agreed to complete services for substance abuse intervention and

parenting. She later insisted that she would not participate in any services, and she

told a caseworker she would change her telephone number if the Department tried

to contact her again. After a full adversary hearing, A.D.N. was placed under the

Department’s care, and the placement with her grandparents was continued during

the suit.

       The Department developed a family service plan for appellant which the trial

court incorporated by reference in a status-hearing order, making the plan an order

of the court. The plan listed several tasks and services to be completed for

reunification with A.D.N. to occur. The plan stated that it was intended to help


                                          3
appellant provide a safe environment for A.D.N. within a specified time, and that if

she was unwilling or unable to provide that safe environment, parental and custodial

duties and rights could be restricted or terminated, or the child might not be returned.

The trial court further prohibited appellant from having visits with A.D.N. until she

tested negative for drugs. In a subsequent order, the trial court ordered appellant to

pay minimum-wage child support.

       The Department’s petition to terminate parental rights was tried to the bench

in January 2018. Exhibits admitted into evidence included, among other documents,

family-service plans (including a summary of the referral received by the

Department as the “reason for child protective services involvement”), the removal

affidavit, a Children’s Crisis Care Center family evaluation, the Department’s final

permanency report to the court, results of several drug tests for both parents, and

documentation related to the criminal history of both parents.

       T. Summerville was assigned as the caseworker during the suit, and the

Department called her as its sole witness at trial. Appellant testified, and she also

called the Child Advocates representative as a witness. A.D.N.’s caregivers, her

maternal grandmother and step-grandfather, were present in court, but they did not

testify.

       The caseworker testified that A.D.N. was removed from appellant’s care in

May 2016. Appellant repeatedly tried to take A.D.N. from the grandmother, and the


                                           4
child was then removed from the grandmother’s home by police. The caseworker

explained that appellant then left A.D.N. with a friend, and the grandmother had to

pick up the child. She stated that appellant had completed most of the services

ordered in her family service plan. Due to Hurricane Harvey, appellant had been

delayed in beginning her individual counseling, and she had one session remaining.

Appellant was paying court-ordered child support for A.D.N. She told the

caseworker she was living with an uncle, and she provided an address. Appellant

also provided the caseworker with contact information for her employer, by whom

she was paid in cash. However, the caseworker was unable to verify appellant’s

employment.

      The caseworker testified that appellant had tested positive for drugs several

times throughout the case. Appellant failed to appear for a court-ordered drug test in

February 2017, though she had not yet been served with the petition at that point.

Appellant failed to appear for a court-ordered test in April 2017. She gave birth to

her son, R.R., the day after she had been required to appear. At the time of trial, there

was another pending conservatorship case involving R.R.

      The drug test results admitted into evidence showed that appellant tested

positive for cocaine based on hair follicle testing in May 2016, March 2017, and

June 2017. She tested positive for marijuana based on hair follicle testing in March,

June, July, and October 2017. The June 2017 test also was positive for


                                           5
benzoylecgonine, a primary metabolite of cocaine, and marijuana metabolites. The

July test was positive for marijuana metabolites. Appellant also tested positive,

based on a urinalysis in July 2017, for hydrocodone and hydromorphone. The

caseworker considered appellant’s drug use to be “endangering conduct.” She stated

that the result of the October 2017 test, which was positive for marijuana, showed

only exposure to the drug, and not ingestion. Nevertheless, she believed that

appellant’s exposure to that much marijuana was “not a positive thing.”

      Results of subsequent hair follicle and urinalysis tests were negative for drugs,

and appellant contacted the caseworker to arrange visits with A.D.N. The

caseworker testified that she understood the court order to mean that visits could be

“considered” once appellant tested negative for drugs. She stated that she and

A.D.N.’s attorney ad litem “did not agree with the visitations,” so they denied

appellant’s request.

      Records of appellant’s criminal history showed that she was convicted of

felony theft in 2011 and misdemeanor theft in 2012. In 2014, she was convicted of

a misdemeanor after a car accident in which she failed to stop and give her

information to the other driver. Later that year, she was convicted of misdemeanor

possession of alprazolam, a controlled substance. She was sentenced to ten days in

jail. The caseworker considered appellant’s criminal conduct and convictions to be

“endangering conduct.”


                                          6
        The caseworker believed it would be in the best interest of A.D.N. for both of

her parents’ rights to be terminated, and for the child to be adopted by her maternal

grandmother. She explained that A.D.N. had been living with her grandmother since

she was an infant, and it was the only home she knew. A.D.N. had a great

relationship with the grandmother and step-grandfather, and with her teenage uncle

who also lived in the home. She called her grandmother “Mommy.” The caseworker

stated that A.D.N. was doing very well in school, and she was involved in several

extra-curricular activities. The grandmother’s home provided a safe and stable

environment for A.D.N., and there were no issues of drugs or criminality in the

home.

        K. Neal of Child Advocates, A.D.N.’s court-appointed volunteer guardian ad

litem, also testified. Neal testified that A.D.N. was in a “great” placement with her

grandmother, and the home provided a “loving” and “stable” environment for the

child. A.D.N. was doing “very, very well.” A.D.N.’s brother, R.R., had been placed

with caregivers in the same neighborhood, which Neal agreed would be convenient

for future visits between the siblings.

        However, Neal had filed a report with the trial court recommending that the

trial be continued. She explained that appellant had completed all of her services,

and her last two drug tests prior to trial had been negative. Neal additionally testified

that A.D.N. “loves her mother,” and she spoke “very highly” of appellant during her


                                           7
visits with the child. Nevertheless, Neal did not ask the court to place A.D.N. with

appellant. Rather, she testified that Child Advocates believed it would be in A.D.N.’s

best interest to remain with her grandparents while appellant continued to address

her substance-abuse issues. Neal recommended that appellant have weekly visits

with A.D.N., supervised by the grandmother, while the case was continued.

      Appellant also testified. Other than one final therapy session scheduled for the

day after trial, she had completed her family-service plan. She produced a certificate

that showed she had completed eight weeks of parenting classes. She also produced

a certificate of completion for four months of outpatient treatment for substance

abuse, dated August 2017. Both certificates were admitted into evidence. Appellant

testified that she was seeing an aftercare counselor for drug abuse, and she intended

to continue treatment with the counselor.

      Appellant conceded that she had started using drugs in high school. She

explained that she “made a mistake.” She initially testified that she had not used

drugs since July 2016. However, during cross-examination, she stated that she was

confused about the date, and she clarified that she had been sober since July 2017.

She stated that the July 2017 test had been positive for hydrocodone because she had

prescriptions for hydrocodone and oxycodone to treat pain stemming from a 2015

car accident. She stated that she no longer used the medications. Appellant was

aware that relapse rates for drug abusers are very high, and she understood that


                                            8
having a sponsor and attending support meetings was important to maintaining

sobriety.

      At the time of trial, appellant was living with her uncle, and she testified that

his house was an appropriate place for A.D.N. to visit. She described her uncle as

being “like a father figure” to her, and she stated that she had not been in any

arguments with him. She further stated that she could rely on him if she needed

financial help. Appellant conceded that her uncle could ask her to leave his house at

any time. She stated that she would get a place of her own if he did ask her to leave.

      Appellant testified that she had a job selling air conditioners, and she was paid

in cash. She had purchased a car for $1,500, and she had saved an additional $5,000.

She also had applied for disability benefits, but she had not yet been approved.

Appellant agreed that she was getting paid in cash for her sales job because she did

not want the income to negatively affect her pending disability claim or a pending

lawsuit. While the case was pending, appellant had paid $900 in child support for

A.D.N., and she was current on her payments. She had also purchased clothing and

shoes for A.D.N. in the past. Appellant testified that she was “not sure” how much

the grandmother spent each month to take care of A.D.N.

      Appellant wanted the court to deny the petition to terminate her parental rights

with respect to A.D.N. She wanted “more time” in this case because she was “still

fighting” the case to maintain her parental rights to her son. A.D.N. had lived at the


                                          9
grandmother’s house “since she was about two,” and appellant also had lived there

with her for a period of time. Appellant believed that her own mother, A.D.N.’s

grandmother, did not believe she was trustworthy because when she lived there in

the past she “was messing up.” She testified, however, that she had learned to “be

specific and . . . responsible” and “not to do drugs.” She stated that she would ensure

that A.D.N. would not be in “harm’s way.”

      Appellant stated that she did not want the grandmother to adopt A.D.N.

However, she also testified that she did not “have a problem” with it. Appellant

agreed that the grandparents did a “great job” parenting A.D.N. Despite testifying

that she did not want A.D.N. to be adopted by her grandmother, appellant also

affirmatively testified that it would be in the best interest of the child.

      In its final order, the trial court found that appellant had committed predicate

acts of endangerment. See TEX. FAM. CODE § 161.001(b)(1)(D), (E). The court also

found that termination of appellant’s parental rights was in the best interest of

A.D.N. Based upon those findings, the trial court terminated appellant’s rights to

A.D.N. The trial court also terminated the parental rights of A.D.N.’s alleged father

and the “unknown father.” The Department was named sole managing conservator

of the child.




                                           10
                                      Analysis

      On appeal, appellant challenges the legal and factual sufficiency of the

evidence     supporting     termination        of   her   parental     rights    under

sections 161.001(b)(1)(D) and (E). She also argues that the evidence was legally and

factually insufficient to support the finding that termination of her parental rights

was in A.D.N.’s best interest.

      To terminate parental rights, the State must establish by clear-and-convincing

evidence that there is at least one predicate statutory ground for termination and that

the termination is in the child’s best interest. See TEX. FAM. CODE § 161.001(b); see

also In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002). Clear-and-convincing

evidence is “the measure or degree of proof that will produce in the mind of the trier

of fact a firm belief or conviction as to the truth of the allegations sought to be

established.” TEX. FAM. CODE § 101.007.

      To assess legal sufficiency of the evidence, we consider all of the evidence in

the light most favorable to the trial court’s finding and decide “whether a reasonable

trier of fact could have formed a firm belief or conviction that its finding was true.”

J.F.C., 96 S.W.3d at 266. We assume that any disputed facts were resolved in favor

of the finding as long as a reasonable factfinder could have done so. Id. If “no

reasonable factfinder could form a firm belief or conviction” that the matter on which

the State bears the burden of proof is true, then we “must conclude that the evidence


                                          11
is legally insufficient.” Id. In reviewing the factual sufficiency of the evidence, we

consider the entire record, including disputed evidence. Id. (citing In re C.H., 89

S.W.3d 17, 25 (Tex. 2002)). The evidence is factually insufficient if, in light of the

entire record, the disputed evidence that a reasonable factfinder could not have

resolved in favor of the finding is so significant that the factfinder could not

reasonably have formed a firm belief or conviction. Id.

I.    Endangerment

      The Department sought termination of appellant’s parental rights on grounds

of endangerment. See TEX. FAM. CODE § 161.001(b)(1)(D), (E). Only one predicate

finding under section 161.001(b)(1) is required to support a judgment of termination

when there is also a finding that termination is in the best interest of the child. In re

A.V., 113 S.W.3d 355, 362 (Tex. 2003); see also In re L.M., 104 S.W.3d 642, 647

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

      The predicate act of endangerment under paragraph (E) is satisfied if the

parent has “engaged in conduct or knowingly placed the child with persons who

engaged in conduct which endangers the physical or emotional well-being of the

child.” TEX. FAM. CODE § 161.001(b)(1)(E). A child’s well-being is “endangered”

by exposure to loss or injury or when her emotional or physical health is put in

jeopardy. Tex. Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It

is not necessary that the endangering conduct be directed at the child or that the child


                                           12
actually suffer injury. Id. To determine whether termination is justified, courts may

consider conduct that did not occur in the child’s presence and conduct that occurred

before and after the child was removed by the Department. Walker v. Tex. Dep’t of

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

Dist.] 2009, pet. denied). Courts also may look to conduct that occurred before the

child’s birth. Id.; In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).

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

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

use of illegal drugs may support termination under section 161.001(b)(1)(E) because

“it exposes the child to the possibility that the parent may be impaired or

imprisoned.” Walker, 312 S.W.3d at 617. Further, “a parent’s decision to engage in

illegal drug use during the pendency of a termination suit, when the parent is at risk

of losing a child, may support a finding that the parent engaged in conduct that

endangered the child’s physical or emotional well-being.” In re K.C.F., No. 01–13–

01078–CV, 2014 WL 2538624, at *10 (Tex. App.—Houston [1 Dist.] 2014, no pet.)

(mem. op.).

      The referral alleged that appellant showed up “high” at the grandmother’s

house and took A.D.N. It also alleged that appellant continued to use drugs that

evening before leaving the child with a friend. Appellant’s criminal records showed

that she was convicted for criminal possession of a controlled substance and


                                         13
sentenced to 10 days in jail. Thus, the evidence supported a conclusion that

appellant’s illegal drug use prior to the initiation of this suit resulted in risks of

impairment and imprisonment. See Walker, 312 S.W.3d at 617. After the suit was

initiated in February 2017, appellant continued to test positive for drugs. She tested

positive for cocaine in March and June 2017. She tested positive for marijuana in

March, June, and July 2017. Additionally, the result of a urinalysis, also from

July 2017, was positive for hydrocodone and hydromorphone. Appellant testified

that she had last used drugs in July 2017. However, evidence that appellant engaged

in illegal drug use while the termination suit was pending, despite knowing that she

was at risk of losing her rights to A.D.N., supported a conclusion that she engaged

in conduct that endangered the well-being of her child. See J.O.A., 283 S.W.3d at

345. Thus, the evidence was legally sufficient to support a finding of endangerment.

      According to appellant’s own testimony she stopped using drugs in July 2017,

five months after the suit was initiated. With respect to the positive results for

hydrocodone and hydromorphone, appellant claimed to have valid prescriptions for

the drugs. However, she failed to produce any evidence to support that claim, and

there was evidence that she had a history of abusing prescription drugs. There was

no evidence to contradict the Department’s proof that appellant used illegal drugs

while the suit was pending. Considering the entire record, we hold that the evidence

also was factually sufficient to support the trial court’s finding.


                                           14
      Because we have found that the evidence is both legally and factually

sufficient to support the predicate finding of endangerment under subsection (E), we

need not address the sufficiency of the evidence to support a finding under

subsection (D). See A.V., 113 S.W.3d at 362; L.M., 104 S.W.3d at 647. Accordingly,

we overrule appellant’s first issue.

II.   Best interest of the child

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

maintaining the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex.

2006). To determine whether termination of the parent-child relationship was in the

child’s best, we evaluate the evidence in light of the factors set out in Holley v.

Adams: (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 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 a proper one; and (9) any excuse for the acts or omissions of the parent. 544

S.W.2d 367, 371–72 (Tex. 1976). The list of Holley factors is not exhaustive, nor is

evidence of all nine factors required to support a judgment of termination. Id. at 372.


                                          15
Evidence that establishes the predicate acts under section 161.001(b)(1) may be

relevant to determining the best interest of the child. See C.H., 89 S.W.3d at 27–28.

      Desires and needs of the child.—A.D.N. was five years old at the time of

trial. She did not testify. The child advocate testified that A.D.N. cared for appellant,

but the child had lived with her grandparents most of her life. The evidence

established that A.D.N. had a strong bond and a good relationship with her

grandparents and with her uncle, who also lived in the home. A.D.N. was doing well

in school, and she participated in extra-curricular activities. In her appellate brief,

appellant concedes that the child’s “desire, presumably, would be to continue living

with and being raised by these maternal relatives.”

      Endangerment of the child.—In determining the best interest of a child, a

factfinder may consider evidence of a parent’s past behavior that endangered the

well-being of the child and infer that the conduct may recur in the future if the child

is returned to the parent. See, e.g., Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied). Appellant’s illegal drug use prior to

the initiation of this suit resulted in impairment and imprisonment, and it supported

a conclusion that she engaged in conduct that endangered A.D.N.’s well-being.

      Appellant contends that she completed her family-service plan in an attempt

to learn how to protect her child going forward. At trial, she testified that she had

learned to be “responsible,” and “not to do drugs.” Appellant’s final two drug tests


                                           16
prior to trial were negative for the presence of drugs. However, it was undisputed

that appellant continued to use illegal drugs while the case was pending. A parent’s

drug use can support a finding that termination is in the best interest of a child. See,

e.g., C.H., 89 S.W.3d at 28; In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston

[1st Dist.] 2012, no pet.).

      The caseworker testified that there were no issues of drugs or criminality in

the grandmother’s home.

      Programs available to promote the best interest of the child.—The evidence

established that appellant took advantage of the services and programs offered in her

family-service plan. There was no evidence about programs available to the

grandparents, nor was there evidence of any need for them.

      Parental abilities, plans for the child, and stability of home.—Appellant

completed her family-service plan, including an 8-week parenting class. She testified

that she had learned to be “specific,” “responsible,” and “not to do drugs.” However,

as discussed above, the evidence established that appellant did use illegal drugs

while the case was pending, including while she was in an outpatient substance-

abuse treatment program, and while she was pregnant with R.R.

      Appellant testified that she was living with her uncle, and that his house was

an appropriate place for A.D.N. to visit. The caseworker stated that appellant had

provided her an address for the uncle, but there was no further evidence about


                                          17
whether it was a stable or safe environment for a child. There was no evidence from

the uncle that he would permit A.D.N. to live at his home. Further, there was no

evidence that appellant paid rent to her uncle or that she had a lease. It was

undisputed that appellant could be asked to leave her uncle’s home at any time.

      Appellant testified that she had a job selling “AC units,” and that she was paid

in cash. She stated that she had purchased her own car, and she also had saved several

thousand dollars, which she would use to get her own home if necessary. However,

appellant did not provide documentation to establish that she was employed or to

establish the amount of her income, and the caseworker testified that she was unable

to verify appellant’s employment. The Child Advocates representative stated that

she had spoken to appellant’s manager over the phone, but she never met him.

Appellant had filed a disability claim, which had not yet been approved. Her

testimony implied that information about her income could jeopardize her eligibility

or ability to receive disability benefits. Additionally, when asked to estimate how

much the grandmother spent to take care of A.D.N. on a monthly basis, appellant

responded that she did not know.

      In contrast, it was undisputed that A.D.N.’s grandparents provided a loving,

stable, and safe environment for the child. The maternal grandmother planned to

adopt A.D.N.




                                         18
                                    *      *      *

      The Department sought termination of the parental rights of A.D.N.’s parents

so that the child could achieve permanency through adoption by her maternal

grandmother. The guardian ad litem believed it was in A.D.N.’s best interest to

remain with the grandparents, although she also advocated to continue the trial based

on appellant’s progress. Appellant herself testified that it would be in A.D.N.’s best

interest to be adopted by her grandmother.

      Considering the Holley factors and reviewing all of the evidence in the light

most favorable to the trial court’s finding, we conclude that a reasonable trier of fact

could have formed a firm belief or conviction that termination of appellant’s parental

rights was in the best interest of A.D.N. Moreover, none of the disputed evidence

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

conviction. We therefore conclude that the evidence was both legally and factually

sufficient to support termination of appellant’s parental rights to A.D.N.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Justices Keyes, Bland, and Massengale.




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