Opinion issued June 7, 2018




                                       In The
                                Court of Appeals
                                      For The
                           First District of Texas
                              ————————————
                       NO. 01-17-00958-CV
                     ———————————
    IN THE INTEREST OF J. V. B., J. M. B., S. A. B., C. C. B., AND T. J.,
                           CHILDREN


                    On Appeal from the 314th District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-06380J

                           MEMORANDUM OPINION
      J.V.J., mother of nine, appeals the trial court’s decree terminating her

parental rights to five of her children.1 J.V.J. challenges the trial court’s decree on

the grounds that the evidence is legally and factually insufficient to support its

predicate findings for termination of her parental rights and its finding that




1
      J.V.J.’s four older children, who are not subject to this suit, reside with their
      fathers.
termination of her parental rights is in the children’s best interest. See TEX. FAM.

CODE § 161.001(b).

      The evidence is legally and factually sufficient. We affirm.

                                   Background

      In November 2017, the Department of Family and Protective Services filed a

petition for termination of J.V.J.’s parental rights to five of her children—three-

year-old twins Jane and Janis, two-year-old twins Carol and Sam, and one-year-old

Tom2—based on endangerment, constructive abandonment, and failure to comply

with her family service plan.3

      J.V.J. and the Department

      The Department’s involvement began on January 27, 2016, when it received

the first of six referrals in this case. This first referral alleged physical abuse,

physical neglect, and neglectful supervision by J.V.J. At that time, J.V.J., who was

27 years old and pregnant with her ninth child, was living with her children and

A.B., the alleged father of some of her children, at J.V.J.’s grandmother’s

apartment.




2
      We use pseudonyms for the children.
3
      The Department’s petition also sought termination of the parental rights of the
      children’s alleged father, A.B., and any unknown father.
                                            2
      According to the first referral report,4 J.V.J. and A.B. physically abused the

children “using belts, sticks, and hands all over the body.” Further, the report

alleged, J.V.J. was smoking marijuana and selling food stamps to buy drugs, and

A.B. was using “pills” and selling crack in front of the apartment complex. The

report also stated that Jane, who was two years old at the time, had been rushed to

the hospital after swallowing cigarette butts and two pennies. With regard to

J.V.J.’s older children (who are not subject to the termination order in this case),

the report stated that J.V.J. and A.B. made them “fight each other until one of them

bleeds.”

      After receiving the referral, the Department conducted an investigation and

interviewed both J.V.J. and A.B. J.V.J. stated that she had been staying with her

grandmother for two or three months. She admitted that she smoked one marijuana

blunt each day, but she said she did not do so in front of the children. A.B. denied

drug use, but stated that J.V.J. and others living in the apartment smoked

marijuana. J.V.J, A.B., and other family members were ordered to undergo drug

testing, and they each tested positive.

      The following month, the Department made several attempts to reach J.V.J.,

but the Department was unable to locate her. Then, on February 24, 2016, the


4
      Although the removal affidavit was never admitted into evidence and does not
      appear in the record on appeal, portions of it appear in the caseworker’s
      permanency reports as well as in J.V.J.’s psychological evaluation.
                                          3
Department received a second referral alleging neglectful supervision and physical

neglect of four of the children subject to this termination order. This referral report

stated once again that J.V.J. and A.B. smoke marijuana. It added that the

conditions in the home were “unlivable”: there were 12 people living in a 2-

bedroom apartment, with trash and clothes everywhere, dirty dishes in the sink,

roaches, and the children sleeping on the floor.

      The Department was unable to make contact with J.V.J. again until April

2016, when it received a third referral. That referral alleged that J.V.J. had been

evicted from her apartment and left her children at the apartment of Lilian Parker,

who was not a relative. According to the report, J.V.J. provided Parker, who had

agreed to keep the children for a short period of time, with clothes for only one

week. Parker did not have money to care for the children, so as time went by, she

tried to reach J.V.J. to ask her to pick them up. But J.V.J. did not answer. When

Parker was finally able to reach J.V.J., J.V.J. told her to “put lunchmeat out for the

kids and tell them not to open the door.” The report also indicated that J.V.J. had

been told about places that would help care for the children, but she refused to take

advantage of these services, saying she needed the children for benefits.

      In its investigation of the April referral, the Department saw the children, but

not J.V.J. According to the Department, it appeared that J.V.J. and A.B. “were

trying to avoid the Department.” The Department again lost contact with J.V.J. and


                                          4
A.B. Then on August 5, 2016, Jane was admitted to the hospital after reportedly

having vomited for two days. She had what appeared to be two coins and a screw

in her stomach, and as a result, she had to be fitted with a colostomy bag. The

Department contacted J.V.J. to tell her that Jane was in the hospital.

      Two days into Jane’s hospitalization, the Department received a fourth

referral, alleging medical neglect and neglectful supervision of Jane by J.V.J. and

A.B. The Department interviewed J.V.J., who stated at first that Jane had been with

an aunt for the past few months, but then stated that Jane had been with the aunt

only “a few days,” and that no one had seen Jane swallow the items. The other

children subject to this suit were said to be with A.B. in Louisiana.

      The referral report noted that while Jane was in the hospital, J.V.J. and A.B.

were inattentive to her. It also noted that Jane “has had gastrointestinal issues since

2014” that require special care on a regular basis, and that “[J.V.J.] and [A.B.]

have a history of non-compliance with treatment.” According to the referral report,

J.V.J. stated that the family had been “moving back and for[th] to Port Arthur and

could not follow up.”

      At this point, the Department lost contact with the family again. It received a

fifth referral on October 31, 2016, which alleged neglectful supervision of Sam

(and three older children not subject to this suit). According to the report, the

children had been staying with caregivers, who after four months of caring for


                                          5
them, could no longer afford to do so. The report states that prior to the caregivers’

involvement, the children were eating out of a trash can, and that “[t]he person the

children were staying with was mistreating them.”

      Two weeks later, on November 14, 2016, the Department received a sixth

referral, stating that Jane had been taken to the emergency room for severe

stomach problems and a rash on her buttocks. According to the referral report,

J.V.J. had failed to take Jane to her follow-up appointments after her surgery in

August. Jane’s aunt, with whom Jane had been staying for several days, informed

the medical staff that, according to J.V.J., Jane had had the rash for over a week.

Jane’s treating physicians also noted “a yellow vaginal discharge,” and

“excoriations and vesicles on the child’s buttocks.”

      Unable to reach J.V.J. to obtain her consent for Jane’s treatment, the

Department took possession of the five children subject to this suit. On November

21, 2016, the Department filed a petition for protection and conservatorship and for

termination of J.V.J.’s and A.B.’s parental rights.

      Removal

      In its removal affidavit, the Department stated that J.V.J. is “either unwilling

or unable to properly care for the children.” The Department also stated that “the

family has been avoiding the agency and provided a false address,” and that J.V.J.

has placed the children with various caregivers “to avoid CPS (Child Protective


                                          6
Services).” Further, the Department noted that J.V.J. has a history of illegal drug

use, and she leaves her children with individuals she does not know personally, and

who are unable to consent for medical treatment.

      Following a December 1, 2016 adversary hearing, the trial court signed an

order appointing the Department as temporary managing conservator of the

children. Several weeks later, the court entered an order that J.V.J. was to follow a

family service plan developed by the Department. The plan noted some of the

Department’s initial concerns, which included J.V.J.’s substance abuse, her history

with the Department, and her lack of stable housing.5

      The plan also set forth several tasks and services for J.V.J. to complete

before she would be reunited with her children, including attending all court

hearings and scheduled family visitations, maintaining stable housing and income,

submitting to random drug testing, following the recommendations of her

substance abuse and psychological assessments, and completing parenting classes.

      J.V.J. participated in a psychological evaluation. According to the evaluation

report, J.V.J. stated that she had been investigated by CPS before. Her first


5
      J.V.J.’s history with Child Protective Services is noted in the Department’s
      Permanency Report and includes a 2009 referral for neglectful supervision and
      physical abuse that was ruled “unable to determine,” as well as a 2015 referral for
      physical abuse that was “ruled out.” Additionally, J.V.J. reported a prior CPS
      investigation for marijuana use: “They had found it in my system when I had my
      second baby I think. I can’t remember if it was my first or second baby but I do
      know I had it in my system. I had to take parenting classes and they closed it.”
                                           7
investigation took place after marijuana had been detected in her system when she

gave birth to one of her children. She asserted that the current case was initiated

after her uncle “pulled a gun on [her] and [she] called the police,” after which her

uncle “retaliated” by reporting her to CPS.

       Regarding drug use, J.V.J. reported that she began using marijuana at the

age of 18 and had used it every day until the age of 26, when she stopped “because

of [her] CPS case.” The evaluator noted that J.V.J. was unable to correctly spell

two of her nine children’s names.

       J.V.J. also recounted having been in “multiple abusive relationships.”

       With regard to employment, the evaluator’s report states that although J.V.J.

indicated that she had been working for two weeks as a home health care provider,

she did not know the name of the company that employed her. She reported that

this was her first job.

       The evaluation report also observes that

       [J.V.J.’s] approach to the evaluation was very nonchalant. She did not
       appear overly concerned about the welfare of the children; however,
       she did verbalize a desire for her children to be returned to her care.
       At the present time, it is unclear if she verbalize [sic] statement is an
       actual desire to fully parent her children or more so of the need for
       closure of her CPS case so that she can move forward without any
       tools to prevent further CPS involvement.


       In a Permanency Report filed with the trial court on June 6, 2017, Keverlyn

Walker, the Department caseworker, notes that
                                          8
      [T]he family has been avoiding the agency and provided a false
      address for the location of the children in Louisiana. According to
      friends of the family [J.V.J.] and [A.B.] have placed the children with
      various caregivers around Houston in order to avoid CPS. [J.V.J.] has
      history with the agency involving drugs and has gone through Family
      Based [S]afety Services (FBSS) in the past. The family has not been
      truthful about the extent of their drug use at this time. [J.V.J.] is
      leaving her children with individuals who have no ability to consent
      for medical treatment and who she does [not] know personally put her
      children at risk.

      On September 15, 2017, the caseworker filed another Permanency Report,

this time recommending termination of J.V.J.’s parental rights. The report states

that J.V.J. failed to complete individual counseling, parenting classes, anger

management classes, and substance abuse treatment, and she did not demonstrate

stable housing or employment. She also did not show she could maintain sobriety.

Further, J.V.J. missed two court hearings, failed to report for some of her requested

drug screens, and, when she did report, often tested positive for drugs.

      The case proceeded to a bench trial on November 2, 2017. The caseworker

testified on numerous topics, beginning with the Department’s investigation of the

six referrals. She testified that J.V.J. had an extensive CPS history, and that J.V.J.

had left the children for extended periods of time “with complete strangers”

without providing for them.

      Regarding participation in the family service plan, the caseworker testified

that J.V.J. had completed the basic assessments―but not individual counseling,

parenting classes, anger management classes, or substance abuse treatment. The
                                          9
caseworker stated that she had “even beg[ged] the service providers to not

discharge [J.V.J.],” but J.V.J. relapsed and “just hadn’t been able to like get back

on track.”

      The caseworker also testified that J.V.J. did not always participate in drug

testing when it was requested of her, and that she tested positive for marijuana in

December 2016, and January, July and October 2017, and for cocaine in June and

August 2016, and January, July, September, and October 2017.6

      Nor had J.V.J. maintained stable housing since the case was initiated.

Specifically, the caseworker testified that J.V.J. had reported “at the last court

hearing,” that she was living with her grandmother, but the caseworker had been

unable to verify this. The caseworker believed J.V.J. had been living in a motel

before that, and she estimated that J.V.J. had been unable to remain in one place

for longer than two and a half months at a time.



6
      J.V.J.’s drug testing records show that she also tested positive for marijuana and
      cocaine in August 2017, and that results were negative for all substances tested on
      March 3, March 31, April 25, July 14, September 11, and October 5, 2017. J.V.J.’s
      records also show that she did not appear for testing on January 12, 2017 or March
      30, 2017. Her failure to appear for testing may be treated as positive for illegal
      drugs. See In re J.M.T., 519 S.W.3d 258, 269 (Tex. App.—Houston [1st Dist.]
      2017, pet. denied) (refusal to provide samples for drug testing permitted court to
      infer that father refused testing because it would be positive); see also In re I.W.,
      14-15-00910-CV, 2016 WL 1533972, at *6 (Tex. App.—Houston [14th Dist.]
      Apr. 14, 2016, no pet.) (mem. op.).




                                           10
      In terms of employment, the caseworker estimated that the longest J.V.J. had

been employed during the pendency of the case was approximately two to three

months. At the time of trial, J.V.J. reported that she was working for her

grandmother, but the caseworker was unable to confirm this.

      The caseworker further testified that J.V.J.’s visitation had been halted

“[u]ntil she further engages in services,” and from that point forward, J.V.B. failed

to maintain any form of contact with the children. She did not send them cards,

letters, birthday presents, or any kind of support. Only once while the case was

pending did she ever ask how they were doing.

      At the time of trial, the children were living in foster homes, with the eldest

set of twins together in one placement, and the youngest three children together in

a second placement. The two foster homes were close to one another, and the

foster families maintained contact between the five siblings. The caseworker stated

that she had visited both foster homes, and she believed that the foster families

were meeting the children’s basic and special needs, including those associated

with Jane’s medical issues and Sam’s speech delay. The children appeared to be

bonded with their foster parents, who were present at trial and wished to adopt the

children.

      In sum, the caseworker testified that the Department was requesting

termination of J.V.J.’s parental rights because J.V.J. had placed her children in


                                         11
emotional or physical danger, and she did not believe J.V.J. was capable of

providing the children with a safe environment.

      J.V.J. also testified. Regarding her failure to comply with the family service

plan, she stated that she had trouble communicating with the caseworker, who she

said had not given her the information she needed to comply with the plan until it

was too late. J.V.J. also testified that she had difficulty finding transportation to her

counseling appointments. She did, however, take responsibility for her failure to

engage in substance abuse treatment, stating that “[w]hen I was going to it, I’m in

my wrong, I wasn’t doing what I’m supposed to do at the time.”

      J.V.J. stated that she was willing “to do everything I have to do to get my

kids.” She also stated that she had just begun to participate in her substance abuse

treatment, and asked that the trial court to give her “a little bit more time,” and

place the children with her cousin until she could “get situated.”

      J.V.J.’s cousin, Tierra Miller, testified that she would like the court to place

the five children in her care because “it would be best for them to be with family.”

Miller had four children already, but she said that she had a stable home, and that

she had been a “substantial” part of the children’s lives prior to the Department’s

involvement. She testified that she tried several times to get in contact with J.V.J.

to “obtain custody of them.” She stated that she was willing to take the children

immediately. Miller asserted that she had a full-time job in which she earned


                                           12
“enough for nine children.” She also made efforts to obtain a license to become a

foster mother.

      After the trial, the court signed a decree terminating J.V.J.’s parental rights.7

                                     Discussion

      Although J.V.J. concedes that the evidence was legally and factually

sufficient to support one of the trial court’s predicate findings, she asserts that the

evidence was legally and factually insufficient to support the trial court’s predicate

findings regarding endangerment and constructive abandonment. See TEX. FAM.

CODE § 161.001(b)(1)(D), (E) (endangerment), (N) (constructive abandonment).

She also challenges the trial court’s determination that termination of her parental

rights was in the children’s best interest. See id. § 161.001(b)(2).

A.    Standard of Review

      To terminate parental rights under section 161.001, the Department must

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

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

termination is in the child’s best interest. Id. § 161.001(b); In re C.H., 89 S.W.3d

17, 23 (Tex. 2002). “Clear and convincing evidence” is “the measure or degree of

proof that will produce in the mind of the trier of fact a firm belief or conviction as



7
      The decree also terminated the parental rights of alleged father A.B. and any
      unknown father.
                                          13
to the truth of the allegations sought to be established.” TEX. FAM. CODE

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

      Importantly here, “[o]nly one predicate finding under section 161.001[b](1)

is necessary to support a judgment of termination when there is also a finding that

termination is in the child’s best interest.” In re A.V., 113 S.W.3d 355, 362 (Tex.

2003); see also In re T.G.R.-M., 404 S.W.3d 7, 13 (Tex. App.—Houston [1st Dist.]

2013, no pet.) (“A single predicate finding under section 161.001(1) of the Family

Code is sufficient to support a judgment of termination when there is also a finding

that termination is in the child’s best interest.”). “Thus, if multiple predicate

grounds are found by the trial court, we will affirm on any one ground because

only one is necessary for termination of parental rights.” T.G.R.-M., 404 S.W.3d at

13 (citations omitted).

      In conducting our legal-sufficiency review, we look at the entire record to

determine whether the evidence, viewed in the light most favorable to a finding, is

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

the finding was true. See J.O.A., 283 S.W.3d at 344–45 (citing In re J.F.C., 96

S.W.3d 256, 266 (Tex. 2002)). We “assume that the factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could do so,” and we

“disregard all evidence that a reasonable factfinder could have disbelieved or found

to have been incredible.” Id. at 344 (quoting J.F.C., 96 S.W.3d at 266).


                                         14
        In conducting a factual-sufficiency review, we review all evidence,

including disputed or conflicting evidence. Id. at 345. The evidence is factually

insufficient only if, “in light of the entire record, the disputed evidence that a

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

significant that a factfinder could not reasonably have formed a firm belief or

conviction” regarding the finding under review. Id. (quoting J.F.C., 96 S.W.3d at

266).

B.      Challenge to Predicate Findings for Termination

        The trial court terminated J.V.J.’s parental rights based on predicate findings

under subsections (D), (E), (N), and (O) of section 161.001(b)(1) of the Family

Code. J.V.J. does not challenge the trial court’s subsection (O) predicate finding.

Nor does she contend that more than one predicate finding is required to support

the trial court’s decree of termination in conjunction with its best-interest finding.8

See A.V., 113 S.W.3d at 362 (“Only one predicate finding under section

161.001[(b)](1) is necessary to support a judgment of termination when there is

also a finding that termination is in the child’s best interest.”).

        Nevertheless, she asks us to review the evidence supporting the trial court’s

other predicate findings because unchallenged predicate findings can be used to


8
        The trial court’s subsection (O) predicate finding was that J.V.J. failed to comply
        with the family service plan.

                                            15
support a best-interest finding and because subsection (D) and (E) predicate

findings can have collateral consequences in subsequent termination proceedings

involving other children. See TEX. FAM. CODE § 161.001(b)(1)(M) (allowing

termination where parent has had parental rights terminated with respect to another

child based on findings under subsections (D) or (E)).

      Accordingly, although J.V.J. concedes the trial court’s subsection (O)

predicate finding, because its subsections (D) and (E) predicate findings could

affect J.V.J. in future termination proceedings, we begin by evaluating the

sufficiency of the evidence supporting those findings. In addition, we consider the

evidence supporting the trial court’s subsection (D), (E), and (N)9 predicate

findings in conducting our review of the trial court’s best-interest determination.

See C.H., 89 S.W.3d at 28 (evidence that establishes a predicate finding under

section 161.001(b)(1) may be probative of the best-interest issue).

      1.     Applicable Law

      Subsections (D) and (E) of Family Code section 161.001(b)(1) both concern

child endangerment, which means “to expose to loss or injury, to jeopardize.” Tex.

Dep’t of Human Servs. v. Boyd, 727 S.W.2d at 533; In re K.P., 498 S.W.3d 157,


9
      The Department concedes that the evidence is insufficient to establish that J.V.J.
      failed to maintain significant contact with the children, one of the requirements to
      support a constructive abandonment predicate finding under subsection (N). See
      TEX. FAM. CODE § 161.001(b)(1)(N)(ii).

                                           16
171 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). They differ with regard to

the source and proof of endangerment. In re A.S., 261 S.W.3d 76, 83 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied).

      Subsection (D) focuses on the child’s living environment and requires

evidence that the parent “knowingly placed or knowingly allowed the child to

remain in conditions or surroundings [that] endanger the physical or emotional

wellbeing of the child.” TEX. FAM. CODE § 161.001(b)(1)(D); A.S., 261 S.W.3d at

83.

      In contrast, under subsection (E), the danger must be the direct result of the

parent’s conduct. TEX. FAM. CODE § 161.001(b)(1)(E); A.S., 261 S.W.3d at 83;.

The inquiry under subsection (E) is whether evidence shows that the child’s

endangerment was the direct result of the parent’s conduct—including “acts,

omissions, or failures to act.” K.P., 498 S.W.3d at 171; see also TEX. FAM. CODE

§ 161.001(b)(1)(E).

      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. K.P., 498 S.W.3d at 171; see also TEX. FAM. CODE

§ 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; K.P., 498 S.W.3d at 171. The danger to the child’s well-being may be inferred


                                           17
from parental misconduct. Boyd, 727 S.W.2d at 533; K.P., 498 S.W.3d at 171. And

a parent’s past endangering conduct may create an inference that such conduct

could recur and further jeopardize a child’s present or future well-being. See In re

M.R.J.M., 280 S.W. 3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.); In re

C.R., No. 01-17-00725-CV, 2018 WL 1161810, at *4 (Tex. App.—Houston [1st

Dist.] Mar. 6, 2018, no pet. h.) (mem. op.).

      2.     Discussion

      We begin with J.V.J.’s assertion that the evidence was legally and factually

insufficient to support a finding that she endangered her children’s physical or

mental well-being under Family Code section 161.001(b)(1)(E). It was not.

      For one, the record reflects that J.V.J. neglected Jane’s medical needs. J.V.J.

failed to take Jane to post-surgery follow-up doctor visits, which resulted in Jane’s

further hospitalization. J.V.J. was also inattentive to Jane while Jane was in the

hospital, had a history of non-compliance with treatments, left her children with

people who were unable to consent to medical care, and was unreachable to

consent to Jane’s treatment. See Wyatt v. Dep’t of Family & Protective Servs., 193

S.W.3d 61, 68 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (mother’s pattern of

medical neglect supported physical and emotional well-being finding).

      Evidence also supports a finding that J.V.J. failed to provide for her

children’s basic needs, thus endangering their well-being. J.V.J. left the children


                                         18
with unrelated caregivers who reported that she did not provide them with enough

clothes or money to cover the children’s needs. One referral reported that the

children were eating out of a trash can, and another described the conditions where

at least some of the children resided as “unlivable.” See In re J.S.-A., No. 01-17-

00491-CV, 2018 WL 891236, at *11 (Tex. App.—Houston [1st Dist.] Feb. 15,

2018, no pet. h.) (mem. op.) (mother’s failure to provide food, clothing, and money

to caregiver supported finding of conscious course of conduct which endangered

children’s physical and emotional well-being).

      The record also reflects J.V.J.’s lengthy and pervasive history of illegal drug

(including cocaine) use, which supports a finding of endangerment. See J.O.A., 283

S.W.3d at 345 (“[A] parent’s use of narcotics and its effect on his or her ability to

parent may qualify as an endangering course of conduct.”); In re B.J., 01-15-

00886-CV, 2016 WL 1389054, at *7 (Tex. App.—Houston [1st Dist.] Apr. 7,

2016, no pet.) (mem. op.) (“[I]llegal narcotics use and its effect on an individual’s

ability to parent may constitute an endangering course of conduct.”); Walker v.

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

Houston [1st Dist.] 2009, pet. denied) (illegal drug use may support termination

under section 161.001(b)(1)(E) because “it exposes the child to the possibility that

the parent may be impaired or imprisoned.”). J.V.J. used illegal drugs while she

was pregnant with at least two of her children (the older of which is not subject to


                                         19
this suit). See Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221

S.W.3d 244, 253 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“A mother’s use

of narcotics during pregnancy may constitute conduct that endangers the physical

and emotional well-being of a child.”). In fact, the evidence demonstrated J.V.J.’s

persistent drug use throughout the Department’s investigation. Drug activity can

constitute endangerment even if it happens outside the child’s presence. See J.O.A.,

283 S.W.3d at 346; Boyd, 727 S.W.2d at 533; see also In re A.A.M., 464 S.W.3d

421, 426 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (“[B]ecause they

significantly harm the parenting relationship, criminal offenses and drug activity

can constitute endangerment even if the criminal conduct transpires outside the

child’s presence.”).

      Notably, J.V.J.’s continued illegal drug use was in direct contravention of

her family service plan, which required her to refrain from using illegal drugs. See

In re M.T.W., 01-11-00162-CV, 2011 WL 6938542, at *13 (Tex. App.—Houston

[1st Dist.] Dec. 29, 2011, no pet.) (mem. op.) (“A parent’s engaging in illegal drug

activity after agreeing not to do so in a service plan for reunification with her

children is sufficient to establish clear and convincing proof of voluntary,

deliberate, and conscious conduct that endangered the well-being of her

children.”); see also In re S.R., 452 S.W.3d 351, 361–62 (Tex. App.—Houston

[14th Dist.] 2014, pet. denied) (“Continued illegal drug use after a child’s removal


                                        20
is conduct that jeopardizes parental rights and may be considered as establishing an

endangering course of conduct.”).

      J.V.J. agrees that the evidence of her drug use is relevant to determining

whether she engaged in endangering conduct. But she contends that the evidence is

nonetheless insufficient. In so arguing, J.V.J. asserts that the drug testing results

admitted into evidence were inadequate to prove her drug use, because expert

testimony might have revealed, for example, that some of her positive marijuana

results were indicative of exposure as opposed to ingestion. But she provides no

authority for the proposition that expert testimony is necessary for a factfinder to

conclude that numerous positive drug tests reflect illegal drug use. See In re

M.R.D.W., 14-17-00506-CV, 2017 WL 6045575, at *6 (Tex. App.—Houston [14th

Dist.] Dec. 7, 2017, no pet.) (mem. op.) (“[T]he Department had no burden to

provide expert testimony about Father’s test results.”); In re C.M.-L.G., No. 14-16-

00921-CV, 2017 WL 1719133, at *10 (Tex. App.—Houston [14th Dist.] May 2,

2017, pet. denied) (mem. op.) (“Mother cites no authority, and we know of none,

requiring expert testimony about drug test results in parental termination cases.”).

Moreover, J.V.J. admitted to the caseworker that she smoked marijuana every day.

Thus, the evidence of J.V.J.’s continued illegal drug use, including while she was

pregnant, supports the trial court’s conclusion that she engaged in conduct that

endangered the physical and emotional well-being of the children.


                                         21
       Considering the evidence in the light most favorable to the trial court’s

finding under section 161.001(1)(b)(E), we conclude that a reasonable trier of fact

could have formed a firm belief or conviction that J.V.J.’s conduct endangered her

children’s physical or mental well-being. We further conclude that, viewed in light

of the entire record, any disputed evidence could have been reconciled in favor of a

finding of endangerment under section 161.001(1)(b)(E) or was not so significant

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

regarding endangerment. Accordingly, we hold that legally and factually-sufficient

evidence supports the trial court’s finding under section 161.001(b)(1)(E).

       Because termination based on either a subsection (D) or (E) predicate

finding is sufficient to invoke paragraph (M) in a future proceeding, and we have

found sufficient evidence of the trial court’s finding under (E), we need not

separately address the sufficiency of evidence supporting the trial court’s finding

under paragraph (D). See In re D.S.J., No. 01-17-00678-CV, 2018 WL 1003635, at

*7 (Tex. App.—Houston [1st Dist.] Feb. 22, 2018, no pet. h.) (mem. op.). We

overrule J.V.J.’s first issue.

C.     The Children’s Best Interest

       J.V.J. next argues that the evidence is insufficient to establish that

termination of her parental rights was in the children’s best interest. We disagree.




                                          22
      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, 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). The factors include: (1) the desires of the child,

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

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

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

these individuals to promote the best interest of the child, (6) the plans for the child

by these individuals or by the agency seeking custody, (7) the stability of the home

or proposed placement, (8) the acts or omissions of the parent which may indicate

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

acts or omissions of the parent. Id.; K.P., 498 S.W.3d at 173.

      The Department “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.’” K.P., 498 S.W.3d at 173.

(quoting C.H., 89 S.W.3d at 27). But the burden is on the Department to rebut the

presumption that the best interest of the child is served by keeping custody in the

natural parents. Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190

S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).


                                          23
      A consideration of the Holley factors supports the trial court’s determination

that termination of J.V.J.’s parental rights was in the children’s best interest.

      We begin with the third Holley factor, which addresses the emotional and

physical danger of the child now and in the future. This factor supports the trial

court’s best-interest determination. Evidence of past misconduct or neglect can be

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

App.—Waco 2012, pet. denied). Thus, the evidence discussed in support of the

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

potential danger in determining the children’s best interest. See Walker, 312

S.W.3d at 619 (“The evidence regarding endangerment, discussed in support of the

trial court’s finding under section 161.001(1)(E) above, is also probative of a

finding as to danger in determining the child’s best interest.); see also C.R., 2018

WL 1161810, at *7.

      Specifically, evidence of J.V.J.’s neglect, abuse, and use of illicit drugs

supports the trial court’s best-interest finding. See J.O.A., 283 S.W.3d at 345 (“[A]

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

an endangering course of conduct.”); In re G.A., No. 01-11-00565-CV, 2012 WL

1068630, at *6 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, pet. denied) (mem.

op.) (“A parent’s history of drug use or criminal conduct can show a pattern of

conduct that subjects a child to an uncertain and unstable life, endangering the


                                           24
child’s physical and emotional well-being.”); Jordan v. Dossey, 325 S.W.3d 700,

724 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“Abusive and violent

criminal conduct by a parent can produce an environment that endangers the well-

being of a child.”); A.M., 385 S.W.3d at 82–83 (evidence of mother’s history of

neglecting and endangering children by exposing them to domestic violence

supported trial court’s finding that termination was in children’s best interest). The

trial court’s best-interest determination is further supported by the fact that J.V.J.

continued to test positive for illegal drugs in direct contravention of her court-

ordered family service plan. In re M.L.G.J., 14-14-00800-CV, 2015 WL 1402652,

at *7 (Tex. App.—Houston [14th Dist.] Mar. 24, 2015, no pet.) (mem. op.)

(“Continued illegal drug use after a child’s removal is conduct that jeopardizes

parental rights and may be considered as establishing an endangering course of

conduct and that termination is in the best interest of the child.”).

      The fifth Holley factor—programs available to promote the children’s best

interest—also supports the trial court’s determination that termination was in the

children’s best interest. The caseworker testified at trial that the children’s foster

parents were addressing the children’s special needs—specifically, Jane’s medical

issues and Sam’s speech delay—including through programs offered by the

Department. In contrast, the evidence established that despite the Department’s

efforts to assist her in providing a safe environment for the children, J.V.J. moved


                                           25
the children from home to home and caregiver to caregiver, and she provided false

addresses to the Department, making it difficult for the Department to locate her or

provide services. See In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston [1st

Dist.] 2012, no pet.); see also TEX. FAM. CODE § 263.307(b)(10) (considering

willingness to cooperate with and facilitate Department’s close supervision).

       After the children were removed from her care, J.V.J. completed her

psychological evaluation and participated in some (but not all) random drug

testing. But she did not complete required parenting classes, anger management

classes, individual therapy, or substance abuse treatment. This too supports the trial

court’s best-interest finding. See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013)

(holding that finding that parent failed to complete court-ordered services can

support best-interest finding); In re J.M.T., 519 S.W.3d 258, 269–70 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied) (“[E]vidence showing that [the parent] failed

to complete all of the tasks and services required in his service plan supports the

trial court’s best-interest finding.”).

       The seventh Holley factor―which considers the plans for the children and

the stability of the home―is in accord. The evidence showed that J.V.J. did not

provide the children with a safe and stable environment. See C.H., 89 S.W.3d at 28

(weighing evidence that parent had criminal history involving drugs, history of

remaining apart from children, and no concrete plans to provide support in favor of


                                          26
finding that termination was in children’s best interest). Moreover, her

psychological evaluation noted that she “did not seem overly concerned about the

welfare of her children.”

      At the time of trial, J.V.J. reported she was again living with her

grandmother—and evidence in the record suggests that the conditions in which

they previously lived were “unlivable.” The caseworker estimated that J.V.J. had

not recently stayed in one place for longer than two and a half months. And J.V.J.

asked that the trial court place the children temporarily with her cousin, even

though that cousin was already caring for four children.

      On the other hand, the record reflects that the children are doing well in their

placements and have bonded with their foster families, who plan to adopt them.

The evidence also shows that the children have been well cared for in their foster

homes. Further, the foster families live near each other and keep the children in

contact. See J.M.T., 519 S.W.3d at 270 (placement in safe, stable foster home

where child was doing well supported trial court’s best-interest finding); Rogers v.

Dep’t of Family & Protective Servs., 175 S.W.3d 370, 378 (Tex. App.—Houston

[1st Dist.] 2005, pet. dism’d w.o.j.) (successful foster placement and possibility of

adoption by foster parents supported determination that termination of parental

rights was in children’s best interest).




                                           27
      Finally, the eighth Holley factor considers any acts or omissions of the

parent that may indicate that the existing parent-child relationship is not a proper

one. Although J.V.J. completed several of the tasks and services in her family

service plan, she did not follow through with the required steps for reunification

with the children (including ending her drug use). The trial court was permitted to

find that this, too, weighed in favor of its best-interest determination. See J.M.T.,

519 S.W.3d at 270 (“A fact finder may infer from a parent’s failure to take the

initiative to complete the services required to regain possession of his child that he

does not have the ability to motivate himself to seek out available resources needed

now or in the future.”); D.S.J., 2018 WL 1003635, at *9 (“The trial court could

infer from a parent[‘s] failure to utilize the available programs that the parents did

not have the ability to motivate themselves in the future.”).

      After reviewing all of the evidence in the light most favorable to the trial

court’s best-interest finding, we conclude that a reasonable factfinder could have

formed a firm belief or conviction that termination of J.V.J.’s parental rights was in

the children’s best interest. We further conclude, viewed in light of the entire

record, that any disputed evidence that a reasonable factfinder could not have

resolved in favor of the best-interest finding was not so significant that the

factfinder could not reasonably have formed a firm belief or conviction. Thus, we




                                          28
hold the evidence was legally and factually sufficient to support termination of

J.V.J.’s parental rights to Jane, Janis, Carol, Sam, and Tom.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Jennifer Caughey
                                              Justice

Panel consists of Justices Bland, Lloyd, and Caughey.




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