Opinion filed July 19, 2012




                                                 In The


   Eleventh Court of Appeals
                                            __________

                                      No. 11-11-00117-CV
                                          __________

          IN THE INTEREST OF A.D.B., A.B.B., AND A.L.B., children


                              On Appeal from the 118th District Court

                                      Howard County, Texas

                                   Trial Court Cause No. 47,012


                              MEMORANDUM OPINION
       Clayton and Jessica appeal from an order terminating the parental rights to their children,
following a trial before the court. Clayton urges in six issues that the evidence is legally and
factually insufficient to support the trial court’s findings that he knowingly placed or knowingly
allowed the children to remain in conditions or surroundings that endangered the physical or
emotional well-being of the children, that he engaged in conduct or knowingly placed the
children with persons who engaged in conduct that endangered the physical or emotional well-
being of the children, and that termination of his parental rights to the children is in their best
interest. Jessica contends in a sole issue on appeal that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental rights to the
children is in their best interest. We affirm.
        We will first consider Clayton’s appeal. As the basis for termination of his parental
rights, the trial court, in its order, found that Clayton knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endangered the physical or emotional well-
being of the children; that he engaged in conduct or knowingly placed the children with persons
who engaged in conduct that endangered the physical or emotional well-being of the children;
that he constructively abandoned the children who had been in the permanent or temporary
managing conservatorship of the Texas Department of Family and Protective Services or an
authorized agency for not less than six months and (1) the Department or authorized agency
made reasonable efforts to return the children to the father, (2) the father did not regularly visit or
maintain significant contact with the children, and (3) the father demonstrated an inability to
provide the children with a safe environment; and that he failed to comply with the provisions of
a court order that specifically established the actions necessary for the father to obtain the return
of the children who had been in the permanent or temporary managing conservatorship of the
Department for not less than nine months as a result of the children’s removal from the parent
under Chapter 262 of the Family Code for the abuse or neglect of the children.
        Clayton questions the sufficiency of the evidence to support two of the grounds for
termination found by the trial court, but does not question the sufficiency of the evidence to
support two others. That being the case, this court is not required to consider the sufficiency of
the evidence of those grounds questioned by Clayton because the two grounds for termination
that he has not questioned in this appeal, coupled with the court’s finding that termination of
Clayton’s parental rights is in the children’s best interest, are sufficient to support the trial court’s
order of termination. See In re D.S., 333 S.W.3d 379, 388–89 (Tex. App.—Amarillo 2011, no
pet.). We overrule Clayton’s Issues One, Two, Three, and Four.
        Jessica does not challenge the sufficiency of the evidence to support any of the grounds
for termination found by the trial court. We, therefore, proceed to determine, as to both Clayton
and Jessica, whether the evidence is legally or factually insufficient to support the trial court’s
finding that the termination of each of their parental rights to the children is in the children’s best
interest. To terminate parental rights, the factfinder must find by clear and convincing evidence
that the parent has committed an act prohibited by Section 161.001(1) of the Family Code and
that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001 (West Supp.
2011); In re J.P.B., 180 S.W.3d 570, 572 (Tex. 2005). In conducting a legal sufficiency review

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in a parental termination case, we review all the evidence in the light most favorable to the
finding to determine whether a reasonable factfinder could have formed a firm belief or
conviction that the finding was true. State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010). We
resolve disputed fact questions in favor of the finding if a reasonable factfinder could have done
so, and we disregard all contrary evidence unless a reasonable factfinder could not have done so.
Id.
       In a factual sufficiency review, we must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002). The inquiry must be whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the State’s allegations. Id. We are to consider
whether disputed evidence is such that a reasonable factfinder could not have resolved that
evidence in favor of the finding. Id. If, in light of the entire record, any disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient. Id.
       Lauren Chesworth testified that she is an investigator with the Texas Department of
Family and Protective Services. She related that the initial report received in the case in January
2010 was that Jessica was driving around at 4:00 a.m. with a friend and one of the children,
while Jessica was smoking methamphetamine. She indicated that on February 25, 2010, both
Jessica and Clayton agreed to random hair follicle drug screens and a drug and alcohol
assessment. She stated that the case was changed to a removal case when, on April 6, 2010, the
results from hair follicle screenings showed that Jessica was positive for cocaine and
methamphetamine and that Clayton was positive for cocaine, amphetamine, and metham-
phetamine. Chesworth testified that allowing children to remain in this type of environment
could endanger their physical and emotional well-being.
       On cross-examination, Chesworth acknowledged that Jessica never admitted that the
incident with methamphetamine occurred and that a February 2010 drug test of Jessica was
negative. She said that Clayton’s February drug test resulted in “a dilute specimen.”
       Jessica testified that she was working at a fast-food restaurant in Lubbock, Texas. She
acknowledged having used illegal drugs, including cocaine, methamphetamine, and marihuana,
but insisted that she probably last used drugs in the beginning of 2010. She also declared that,

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although she was arrested in February 2010 for selling marihuana, she did not do so.
Acknowledging that someone who uses drugs who cares for their children while doing so could
be endangering the children, Jessica denied being a drug addict, indicating that she no longer was
dabbling in drugs because she realized “what drugs got [her].”
       Although denying that she used drugs after January 2010, Jessica acknowledged that she
had a positive drug test for methamphetamine in January 2011 and that she had used marihuana
since that time. She stated that she had not previously acknowledged the marihuana use after
January 2010 because she thought she was being asked about harder drugs. She expressed
bewilderment as to why she kept failing hair follicle drug tests. She acknowledged failing to
show up for several drug tests. She indicated that, although she was not in contact with her
courtesy worker in Lubbock for several months, she saw her children every month.                 She
acknowledged that she had not done anything to show that she could change.
       On cross-examination, Jessica acknowledged that she had no excuse for not showing up
for drug testing, stating that she did not take it as seriously then as she did at the time of trial.
She noted that she had moved to a new town, stopped using drugs, and was renting a two-
bedroom duplex with a fenced yard. While insisting that she and Clayton do not keep alcohol or
drink alcohol in their home, she acknowledged that, at the time of trial, he was on probation for
driving while intoxicated.
       Robin Orr testified that he is an assistant district attorney in Howard, Martin, and
Glasscock Counties. He confirmed that Jessica had two pending cases for state jail delivery of
marihuana, indicating that she had been identified as delivering on two separate occasions. He
said he anticipated that she would be indicted by the grand jury.
       Clayton testified that he is employed by a drilling company. He said that he lives with
Jessica, his common-law wife, in Lubbock. Clayton acknowledged that, if someone is under the
influence of drugs while trying to be a parent, that could be endangering to the child. Clayton
acknowledged that he had used drugs with Jessica but could not say when or if they had used
them more than once.         He denied that Jessica was selling drugs from their home.           He
acknowledged that he had used marihuana in high school and that he had used cocaine and
methamphetamine since high school. He said he received his GED in 2007.
       While acknowledging that someone who abuses alcohol could endanger his or her child,
Clayton insisted that he had had nothing to drink since Thanksgiving 2010 and that he does not

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drink and drive with children in his car. Clayton acknowledged missing several random drug
testings he was asked to attend, although he was informed that, if he missed a test, it would be
considered positive. He acknowledged testing positive since the beginning of this case, in
September 2010 and January 2011 for cocaine and methamphetamine.
        On cross-examination, Clayton testified that he had assisted in getting the house ready for
the children. While stating that the situation of drugs and alcohol was behind him, Clayton
acknowledged that he had tested positive for drugs since April 2010, when the kids were taken
away.
        John Haynes testified that he is employed with the narcotics unit of the Big Spring Police
Department. He indicated that he had an arrest warrant for Clayton for the offense of driving
while license invalid and that he was taking him to jail after the trial.
        Tony Marquez testified that he is a licensed chemical dependency counselor. He said
that, with respect to outpatient treatment, Jessica had done everything required, including
attending sessions from May 2010 to possibly June 2010. He said that he had recommended that
Jessica and Clayton go to Alcoholics Anonymous but that they were not doing that. He said that,
while Jessica and Clayton “[k]ind of” had an understanding of their problem, he did not think
they had “some grip” on that problem.
        Bess Tello testified that she is a caseworker for the Texas Department of Family and
Protective Services and is familiar with Jessica and Clayton. After indicating that children may
become delayed when they are cared for by people who use drugs and that the parents are unable
to parent the children and make correct parenting decisions for them, Tello expressed the opinion
that it is endangering conduct for Jessica and Clayton to do drugs while attempting to care for
their children. She said that it was endangering conduct for either parent to leave their children
with someone who was using drugs.
        Tello testified that Jessica tested positive for marihuana twice in June 2010 and tested
positive in a hair follicle test in January 2011 for amphetamines and methamphetamine. She said
that Clayton tested positive in a hair follicle test in September 2010 for amphetamine,
methamphetamine, and cocaine; that the Department was unable to locate him in October and
November; and that he did not appear for a test in December. She said that, on January 5, 2011,
Clayton tested positive in a hair follicle test for amphetamine, methamphetamine, marihuana,
and cocaine.

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       Tello said she made several efforts to contact Jessica to set up a treatment program, but
failed to do so. She indicated that Jessica was not available at her home and that her phone was
disconnected. Tello expressed her opinion that it was endangering conduct for Jessica and
Clayton to use drugs and take care of children because that could be a danger to their physical
and mental welfare. She said that it was a danger because it could lead to further neglect of the
children and could be physically and emotionally dangerous to the children as well.
       Tello testified that both Jessica and Clayton were given weekly visitations with the
children. She said that Jessica attended nine of forty possible visits from May 2010 to March
2011. She indicated that the children during this time received no letters, clothing, or pictures
from Jessica. She related that she did not consider nine visits to be significant contact with the
children. She expressed the opinion that there was a bonding issue and said that she thought it
was constructive abandonment. She stated that the children look forward to their parents’ visits
and that they are upset when the parents do not make it.
       Tello testified that Clayton attended eleven visits out of forty from May 2010 to March
2011. She said he also sent no letters, pictures, or cards. She characterized his conduct also as
constructive abandonment. She indicated at least ten of the visits were ones in which there was
no phone call that he was not coming—he just did not show up.
       Tello testified that she had numerous contacts with the parents. She indicated, however,
that she would try to look for them while they were in Big Spring but that neither Jessica nor
Clayton provided her with an address. She said that there were times when their telephone was
disconnected for a month. She stated that a courtesy worker assigned to them while they were in
Lubbock also had difficulty maintaining contact with them and, after visiting the home on
several occasions and making telephone calls, was not able to locate either of them.
       Tello testified that Jessica and Clayton missed several drug tests. She indicated that
Jessica had six no-shows and could not be located in October and November to be sent to a drug
test. She said that Clayton had three no-shows and also could not be located in October or
November. She expressed her belief that the parents were not meeting the children’s needs prior
to their children coming into the Department’s care, and she noted that the parents moved around
a lot and that their employment was unstable. She related that the children were currently in an
emotionally safe home that was free of physical danger, whereas they were not in such an
environment when with the parents because of their use of illegal substances in the home and

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their involvement with criminal activity. She stated her firm belief that termination is necessary
to protect the children and let them move on with their childhood.
        Tello acknowledged on cross-examination that, when the parents were in Lubbock and
the children were in foster care in Midland, visitation required their traveling between those two
cities. We take judicial notice that the distance from Lubbock to Midland is between 117 to 118
miles and that a trip from one to the other takes slightly over two hours each way.
        Tello acknowledged that the parents’ house is appropriate but that, although given the
opportunity to change their lives and show their ability to provide a safe home for the children,
neither Jessica nor Clayton had done so.
        An extended number of factors have been considered by the courts in ascertaining the
best interest of the child. Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 1976). Included among
these are the following: (A) the desires of the child; (B) the emotional and physical needs of the
child now and in the future; (C) the emotional and physical danger to the child now and in the
future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to
assist these individuals to promote the best interest of the child; (F) the plans for the child by
these individuals or by the agency seeking custody; (G) the stability of the home or proposed
placement; (H) the acts or omissions of the parent that may indicate that the existing parent-child
relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. 544
S.W.2d at 371.       This listing is by no means exhaustive, but does indicate a number of
considerations that either have been or would appear to be pertinent. Id. at 371–72.
        We will consider each of the factors as set forth in Holley:
                                    The Desires of the Children
        Of the three children in this case, one was almost five years of age at the time of trial,
while the other two were two years of age. There is no express evidence of their desires with
respect to termination. Jessica refers us to her testimony that the children did not understand
why they could not go home with her and evidence that one of the children was upset when
Jessica did not visit.
            The Emotional and Physical Needs of the Children Now and in the Future
           The Emotional and Physical Danger to the Children Now and in the Future
        We have in our discussion of the evidence shown that both Jessica and Clayton have used
a variety of illegal drugs, including amphetamine, methamphetamine, cocaine, and marihuana,


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for many years and have continued to do so during the pendency of this case. We also noted
evidence that they each failed to show up for other drug tests and did not keep in contact with the
Department so that they could be advised of additional drug tests. We have also noted that both
Jessica and Clayton presented evidence that they were no longer using illegal drugs. Jessica,
Clayton, and the Department all agree that the use of illegal drugs by parents constitutes a danger
to the physical and emotional well-being of the children.
                     The Parental Abilities of the Individuals Seeking Custody
        Tello testified that both Jessica and Clayton were given weekly visitation with the
children between May 2010 and March 2011 but that Jessica attended only nine visits out of
forty possible visits and Clayton attended eleven of those forty possible visits. She said that
neither sent the children any letters, pictures, or cards during that time. As we have noted, while
the children were in Midland and the parents in Lubbock, a visit would have required driving
approximately 117 to 118 miles in slightly over two hours each way.
                The Programs Available to Assist Those Individuals to Promote the
                                   Best Interest of the Child
        Both Jessica and Clayton fulfilled requirements for drug counseling with Marquez.
However, neither attended Alcoholics Anonymous regularly, as Marquez recommended. With
respect to She’s for Sure, an additional program that Jessica was supposed to attend, she testified
that she could not attend at the time and that, when she moved to Lubbock, the Department was
supposed to give her another program but did not. Tello, the children’s caseworker, testified that
a substitute program was not set up for Jessica in Lubbock because efforts to contact Jessica
were unsuccessful since she was not available at home and her phone was disconnected. Jessica
testified that she had asked Tello, as well as the courtesy caseworker in Lubbock, several times
regarding information about a program and that they said they were getting it.
            Plans for the Child by These Individuals or by the Agency Seeking Custody
        Jessica testified that she is renting a duplex to bring her children to and that she had
brought pictures of the room that she set up for them. She indicated that it has two bedrooms and
a fenced yard. She related that she and Clayton had had the house since December 2010. She
said she has two bunk beds and also toddler beds.
        Clayton testified that he has assisted in getting the house prepared for the children. He
said he feels like it is ready for them.


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        Tello, the children’s caseworker, acknowledged that the home is acceptable but testified
that she felt that it is in the children’s best interest to be adopted. She indicated that the
Department’s plan for the children is termination, followed by unrelated adoption.
               Acts or Omissions of the Parent that May Indicate that the Existing
              Parent-Child Relationship Is Not a Proper One and Any Excuse for the
                                 Acts or Omissions of the Parent
        We have detailed under other Holley factors evidence of the drug use of both parents, of
their failure to follow through on services to assist them with that, and of their limited visitation
and communication with the children during the time the children were in the Department’s care.
We have also detailed Jessica’s and Clayton’s testimony that they are no longer drinking or using
illegal substances and their excuses for not following through on services and not visiting a great
deal of the time with the children or communicating with them through letters, cards, or pictures.
        We find that the evidence is both legally and factually sufficient to support the trial
court’s finding that termination of the parental rights of both Jessica and Clayton to their three
children is in the children’s best interest.
        In arguing that the evidence is insufficient, both Jessica and Clayton indicate that
termination is not in the best interest of the children because they are living in an acceptable
home, they are good parents, they are drug and alcohol free, they attended most of the programs
the Department wanted them to attend, the children want to stay with them, and the children
might be separated in an adoption after termination. While they understandably have construed
the evidence in a way favorable to their position, the evidence supports the trial court’s finding
because it would justify the court’s having a firm belief that, based on their past conduct, Jessica
and Clayton would continue to engage in criminal activity, including the use of illegal drugs; that
this would endanger the children; that neither Jessica nor Clayton fully complied or participated
in programs available to assist them in living without the use of illegal drugs; and that many of
their excuses for missing drug tests, failing to participate in additional programs, and failing to
have significant visitation or communication with the children while they were in the
Department’s care were not bona fide. The evidence is legally sufficient because all of this
together would support a firm belief on the part of the trial court that termination of the parental
rights of Jessica and Clayton was in the best interest of the children. See In re J.O.A., 283
S.W.3d 336, 346 (Tex. 2009) (recent evidence of improved conduct, especially of short duration,



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does not conclusively negate the probative value of a long history of drug use and irresponsible
choices).
       The evidence is factually sufficient because we are not aware of any disputed evidence
that the trial court could not have credited in favor of the holding that was so significant that the
trial court could not reasonably have formed a firm belief or conclusion that termination of the
parental rights of Jessica and Clayton was in the best interest of the children.
       Jessica suggests that this is a “close call” or a “close case” that should have been decided
in favor of her as a parent, citing Ray v. Burns, 832 S.W.2d 431, 434 (Tex. App.—Waco 1992,
no pet.). We find that both Ray and Lewelling v. Lewelling, a case cited by Ray, involve
conservatorship disputes between parents and nonparents, not cases involving termination of
parental rights. Lewelling v. Lewelling, 796 S.W.2d 164 165 (Tex. 1990); Ray, 832 S.W.2d at
432. Even if we were to apply that standard in termination of parental rights cases, we note that,
in Ray, the court upheld an award of conservatorship to a nonparent, stating that evidence of the
parent’s unstable lifestyle, including evidence that the instability had continued up until a few
months before trial, would support the trial court’s award of conservatorship to the nonparent.
Ray, 832 S.W.2d at 435. With respect to the mother’s apparent argument that her current
stability would prohibit the trial court from considering her past lifestyle, the court stated, “Past
is often prologue.” Id. We overrule Jessica’s sole issue on appeal and overrule Clayton’s Issues
Five and Six.
       The order of the trial court is affirmed.


                                                                      PER CURIAM


July 19, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Hill.1




       1
           John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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