Affirmed and Majority Memorandum Opinion filed February 13, 2020




                                       In The

                     Fourteenth Court of Appeals

                              NO. 14-19-00666-CV &
                               NO. 14-19-00724-CV

        IN THE INTEREST OF E.W., R.L., W.W., E.W., CHILDREN


                    On Appeal from the 314th District Court
                             Harris County, Texas
                      Trial Court Cause No. 2018-04172J

                   MAJORITY MEMORANDUM OPINION

      Appellants E.L.W. (“Father”) and A.F. (“Mother”) separately appeal the trial
court’s final order terminating their respective parental rights and appointing the
Texas Department of Family and Protective Services (“Department”) as sole
managing conservator of their children E.W. (“Eshan”), W.W. (“Wystan”), and
E.W. (“Estrid”).1 Mother also challenges the judgment terminating her parental
rights to, and appointing the Department as sole managing conservator of, R.L.

1
  We use pseudonyms to refer to appellants and the children. See Tex. Fam. Code Ann. §
109.002(d); Tex. R. App. P. 9.8.
(“Reba”), who has a different father, L.L. (“Linus”). Linus does not challenge the
judgment terminating his parental rights to Reba.

       On appeal, Mother challenges the legal and factual sufficiency of the
evidence to support each of the four grounds for termination and the trial court’s
adverse best-interest-of-the-child finding as to each of the four children. Father
raises legal and factual sufficiency complaints only to the two endangerment
grounds for termination, and asserts for the first time on appeal a due process
challenge. We affirm.

                  I. PROCEDURAL AND FACTUAL BACKGROUND

A. Pretrial Removal Affidavit

      In June 2018, the Department received a referral from law enforcement
alleging Mother and Father had been arguing, that Father threw things out of the
apartment they shared, and that Father “grabbed [Mother] and slammed [her] to the
ground” (“Referral 1”). The couple’s four children were present in the residence at
the time. After Father left the apartment, Mother spoke with law enforcement but
refused to press charges or cooperate in the police investigation. According to the
referral, the home was a mess and smelled like “old marijuana” smoke.

      The day after this incident, the Department’s investigator, Candice Mouton,
met with the entire family at their apartment. She created a report that later would
be admitted into evidence at trial. According to the report, Mother, Father, and the
two older children, Reba and Eshan, denied any domestic violence between Mother
and Father. Mother, however, acknowledged an earlier domestic-violence incident.
During the family interview, another non-family household member (Morrison)
came home. In response to Mouton’s questioning, Morrison denied being present
on the date of the incident and denied witnessing any domestic violence between


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Mother and Father.

      Both Mother and Father denied current drug use and submitted urine for
analysis. Testing showed negative for Mother. Father’s results were positive for
cocaine. Morrison, who also submitted a sample for analysis, tested negative.

      The Department continued to stay in contact (either in face-to-face meetings
and interviews or by telephone) with Mother and Father and the children through
the remainder of June and July 2018. After giving Mother the urine analysis
results, Mouton explained the Department’s requirements and scheduled the
required follow-up meeting with the children. Mother agreed they would meet
with Mouton and told Mouton she had moved to a new apartment in the same
complex where she was staying with a different, unrelated individual.

      After the next meeting, Mouton proposed a safety plan to which both Mother
and Father agreed. Father admitted that he had used cocaine just three days earlier.
Father agreed to complete substance-abuse classes and to follow all
recommendations he was given. Father also agreed not to have any unsupervised
contact with the children. Mother said she would serve as a monitor to ensure the
children’s safety and well-being and would report any concerns about drug usage
and non-compliance to the Department.

      Mother later reported to Mouton that Father would not leave home, and
Mouton told Mother she would work to find Mother and the children other living
options. Mother informed Mouton that she “did not want her family split up,” but
on August 9, 2018, Mother told Mouton that she was willing to leave with the
children because Father was unwilling to leave the household. Mouton worked
actively to help Mother get alternate living arrangements and ultimately assisted
her in obtaining placement for Mother and the children at the Star of Hope.


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      Ten days after Mother and the children moved into the Star of Hope, the
Department received a referral for medical neglect and abuse of Wystan by Mother
(“Referral 2”). The report stated that Wystan sustained a spiral fracture of his right
tibia and a bowing fracture of his right fibula on August 17, 2018, and Mother
delayed in seeking medical treatment until August 20, 2018. In the physician’s
statement attached to the affidavit, Wystan’s physician noted that “patient’s delay
in care [was] concerning for medical neglect.”

      Mouton arrived at the hospital and served Mother with notice of removal of
her children. Wystan was taken to Texas Children’s Hospital and Eshan, Reba,
and Estrid were transported to the Youth Services Center. The Department was
unable to serve Father with notice of the removal because he was in jail for a
pending assault on a family member. The Department had no contact information
for Linus, so he was not served either. Mother did not provide any names of other
possible family members who could take the children. On August 21, 2018, the
district court signed an emergency order appointing the Department as the
children’s Temporary Managing Conservator for 14 days. The district court
appointed the Department the children’s Temporary Managing Conservator on
September 4, 2018, at the conclusion of the adversary hearing.

B. The Trial

      A bench trial commenced on July 25, 2019.            At the start of trial, the
Department offered into evidence and the trial court admitted a number of items,
including the pretrial removal affidavit, an indictment against Father for Injury to a
Child containing a probable-cause affidavit, other criminal judgments, and
Wystan’s medical records. Several witnesses also testified.

                          The Department’s Caseworkers
      Mouton testified that the Department’s initial contact with the family came

                                          4
as a result of Referral 1 (the altercation between Mother and Father that ended
when Father “slammed” Mother to the ground in front of the children). Mouton
said when she arrived at the apartment to begin her investigation, she had concerns
that one or both parents were abusing drugs. Test results were negative for Mother
and positive for Father, for cocaine. Mouton testified that both Mother and Father
denied there had been an altercation between them that day, but both
acknowledged that Father had assaulted Mother in 2017.

      Mouton said the Department immediately put a safety plan into place to
ensure there was no unsupervised contact between Father and the children.
Additionally, Father was told to take substance-abuse classes so he could remain in
the home with the family. But, while the Department was trying to schedule the
classes for Father, Mother contacted Mouton and reported that Father was refusing
to leave the home.       Mother and Mouton discussed other possible living
arrangements for Mother and the children, and Mother reiterated that she had no
family, so there was nowhere for them to go, and they began talking about possible
shelters. Mother confided to Mouton she earlier had lived at the Star of Hope and
that is where Mother and the children found shelter beginning on August 10, 2018.
Mother and the children were there only about a week when the Department
received Referral 2.

      Mouton testified the Department sought emergency custody of the children
because Mother’s explanation of how Wystan had sustained his injuries was
inconsistent with the injuries. The Department believed Wystan had been a victim
of child abuse and had been denied immediate medical treatment when Mother
refused to allow Emergency Medical Services (“EMS”) to transport the child to the
hospital. Mouton confirmed that none of the children stated Mother had injured
them or made any outcry about physical abuse during her investigation. Yet,

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Mouton testified the incident involving Wystan was not the first one in that family
the Department had investigated.

      Mouton’s pretrial removal affidavit detailed various incidents. Mother had
tested positive for marijuana at Reba’s birth in 2009,        and at that time the
Department had received a referral for physical abuse of Reba.               Mother
successfully completed services, and the Department closed the case when Mother
acted on a referral to the HOPE Center. In 2016, the Department received another
referral on Mother, this time for neglectful supervision when Mother attempted
suicide.     At that time, Eshan was eight years old, Reba was six years old, and
Mother was pregnant with Wystan. The investigation showed no signs of abuse or
neglect of either child. In 2017, the Department received a referral for sexual
abuse of Reba, who was nine years old at the time, but the Department closed the
case “when there was no disclosure.”

      Derrick Callicut, the Department caseworker, testified about the parents’
progress under the court-ordered service plan put in place after the court placed the
children into the Department’s care. According to Callicut, neither Mother nor
Father successfully completed their respective service plans. Mother had not
provided the Department with proof of stable housing or income, had not attended
all of the required counseling sessions, and had not updated the Department with
new contact information. Father had not completed individual counseling or drug-
abuse treatment, including the Batterer’s Intervention Prevention Program. Nor
had Father participated in random drug tests, or provided the Department with
proof of stable housing or income. Callicut conceded that Mother provided him a
lease on the day of trial, but explained its shortcomings, noting that the lease was
for a future date, and that it only accounted for Mother as an occupant, (not the
children).

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      Callicut testified about the parents’ scheduled visitation with the children,
stating he met Mother and Father at various locations throughout the city at the
beginning of the case instead of at their home. Mother and Father visited the
children on a supervised basis one or two times a month until January 2019.
According to Callicut, these visits were “appropriate.” Callicut offered as possible
explanations of why neither Mother nor Father had visited the children since
January 2019, that there was a warrant out for Mother’s and Father’s arrest, they
continued to test positive for drugs, and allegedly there had been “violent activity
between the foster worker and [Mother and Father].”

      Callicut briefly described the requests for, refusals of, and results of the
random drug testing ordered for Mother and for Father as part of their service
plans. He testified both parents tested positive for dangerous narcotics during the
pendency of the case, but neither parent submitted to ordered drug tests after
January 2019, in Mother’s case, or after September 2018, in Father’s case.

      Callicut also testified that the Department had concerns about domestic
violence between Mother and Father, noting that Referral 1 remained an active
case. When asked about Mother’s and Father’s criminal records, Callicut testified
he did not want to speculate about the details of Father’s record, but knew it was
“pretty extensive.” Callicut was aware of only the January injury-to-a-child-by-
omission charge against Mother.

      Callicut confirmed Mother’s testimony that the children had reached out to
Mother and Father via social media, actions expressly prohibited by the district
court’s visitation order. Callicut explained the reason for the order was not to
prevent Mother and Father from talking with the children, but rather that the
communications be proper and in accordance with the visitation order. Callicut
also confirmed Mother’s testimony about Mother’s sending cards and letters and

                                         7
bringing supplies, food, clothes, and birthday cakes to the children when she
visited, but those visits and provisions ended in January 2019. Callicut testified
that Father, too, had provided books and clothing and sent letters and cards to let
the children know he cared about them.

      Callicut testified that he never contacted any of the EMS workers who came
to appellant’s apartment, and that he has not seen any medical records regarding
whether Wystan should have been transported to the hospital by paramedics on the
day of the child’s injury.

                                       Father
      Father testified at trial, both acknowledging and denying a history of
engaging in family violence. In cross examination, after agreeing that he was
charged with assaulting Mother, Father answered “Yes” to the immediate follow-
up, “And your children were present during the time the assault occurred, correct?”
Yet, when questioned by his own lawyer, he denied assaulting Mother.          Father
admitted being present when Wystan suffered injuries and said he told EMS
Wystan’s leg was not broken “because when you hit your shin, it swell up.” Father
asserted that he stopped visiting his children because the Department said he was
not allowed to do so. Father confirmed he had not completed his service plan, and
he denied using drugs. Father stated his belief that there was no reason to submit to
a hair-follicle test as long as he submitted urine for testing. Father stated the
apartment he and Mother shared had room for the children, although he
acknowledged the apartment had only two rooms. Finally, Father acknowledged he
had not provided the Department with proof of stable income because “I don’t get
checks. I don’t work.”

                                      Mother
      In answering questions about Wystan’s injuries, Mother testified that she

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called paramedics “as soon as she heard it” and her son “started crying,” and that
paramedics came to her apartment. She testified that the paramedics told her that
her son’s leg was not broken, and that he only needed an ice pack. Mother testified
that once she realized that her son was not getting better, she took the bus and took
him to the hospital herself. Mother testified that the injury occurred on Friday, she
took Wystan to the hospital on “Monday.” Medical records introduced at trial,
however, indicate that the parents “[a]ttempted to seek care however [the] wait was
too long.”

                  Probable-Cause Affidavit and Medical Records
      Following Wystan’s injury, Father was indicted for injury to a child. The
affidavit attached to the indictment indicates that Houston Northwest Medical
Center made an “injury to a child” report. When the responding officer (Neeley)
arrived at the hospital, he spoke with Deputy F. Lopez, who informed him Mother
had arrived at the hospital with Wystan. Medical professionals were evaluating the
child for a spiral fracture and a bow fracture of his right leg. According to Deputy
Lopez, Mother told him she was Wystan’s mother and that Wystan’s injury had
occurred three days earlier. Mother told Deputy Lopez she had called EMS shortly
after Wystan got hurt, but claimed EMS said there was no need to transport
Wystan to the hospital. At trial, Mother said EMS told her all she needed to do for
Wystan was put ice on his leg, but when the child did not improve over the
weekend, she brought him to the hospital.

      Emergency Room (“ER”) clinical staff told Officer Neeley that Wystan’s
injuries were consistent with child abuse and “could have led to permanent
disfigurement.” ER clinical staff said Wystan needed to be transported to Texas
Children’s Hospital for surgery.      Given the discrepancy between Mother’s
statements and those from the ER staff, Officer Neeley reviewed the EMS records.

                                         9
       Neeley’s affidavit indicates that, according to the EMS records, Wystan was
crying when EMS arrived at the apartment on August 17, 2018, and that EMS
personnel told Mother Wystan needed to go to Texas Children’s Hospital for
treatment. Neeley further reported that initially Mother gave EMS permission to
transport Wystan, but after he was loaded into the ambulance, Mother withdrew
her permission and removed Wystan from the ambulance.             Neeley’s affidavit
states, “EMS records documented that [Mother] told EMS [Wystan] couldn’t be
transported because an UBER from the hospital would cost too much.” According
to the records, Mother told EMS she would take Wystan to a local urgent care
facility instead.

                                 Medical Records
       A “Final Report” from Texas Children’s Hospital filed with the removal
affidavit stated, “this fracture is plausible in this age group,” and that a delay in
care is “concerning for medical neglect.” Medical records also demonstrated that
Mother and Father brought Wystan to Texas Children’s Hospital nine (9) times
over the past year and half.

                                 Criminal Records
       In 2010, when Eshan was three years old and Reba was one year old, Mother
faced charges for possession of marijuana, but the case was dismissed. In 2013,
when Eshan was six years old and Reba was four years old, Mother was charged
with several misdemeanors and for driving with an invalid license. She received
probation.

       Between October 2000 and June 2016, Father was convicted of two
misdemeanors for which he served 200 days and four felonies for which he served
more than eight years. In October 2012, when Eshan was five years old and Reba
was three years old, Father was convicted of resisting arrest and possession of

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marijuana, and served 30 days. In 2014, when Eshan was seven years old and
Reba was five years old, Father was charged with numerous misdemeanors and
convicted and incarcerated for eight months on cocaine-possession charges. In
2015, Father was charged with assault but was not incarcerated.         In 2016, when
Eshan was nine years old, Reba was seven years old, and Wystan was two months
old, Father served ten days in jail for drug-possession.

                                 The Child Advocate
      At trial, the child advocate testified that the parents’ positive drug tests, lack
of housing stability, failure to complete counseling, and failure to seek timely
medical attention for Wystan supported the recommendation for termination of
parental rights. She further testified that the children’s current placements were
meeting the children’s needs and they would be in danger if they were returned to
Mother and Father.

                            Final Decree of Termination
      The trial court found predicate acts for terminating Mother’s parental rights
to the children under section 161.001(b)(1) (D), (E), (N), and (O). The trial court
found predicate acts for terminating Father’s parental rights to Eshan, Wystan, and
Estrid based on the same subsections.     The trial court also found that termination
of Mother’s and Father’s parental rights would be in the best interest of each child.

                             II. ISSUES AND ANALYSIS

      A court may terminate parental rights upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section
161.001(b)(1); and (2) termination is in the best interest of the child. Tex. Fam.
Code Ann. § 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
Mother and Father argue the record evidence is insufficient on predicate
termination grounds and on the issue of best interest. Father also argues that the

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Department violated his rights to due process and equal protection under the
Fourteenth Amendment of the United States Constitution.

A. Standard of Review

      Due to the severity and permanency of terminating the parental relationship,
Texas requires clear and convincing evidence to support such an order. See Tex.
Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).
“Clear and convincing evidence” means “the measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007; In re
J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a
“correspondingly searching standard of appellate review.” In re A.C., 560 S.W.3d
624, 630 (Tex. 2018); see In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).

      In reviewing legal sufficiency of the evidence in a termination-of-parental-
rights case, we must consider all evidence in the light most favorable to each
challenged finding to determine whether a reasonable factfinder could have formed
a firm belief or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336,
344 (Tex. 2009). The factfinder is the sole arbiter of the credibility and demeanor
of each witness. Id. at 346. 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. Id.; In re G.M.G., 444
S.W.3d 46, 52 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Yet, using this
standard does not mean that we must disregard all evidence that does not support
the finding. In re D.R.A., 374 S.W.3d at 531. Because of the heightened standard,
we also must be mindful of any undisputed evidence contrary to the finding and
consider that evidence in our analysis. Id. The evidence is legally insufficient to

                                          12
support the challenged finding if, after conducting this review of the record
evidence, we determine that no reasonable factfinder could form a firm belief or
conviction that the matter that must be proven is true. Id. at 344–45.
      In reviewing the factual sufficiency of the evidence under the clear-and-
convincing standard, we consider and weigh disputed evidence contrary to the
finding against all the evidence favoring the finding. In re A.C., 560 S.W.3d at
631; see In re J.O.A., 283 S.W.3d at 345. “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, then the evidence is factually insufficient.” In re J.O.A.,
283 S.W.3d at 345. We give due deference to the factfinder’s findings and we
cannot substitute our own judgment for that of the factfinder. In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006).        And, in making this determination, we must
undertake “an exacting review of the entire record with a healthy regard for the
constitutional interests at stake.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014)
(quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)) (internal quotations omitted).
Nonetheless, our review must not be so rigorous that the only fact findings that
could withstand review are those established beyond a reasonable doubt. In re
H.R.M., 209 S.W.3d at 108.

B. Termination Based on Endangerment

      Mother argues the evidence is legally and factually insufficient to support
termination under sections 161.001(b)(1)(D), (E), (N), and (O). Tex. Fam. Code
Ann. §§ 161.001(b)(1)(D), (E), (N), (O). Father argues the evidence is legally and
factually insufficient to support termination under sections 161.001(b)(1)(D) and
(E). Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E). Because Father does not
challenge the trial court’s predicate-act findings under section 161.001(b)(1)(N) or

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and (O), even if this court were to conclude that the record contains legally or
factually sufficient evidence to support termination under section 161.001(b)(1)(D)
or (E), that conclusion would not provide a basis for reversing the trial court’s
judgment in this case. Nevertheless, the Supreme Court of Texas has held that (1)
allowing (D) and (E) findings to go unreviewed on appeal when the parent has
presented the issue to the appellate court violates the parent’s due-process and due-
course-of-law rights and (2) due process and due course of law require an appellate
court to detail its analysis as to why a parent’s challenge to a finding under (D) or
(E) lacks merit. See In re N.G., 577 S.W.3d 230, 236–37 (Tex. 2019). Mother and
Father have each presented the issue as to whether the evidence is legally and
factually insufficient to support the (D) and (E) findings. Therefore, under binding
precedent from the Supreme Court of Texas, we must address each party’s
challenges to the (D) and (E) findings, even though Father did not challenge the
(N) finding or the (O) finding and even if this court could affirm the judgment
against Mother based on the (N) finding or the (O) finding. See id.

      As to each parent, we begin by addressing the trial court’s finding under
subsection (E), which provides for the termination of parental rights where the
court finds “by clear and convincing evidence that a parent has engaged in conduct
or knowingly placed the child with persons who engaged in conduct which
endangers the physical or emotional well-being of the child.” Tex. Fam. Code
Ann. §§ 161.001(b)(1)(E).

      In reviewing a subsection (E) finding, we are mindful of the requirement that
we detail our analysis of the sufficiency of the evidence supporting an (E) finding.
In re P.W., 579 S.W.3d 713, 725 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
By making the (E) finding as to each parent, the trial court found that Mother and
Father both engaged in conduct or knowingly placed their respective children with

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persons who engaged in conduct that endangered the children’s physical or
emotional well-being. Tex. Fam. Code Ann. § 161.001(b)(1)(E). A finding of
endangerment under subsection (E) requires evidence that the endangerment
resulted from the parent’s conduct, including acts, omissions, or failures to act. In
re S.R., 452 S.W.3d 351, 361 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Termination of the parent-child relationship 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. Id. A court properly may consider
actions and inactions occurring both before and after a child’s birth to establish a
course of conduct. In re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th
Dist.] 2017, pet. denied).

      While endangerment often involves physical endangerment, the statute does
not require that conduct be directed at a child or that the child actually suffer
injury; rather, the specific danger to the child’s well-being may be inferred from
the parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987). A parent’s conduct that subjects a child to a life of
uncertainty and instability endangers the child’s physical and emotional well-
being. In re F.E.N., 542 S.W.3d 752, 764 (Tex. App.—Houston [14th Dist.] 2018,
no pet.). The evidence germane to this endangerment-termination case relates to a
combination of medical neglect, drug abuse, and exposure to domestic violence.

      Domestic Violence.

      Evidence of domestic violence may be considered as evidence of
endangerment under subsection (E). Interest of A.R.E., 14-19-00437-CV, 2019
WL 5704299, at *5–7 (Tex. App.—Houston [14th Dist.] Nov. 5, 2019, no pet. h.);
In re K-A.B.M., 551 S.W.3d 275, 286 (Tex. App.—El Paso 2018, no pet.). A
parent’s abusive or violent conduct can produce a home environment that

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endangers a child’s well-being. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—
Houston [14th Dist.] 2003, no pet.). Domestic violence, want of self-control, and
propensity for violence may be considered as evidence of endangerment. Id.; see
In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.)
(considering mother’s having “exposed her children to domestic violence,” as
evidence of endangerment under subsection (E)); see also Sylvia M. v. Dallas Cty.
Welfare Unit, 771 S.W.2d 198, 204 (Tex. App.—Dallas 1989, no writ)
(considering “volatile and chaotic” marriage altercation during pregnancy and
mother's repeated reconciliation with abusive spouse). Violent conduct by a parent
toward the other parent may produce an environment that endangers the physical
or emotional well-being of a child. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—
Fort Worth 2003, no pet.).

      Referral 1, based on a domestic-violence claim, remained open at the time of
trial. Mouton testified that both Mother and Father acknowledged that Father
assaulted Mother in 2017. Some of the medical records contain references to an
altercation between Father and Mother at the hospital when Wystan was being
treated. Though Mother took the children and moved out of the home and into the
Star of Hope, she placed them back into danger when she chose to leave the safety
of the shelter and to bring the children back under the same roof as Father. At the
time of trial, Mother testified she intended to stay with Father. The trial court
reasonably could have found that Mother’s repeated reconciliation with Father and
her decision to risk the children’s safety by bringing them back to live with Father
following incidents of Father’s domestic violence is endangering conduct
supporting the predicate ground for termination of Mother’s parental rights.

      Medical Neglect.

      Although the Department initially removed the children based on a concern

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that Wystan’s injuries were indicative of child abuse, the Department’s focus at
trial was the delay in seeking medical treatment for the child. Neglect of a child’s
medical needs endangers a child. In Interest of S.G.F., 14-16-00716-CV, 2017 WL
924541, at *6 (Tex. App.—Houston [14th Dist.] Mar. 7, 2017, no pet.); Interest of
J.D.G., 570 S.W.3d 839, 852 (Tex. App.—Houston [1st Dist.] 2018, pet.
denied)(noting that failure to provide appropriate medical care for a child may
constitute endangering conduct under subsection (E) even if the parent did not
cause the need for medical treatment). Medical neglect can be just as dangerous to
a child’s well-being as direct physical abuse. See In re M.C., 917 S.W.2d 268, 270
(Tex. 1996)(finding that even in the absence of proof of direct exposure to danger a
trial court’s termination based on an endangerment finding is not insufficient when
based on the parent’s failure to obtain medical care and other neglect for their
physical needs).

      In her trial testimony, Mother acknowledged a three-day lapse between the
time Wystan broke his leg and the time she ensured he was seen by a doctor. The
indictment, along with the probable-cause affidavit and the physician’s record
attached to the Department’s affidavit, show Wystan’s physician noted that
“patient’s delay in care [was] concerning for medical neglect.”

      Father admitted being present when Wystan was injured and said he told
EMS personnel Wystan’s leg was not broken “because when you hit your shin, it
swell up.” Father testified that he heard the paramedic tell Mother that she did not
need to go the hospital. Father was later charged for injury to a child by omission
for the delay in treatment.     The trial court reasonably could have believed the
statements in the probable-cause affidavit rather than Father’s and Mother’s
testimony about what the paramedic told them concerning the need to get medical
treatment for their injured child.

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        The parties dispute facts as to whether Mother should have known the
severity of Wystan’s leg injury after the EMS left. Mother contends that the
paramedic stated Wystan’s leg was not broken. The EMS records were not offered
into evidence, but the content of those records was included in the probable-cause
affidavit, which was introduced into evidence and is part of the record. The
affidavit contradicts Mother’s contention that the paramedic told her that Wystan’s
leg was not broken. The affidavit indicates that Mother was concerned about the
relative costs associated with transportation to or from the hospital, which suggests
she was aware of the need to go to the hospital. Other records offered into
evidence indicate that Mother took Wystan to an emergency room sometime before
Monday but left without getting treatment because she concluded the wait was too
long.

        The trial court reasonably could have believed that the evidence established
a three-day delay in treatment such that Mother’s and Father’s conduct rose to the
level of medical neglect and endangering conduct. Though other medical records
in the court’s file show that Mother and Father regularly addressed Wystan’s
medical needs, under the governing standard, the trial court reasonably could have
considered that by leaving Wystan’s injured leg medically unattended for such a
long duration — considered by one doctor to be life-threatening — Mother and
Father engaged in endangering conduct.

        Drug Abuse

        Mother initially tested negative at the time of Referral 1 in June 2018, but
after the children were removed, Mother tested positive on September 4, 2018, and
again on January 16, 2019. Despite the positive drug-test results, Mother denied
using drugs and stated that her urine was “clean.”        Father tested positive for
cocaine while living with the children. Both parents had a criminal record for

                                         18
drug-related offenses. Father was incarcerated several times for drug-possession
offenses.

      Under Texas law subsection (E) endangering conduct does not have to occur
in the child’s presence. See Walker, 312 S.W.3d at 617. Continued illegal drug use
after a child’s removal jeopardizes parental rights and may be considered as
establishing an endangering course of conduct. Cervantes–Peterson v. Tex. Dep’t
of Family & Protective Servs., 221 S.W.3d 244, 253–54 (Tex. App.–Houston [1st
Dist.] 2006, no pet.) (en banc). Likewise, drug abuse and its effect on one’s ability
to parent can present an endangering course of conduct to a child in that parent’s
care. In re J.O.A., 283 S.W.3d at 345. Drug use can endanger a child “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.).

      Mother’s and Father’s refusal to submit to drug testing may be treated by the
trial court as if Mother and Father had tested positive for drugs. See id. (factfinder
reasonably can infer that parent’s failure to submit to drug tests indicates parent is
avoiding testing because parent was using drugs). Even without considering their
refusal to submit to drug testing, each actually tested positive for drug use. See In
re S.R., 452 S.W.3d at 361-62 (continued drug use after child’s removal may be
considered as establishing endangering course of conduct).      Father admitted that
he refused drug tests because he knew they would show positive results, but
insisted that the results would be misleading because they would be based on
previous drug use rather than current sobriety.

      In addition to evidence of Mother’s drug use during the course of the
proceeding, the record contains Mouton’s testimony that the Department’s first
referral to the family came when Mother tested positive for marijuana at Reba’s

                                         19
birth.

         Despite the evidence of drug abuse, neither Mother nor Father would admit
to a substance-abuse problem, a factor that supports the endangerment finding.
When the record shows the parent’s drug abuse, the parent’s unwillingness to
admit to having a substance-abuse problem suggests the parent will continue to
engage in the same behaviors that endangered the child. Interest of L.M., 572
S.W.3d 823, 835 (Tex. App.—Houston [14th Dist.] 2019, no pet.); See In re
A.J.E.M.-B., Nos. 14-14-00424-CV, 14-14-00444-CV, 2014 WL 5795484, at *5
(Tex. App.—Houston [14th Dist.] Nov. 6, 2014, no pet.) (mem. op.) (considering
evidence that parents “minimized concerns and were in denial of the impact that
substance use has on their ability to sufficiently be in tune to the needs of their
child.”); In re E.H., No. 02-09-00134-CV, 2010 WL 520774, at *4–*5 (Tex.
App.—Fort Worth Feb. 11, 2010, no pet.) (mem. op.) (considering father’s denial
that his drug use and drug dealing harmed his children as factor in endangerment
analysis). A parent’s drug abuse exposes the child to the possibility the parent may
be impaired or imprisoned and, thus, unable to take care of the child. Walker v.
Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617–18 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). The factfinder may give great weight to the
“significant factor” of drug-related conduct. In re L.G.R., 498 S.W.3d at 204.

         Considering all the evidence in the light most favorable to the subsection (E)
finding, assuming the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so, disregarding all evidence that a reasonable
factfinder could have disbelieved, being mindful of any undisputed evidence
contrary to the finding, and considering that evidence in our analysis, we conclude
that a reasonable factfinder could form a firm belief or conviction that Mother
engaged in conduct that endangered Estrid, Reba, Wystan, and Eshan’s physical or

                                           20
emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(E). Applying that
same standard, we likewise conclude that a reasonable factfinder could form a firm
belief or conviction that Father engaged in conduct that endangered Estrid,
Wystan, and Eshan’s physical or emotional well-being. See Tex. Fam. Code Ann. §
161.001(b)(1)(E).

      Considering and weighing the disputed evidence contrary to the finding
against all the evidence favoring the finding, giving due deference to the trial
court’s findings, and after an exacting review of the entire record with a healthy
regard for constitutional issues at stake, we conclude that in light of the entire
record, the disputed evidence that a reasonable factfinder could not have credited
in favor of the finding is not so significant that a factfinder reasonably could not
have formed a firm belief or conviction that Mother and Father engaged in conduct
described in subsection (E). See In re A.B., 437 S.W.3d at 503; In re J.O.A., 283
S.W.3d at 345. Thus, the trial evidence stands factually sufficient to support the
trial court’s subsection (E) finding.

      Because we conclude the evidence is legally and factually sufficient to
support the trial court’s finding under section 161.001(b)(1)(E) as to both Mother
and Father, we do not address Mother’s argument that the evidence is legally and
factually insufficient to support the trial court’s findings under sections
161.001(b)(1)(D), (N), and (O). Nor do we address Father’s argument that the
evidence is legally and factually insufficient to support the trial court's findings
under section 161.001(b)(1)(D). Thus, we overrule Mother’s second issue, which
renders her first, third, and fourth issues moot, and we overrule Father’s third issue,
which renders his first issue moot.

      C. Best Interest of the Children

      Texas courts presume that keeping a child with the child’s natural parent
                                          21
serves the child’s best interest. In re U.P., 105 S.W.3d 222, 230 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied). The Department carries the burden of
rebutting that presumption. Id. Proof of acts or omissions under section
161.001(b)(1) is probative of the best-interest issue. See In re S.R., 452 S.W.3d at
366. The considerations the trier of fact may use to determine the best interest of
the child, known as the Holley factors, include:

      (1) the child’s desires;
      (2) the child’s present and future physical and emotional needs;
      (3) the present and future emotional and physical danger to the child;
      (4) the parental abilities of the person(s) seeking custody;
      (5) the programs available to assist those persons seeking custody in
      promoting the best interest of the child;
      (6) the plans for the child by the individuals or agency seeking
      custody;
      (7) the stability of the home or proposed placement;
      (8) acts or omissions of the parent that may indicate the existing
      parent-child relationship is not appropriate; and
      (9) any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re U.P., 105 S.W.3d at
230; see also Tex. Fam. Code Ann. § 263.307(b) (listing factors to consider in
evaluating parents’ willingness and ability to provide the children with a safe
environment). A finding in support of “best interest” does not require proof of any
unique set of factors, nor does it limit proof to any specific factors. See Holley, 544
S.W.2d at 371–72.

                                 Desires of the children

      All four children currently reside in foster placements. Eshan and Reba both
expressed desires not to be returned to their parents but to remain in foster care.
Wystan and Estrid were under the age of three at the time of trial and so were too
                                           22
young to express any views on this subject.2 None of the children testified. When
children are too young to express their desires, the factfinder may consider their
circumstances, for example that a child has bonded with the foster family, is well
cared for in the current placement, and has spent minimal time with a parent. In re
J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Mother and Father testified that the children told them that Eshan wanted to be
with them.        Several witnesses testified that Eshan and Reba sought out their
parents through social media. Mother testified that her relationship with her
children remains strong, and that she feels bonded with her children.                                   But,
according to the Department, the two older children, Eshan and Reba, reportedly
do not want to return to living with Mother and Father and had not spoken about
returning to them in months. Callicut testified that none of the children had asked
about their parents for several months, and that Mother had not seen or visited the
children for more than six months and all the children were “doing exceptionally
well” in their current foster homes. The Department contends that the children’s
failure to ask about their parents suggests that any desire to move in with Mother
and Father has diminished. Father asserts that the ad litem failed to represent
Eshan and Reba. Though we do not arrive at the same inference with respect to
Eshan and Reba, we conclude that the evidence concerning the desires of these two
children is neutral. Because testimony tends to show the two younger children are
thriving in their foster home, the trial court reasonably could have weighed this
evidence in favor of finding that termination of Mother’s and Father’s parental
rights would be in Wystan’s and Estrid’s best interests.

             Present and future emotional and physical needs of the children

      At the time of trial, Mother had not seen or visited her children for more
      2
          At the time of trial, Eshan was twelve, Reba was ten, Wystan was three, and Estrid was two.

                                                       23
than six months. Mother claims the record contains no evidence that the “minor”
children “had any special physical/emotional needs before or after being placed in
[the Department’s] custody, or that the children would have any such needs in the
future.” According to Callicut, when Wystan first came into care, he was not
talking and was diagnosed with “unspecified speech disorder.” Mother believed
Wystan was autistic. The Department took Wystan to a speech therapist and a
psychologist, both of whom concluded Wystan is not autistic. After sessions with
an Early Childhood Intervention worker and therapist, Wystan began to talk “and
now talks quite well,” according to Callicut.

      Callicut further testified all of the children were “doing exceptionally well”
in their current foster homes and each of their needs, especially Wystan’s special
needs are being met in their respective foster homes. Callicut testified that Wystan
and Estrid live on a farm, where both children “actually have a sense of normalcy.”
Both children go to day care where they receive “the proper education that they
need.” Wystan’s foster parents also have a specialist who works with Wystan to
develop his speech.

      The Department set forth general evidence concerning Reba’s and Eshan’s
emotional needs. Both Reba and Eshan had changed foster homes at least once
during the pendency of the case. Callicut testified Reba was “doing well” in her
placement and Eshan was “looking forward to doing some extracurricular
activities” in his placement.

      In sum, the foster parents for all four children were taking care of their
physical and emotional needs. The record evidence shows that neither Father nor
Mother were meeting the children’s present needs and based on past performance,
they were unlikely to be able to meet the children’s future emotional and physical
needs. Because the need for stability is of paramount importance to a child’s

                                         24
emotional and physical well-being, and in light of the record showing that Mother
did not provide a stable home for her children, had no job that would enable her to
support them financially, had not seen or visited her children for more than six
months, elected to continue her relationship with Father despite his history of
family violence, and continued to test positive for illegal drugs, a reasonable trier
of fact could have found this factor to weigh heavily in favor of a finding that
termination of Mother’s parental rights was in the children’s best interest. See
Quiroz v. Department of Family and Protective Services, No. 01–08–00548– CV,
2009 WL 961935, at *10 (Tex. App.—Houston [1st Dist.] Apr. 9, 2009, no pet.)
(mem. op.).

       Father did not provide a stable home for his children, he had no job that
would enable him to support them financially, and he had not seen or visited with
his children for more than six months before trial. Father tested positive for illegal
drugs and then refused to submit to any additional court-ordered drug tests. In
light of this record and because the need for stability is of paramount importance to
a child’s emotional and physical well-being, a reasonable trier of fact would have
found this factor to weigh heavily in favor of a finding that termination of Father’s
parental rights is in the children’s best interest. See Quiroz 2009 WL 961935, at
*10.

       Mother maintains her relationship with Father, a convicted felon who has
been incarcerated for more than nine years out of the twenty years they have been
together. At least one of Father’s convictions was for family violence. Mother
tested positive for illegal drugs twice during the pendency of this case, persistently
denied using drugs, and ultimately refused to provide hair or urine samples when
asked to comply with her required, court-ordered random drug tests. Father tested
positive for illegal drugs once before his children were removed and again during

                                         25
the pendency of this case, and he refused to submit to any court-ordered random
drug tests after September 2018. This evidence shows Mother and Father lack the
will and abilities to serve as a viable resource for the children’s basic needs or
stability. See In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no
pet.) (“Without stability, income, or a home, [a parent] is unable to provide for the
child’s emotional and physical needs.”).

 Parental abilities of those seeking custody, the stability of the home or proposed
                placement and plans by the agency seeking custody
      Texas courts recognize as a paramount consideration in the best-interest
determination a child’s need for a “stable, permanent home.” See In re K.C., 219
S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.). So, factfinders may look to
evidence about the present and future placement of the child as relevant to the best-
interest determination. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

      Both Mother and Father stated that they wanted the trial court to allow them
to continue to get more services and complete their respective plans, but neither
explained how they might succeed if given the opportunity. Nor did either offer
explanations for their failure to complete the plans the trial court ordered.

      According to Callicut, the Department contacted relatives and fictive kin
during the pendency of the case as potential placements for all four children. Only
one of three relatives contacted responded to the Department’s inquiries. That
relative said she was not financially able to support the children as she had two of
her own and also was taking care of her mother. The Department also conducted
two fictive-kin home studies. The Department denied one due to a concern about
criminality and another because there was simply not sufficient room for the
current residents and all four children.        The Department ruled out the other
possible fictive-kin referral because there was a pending child-sexual-assault

                                           26
charge on the male in the household.

      Eshan, Reba, Wystan, and Estrid have been in the Department’s temporary
managing conservatorship since August 21, 2018. Callicut testified that all four
children are “doing exceptionally well,” and all of their needs are being met in
their current foster homes.      The Department’s long-range goal for Eshan is
conservatorship; for Reba, Wystan, and Estrid, it is unrelated adoption.

      According to the Department, Eshan says he does not want to be returned to
his parents nor does he want to be “broadcasted” as an adoptee. He is happy with
and wants to stay in his current foster home “[b]ecause he wants to stay closer to
his brother and sisters.” Eshan’s foster parents “are willing to do conservatorship
up until [Eshan turns] 18.”

      Reba also expressed a desire not to be returned to her parents. Her foster
mother just adopted two other children, but was able to recommend a family who
says they would be willing to adopt Reba. At the time of trial, the Department had
just begun getting the information about this family, but Reba’s current foster
mother is “willing to keep [Reba] as long as need be.”

      Given all of these facts, the fourth, sixth and seventh Holley factors
supported the trial court’s best-interest finding.

 The emotional and physical danger to the children, now and in the future, acts or
 omissions of the parent that may indicate the existing parent-child relationship is
        not appropriate, and any excuse for the parents acts or omissions

      The evidence that supported the trial court’s findings under subsection (E),
discussed above, also supports the court’s finding that Mother’s pattern of
inappropriate behaviors during her children’s lives has and will continue to
jeopardize their well-being. In re M.G.D., 108 S.W.3d 508, 511 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied).
                                           27
      Father’s pattern of criminal conduct and inappropriate behaviors during his
children’s lives, and Mother’s continuing relationship with Father and her own
criminal activity, shows that each independently pose significant emotional and
physical danger to their respective children now and in the future. In assessing
each child’s best interest, the trial court reasonably could have weighed this
evidence in favor of terminating Mother’s and Father’s parental rights.

                            Conclusion of Holley Analysis

      Evidence introduced at trial supports a finding that termination of Mother’s
and Father’s parental rights favored the children’s best interest. Nothing in the
record would prevent the trial court from reasonably forming a firm belief or
conviction that termination of Mother’s and Father’s parental rights was in their
respective children’s best interest. See In re J.F.C., 96 S.W.3d at 266. While the
Holley factors are not exclusive, and need not all be satisfied to support a best-
interest finding, in this case, virtually all of the individual factors weigh in favor of
the trial court’s determination. The evidence is legally and factually sufficient to
support the trial court’s findings that the termination of Mother’s parental rights is
in the best interest of each of her children, and the finding that the termination of
Father’s parental rights is in the best interest of each of his children.

      We overrule Mother’s fifth issue and Father’s fourth issue.

D. Father’s Due-Process Challenge

      In his first issue, Father argues that the Department violated his due process
rights and equal protection under the Fourteenth Amendment of the United States
Constitution, premised on his contention that the Department knew he could not
read. The Department responds that Father did not preserve this issue for appellate
review.


                                           28
      Due process and equal-protection violations must be raised in the trial court
for them to be preserved on appeal. See In re L.M.I., 119 S.W.3d at 710–11; see
also In re B.L.D., 113 S.W.3d 340, 349–55 (Tex. 2003) (discussing preservation of
error in termination cases); In Interest of F.E.N., 542 S.W.3d 752, 768 (Tex.
App.—Houston [14th Dist.] 2018)(finding complaint not preserved concerning
improper translation at trial), review denied sub nom. Interest of F.E.N., 579
S.W.3d 74 (Tex. 2019). Upon review of the record, we conclude that Father failed
to preserve this issue for appellate review.    Father appeared at trial and did not
raise the issue at any point during trial. And nothing filed on his behalf before trial
raises this complaint or contains citations to any constitutional authority. Nor did
Father raise the issue in any post-judgment motion. Having failed to preserve
error, Father waived the complaint. We overrule Father’s first issue.

                                  III. CONCLUSION

      The evidence is legally and factually sufficient to support the predicate
termination finding under subsection (E) as to both Mother and Father. And, the
evidence is legally and factually sufficient to support the trial court’s findings that
(1) the termination of Mother’s parental rights is in the best interest of each of her
children and (2) the termination of Father’s parental rights is in the best interest of
each of his children. Father failed to preserve error on his due-process and equal-
protection complaint and so forfeited appellate review of that point.          Having
overruled all of the issues presented, we affirm the judgment of the trial court.


                                        /s/    Kem Thompson Frost
                                               Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot. (Justice
Bourliot concurs without opinion.)


                                          29
