                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00038-CV


IN THE INTEREST OF M.G.P.,
A CHILD



                                      ----------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1
                                      ----------

                                 I. INTRODUCTION

      Following a non-jury trial, the trial court signed a judgment terminating

Mother’s parental rights to her daughter, M.G.P. In six issues, Mother argues

that the evidence is legally and factually insufficient to support the trial court’s

environmental and conduct endangerment findings and best interest finding.

Because the evidence is not legally sufficient to support the environmental and


      1
       See Tex. R. App. P. 47.4.
conduct endangerment findings, we will reverse the trial court’s termination order

and conservatorship order. We will remand the case to the trial court for the

limited purpose of rendering an order consistent with family code section

161.205. See Tex. Fam. Code Ann. § 161.205(2) (West 2008).

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      A.    Events Prior to M.G.P.’s Birth

            1.     Mother’s Other Children

      Mother said that she had a four-year-old son, E.G., Jr., who lived with his

father, and another son named J.M., who was legally adopted by a woman

named M.H. Mother explained that when she separated from E.G., Sr.,2 her son

stayed with him. Mother went to Louisiana after Hurricane Katrina, conceived

her third son, J., while she was there, and then came back to Texas. J.’s father

did not want to be involved. After Mother delivered, it was ―very hard‖ for her to

work and care for J., so the woman Mother calls her mother offered to help out

and eventually adopted him.

            2.     Mother’s Drug and Alcohol Use

      Mother started using marijuana when she was about fifteen years old,

started using crack cocaine two or three days a week beginning in 2008, and



      2
       Mother initially assumed that she was still legally married to E.G., Sr. even
though she had been separated from him for five years. But four months’ prior to
the termination trial, Mother received a call from E.G., Sr., and he told her that
they were already divorced. She last lived with E.G., Sr. in July 2005.


                                         2
drank alcohol in January 2009. Mother admitted to using crack and cocaine in

December 2008 before she realized that she was pregnant with M.G.P.

             3.     Domestic Violence On or About December 6, 2008

      Officer Joel Zuniga with the Fort Worth Police Department testified that

Mother told him on December 20, 2008, that her boyfriend J.P. hit her in the

stomach around December 6, 2008, and that her stomach hurt for two weeks.

             4.     Domestic Violence On December 20, 2008

      Officer Zuniga testified that in the early morning hours on December 20,

2008, he was dispatched to a call at 3725 South Main Street regarding a burglary

of a habitation. When Officer Zuniga arrived, he spoke with Mother, who said

that her boyfriend J.P. had kicked in the back door, had hit her in her stomach

several times, and had pulled her out of bed. Mother ran towards the bathroom

to get away from J.P., but he grabbed her by the throat. Officer Zuniga noted

that Mother had bruises around her neck and arms. Mother was two months’

pregnant, and J.P. was the father of the child. Mother fled to a neighbor’s house

to protect herself and her unborn child. Mother said that J.P. was drunk and that

he verbally threatened her, saying that he wanted to hurt her and kill her.

      J.P. was not arrested that night because he had fled the scene, but Officer

Zuniga believed that the detective who was in charge of the case had brought

charges against J.P.      Mother admitted at trial that she had continued in a

relationship with J.P. for a short time after this incident.




                                           3
             5.     Drug and Alcohol Use Stops — January 2009

      Mother stopped using crack cocaine and alcohol in January 2009.

      B.     M.G.P.’s Birth — July 2, 2009

      Mother gave birth to M.G.P. at thirty-eight weeks’ gestation on July 2,

2009. M.G.P. tested negative for drugs when she was born. Mother tested

positive for opiates at the time of M.G.P.’s birth, but JPS staff said that Mother

had tested positive due to being given morphine by the doctor; Mother had tested

negative for all drugs on a urine screen prior to giving birth.

      C.     Events After M.G.P.’s Birth

             1.     CPS Investigator Interviews Mother — July 6, 2009

      Jeremy Dickinson, an investigator for Tarrant County Child Protective

Services, testified that he was assigned to Mother’s case in early July 2009 and

that he spoke with Mother at JPS hospital on July 6, 2009, which was four days

after M.G.P. was born.3 Dickinson testified that he gave Mother an oral swab test

at the hospital.

      Mother admitted to Dickinson that she had experienced suicidal thoughts

in the past because of verbal arguments with J.P. and that she had put a knife to

her wrists at one point but did not cut. Dickinson checked Mother’s wrists to see

if she had any cuts from suicide attempts, but he did not observe any injuries.

During that conversation, Mother denied any domestic violence with J.P.

      3
       Dickinson was not aware of any special needs of M.G.P. when she was
discharged after birth.


                                          4
              2.     CPS Caseworker Interviews Mother — July 23, 2009

       Dionne Flowers, a caseworker for CPS and a Family-Based Safety

Services worker, testified that she spoke with Mother on July 23, 2009, and

performed an assessment, which involved gathering social history from Mother

so that Flowers could determine what services were needed. Flowers said that

she was looking at whether Mother was planning to maintain her relationship with

J.P. and whether the two of them would be willing to work services.

       Mother said that she had been diagnosed with depression at JPS Hospital

and had been prescribed Wellbutrin.4 Mother reported that she had thoughts of

suicide in October 2008. Mother also reported that she had thoughts of harming

J.P. and wanted to hurt him for the abuse that she had incurred. Flowers did not

have any information on whether Mother ever tried to hurt herself or whether she

tried to hurt J.P.

       When Flowers spoke with Mother, she said that she had snorted and

smoked crack cocaine for about five months but had stopped using on her own.

Mother admitted that she had smoked crack cocaine during the first month of her

pregnancy, but Mother did not know that she was pregnant at the time that she

used cocaine. Mother said that J.P. supplied her with cocaine, provided all her

groceries and personal items, and paid her bills.



       4
       The last family service plan evaluation prior to trial states that Mother
denies any current issues with depression.


                                        5
      Mother mentioned to Flowers some of the altercations that she had with

J.P. and said that he was violent toward her; she perceived his buying groceries

and providing her personal items as a way of controlling the relationship. Mother

told Flowers that she was no longer in a relationship with J.P. but that she would

consider restarting a relationship with him if he received help.

      After completing the assessment, Flowers recommended to Mother that

she and J.P. attend domestic violence counseling, that she undergo a

psychological evaluation, and that she attend parenting classes.

             3.    Domestic Violence on August 23, 2009

      A few days after August 23, 2009, when the police were called to the

house, Mother told Dickinson

      that he [J.P.] came to their apartment, he was intoxicated, he
      accused her of cheating on him. At that point, he started hitting her
      in the head and the face with [his] hands. She stated that every time
      he was hitting her, she was seeing white and starting to black out.
      She told me that she grabbed a frying pan to try to defend herself.
      He subsequently took that from her and started hitting her with it.
      She said that [M.G.P.] was home during this incident. She told me
      the only reason it stopped was because he got tired. Once he had
      tired out, he told her to get [M.G.P.] and follow him to another
      apartment to watch some DVD[]s, so at that point, a little bit later,
      she contacted Fort Worth P.D. and told them about the domestic
      violence.5


      5
        Petitioner’s Exhibit 2 was admitted into evidence over objection. The
exhibit contained a judgment and sentence, showing that J.P. pleaded guilty to
the offense of assault bodily injury—family member, a Class A misdemeanor,
and that the offense was committed August 23, 2009. The charging instrument
stated that J.P. hit Mother with his hand on August 23, 2009, and that they were
in a dating relationship.


                                         6
Dickinson testified that Mother’s use of the frying pan was self-defense, not an

attack. Dickinson said that Mother was not the aggressor; she was the victim.

Mother told Dickinson that J.P. had threatened to kill her when this incident

happened.

      During Dickinson’s interview with Mother after the August 23 incident, she

said that J.P. had also physically abused her while she was pregnant. Mother

told Dickinson that she could not provide any type of food or transportation and

could not pay rent; Mother relied completely on J.P. as her sole source of income

and to provide necessities.

      Dickinson testified that there was danger to then approximately six-month-

old M.G.P. as a result of the domestic violence because she was exposed to the

scene of Mother’s and J.P.’s physically assaulting each other and because she

was exposed to the potential of being injured. Dickinson said that M.G.P. could

also have been injured when J.P. hit Mother while she was pregnant with M.G.P.

      Dickinson transported Mother and M.G.P. to the police station because

CPS wanted them to be in Safe Haven, and Safe Haven would not pick up clients

from residences. Mother agreed to this move.

      Dickinson was informed by CPS caseworker Dionne Flowers that she was

going to see J.P. in jail and that Mother was going along.      Flowers advised

Mother that she should not go, but Mother said that she was going.




                                       7
      Melinda Esquibel, a Spanish-speaking CPS investigator, testified that she

assisted Dickinson in his 2009 investigation of the case involving M.G.P.

Esquibel translated a phone call6 while J.P. was in jail for assaulting Mother.

      J.P. indicated that he was intoxicated at the time of the assault. J.P. also

said that this was not the first incident and that there had been two or three other

times when he had engaged in domestic violence with Mother. J.P. admitted that

he had ―beat up on‖ Mother. J.P. did not indicate that Mother had ―come at him

with a frying pan‖ or that he had hit her with it. J.P. said that M.G.P. was in her

bed when the domestic violence incidents occurred.

             4.    M.G.P. Removed

      In September 2009, Mother agreed to take M.G.P. and move into Safe

Haven. Safe Haven had a rule that its residents could not leave their children

unattended, and although Mother had been told multiple times by Safe Haven

staff not to leave M.G.P. alone in Mother’s room at Safe Haven, Mother left

M.G.P. alone in Mother’s room at Safe Haven on several occasions while Mother

stepped outside to smoke.7 Mother was ultimately kicked out of Safe Haven for

violating their rules, and M.G.P. was placed in a foster home. While M.G.P. was

living at the first foster home, she showed up to visits with unexplained bruising.

M.G.P. was then moved to a second foster home.

      6
        The record states that J.P. ―is from Mexico and is not in this country
legally.‖
      7
       On some of those occasions, M.G.P. was sleeping.


                                         8
             5.    Two Instances of Domestic Violence — July 2010

      Ten months after M.G.P.’s removal, Mother was shopping by herself at La

Gran Plaza8 in July 2010 when J.P., who was with two friends, saw Mother and

hit her in the nose, causing it to bleed and feel ―like it was broken.‖ Mother said

that J.P. hit her because ―he’s been [trying] to get back with me, but I know it’s

not going to work out because he’s still violent towards me.‖

      After the incident, Mother went back to Safe Haven and stayed there for

two weeks.    Mother did not file a police report after J.P. hit her in the nose

because her mother had recommended that she not file a report as a result of

her pending CPS case. Mother believed that her previous domestic violence

report led to M.G.P.’s removal. Mother realized at trial that it would have been

better if she had reported the incident to the police.9

      Mother said that she had tried to stay away from J.P. But Mother admitted

that in late July 2010, she had ridden in the same car as J.P. because she had

no other way to get to court for a permanency hearing. Mother testified that she

and J.P. met at her mother’s house so that her mother could drive them to the

hearing. J.P. tried to touch Mother in a sexually suggestive way, but after Mother

told him not to and moved away, he hit her in the back. Mother said that J.P. hit


      8
       Mother explained that La Gran Plaza was a mall.
      9
       Mother said that she had tried reporting him in the past. She said that she
did not know how else to tell him that she does not want to be with him. Mother
said that she only spoke to J.P. because of M.G.P.


                                          9
her because he saw some hickeys on her neck and found out that she had

moved in with her boyfriend. Mother had bruises on her back as a result of the

incident. Mother called the police, and an officer came and took a report from

Mother.10 Mother did not tell the judge about the assault during the permanency

hearing.

      D.     Extension of Case — July 23, 2010

      Mother filed a motion for extension of the dismissal date, which was set for

September 6, 2010. The trial court granted the motion, extending the dismissal

date to March 2, 2011.

      E.     Additional Testimony from the January 4, 2011 Termination
             Trial

             1.    Mother’s Testimony

                   a.     Mother’s Other Children

      Although Mother had given up a son when he was four months old and she

was in her early twenties, she testified that she had grown up since then and was

ready and able to care for a child.

                   b.     Drugs

      Mother admitted that she had used drugs once during the first month of her

pregnancy when she did not know that she was pregnant with M.G.P. As soon

as Mother found out that she was pregnant, she stopped using drugs. Mother


      10
       Mother said at trial that she had not followed up with the police to see
what the status of the case was.


                                       10
had been clean ―from everything‖ for two years at the time of trial. Mother had

submitted to drug tests whenever CPS had requested them and was never told

that she had tested positive for drugs. Mother took the CATS drug classes even

though she had never been told that she had tested positive for drugs.

                  c.     Domestic Violence

      Mother did not instigate any of the domestic violence altercations; she had

been a victim, as opposed to the aggressor, in each of the scenarios involving

J.P. Mother said that CPS told her that they had removed M.G.P. due to the

domestic violence and Mother’s drug abuse.      Mother had not been with J.P.

since September 2009; instead, she had removed herself from any danger that

he created for her and M.G.P. Because Mother had removed herself from the

situation and had stopped using drugs, she felt like she had met CPS’s

requirements.

                  d.     Services

      Mother completed a drug class called CATS, a psychological evaluation,

and parenting classes but had seven domestic violence classes left at the time of

the termination trial. Mother admitted that the trial court had already given her

one extension for six months to complete her Safe Haven domestic violence

classes, and she agreed that was more than enough time to complete them.

Mother said that even if she had finished the classes, that would not have

stopped J.P. from hitting her in the nose when he saw her at La Gran Plaza.

Even though she had not completed the domestic violence classes, Mother


                                       11
believed that she had done everything to remove the danger to M.G.P. because

she was no longer in a violent relationship and had learned from her classes how

to avoid violent relationships.

                    e.    Housing

      Mother initially testified that since M.G.P.’s removal in September 2009,

Mother had lived at two places. Upon further review, the record revealed that

Mother had lived at five places; she was living at Safe Haven when M.G.P. was

removed, then she moved back to her apartment because the lease had not

expired, then she moved to the Westchase Apartments with her boyfriend’s

brother, then she moved back to Safe Haven, and then she moved to the

Country Place Apartments. Mother explained that she had to go back to Safe

Haven for two weeks because J.P. was looking for her; she and her boyfriend

decided that it would be better for her to go back to Safe Haven until the locks at

the apartment were changed.         Ultimately, they moved into Country Place

because their lease expired.11 During the six months that Mother dated her

boyfriend, she lived by herself in an apartment12 and cleaned or babysat to make

her $50 monthly rent; she paid for her food with food stamps.


      11
        It is not clear from the record, but it appears that the lease may have
expired during the time that Mother was at Safe Haven awaiting the locks being
changed at Westchase. So she moved from Safe Haven to Country Place,
instead of back to Westchase.
      12
       The Family Service Plan Evaluation dated January 25, 2010, states that
―[Mother] has maintained her apartment.‖


                                        12
                   f.    Mother’s Living Conditions at Time of Trial

      At the time of the termination trial, Mother was living with her boyfriend on

the west side of town and had been living with him for approximately eight

months.13 She and her boyfriend live with her boyfriend’s brother14 in a two-

bedroom apartment. Mother said that their rent is $415, which is divided with her

boyfriend’s brother; electricity is not included in their rent and usually runs $158

for two months. Mother and her boyfriend had not had any physical fights, nor

had she had any physical fights or verbal arguments with her boyfriend’s brother.

      Mother’s boyfriend was working two jobs to support her financially. He

also supported her in her classes and drove her to classes;15 when Mother’s

boyfriend could not drive her to her classes, he gave her money to take the bus.

Her boyfriend also gave her $60 a week for her to buy gifts to take to her visits

with M.G.P. and supported Mother ―in whatever way he [could].‖

      Mother said that CPS ran a background check on her boyfriend and that

CPS told Mother that nothing negative came back. Mother testified that she told




      13
         Mother testified that she dated her boyfriend for six months before she
started living with him; they had actually been together for fourteen months at the
time of trial.
      14
        Mother said that CPS did not ask for her boyfriend’s brother’s
information.
      15
        When asked about transportation, Mother said that her boyfriend’s
brother has a car.


                                        13
the CPS supervisor that ―if any moment there was something wrong with his, [sic]

that’s something I would go ahead and leave him right away.‖16

      Mother testified that she was not working at the time of the trial. Mother

later said that she was babysitting and making $200 or $300 a month. At the

time of the termination trial, Mother owed the City of Fort Worth $700 for two

traffic tickets that she had received in 2008 and had two Class C warrants out for

her arrest, but she did not have the money to pay for those tickets.

      Mother agreed that she had a hard time being independent in the past but

said that she would look for a job because she still needs to be independent.

She said, ―I’m 24, so I need to be responsible for me and my daughter. She’s

mine. She’s nobody’s responsibility but mine.‖

                   g.    Mother’s Plans for M.G.P.

      Mother had already spoken to someone who would watch M.G.P. while

Mother attended the remaining Safe Haven classes. Mother said that if M.G.P.

came to live with her, she would sleep in a crib in Mother’s bedroom.

      Mother testified that it was in M.G.P.’s best interest to be returned to her.

Mother asked the trial court to return M.G.P. to her because she had done

everything to remove the danger that was previously present and was in a better


      16
        Mother did not ask her boyfriend if he had criminal history or CPS history
in Mexico, where he was from. She thought that any criminal history would turn
up when CPS ran the background check. Mother said that if ―anything bad‖ had
come up, she would use the little bit of money that she had saved up and move
out.


                                        14
situation. Mother testified, ―There is no better place for her but to be with me,

because I’m her mother.‖

            2.    CPS Supervisor’s Testimony

      Terica Brager, a supervisor with CPS, testified that the caseworker who

was originally assigned to the case left CPS and that she took over the day-to-

day responsibility for this case in September 2010. Brager explained that M.G.P.

was removed from Mother’s care due to concerns of domestic violence and

neglectful supervision while she was with Mother at Safe Haven.

      Brager said that in the past, Mother had not removed herself from

domestically-violent situations. Brager was concerned, based on the numerous

incidents of domestic violence with J.P., that Mother could not protect M.G.P.

from emotional and physical danger now and in the future.17 Brager said that it

was important for Mother to complete the domestic violence education classes

through Safe Haven because she had been a victim more than once and

because she needed to learn how to protect herself and her child. However,

Brager said that Mother’s individual therapist may have covered the topic of how

Mother could protect herself.    Brager also admitted that Mother’s failure to

complete the domestic violence classes at Safe Haven would ―probably not‖ have

changed J.P.’s mind or kept him from hitting Mother. Brager agreed that Mother

had testified that she was not looking for J.P. when she was hit by him in the


      17
       There was no bruising noted on M.G.P. when Mother was with J.P.


                                       15
nose and later in the back and that she had not been with him since September

2009.

        Brager said that she had not seen Mother’s ability to effect positive

environmental changes within a reasonable time. Brager said that the case was

opened in September 2009 and that it was not until September 2010 that Mother

―began all of the things that she just now completed.‖ Brager was concerned that

Mother had fifteen months to work her service plan and had only worked services

during the last three months to get M.G.P. back.

        Brager said that Mother attended the majority of the visits. Brager recalled

that there was an incident where Mother and J.P. argued during a visit with

M.G.P. Despite that incident, Brager described Mother as loving, nurturing, and

appropriate with M.G.P. during the visits; Brager did not have concerns about

Mother’s interactions with M.G.P.

        Brager testified that she was very concerned that Mother would not be able

to provide for M.G.P.’s physical needs now and in the future because Mother had

been supported by other people ―for quite some time.‖ Brager had not seen in

the fifteen months prior to the trial that Mother had made any effort to provide for

M.G.P. on her own. Brager was concerned that Mother’s boyfriend was ―doing

everything for her,‖ and Brager wondered what would happen if their relationship

ended.

        In December 2010, Mother told Brager that it would be hard for her to care

for M.G.P. Mother told Brager less than a month before the termination trial that


                                         16
she (Mother) did not believe that she would regain custody of M.G.P. but that she

would fight to the end; Mother believed that there was a ninety percent chance

that she would not get M.G.P. back.

      Brager testified that CPS does not return children only in situations where

it will be easy; she agreed that it would be difficult for anyone, on her own without

financial support, to care for a child. Brager agreed that Mother could get food

stamps and Medicaid, but Brager said that the State would not pay for Mother’s

mortgage, utilities, and things like that. Brager agreed that at the time of trial,

Mother had a place to live, had electricity, and had food.

      Brager testified that she believed that it was in M.G.P.’s best interest for

Mother’s parental rights to M.G.P. to be terminated because she did not believe

that the few changes that Mother had made in the three months prior to the

termination trial were enough to ―secure‖ M.G.P. for the rest of her life. Brager

had observed M.G.P. interact with her foster parents, and she acted comfortable

with them; she appeared to feel safe with them. Brager said that CPS’s plan was

for M.G.P. to be adopted by her foster parents, who were very capable of

parenting M.G.P.; since March 2010, the foster parents had met all of M.G.P.’s

needs, and she had remained safe.

             3.    Attorney Ad Litem for M.G.P.’s

      The attorney ad litem, Mary R. Thomsen, did not testify but gave a final

argument in which she stated that she supported the petition of the Department

of Family and Protective Services (the Department) to terminate Mother’s and


                                         17
J.P.’s parental rights to M.G.P.      She stated that ―[t]he child is doing well,

developmentally on-target, in a safe place, happy, healthy, and I believe it would

be in this child’s best interest to remain where she is and for this court to

terminate and allow the home that she’s in, if this child is available for adoption.‖

         F.   M.G.P.’s Status at the Time of Trial

         According to Brager, M.G.P. was in a foster home and was doing ―very

well.‖    She had no reported developmental delays, medical issues, or dental

issues. M.G.P. had been evaluated by Early Childhood Intervention, and no

concerns were found. M.G.P. was walking, talking, climbing, and interacting with

the siblings in her foster home.

         G.   Trial Outcome

         After hearing the testimony above, the trial court found by clear and

convincing evidence that Mother had knowingly placed or knowingly allowed the

child to remain in conditions or surroundings that endangered the physical or

emotional well-being of the child, that Mother had engaged in conduct or

knowingly placed the child with persons who engaged in conduct that

endangered the physical or emotional well-being of the child, and that termination

of the parent-child relationship between Mother and M.G.P. was in the child’s

best interest.18   The trial court also appointed the Department as permanent



         18
       The trial court also terminated J.P.’s parental rights to M.G.P., but he did
not appeal.


                                         18
managing conservator of M.G.P., finding that it was in her best interest. Mother

filed a motion for new trial, which the trial court denied. This appeal followed.

      III. LEGALLY INSUFFICIENT EVIDENCE OF CONDUCT AND ENVIRONMENTAL
                ENDANGERMENT TO SUPPORT TERMINATION ORDER

      In her first through fourth issues, Mother argues that there is legally and

factually insufficient evidence to establish the termination grounds under family

code section 161.001(1)(D) and (E).        The Department argues that there was

ample evidence to support the trial court’s conduct and environment findings

because the trial court was entitled to find that Mother endangered M.G.P. by (1)

using drugs during the pregnancy, (2) exposing M.G.P. to domestic violence, and

(3) failing to timely work her service plan.

      A.     Burden of Proof and Standards of Review

      A parent’s rights to ―the companionship, care, custody, and management‖

of her children are constitutional interests ―far more precious than any property

right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982);

In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).          ―While parental rights are of

constitutional magnitude, they are not absolute. Just as it is imperative for courts

to recognize the constitutional underpinnings of the parent-child relationship, it is

also essential that emotional and physical interests of the child not be sacrificed

merely to preserve that right.‖ In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a

termination case, the State seeks not just to limit parental rights but to erase

them permanently—to divest the parent and child of all legal rights, privileges,



                                          19
duties, and powers normally existing between them, except for the child’s right to

inherit. See Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings

and strictly construe involuntary termination statutes in favor of the parent.

Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex. App.—Fort

Worth 2009, no pet.).

      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.

2010); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).       Both elements must be

established; termination may not be based solely on the best interest of the child

as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987).

      Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a). Evidence is clear and

convincing if it ―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.‖       Id.

§ 101.007 (West 2008).      Due process demands this heightened standard

because termination results in permanent, irrevocable changes for the parent

and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243




                                       20
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and

modification).

       In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the grounds for termination were

proven.    In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).      We review all the

evidence in the light most favorable to the finding and judgment. Id. We resolve

any disputed facts in favor of the finding if a reasonable factfinder could have

done so. Id. We disregard all evidence that a reasonable factfinder could have

disbelieved. Id. We consider undisputed evidence even if it is contrary to the

finding.   Id.   That is, we consider evidence favorable to termination if a

reasonable factfinder could, and we disregard contrary evidence unless a

reasonable factfinder could not. Id.

       We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573,

574. And even when credibility issues appear in the appellate record, we defer

to the factfinder’s determinations as long as they are not unreasonable. Id. at

573.

       If we determine that no reasonable factfinder could form a firm belief or

conviction that the grounds for termination were proven, then the evidence is

legally insufficient, and we must generally render judgment for the parent. J.F.C.,

96 S.W.3d at 266; see Tex. R. App. P. 43.3.


                                        21
      B.       Law on Endangerment

      Endangerment means to expose to loss or injury, to jeopardize. Boyd, 727

S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,

no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).          To prove

endangerment under subsection (D), the Department had to prove that Mother

knowingly placed or allowed M.G.P. to remain in conditions or surroundings that

endangered her physical or emotional well-being. See Tex. Fam. Code Ann.

§ 161.001(1)(D); In re J.A.J., 225 S.W.3d 621, 625 (Tex. App.—Houston [14th

Dist.] 2006) (op. on reh’g), judgm’t aff’d in part, rev’d in part, 243 S.W.3d 611

(Tex. 2007).     Subsection (D) focuses on the suitability of the child’s living

conditions. J.A.J., 225 S.W.3d at 626. Thus, under subsection (D), it must be

the environment itself that causes the child’s physical or emotional well-being to

be endangered, not the parent’s conduct. Id. at 627.

      Under subsection (E), the relevant inquiry is whether evidence exists that

the endangerment of the child’s physical well-being was the direct result of

Mother’s conduct, including acts, omissions, or failures to act. See J.T.G., 121

S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). Additionally,

termination under subsection (E) must be based on more than a single act or

omission; a voluntary, deliberate, and conscious course of conduct by the parent

is required.      J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann.

§ 161.001(1)(E).    It is not necessary, however, that the parent’s conduct be

directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at


                                        22
533; J.T.G., 121 S.W.3d at 125. The specific danger to the child’s well-being

may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at

533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).

As a general rule, conduct that subjects a child to a life of uncertainty and

instability endangers the child’s physical and emotional well-being. See In re

S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). To

determine whether termination is necessary, courts may look to parental conduct

occurring both before and after the child’s birth. In re D.M., 58 S.W.3d 801, 812

(Tex. App.—Fort Worth 2001, no pet.).

      C.    Evidence Is Legally Insufficient to Support Endangerment
            Findings

      In determining whether the evidence is legally and factually sufficient to

support termination of Mother’s parental rights pursuant to subsection (D) or (E),

we look at whether Mother (1) knowingly placed or knowingly allowed M.G.P. to

remain in conditions or surroundings that endangered her physical or emotional

well-being or (2) engaged in conduct or knowingly placed M.G.P. with persons

who engaged in conduct that endangered her physical or emotional well-being.

See Tex. Fam. Code Ann. § 161.001(1)(D), (E). The Department’s brief contains

a combined legal and factual sufficiency analysis in which it focuses on three

acts or omissions by Mother that it contends support termination of Mother’s

parental rights under (D) and (E):      the allegations that Mother endangered

M.G.P. by (1) using drugs during the pregnancy; (2) exposing M.G.P. to domestic



                                        23
violence; and (3) failing to timely work her service plan. We will examine all of

the evidence in the record, focusing on these allegations.

            1.     Drug Use During Pregnancy—Legally Insufficient (E)
                   Ground

      In her combined legal and factual sufficiency analysis, Mother argues that

she demonstrated before and during the case that she did not have a substance

abuse problem. The Department argues that Mother’s drug use while she was

pregnant with M.G.P. endangered M.G.P.

      The record demonstrates that Mother had used cocaine during her first

month of pregnancy before she knew that she was pregnant19 and that she had

ceased using alcohol and drugs in January 2009. M.G.P. was born without drugs

in her system and had no developmental delays. During the course of this case,

Mother never tested positive for drugs, but she went ahead and completed the

CATS drug classes as required by her service plan.            At the time of the

termination trial, Mother had been clean from drugs and alcohol for two years.

      In some instances, drug use may give rise to termination under section

161.001(1)(E). See Robinson v. Tex. Dep’t of Regulatory Servs., 89 S.W.3d 679,


      19
        Mother knew as of December 20, 2008, that she was pregnant because
she told Dickinson about her pregnancy during his investigation of the burglary
on that date. As noted above, M.G.P. was born on July 2, 2009 at thirty-eight
weeks’ gestation. The approximate date of conception was October 9, 2008.
Thus, it is possible that Mother used drugs for three months, depending on the
exact date when she stopped using drugs. However, as noted in Mother’s brief,
the evidence contains few details (i.e., dates, frequency, amounts, etc.) regarding
Mother’s drug use during this time.


                                        24
686–87 (Tex. App.—Houston [14th Dist.] 2002, no pet.). However, the evidence

in this case concerning Mother’s alleged drug and alcohol use was limited to the

time before she knew that she was pregnant; the fact that Mother quit using

drugs when she learned that she was pregnant undermines the argument that

she engaged in ―a voluntary, deliberate, and conscious course of conduct‖

sufficient to support a termination finding under section 161.001(1)(E). 20 See

J.T.G., 121 S.W.3d at 125; Ruiz v. Tex. Dep’t of Family & Protective Servs., 212

S.W.3d 804, 818 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that

evidence of mother’s narcotics use once during case and during a previous

pregnancy was no evidence of 161.001(1)(E) conduct endangerment). Mother

did what she was supposed to do under her service plan in order to prove that

she did not have a substance abuse problem: she stayed drug-free for two years

and never had a positive drug test during the time the case was pending.21




      20
        The Department argues that it makes no difference whether Mother knew
she was pregnant and quotes R.W., 129 S.W.3d at 738–39, for the proposition
that ―scienter is only required under subsection (E) when a parent places the
child with others who engage in an endangering course of conduct.‖ As
explained in the analysis above, Mother’s drug use while she was unaware that
she was pregnant does not, however, constitute ―a voluntary, deliberate, and
conscious course of conduct‖ to endanger her child.
      21
        Moreover, as set forth above, Brager did not mention drugs as a reason
for terminating Mother’s parental rights; instead, at trial, the Department focused
on Mother’s delay in working services, her failure to complete the domestic
violence classes, and the possibility that Mother could not provide for M.G.P. if
Mother’s relationship with her boyfriend ended.


                                        25
      Accordingly, we hold that the evidence of Mother’s drug use during

pregnancy is legally insufficient for a reasonable factfinder to form a ―firm belief

or conviction‖ that Mother engaged in conduct or knowingly placed M.G.P. with

persons who engaged in conduct that endangered the physical or emotional well-

being of M.G.P.22 See In re A.S., 261 S.W.3d 76, 86–87 (Tex. App.—Houston

[14th Dist.] 2008, pet. denied) (holding that mother’s use of marijuana once

during her pregnancy—which led to baby testing positive for marijuana—was

legally and factually insufficient to support termination of mother’s parental rights

under 161.001(1)(E); evidence showed that mother took prenatal vitamins during

her pregnancy and did not consciously engage in a course of conduct that

endangered child’s well-being); Ruiz, 212 S.W.3d at 818 (holding that evidence

of mother’s narcotics use once during case and during a previous pregnancy was

legally insufficient to support termination of mother’s parental rights under

161.001(1)(E)).

             2.    Exposing      M.G.P.    to   Domestic        Violence—Legally
                   Insufficient (D) and (E) Grounds

      In arguing that the evidence regarding M.G.P.’s exposure to domestic

violence is insufficient to support grounds (D) and (E), Mother points out that she

suffered the misfortune of being assaulted by her child’s father and that

      22
        The Department does not argue that Mother’s conduct in leaving M.G.P.
alone in Mother’s room at Safe Haven while she stepped outside to smoke
constitutes conduct that endangered the physical or emotional well-being of
M.G.P. We agree that under the facts presented this evidence does not
constitute endangerment conduct.


                                         26
victimization does not equate with voluntary acts of endangerment.                The

Department argues that the trial court was entitled to find that M.G.P. was a

victim of Mother’s failure to promptly get away from her abuser.

      But the record establishes that two weeks after the December 6, 2008

attack, the Fort Worth Police Department responded to a call for a burglary of a

habitation. The investigation revealed that J.P. had kicked in the door to get to

Mother and had kicked her in the stomach. The record shows that (1) J.P. was

no longer living with Mother, (2) he was not invited, (3) he did not have a key to

her apartment, and consequently, (4) he had to kick in the door.

      After M.G.P. was born, J.P. came to the apartment while he was

intoxicated, accused Mother of cheating on him, and attacked her on August 23,

2009.23    Mother tried to defend herself against J.P. with a frying pan, but J.P.

ultimately used the frying pan against her. M.G.P. was approximately a month

and a half old and was in her bed during this incident.            The evidence is

undisputed that there was no bruising on M.G.P. during the time Mother was in a

relationship with J.P.24 Mother agreed to go to Safe Haven after this incident.

      23
        We note that Mother later said that she ended her relationship with J.P.
in September 2009. This fact does not negate the possibility that the two were
no longer living together on December 20, 2008 or August 23, 2009.
      24
         See Michael C. v. Tex. Dep’t of Protective & Regulatory Servs., No. 05-
96-01867-CV, 1998 WL 209055, at *21 (Tex. App.—Dallas 1998, pet. denied)
(stating that in spite of evidence that father abused drugs and alcohol and could
be ―crazy‖ and ―unpredictable‖ under the effects of those substances,
Department failed to show the effect of this behavior on the children; no evidence
that father abused children).


                                        27
      After M.G.P. was removed, J.P. ran into Mother while she was shopping at

a mall and attacked her. Mother again sought shelter at Safe Haven to protect

herself. Mother was attacked one other time when Mother and J.P. rode to court

together.

      CPS complains that Mother did not stay away from J.P., yet the record

reflects that CPS apparently scheduled Mother’s and J.P.’s visits with M.G.P. at

or near the same time because the record reflects that they argued at one visit.

The Family Service Plan Evaluation dated January 25, 2010 describes Mother as

―enmeshed still‖ with J.P., but it is in relation to her interactions with him at the

visits. There is no evidence that she was still living with him or in an on-going

relationship with him.

      Instead, at the time of trial, Mother had been dating her new boyfriend for

fourteen months and had been living with him for eight months. There was no

evidence of domestic violence with her new boyfriend. Because there was no

evidence of Mother’s being a victim of domestic violence prior to or after being

involved with J.P., the record failed to establish that Mother had a pattern of

being involved in abusive relationships and of exposing her children to domestic

violence.   Instead, the record discloses that after J.P. committed domestic

violence against Mother on December 6, 2008, she took precautions to protect

herself and to limit J.P.’s access to her, while still visiting M.G.P. at the times

scheduled by CPS, despite the fact that CPS scheduled J.P.’s visits with M.G.P.

at or near the same time as Mother’s.


                                         28
      We hold that the evidence of domestic violence is legally insufficient for a

reasonable factfinder to form a ―firm belief or conviction‖ that Mother engaged in

a course of conduct that endangered the emotional or physical well-being of

M.G.P. See A.S., 261 S.W.3d at 86–87 (holding evidence legally and factually

insufficient to support terminating mother’s parental rights under section

161.001(1)(E) because children did not witness two occasions of domestic

violence); see also In re V.S.R.K., No. 02-08-00047-CV, 2009 WL 736751, at *8

(Tex. App.—Fort Worth Mar. 19, 2009, no pet.) (mem. op.) (holding that trial

court could not have reasonably formed a firm belief or conviction that

appellant—as a direct result of his actions—engaged in a voluntary, deliberate,

and conscious course of conduct or knowingly placed child with persons who

engaged in conduct that endangered her physical or emotional well-being).

      The record contains no testimony regarding the physical condition of any

of the homes in which Mother and M.G.P. lived and no evidence of endangering

living conditions that Mother knowingly placed or allowed M.G.P. to remain in.

See Tex. Fam. Code Ann. § 161.001(1)(D). The possibility that J.P. might track

down Mother again because he randomly ran into her at La Gran Plaza does not

equate to Mother’s knowingly placing M.G.P. in conditions or surroundings that

would endanger her physical or emotional well-being.

      We hold that the evidence of domestic violence is also legally insufficient

for a reasonable factfinder to form a ―firm belief or conviction‖ that Mother

exposed M.G.P. to an endangering environment. See A.S., 261 S.W.3d at 84–


                                       29
85 (holding that evidence was legally and factually insufficient to support

termination of mother=s parental rights under (D) when, even assuming father=s

behavior was abusive and had occurred in front of the children, mother had taken

responsive action to protect the children by taking them out of the environment);

see also Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990) (holding in

conservatorship case Athat a parent is a victim of spousal abuse, by itself, is no

evidence that awarding custody to that parent would significantly impair the

child@).

       3.    Failing to Timely Work Service Plan—Legally Insufficient (D)
             and (E) Grounds

       In its final argument regarding the sufficiency of the section 161.001(1)

findings, the Department argues that Mother endangered M.G.P. by failing to

timely work her service plan.25 Because termination was not based on section

161.001(1)(O)—failure to comply with the provisions of a court order that

specifically established the actions necessary for the parent to obtain the return

of the child, the failure to timely work the service plan must be linked to ground

(D) or (E). See Tex. Fam. Code Ann. § 161.001(1)(O).



       25
         All four cases cited by the State—for the proposition that a parent’s
failure to work her service plan will support a trial court’s endangerment finding—
focus on a parent who had a drug addiction. As discussed above, the record did
not disclose that Mother was addicted to drugs but instead affirmatively showed
that Mother was not addicted to drugs and had been clean for two years at the
time of the termination trial. We need not discuss these cases because they are
inapposite.


                                        30
      The Department argues in one sentence that Mother waited one year after

the removal of M.G.P. to start working her CPS service plan and then concludes

in the next sentence that ―[t]he trial court was entitled to find that [Mother]

endangered M.G.P. by failing to promptly work her services.‖ The record reveals

that Mother had completed outpatient drug treatment ―early on in the case‖ and

that Mother utilized the extension that the trial court granted her; she worked all

of her services except for the last seven sessions of the domestic violence class.

Mother admitted that she had enough time to complete the domestic violence

class and was not questioned about why she was unable to complete the class.

Even considering Mother’s failure to complete the domestic violence class, we

are unable to ascertain how the failure to complete the last seven sessions of the

domestic violence class constitutes evidence of ground (D) endangering

environment or evidence of ground (E) endangering conduct because Brager, a

supervisor with the Department, testified that Mother’s completing the domestic

violence class would ―probably not‖ have prevented J.P. from hitting Mother and

that Mother’s counselor may have gone over the domestic violence information

with Mother.

      We hold that evidence that Mother failed to promptly work her services is

legally insufficient for a reasonable factfinder to form a ―firm belief or conviction‖

that Mother knowingly placed or knowingly allowed M.G.P. to remain in

conditions or surroundings that endangered her physical or emotional well-being

and that Mother had engaged in conduct or knowingly placed M.G.P. with


                                         31
persons who engaged in conduct that endangered her physical or emotional well-

being.

               4.    Conclusion

         We therefore sustain Mother’s first and third issues challenging the legal

sufficiency of the endangerment findings.26          Because these issues are

dispositive, we need not address Mother’s other issues. See Tex. R. App. P.

47.1.

                               IV. CONSERVATORSHIP

         The Department’s petition to terminate Mother’s parental rights requested

that it be appointed M.G.P.’s permanent sole managing conservator only

―[p]ursuant to §§ 153.005 and 263.404,‖ not pursuant to section 153.131. See

Tex. Fam. Code Ann. §§ 153.005, 153.131, 263.402 (West 2008).              Section


         26
         To the extent that the trial court might have based its decision to
terminate Mother’s parental rights to M.G.P. on the Department’s argument that it
feared that Mother would not be able to provide for M.G.P. if Mother’s
relationship with her boyfriend ended, such decision was erroneous because a
trial court cannot terminate parental rights based on an assumption or
speculation. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin
2004, pet. denied) (stating that belief that mother ―lives with a man who is
involved in drugs is no more than a mere surmise or suspicion, which is not the
same as evidence‖) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.
1983)). Additionally, a parent’s rights cannot be terminated based on poverty
without a showing that the poverty has endangered the child. See Doyle v. Tex.
Dep’t of Protective & Regulatory Servs., 16 S.W.3d 390, 398 (Tex. App.—El
Paso 2000, pet. denied). Nor can a parent’s rights be terminated based on a
foster family’s ability to provide more than a biological parent can provide. See
generally In re W.C., 98 S.W.3d 753, 758 (Tex. App.—Fort Worth 2003, no pet.)
(stating that under best interest prong of section 161.001(2), termination should
not be used to merely reallocate children to better and more prosperous parents).


                                         32
153.005 provides generally that in a suit affecting the parent-child relationship,

―the court may appoint a sole managing conservator or may appoint joint

managing conservators.‖ Tex. Fam. Code Ann. § 153.005 (West 2008). Section

263.404 does not apply when the trial court’s order terminates parental rights.

J.A.J., 243 S.W.3d at 614. Thus, the only available statutory mechanism for the

Department’s appointment as M.G.P.’s managing conservator was as a

consequence of the termination, pursuant to family code section 161.207. See

Tex. Fam. Code Ann. § 161.207 (West 2008); In re D.N.C., 252 S.W.3d 317, 319

(Tex.    2008).    Consequently,     because   the   Department   did   not   seek

conservatorship based on section 153.131, Mother’s challenge to the

Department’s conservatorship was subsumed within her appeal of the

termination order. See D.N.C., 252 S.W.3d at 319. We therefore also reverse

the trial court’s conservatorship appointment.       See id. (upholding appellate

court’s reversal of conservatorship appointment when Department’s appointment

was solely the consequence of termination decision under family code section

161.207).

                                   V. DISPOSITION

        Having sustained Mother’s first and third issues and having determined

that we need not address her other issues, we reverse the trial court’s judgment

terminating Mother’s parental rights to M.G.P. and render judgment denying the

Department’s petition to terminate Mother’s parental rights to M.G.P. Because

Mother’s challenge to the Department’s conservatorship was subsumed within


                                        33
her appeal of the termination order, we likewise reverse the trial court’s

appointment of the Department as the permanent managing conservator of

M.G.P. We remand the case to the trial court for the limited purpose of rendering

an order consistent with family code section 161.205(2). See Tex. Fam. Code

Ann. § 161.205(2) (West 2008); A.S., 261 S.W.3d at 93 n.19.




                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

MCCOY, J. dissents without opinion.

DELIVERED: December 22, 2011




                                       34
