                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                          §
                                                                             No. 08-19-00054-CV
    IN THE INTEREST OF                                    §
                                                                                  Appeal from
    B.M.S. AND P.L.S., CHILDREN.                          §
                                                                             143rd District Court
                                                          §
                                                                            of Ward County, Texas
                                                          §
                                                                         (TC # 15-05-23594-CVW)
                                                          §

                                                  OPINION

         N.C.S. appeals from the judgment terminating his parental rights to B.M.S. and P.L.S.

We affirm.

                                           FACTUAL SUMMARY

         N.C.S. (“Nick”) and A.E.M. (“Ava”) are the biological parents of sixteen-year-old

B.M.S. and thirteen-year-old P.L.S.1 Nick and Ava were never married, and they separated ten

to twelve years before the final hearing on December 31, 2018. The children were living with

Ava and her boyfriend in October 2017 when the Department removed them from the home

based on allegations of drug use, domestic violence, and neglect. The Department filed a

petition seeking to terminate the parental rights of both Nick and Ava. Following an emergency

hearing, the trial court appointed the Department as the temporary managing conservator of the

1
  To protect the identity of the children, the opinion will refer to N.C.S. by the fictitious name “Nick”, to A.E.M. by
the fictitious name “Ava”, and to the children by their initials. See TEX.R.APP.P. 9.8. Ava has not appealed the
order terminating her parental rights to the children.
children and they were placed in a foster home. Nick could not be located, but he was eventually

served on February 1, 2018 while incarcerated. Nick testified about his knowledge of Ava’s

drug use. At the first portion of the de novo hearing, Nick initially testified he did not know

whether Ava was using drugs in the children’s presence, but stated, “I know what kind of person

she is.” When pressed, Nick testified he did not have any doubt she was using drugs in front of

the children. At the second portion of the de novo hearing, Nick maintained that he did not know

about the domestic violence in the home or the specific drugs Ava and her boyfriend were using.

He knew Ava abused drugs, and while she did not use drugs in front of him, he had information

which led him to believe that Ava was using drugs around the children. He also believed that

Ava’s drug use harmed the children emotionally. Despite this knowledge, Nick did not take any

action to obtain custody of the children.

       Nick had his own issues with drug abuse. When asked if drugs had been a problem in his

life, he replied, “I’ve loved smoking weed my whole life.” He smoked marijuana daily and

admitted that other drugs have been a problem for him.              In the past, he had used

methamphetamine weekly. At the hearing on November 29, 2018, Nick denied using drugs or

alcohol that day, but said he had used drugs a week earlier. The trial court ordered Nick to

submit to a drug test, but Nick failed to comply. Nick admitted at the hearing on December 31,

2018 that he would not be able to pass a drug test if one was administered to him that day. He

had last used methamphetamine one month before the hearing, but he had smoked marihuana the

previous day. Nick also had a criminal history related to his use of drugs. Nick was placed on

probation for possession of marihuana in 2017, but his probation was revoked and he served

sixty days in jail. He was incarcerated on that charge when the Department filed the termination

petition. Shortly after his release, Nick was arrested for driving with an invalid license. He had



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not had a valid driver’s license since 2012 or 2013. Nick also has a conviction for possession

“under a gram” and he served fifteen months for that offense.2

          Nick is unemployed and is unable to provide even the basic necessities for the children.

He has not had a home or apartment of his own since 2012 or 2013. At the time of the first

hearing, Nick had been working for World Technical Services for about six weeks and was

making $10 per hour. He was living with “the kids’ uncle”. By the time of the second hearing a

month later, Nick had lost the job. He did not know why he had been fired. Nick’s brother-in-

law had kicked him out of the house and Nick was living with a friend. Nick works “off and on”

for a retired couple and makes $10 per hour.

          The trial court found that the Department had proven by clear and convincing evidence

that Nick had knowingly placed or knowingly allowed the children to remain in conditions or

surroundings which endanger the physical or emotional well-being of the children, pursuant to

§ 161.00l(b)(l)(D), Texas Family Code. The court also found by clear and convincing evidence

that termination of Nick’s parental rights was in the children’s best interest, and it appointed the

Department as the permanent managing conservator of the children.

                                PREDICATE TERMINATION GROUND

          In Issue One, Nick challenges the legal and factual sufficiency of the evidence supporting

the trial court’s finding under Section 161.001(b)(1)(D).              See TEX.FAM.CODE ANN.

§ 161.001(b)(1)(D).         Parental rights may be involuntarily terminated through proceedings

brought under Section 161.001 of the Texas Family Code. See TEX.FAM.CODE ANN. § 161.001.

Under this provision, the petitioner must (1) establish one or more of the statutory acts or

omissions enumerated as grounds for termination, and (2) prove that termination is in the best

interest of the children. See id. Both elements must be established, and termination may not be
2
    The record does not show the exact substance Nick possessed.

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based solely on the best interest of the child as determined by the trier of fact. Texas Department

of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In the Interest of A.B.B., 482

S.W.3d 135, 138 (Tex.App.--El Paso 2015, pet. dism’d w.o.j.). 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. In re A.V., 113 S.W.3d 355, 362 (Tex.

2003). However, when a parent’s rights have been terminated based on multiple grounds,

including subsections D or E, we must address any sufficiency challenges directed at subsections

D and/or E, even if the evidence is sufficient to support termination on other predicate grounds.

In re Z.M.M., No. 18-0734, --- S.W.3d ---, 2019 WL 2147266, at *2 (Tex. May 17, 2019) (per

curiam); see In re N.G., No. 18-0508, --- S.W.3d ---, 2019 WL 2147263 at *3 (Tex. May 17,

2019)(holding that due process and due course of law require an appellate court to review and

detail its analysis as to termination of parental rights under subsections D or E). We will affirm

the termination order if the evidence is both legally and factually sufficient to support any

alleged statutory ground the trial court relied upon in terminating the parental rights as well as

the finding of best interest. J.S. v. Texas Department of Family and Protective Services, 511

S.W.3d 145, 159 (Tex.App.--El Paso 2014, no pet.).

                                       Standards of Review

       When reviewing the legal sufficiency of the evidence in a termination case, we consider

all of the evidence in the light most favorable to the trial court’s finding, “to determine whether a

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

In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d 256,

266 (Tex. 2002); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We give deference to the

fact finder’s conclusions, indulge every reasonable inference from the evidence in favor of that



                                                -4-
finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long

as a reasonable fact finder could do so. In the Interest of J.P.B., 180 S.W.3d at 573. We

disregard any evidence that a reasonable fact finder could have disbelieved, or found to have

been incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re

J.F.C., 96 S.W.3d at 266.

       In a factual sufficiency review, the inquiry is whether the evidence is such that a fact

finder could reasonably form a firm belief or conviction about the challenge findings. See In re

J.F.C., 96 S.W.3d at 266. We must give due consideration to evidence that the fact finder could

reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. A court of

appeals should consider whether disputed evidence is such that a reasonable fact finder could not

have resolved that disputed evidence in favor of its finding. Id. If the disputed evidence that a

reasonable fact finder could not have credited in favor of the finding is so significant that a fact

finder could not reasonably have formed a firm belief or conviction, then the evidence is

factually insufficient. Id.

                      Section 161.001(b)(1)(D) -- Endangering Environment

       A parent’s rights may be terminated if there is clear and convincing evidence that the

parent has knowingly placed or knowingly allowed the child to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child.                  See

TEX.FAM.CODE ANN. § 161.001(b)(1)(D).             Subsection D requires a showing that the

environment in which the child is placed endangered the child’s physical or emotional health.

Doyle v. Texas Department of Protective and Regulatory Services, 16 S.W.3d 390, 394

(Tex.App.--El Paso 2000, pet. denied). In this context, the child’s environment refers to the




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suitability of the child’s living conditions as well as the conduct of parents or others in the home.

In re S.R., 452 S.W.3d 351, 360 (Tex.App.--Houston [14th Dist.] 2014, pet. denied).

       A child is endangered when the environment creates a potential for danger that the parent

is aware of but disregards. In re E.R.W., 528 S.W.3d 251, 264 (Tex.App.--Houston [14th Dist.]

2017, no pet.). The relevant time frame to determine whether there is clear and convincing

evidence of endangerment is before the child was removed. Ybarra v. Texas Department of

Human Services, 869 S.W.2d 574, 577 (Tex.App.--Corpus Christi 1993, no pet.). When seeking

termination under subsection D, the Department must show that the child’s living conditions

pose a real threat of injury or harm. In re N.R., 101 S.W.3d 771, 776 (Tex.App.--Texarkana

2003, no pet.); Ybarra, 869 S.W.2d at 577.          Conduct that demonstrates awareness of an

endangering environment is sufficient to show endangerment. In re S.M.L., 171 S.W.3d 472,

477 (Tex.App.--Houston [14th Dist.] 2005, no pet.). Evidence of illegal drug use and drug-

related criminal activity by a parent supports the conclusion that the children’s surroundings are

endangering to their physical or emotional well-being. See In re S.D., 980 S.W.2d 758, 763

(Tex.App.--San Antonio 1998, pet. denied).

       Nick testified he did not know the specific drugs Ava and her boyfriend were using, and

he was unaware of the domestic violence in the home, but he knew she was using drugs in front

of the children.   Nick understood that Ava’s use of drugs created an environment which

endangered the children’s physical or emotional well-being. The evidence also showed that Nick

had only sporadic contact with the children when he would drop by uninvited and he made no

effort to protect the children by removing them from Ava’s home. We conclude that the

evidence, viewed in the light most favorable to the challenged endangerment finding, was

sufficient for a reasonable fact finder to have formed a firm belief or conviction that Nick



                                                -6-
knowingly allowed the children to remain in conditions or surroundings which endangered their

physical or emotional well-being. See In re M.D.M., --- S.W.3d ---, 2019 WL 2459058 at *13

(Tex.App.--Houston [1st Dist.] 2019, no pet. h.)(evidence was legally sufficient to support trial

court’s finding that father allowed children to stay in conditions that endangered children, where

evidence showed that children were subjected to life of instability and uncertainty while they

lived with mother, mother used drugs in children’s presence, mother was violent towards

children, father had sporadic contact with their children, and father provided minimal financial

support for children); In re M.C., 352 S.W.3d 563, 568 (Tex.App.--Dallas 2011, no

pet.)(evidence sufficient to support termination under subsection D where father knew mother

was violent, and was using and selling drugs, and father failed to act to protect child). Further,

we conclude that a reasonable fact finder could have reconciled the disputed evidence in favor of

the trial court’s endangerment finding, and the trial court could have reasonably formed a firm

conviction or belief that Nick knowingly allowed the children to remain in an endangering

environment. See In re M.R.J.M., 280 S.W.3d 494, 502-05 (Tex.App.--Fort Worth 2009, no pet.)

(concluding evidence was factually sufficient to support termination of father’s rights under

subsection D when father allowed child to remain with mother despite knowledge of mother’s

past drug use). Accordingly, we hold that the evidence was legally and factually sufficient to

support the subsection D endangerment finding. See TEX.FAM.CODE ANN. § 161.001(b)(1)(D).

Issue One is overruled.

                                        BEST INTEREST

       In Issue Two, Nick argues that the evidence is legally and factually insufficient to support

the best interest finding made under Section 161.001(b)(2) of the Family Code. A determination

of best interest necessitates a focus on the child, not the parent. See In the Interest of B.C.S., 479



                                                -7-
S.W.3d 918, 927 (Tex.App.--El Paso 2015, no pet.); In the Interest of R.F., 115 S.W.3d 804, 812

(Tex.App.--Dallas 2003, no pet.). There is a strong presumption that it is in the child’s best

interest to preserve the parent-child relationship. In re B.C.S., 479 S.W.3d at 927. Several

factors must be considered in our analysis of the best interest issue: the child’s desires; the

child’s emotional and physical needs now and in the future; the emotional and physical danger to

the child now and in the future; the parenting abilities of the individuals seeking custody; the

programs available to assist those individuals to promote the child’s best interest; the plans for

the child by those individuals or the agency seeking custody; the stability of the home or

proposed placement; the parent’s acts or omissions that may indicate that the existing parent-

child relationship is not a proper one; and any excuse for the parent’s acts or omissions. Holley

v. Adams, 544 S.W.2d 367, 372 (Tex. 1976)(“the Holley factors”). We also must bear in mind

that permanence is of paramount importance in considering a child’s present and future needs.

In re B.C.S., 479 S.W.3d at 927.

       We begin by examining the legal sufficiency of the evidence supporting the best interest

finding. The first factor is the desires of the children. The children want to be adopted by their

foster family. This factor weighs in favor of the trial court’s best interest finding.

       The next two factors are the children’s emotional and physical needs now and in the

future, and the emotional and physical danger to the children now and in the future. Nick argues

that the Department failed to present any specific evidence regarding the physical and emotional

needs of the children. We disagree. The need for permanence is a paramount consideration for a

child’s present and future physical and emotional needs. In re R.A.G., 545 S.W.3d 645, 653

(Tex.App.--El Paso 2017, no pet.); In re U.P., 105 S.W.3d 222, 230 (Tex.App.--Houston [14th

Dist.] 2003, pet. denied).     Due to his chronic use of drugs, occasional incarceration, and



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unemployment, Nick has been unable to provide a stable and safe living situation for the children

for several years. Further, he knowingly allowed the children to live with Ava in an environment

which endangered their emotional and physical well-being. Nick continued to use marijuana and

methamphetamine even though he knew the termination case was pending and he risked losing

his parental rights. Finally, Nick’s failure to visit the children during the pendency of this case

supports a conclusion that Nick endangered the children’s emotional well-being. See In re U.P.,

105 S.W.3d at 236. Based on the evidence, the trial court could have determined that the second

and third factors weigh heavily in support of the best interest finding.

        The fourth factor is the parenting abilities of the individuals seeking custody. Nick

argues that there is no evidence in the record regarding his parenting abilities. In reviewing the

parenting abilities of a parent, a fact finder can consider the parent’s past neglect or past inability

to meet the physical and emotional needs of the children. D.O. v. Texas Department of Human

Services, 851 S.W.2d 351, 356 (Tex.App.--Austin 1993, no writ), disapproved of on other

grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002). The evidence supports an inference that

Nick’s chronic drug use and unemployment have rendered him unable to provide for the

children’s basic needs or to protect them from the endangering environment in Ava’s home.

Further, Nick failed to visit or maintain significant contact with the children during the pendency

of the case. This factor weighs in favor of the best interest finding.

        The fifth factor examines the programs available to assist those individuals to promote

the child’s best interest. The Department developed a service plan for Nick but he failed to

complete any of the services, including a psychological evaluation, anger management and

parenting classes, individual counseling, and random drug testing. This factor supports the best

interest finding.



                                                 -9-
        We will consider the sixth and seventh factors together. The sixth factor examines the

plans for the child by those individuals or the agency seeking custody. The seventh factor is the

stability of the home or proposed placement. The fact finder may compare the parent’s and the

Department’s plans for the children and determine whether the plans and expectations of each

party are realistic or weak and ill-defined. D.O., 851 S.W.2d at 356. Nick had no plan for the

children and admitted he could not provide a home or other basic necessities for the children.

The Department recommended that the children remain with the foster family and be adopted.

The sixth and seventh factors weigh in favor of the best interest finding.

        The eighth factor is the parent’s acts or omissions that may indicate that the existing

parent-child relationship is not a proper one. Nick uses drugs daily and he knowingly allowed

the children to remain with Ava even though he knew she was using drugs in the children’s

presence. Nick failed to protect the children from the endangering environment by attempting to

remove them from Ava’s home. Nick did not visit with the children at all during the pendency

of the case. Based on this evidence, the trial court could have found that the existing parent-

child relationship between Nick and the children is not a proper one. This factor supports the

best interest finding.

        Finally, the ninth factor is whether there is any excuse for the parent’s acts or omissions.

The evidence in the record does not present a basis for finding an excuse for Nick’s acts or

omissions.

        After considering the evidence related to the Holley factors, the trial court could have

reached a firm conviction that termination of Nick’s parental rights is in the best interest of both

children. Issue Two is overruled.

                         CONSERVATORSHIP DETERMINATION



                                               - 10 -
       In his third issue, Nick contends that the trial court erred by appointing the Department as

the permanent managing conservator of the children. This issue challenging the appointment of

the Department as permanent managing conservator is subsumed into the appeal of the overall

termination order. See In re D.N.C., 252 S.W.3d 317, 319 (Tex. 2008); In re M.L.L., 573 S.W.3d

353, 367 (Tex.App.--El Paso 2019, no pet.). Section 161.207 of the Family Code provides: “If

the court terminates the parent-child relationship with respect to both parents or to the only living

parent, the court shall appoint a suitable, competent adult, the Department of Family and

Protective Services, or a licensed child-placing agency as managing conservator of the child.”

TEX.FAM.CODE ANN. § 161.207(a).            The trial court appointed the Department as the sole

managing conservator of the children after termination the parental rights of Nick and Ava.

Issue Three is overruled. Having overruled each issue, we affirm the de novo order terminating

Nick’s parental rights to the children.


August 7, 2019
                                          ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.




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