                                NUMBER 13-19-00539-CV

                                    COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI – EDINBURG


    IN THE INTEREST OF A.B., G.B., L.B., S.B., AND K.B., CHILDREN


                       On appeal from the County Court at Law
                             of Aransas County, Texas.


                                MEMORANDUM OPINION

   Before Chief Justice Contreras and Justices Longoria and Perkes
               Memorandum Opinion by Justice Perkes

        Appellants E.B. (Father) and B.B. (Mother) challenge the termination of their

parental rights to their five children, A.B., G.B., L.B., S.B., and K.B.1 See TEX. FAM. CODE



        1To protect the identity of minor children, we utilize aliases for the children and related parties.
See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
        Mother and Father have six children, however, only five children are parties to this suit. The parents
voluntarily and informally relinquished their rights to their sixth child. The child has lived with his paternal
grandmother out-of-state since he was one month old; he is now five years old. At the time of the termination
hearing, A.B. was eight years old, G.B. was seven, L.B. was four, S.B. was three, and K.B. was one.
ANN. §§ 161.001(b)(1)(D), (E), (b)(2). By what we construe as two issues, Father and

Mother argue: (1) the trial court erred in its denial of a requested six-month extension of

the dismissal deadline; and (2) the evidence is legally and factually insufficient to support

findings that Father and Mother committed one or more statutory predicate acts or

omissions under family code § 161.001(b)(1) or that termination is in the children’s best

interest. See id. We affirm.

                                        I.      BACKGROUND

        On October 15, 2019, the trial court presided over the termination hearing. Prior to

the hearing, the court heard arguments on Mother and Father’s joint motion for extension,

before ultimately denying the motion.

        Sandra Lopez, an investigator with appellee, the Department of Family and

Protective Services (the Department), first intervened on November 2, 2018, after

receiving a priority referral in reference to S.B. “The report indicated that [Father] had

notified [the] daycare that [S.B.’s] arm was broken,” said Lopez. Later that same day,

Lopez visited Father and Mother’s residence accompanied by law enforcement.2 Mother

claimed S.B. had injured herself at daycare and she planned on taking S.B. to the doctor

the following day. Because Father and Mother had not sought medical intervention in the

three days since the alleged injury, the Department initiated emergency removal of all five

children, citing medical neglect and neglectful supervision. The Department transported

S.B. to a nearby hospital, and S.B. was initially diagnosed with having a fractured



        2 According to Lopez, Father had a “history of acting out,” and the Department was familiar with
Father and Mother, having just closed out a case one-month prior in October 2018. The Department initially
intervened in March 2018 after K.B. was born, when the child tested positive for marijuana. Father and
Mother also have a history with child protective services in Florida due to drug use and homelessness.



                                                    2
humerus by the emergency room physician and received a temporary cast. However, it

was later determined that she had a “nursemaid’s elbow,”3 and physical abuse was ruled

out. After the initial basis for removal, medical neglect, was found to be unsubstantiated,

the Department modified the family’s service plan to address the children’s unsuitable

living conditions and parents’ continued substance abuse issues. Both parents

participated during the family plan service meeting; however, Father participated via

telephone conference because he was in jail in Florida for cashing a fraudulent check.4

        Lopez testified that the family resided in a one-bedroom R.V. trailer in Rockport,

Texas. A.B. and G.B. shared bunk beds situated below a collapsing rooftop; L.B. and S.B.

shared a futon; and the youngest child, K.B., who was nine months old at the time, slept

on the floor underneath a table. Lopez described the residence as “musty,” smelling of

“urine,” “feces,” and “cigarette smoke.” The trailer had sustained roof damage, the “[air

conditioning unit] had fallen in and created a hole,” and the residence lacked running

water. Father and Mother were instructed to rectify the safety hazards and improve the

children’s living conditions.

        Valerie Moretish, a Department caseworker, testified that both parents were also

required to participate in random drug testing and attend substance abuse counseling,

which was held at their home because neither parent owned nor had access to a vehicle.

In February 2019, Father and Mother began substance abuse counseling. They stopped


        3  “Nursemaid’s elbow is a dislocation of a bone in the elbow. . . . Dislocation means the bone slips
out of its normal position. Nursemaid’s elbow is a common condition in young children, especially under
age 5. The injury occurs when a child is pulled up too hard by their hand or wrist.” MedlinePlus, Nursemaid’s
elbow, U.S. NAT’L LIBR. OF MED., https://medlineplus.gov/ency/article/000983.htm (last visited Feb. 6, 2020).
        4  Father was in jail pursuant to an outstanding warrant. The parties did not discuss how long Father
was incarcerated and what impact, if any, his incarceration had on his ability to complete services. Father
is currently on probation for eighteen months.



                                                     3
counseling services in April 2019 and resumed two weeks before the termination hearing

in October 2019. According to Moretish, Mother tested positive for marijuana in November

2018, negative for marijuana in December 2018, positive for marijuana between January

and May 2019, and negative for marijuana in June and August 2019. Mother did not

submit to drug testing in July 2019, and the Department did not ask Mother submit to drug

testing in September or October 2019. Meanwhile, Father continued to test positive for

marijuana from November 2018 until July 2019; Father also tested positive for cocaine in

November 2018 and again in late-December 2018. Father tested negative for drugs in

July 2019, September 2019, and October 2019; Father did not submit to testing in August

2019.

        Linda Escobedo, a Department assistant caseworker, testified that Father’s

unstable mental condition and history of belligerent outbursts are additional causes for

concern. Escobedo claimed she had witnessed Father publicly berate Mother on several

occasions. In one instance, Mother had brought little toys for the children during a

visitation, and “apparently [Father] didn’t like that, . . . [a]nd he got really upset, and they

started cussing at each other.” Moretish testified to a separate incident in April 2019,

wherein Moretish was transporting Mother and Father to a visitation. Moretish said she

was forced to pull over after Father began “yelling at [her] in the car and [] threaten[ing]

to blow up buildings and kill himself.” Father’s statements, according to Moretish, were in

response to Moretish telling Father that the Department would be changing the service

plan goal to unrelated adoption if the parents continued to test positive for drugs and fail

to make the necessary improvements to the home.

        According to Laura Morales, a licensed professional counselor, Father suffers from



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“[b]ipolar disorder, major depression, intermittent explosive disorder, [and] ADHD.” Father

was referred to her in 2018, and again in 2019 for an “[u]ntreated mental illness, anger,

[and] poor communication between him and [Mother].” Morales testified that she saw the

couple for five or six sessions in 2018, before the couple “kind of disappeared.” Father

returned for treatment in July 2019. When asked by the Department whether Father

“seem[ed] willing to learn any skills to manage his anger,” Morales opined, “I think in time

he is probably capable, but did he say, [‘]Yeah, I want to learn?[’] No.” During cross-

examination, Morales maintained she felt her sessions with Father were unproductive.

“[I]t’s really hard to work with someone to get them calm and use better coping skills when

they are volatile and every little thing triggers that. You’ve got to stabilize them,” explained

Morales, emphasizing Father’s need for pharmaceutical intervention, which he repeatedly

declined.

       Morales also testified to the developmental effect on a child’s emotional well-being

when a child “witness[es] a lot of anger and negative interactions between parents.”

Morales testified, for example, that G.B. was referred to counseling at six years old after

being expelled from elementary school for threatening to take “a gun to school, [and]

sa[ying] he was going to kill everybody there.”

       Morales expressed apprehension over Mother’s mental health as well, describing

Mother as overwhelmed and depressed. Although Morales suspected domestic violence

in the home, both parents denied any history of physical abuse. Morales said she based

her suspicions on Mother’s “demeanor and how afraid [sic] to speak up and say anything.”

Mother vocalized her emotional dependence on Father and her struggle to independently

parent her children, said Morales. “[S]he would say, ‘I just can’t do this without [Father].



                                               5
They don’t listen to me. They only listen to him.’” Escobedo witnessed Mother’s

frustrations first-hand. “[T]here are times when I was taking her [to visitations] on her own

without him and she was very, very frustrated. She couldn’t give everybody the attention.”

Escobedo said Mother would have a “melt down in the restaurant and be yelling and

screaming that she can’t do this.” Moretish testified that Mother teetered between “just

sit[ing] there and not really engag[ing]” with her children and “leav[ing] [Moretish] to watch

her children” for her. “And so we’re trying to keep the kids in line [during visitations], and

we would provide the discipline for them,” said Moretish. Father echoed sentiments

shared by Moretish and the counselor at trial. Father described Mother as “depressed”

and voiced concerns about Mother managing the children on her own. Mother, although

present in the courtroom, did not testify.5

        Father testified that he made significant strides in the last “four weeks” before trial

to address his mental health, become more fiscally responsible, and make the necessary

improvements to his home, such as completing the roof repair and fixing the leak in

plumbing so water could be turned on.6 Construction to repair the hole in the wall left by

a collapsing air conditioning unit remains on-going, however. Father testified that he now

has money to “purchase new mattresses for the kids”—including a temporary play pen

for the youngest child so that she no longer has to sleep on the floor—but he had not yet

made any purchases. Father said he was working on getting a 40-foot R.V., which would



        5 Father explained that Mother had been taken to the emergency room the day before trial due to
a “serious mouth infection” and was unable to speak. Father said, “[Y]ou can see her front lip upper nose
area or lower nose area is very swollen.” Father testified Mother had “broken” her teeth trying to “pull the
zipper” on a tent, and her mouth had “got[ten] infected.” Father denied physically abusing Mother.
        6The Department confirmed that Father had replaced the roof panels, and the residence now had
running water.



                                                     6
provide ten feet of additional living space for the family so “everybody would have a place

to sleep,” but “[i]t’s not guaranteed” and contingent on the landlord “kicking people out of”

it first. Regarding the couple’s finances, Mother has been continuously employed since

the Department first intervened and remains the primary breadwinner.7 Father testified

he is starting his own bike repair service shop, work has been “steady for a bike shop,”

and he is in talks with the Rockport Police Department to work as a contracted bicycle

repairman.

       Father addressed the Department’s depictions of him as an unstable aggressor:

       I mean, excuse my language, I’m an a**hole, I know that. I’m very firm with
       my kids. I don’t know why everybody says I’m always angry, maybe it’s just
       my face, I don’t know, but I’m not always angry. I’m angry with the
       situation . . . . I mean, I’m not the best husband, I’m not the best father, but
       I darn sure try.

       Father, thirty years old at the time of the hearing, acknowledged he has struggled

with mental illness since he was a teenager. “When I was 15 years old[,] I would wake up

in the morning and have to take 16 pills right when I woke up, and the rest were throughout

the day.” Father said he stopped taking medication in his late teens after a seizure left

him in a coma for four days. However, Father acquiesced that failure to control his anger

could “[i]n the long-term” negatively affect his children. Father claimed he would continue

counseling and begin taking prescribed medication again if it meant his children would

return home.

       The children were jointly placed in a foster home in Louise, Texas, after the

Department was unable to find suitable relative placement. Moretish reported that the


       7Moretish testified that Father had been employed at a restaurant several months prior, but “his
manager was doing something he didn’t like, so that started an argument and [Father] left that job.”



                                                  7
children were “doing very well” in their current placement.8 All five children are meeting

their developmental milestones and doing well in school, with the exception of G.B., who

had to repeat the first grade. Moretish noted the most prominent change was in A.B., who

no longer appears withdrawn and sad. Moretish said A.B. expressed that “she wanted to

stay where she was with her siblings” in foster care. “[A.B.] said that she didn’t want to go

back [with her parents] and she didn’t want to be treated the way she had been treated.”

        Chris Yackle, the children’s foster father, testified that A.B. witnessed her parents

“scream and hit each other.” On one occasion, A.B. reportedly saw her Father “punch[]

her mom in the nose,” and the child described “a lot of blood coming out of [Mother’s]

nose.” A.B. told Yackle she knew her parents did drugs, she described what the drugs

looked like, and knew they would hide them whenever “C.P.S. came.” A.B. also

complained of their prior living conditions; because the home lacked running water, the

children never brushed their teeth and bath time occurred once a week at a neighbor’s

house. A.B. had also seen her parents “making babies.”

        Yackle stated that he and his wife had bonded with all five children and were open

to adopting. Although G.B. currently resides in Florida, Yackle said they “would be willing

to travel maybe twice a year for face-to-face visits, and letters, anything like that” to

maintain the sibling relationships if G.B. were to remain in Florida.9

        The trial court determined by clear and convincing evidence that appellants

committed predicate acts and omissions under Texas Family Code § 161.001(b)(1)(D)

        8 One week prior to the termination hearing, G.B. was removed from his foster placement and
placed with his paternal grandmother in Florida, joining his sixth sibling, who is not a part of this suit. Neither
party elaborated on the reason for the child’s transfer.
        9  Moretish testified that the paternal grandmother was seeking to adopt G.B., initiating proceedings
out-of-state.



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and (E), and that termination was in best interest of all five children. See id.

§§ 161.001(b)(1)(D), (E), (b)(2). This appeal followed.

                                 II.     MOTION TO EXTEND

       Father and Mother first argue that the trial court abused its discretion in denying

their motion to extend the dismissal deadline. See id. § 263.401.

       In a parental termination suit,

       [u]nless the court has commenced the trial on the merits or granted an
       extension under Subsection (b) or (b-1), on the first Monday after the first
       anniversary of the date the court rendered a temporary order appointing the
       department as temporary managing conservator, the court’s jurisdiction
       over the suit . . . is terminated and the suit is automatically dismissed
       without a court order.

See id. The trial court may extend the dismissal deadline only if the movant shows that

“extraordinary circumstances necessitate the child remaining in the temporary managing

conservatorship of the department and that continuing the appointment of the department

as temporary managing conservator is in the best interest of the child.” Id. § 263.401(b).

The focus in an extension hearing is on the needs of the child. In re A.J.M., 375 S.W.3d

599, 604 (Tex. App.—Fort Worth 2012, pet. denied) (en banc). Actions that are

“considered to be the parent’s fault” will generally not constitute an extraordinary

circumstance. In re O.R.F., 417 S.W.3d 24, 42 (Tex. App.—Texarkana 2013, pet. denied).

       We review a trial court’s decision to grant or deny an extension of the dismissal

deadline under the abuse of discretion standard. In re T.T.F., 331 S.W.3d 461, 476 (Tex.

App.—Fort Worth 2010, no pet.). Under an abuse of discretion standard, an appellate

court may reverse the trial court’s ruling only if the trial court acted without reference to

any guiding rules and principles, such that its ruling is arbitrary and unreasonable. Id.




                                             9
        Here, on the evening before the termination hearing, Father and Mother filed a

“Motion to Retain Suit on Court’s Docket and Set New Dismissal Date.” The written motion

argued summarily, without reference to any specific facts, that “[e]xtraordinary

circumstances necessitate the children remaining in the temporary managing

conservatorship of the Department.” The trial court considered the motion on the morning

of the termination hearing. Father and Mother’s counsel argued that they (1) completed

their initial service plan of service, but (2) needed more time to complete additional

services that were requested of them three months prior.10 The trial court denied Father

and Mother’s motion.

        We cannot find that the trial court abused its discretion. Based on this record,

Father and Mother requested an extension because they needed more time to comply

with service plan requirements, but no reason for their delay was provided, and there was

no evidence of extraordinary circumstances that would necessitate an extension of the

dismissal deadline. See In re D.W., 249 S.W.3d 625, 648 (Tex. App.—Fort Worth 2008,

pet. denied) (holding that because mother presented no evidence when she presented

her motion to extend the dismissal deadline, the trial court did not abuse its discretion by

denying her motion); see also In re B.M., No. 13-17-00467-CV, 2017 WL 5953098, at *10

(Tex. App.—Corpus Christi–Edinburg Nov. 30, 2017, pet. denied) (mem. op.) (holding




         10 In July 2019, Mother was instructed to attend domestic violence counseling, and Father was

asked to complete a mental health evaluation through MH-MR. Mother initiated her services on October
2019, one week before the termination hearing. Father completed the MH-MR assessment, but he did not
return for recommended services. Morales stated Father’s actions were deliberate, and he had expressed
to her that he did not intend on “follow[ing] through any further than completing the assessment.” At an
unspecified “recent” point prior to the termination hearing, Father scheduled a follow-up appointment with
MH-MR for the day after the hearing.



                                                   10
that “lack of communication with the Department case worker” is not evidence of

“extraordinary circumstances” to justify an extension of her case).

         Thus, we hold that the trial court did not abuse its discretion by denying Father and

Mother’s motion to extend the dismissal deadline. We overrule Father and Mother’s first

issue.

                             III.   SUFFICIENCY OF THE EVIDENCE

         Father and Mother next contend that the evidence is legally and factually

insufficient to support a predicate finding under either subsection (D) or (E) of family code

§ 161.001(b)(1). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E).

A.       Standard of Review and Applicable Law

         “Termination of parental rights, the total and irrevocable dissolution of the parent-

child relationship, constitutes the ‘death penalty’ of civil cases.” In re K.M.L., 443 S.W.3d

101, 121 (Tex. 2014) (Lehrmann, J., concurring). Accordingly, termination proceedings

must be strictly scrutinized. In re K.M.L., 443 S.W.3d at 112; see In re A.C., 560 S.W.3d

624, 630 (Tex. 2018); but see In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (“[T]he rights

of natural parents are not absolute; protection of the child is paramount . . . . The rights

of parenthood are accorded only to those fit to accept the accompanying responsibilities.”

(quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994))).

         To terminate parental rights, the movant must prove by clear and convincing

evidence that (1) the parent committed one or more statutory predicate acts or omissions,

and (2) termination is in the child’s best interest. See TEX. FAM. CODE ANN. §§ 101.007,

161.001(b); see also In re N.G., 577 S.W.3d 230, 234 (Tex. 2019) (per curiam). “Clear

and convincing evidence” means “the measure or degree of proof that will produce in the



                                              11
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. “This heightened proof standard

carries the weight and gravity due process requires to protect the fundamental rights at

stake.” In re A.C., 560 S.W.3d at 630.

       “Evidence is legally sufficient if, viewing all the evidence in the light most favorable

to the [fact finder] and considering undisputed contrary evidence, a reasonable [fact

finder] could form a firm belief or conviction that the finding was true.” Id. (citing In re

J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We must also consider undisputed evidence, if

any, that does not support the finding. In re K.M.L., 443 S.W.3d at 113; see In re J.F.C.,

96 S.W.3d at 266 (“Disregarding undisputed facts that do not support the finding could

skew the analysis of whether there is clear and convincing evidence.”).

       In conducting a factual sufficiency review, we consider whether the disputed

evidence is such that a reasonable finder of fact could not have resolved the disputed

evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. Evidence is factually

sufficient if “the evidence is such that a factfinder could reasonably form a firm belief or

conviction about the truth of the [Department]’s allegations.” In re C.H., 89 S.W.3d 17, 25

(Tex. 2002).

B.     Termination Under § 161.001(b)(1)(D) and (E)

       While both subsections (D) and (E) focus on endangerment, they differ regarding

the source and proof of endangerment. See In re M.M., 584 S.W.3d 885, 889 (Tex. App.—

Amarillo 2019, pet. denied). Subsection (D) requires a showing that each parent

“knowingly placed or knowingly allowed the child to remain in conditions or surroundings

which endanger the physical or emotional well-being of the child.” TEX. FAM. CODE ANN.



                                              12
§ 161.001(b)(1)(D). Endanger “means to expose to loss or injury, to jeopardize.” In re

N.J.H., 575 S.W.3d 822, 831 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (citing In

re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam)). “Knowingly” requires that “the

parent be aware of but disregard” the potentially endangering environment at issue. See

In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.—Houston [14th Dist.] 2017, no pet.). It is

not necessary, however, that the Department show the child’s environment directly

threatened or injured the child. See In re M.M., 584 S.W.3d at 889. Further, termination

under subsection (D) is permitted on the basis of a single act or omission. See id. at 889–

90; In re E.M., 494 S.W.3d 209, 221–22 (Tex. App.—Waco 2015, pet. denied).

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

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.” Id.

§ 161.001(b)(1)(E). Unlike subsection (D), a finding under subsection (E) cannot be

based on a single act or omission. See In re P.W., 579 S.W.3d 713, 726 (Tex. App.—

Houston [14th Dist.] 2019, no pet.). Subsection (E) “requires a voluntary, deliberate, and

conscious course of conduct by the parent.” Id. Like subsection (D), however, it is not

necessary that the parent’s conduct be directed at the child or that the child actually suffer

injury. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); P.W., 579

S.W.3d at 726. A fact finder is also not limited to consideration of the parent’s actions

before the child has been removed by the Department; any actions or inactions occurring

before and after a child was born may be considered, including evidence of a parent’s

drug use or proclivity for violence. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).




                                             13
       Evidence of the children’s environment before the Department obtained custody,

including the acceptability of the children’s living conditions and parental conduct in the

home, is subsumed in the (D) and (E) endangerment analysis. See In re J.E.M.M., 532

S.W.3d 874, 880–81 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Likewise,

“[i]nappropriate, abusive, or unlawful conduct by persons who live in the child’s home or

with whom the child is compelled to associate on a regular basis in the home is a part of

the ‘conditions or surroundings’ of the child’s home” under subsection (D) and (E). In re

M.D.M., 579 S.W.3d 744, 764 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (quoting

Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet.

denied)); see also In re E.M., 494 S.W.3d at 222 (“Abusive or violent conduct by a parent

or other resident of a child’s home may produce an environment that endangers the

physical or emotional well-being of a child.”).

       Father and Mother generally contend that no evidence was introduced to

demonstrate that they had ever endangered or neglected their children, or that their

behavior was likely to ever endanger or neglect the children. The Department counters

that the trailer’s unlivable conditions, A.B.’s outcries of witnessing domestic violence, the

parent’s substance abuse history, Father’s untreated mental illnesses, and the parent’s

service initiation delays are all sufficient evidence to support the trial court’s finding of

endangerment.

       The record contains evidence that the children were living in an unsafe, unstable

home environment prior to their removal from Father and Mother’s care. The children’s

residence was (1) without adequate access to running water; (2) dirty and smelled of

feces, urine, and cigarette smoke; (3) lacked insulation from the outdoors due to a hole



                                             14
in the wall from where the air conditioning unit had fallen in; and (4) did not provide for

safe sleeping arrangements as two children slept under a collapsing roof while their nine-

month-old sibling slept several feet away on the floor. See In re A.L., 545 S.W.3d 138,

146 (Tex. App.—El Paso 2017, no pet.) (providing that evidence of extremely unsanitary

conditions, such as pet feces and urine found throughout the home, insects seen on dirty

dishes, and unflushed toilets, supported finding of endangerment); Phillips v. Tex. Dep’t

of Protective & Reg. Servs., 25 S.W.3d 348, 352, 354–55 (Tex. App.—Austin 2000, no

pet.) (finding sufficient evidence of endangerment where home was “filthy,” contained

rodents, and had clothes and trash everywhere); see also In re M.B., No. 13-19-00411-

CV, 2019 WL 5997509, at *5 (Tex. App.—Corpus Christi–Edinburg Nov. 14, 2019, no pet.

h.) (mem. op.) (finding endangerment due to lack of electricity or running water in the

trailer); In re E.C.S., No. 14-19-00039-CV, 2019 WL 2589943, at *14 (Tex. App.—

Houston [14th Dist.] June 25, 2019, no pet.) (mem. op.) (affirming endangerment finding

where home was “unsanitary, contained exposed wiring, had no running water, and had

an odor attributable to dog feces and urine found throughout the home”).

      Evidence of violent conduct in the home between parents is also evidence of an

environment that endangers the physical or emotional well-being of a child. See In re

J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). According to Yackle,

A.B. witnessed physical violence in the home. See In re P.W., 579 S.W.3d at 727; In re

S.R., 452 S.W.3d 351, 361 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)

(“Domestic violence, want of self-control, and propensity for violence may be considered

as evidence of endangerment.”) (citations omitted). Yackle’s depictions of physical

violence between Father and Mother were consistent with suspicions raised by the



                                            15
Department caseworker and Father’s counselor, who testified to witnessing extensive

verbal abuse. Despite reports of Father’s volatility or aggression towards Mother, Mother

never removed herself or her children from the situation, denies she has ever been

subjected to domestic violence, and relies wholly on Father to parent their children. See

In re I.G., 383 S.W.3d 763, 770 (Tex. App.—Amarillo 2012, no pet.) (“A parent’s failure to

remove himself and his children from a violent relationship endangers the physical or

emotional well-being of the children.”); cf. In re M.G.P., No. 02-11-00038-CV, 2011 WL

6415168, at *11 (Tex. App.—Fort Worth Dec. 22, 2011, pet. denied) (mem. op.) (finding

endangerment evidence insufficient where Mother, following recurrent issues of domestic

violence, sought shelter for herself and her children and there was no evidence that at

the time of trial, she was still living with Father or in an ongoing relationship with him).

       Evidence of narcotics use and its effect on a parent’s life and his or her ability to

parent may also establish that the parent has engaged in an “endangering course of

conduct.” See In re B.M.S., 581 S.W.3d 911, 917 (Tex. App.—El Paso 2019, no pet.); In

re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). The evidence

concerning the parents’ substance abuse here reflected “more than just ‘remote and

isolated incidents’” and indicated Mother and Father’s improper prioritizations. Despite

the family’s dire financial state and Father and Mother’s obligation to provide a safe,

livable environment for their children, Father and Mother instead used money to purchase

marijuana and cocaine. See In re D.M., 58 S.W.3d 801, 813 (Tex. App.—Fort Worth 2001,

no pet.) (considering a parent’s choice to spend money on drugs despite other financial

obligations). One month before the children were removed, the Department had just

closed out its prior case involving Father and Mother—a case opened only after K.B. was



                                              16
born testing positive for marijuana. At the time of removal, Father and Mother tested

positive for marijuana, and Mother confessed to using marijuana daily. Additionally,

Father and Mother were unable to hide their drug use from their children. A.B., although

only eight years old, was privy to her parents’ drug use and articulated to Yackle what the

drugs looked like, where her parents kept their drugs, and how they would hide the drugs

when “C.P.S. came.” See In re B.M.S., 581 S.W.3d at 917; Walker v. Tex. Dep’t of Family

& Protective Servs., 312 S.W.3d 608, 617 (Tex. App—Houston [1st Dist.] 2009, pet.

denied) (reasoning that a parent’s illegal drug use may support termination under

subsection (E) because “it exposes the child to the possibility that the parent may be

impaired or imprisoned”). Moreover, drug use persisted after the children were removed

from the home. See In re S.R., 452 S.W.3d at 361–62 (“Continued illegal drug use after

a [child is] remov[ed] is conduct that jeopardizes parental rights and may be considered

as establishing an endangering course of conduct.”).

       The Department provided evidence that Father and Mother’s drug use

exacerbated their mental illnesses, which went largely untreated due to noncooperation.

See In re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)

(providing that untreated mental illness may also expose a child to endangerment).

Though Father and Mother began counseling prior to the Department’s removal of their

children, Morales testified that Father and Mother only attended “five or six sessions” and

then “kind of disappeared.” Father returned to counseling in July 2019, and he continued

to refuse to take medication and was unwilling to learn any skills to manage his volatility,

said Morales. As a consequence, Morales stated her sessions with Father have been

fruitless. See In re P.H., 544 S.W.3d 850, 858 (Tex. App.—El Paso 2017, no pet.)



                                            17
(considering a parent’s refusal to treat their mental health as a factor in the endangerment

analysis); In re S.R., 452 S.W.3d at 363. Although Mother did not testify and her mental

health issues were not as debilitating as Father’s, Mother was present during many of the

counseling sessions with Father. The trial court could have inferred that Mother knew

Father had serious untreated mental health issues that put their children at risk and

nonetheless, she did not seek to remove her children from the environment. See In re

A.C., 560 S.W.3d at 632 (allowing inferences arising from evidence to support the trial

court’s finding). Finally, Morales testified to the effects that witnessing unstable parents

can have on a child’s emotional well-being, stating that several months prior to the

children’s removal, G.B., a first grader, was expelled from school after threatening to take

a gun to school to “kill everybody.”

       The Department also presented evidence to support a finding that Father and

Mother’s delay in their initiation of court ordered services was deliberate and indicative of

their lack of protective capabilities towards their children. See In re S.R., 452 S.W.3d at

362 (“A parent’s efforts to improve or enhance parenting skills are relevant in determining

whether a parent’s conduct results in endangerment under subsection E.” (citing In re

D.T., 34 S.W.3d 625, 640 (Tex. App.—Fort Worth 2000, pet. denied)). At the time of

Father’s belligerent outburst in April 2019, the children had been in their foster placement

for six months, yet: (1) Father and Mother had not begun attending counseling; (2) Father

and Mother had begun attending substance abuse counselling sessions at their home

two months prior but had already discontinued services; (3) Father and Mother were still

testing positive for drugs; (4) Father and Mother continued to deny domestic violence in




                                             18
the home despite contrary reports; and (5) Father and Mother had not remedied any of

the residence’s safety hazards. See In re J.O.A., 283 S.W.3d at 345.

        Though the parents completed many of the services and requirements in the

weeks leading up to the termination hearing, the trial court was privy to evidence of

serious unresolved issues affecting Father and Mother’s ability to create and maintain a

safe environment for their children. Such issues were contested at trial—namely, Father

and Mother continued to deny domestic violence in the home and disputed the degree of

Father’s mental health advancements. See In re N.H.N., 580 S.W.3d 440, 446 (Tex.

App.—Houston [14th Dist.] 2019, no pet.) (according due deference to the trial court’s

credibility determinations); see also In re R.S.-T., 522 S.W.3d 92, 109–10 (Tex. App.—

San Antonio 2017, no pet.) (“Domestic violence, want of self-control, and propensity for

violence may be considered as evidence of endangerment.”).

        We observe that the evidence in this case does not show that these children

suffered any physical injury due to Father and Mother’s conduct or neglect. 11 However,

such a showing is not necessary to support endangerment findings. In re M.J.M.L., 31

S.W.3d 347, 350 (Tex. App.—San Antonio 2000, pet. denied) (“[E]ndangerment must be

a direct result of a parental course of conduct, the conduct described does not have to be

specifically directed at the child; nor does it have to cause an actual injury to the child or

even constitute a concrete threat of injury to the child.”).




        11   We note, however, that Father and Mother’s treatment of S.B. after believing her to have
sustained a broken arm was indicative of their propensity for medical neglect. Despite conceding they
believed her condition warranted medical intervention, they failed to timely seek appropriate medical care
for their child. See In re J.D.G., 570 S.W.3d 839, 852 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).



                                                   19
       From the foregoing evidence, a rational finder of fact could have formed a firm

belief or conviction that both appellants knowingly placed or knowingly allowed the

children to remain in conditions or surroundings which endangered their physical or

emotional well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). Moreover, to the

extent the facts were disputed, the trial court could have reasonably resolved those

disputes in favor of the challenged finding. See In re J.J.L., 578 S.W.3d 601, 609 (Tex.

App.—Houston [14th Dist.] 2019, no pet.) (“We may not second-guess the fact finder’s

resolution of actual dispute by relying on disputed evidence or evidence the fact finder

‘could easily have rejected as not credible.’” (quoting In re L.M.I., 119 S.W.3d 707, 712

(Tex. 2003))). Accordingly, we conclude that the evidence was legally and factually

sufficient to support termination under subsection (D) and (E). See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(D), (E).

C.     Best Interest of the Children

       Father and Mother also challenge the legal and factual sufficiency of the evidence

to support the trial court’s finding that termination of their parental rights is in the best

interest of the children. See id. § 161.001(b)(2).

       As previously established, in addition to a predicate violation, the Department must

prove by clear and convincing evidence that termination is in the children’s best interest.

See id.; see also id. § 153.002 (“The best interest of the child shall always be the primary

consideration of the court in determining the issues of conservatorship and possession of

and access to the child.”). There is a strong presumption that the best interest of the

children is served by keeping the children with their natural parents. In re R.R., 209

S.W.3d 112, 116 (Tex. 2006) (per curiam) (citing TEX. FAM. CODE ANN. § 153.131(b)).



                                             20
       A fact finder may consider a number of factors to determine the child’s best

interest, including the child’s desires, the child’s present and future physical and

emotional needs, the present and future emotional and physical danger to the child, the

parental abilities of the people seeking custody, programs available to assist those people

in promoting the child’s best interest, plans for the child by those people or by the agency

seeking custody, the acts or omissions of the parent that may indicate that the existing

parent-child relationship is not appropriate, and any excuse for the acts or omissions of

the parent. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also In re

E.N.C., 384 S.W.3d 796, 807–08 (Tex. 2012) (reciting the Holley factors). Our “best

interest” analysis is not limited to these Holley factors, and the absence of evidence

regarding some of the factors does not preclude a fact finder from reasonably forming a

strong conviction or belief that termination is in the child’s best interest. See In re C.H.,

89 S.W.3d at 27.

       1.     Children’s Desires

       As to the first Holley factor, Moretish informed the court of the eldest daughter’s

wishes to remain living with her siblings in foster care. See Holley, 544 S.W.2d at 371–

72. Moretish and Yackle testified to the bond that has been established in the last eleven

months between the children and their foster family.

       2.     Children’s Emotional and Physical Needs Now and in the Future;
              Available Programs; and the Parenting Abilities of the Parents

       The record here is replete with evidence indicating that Father and Mother were

unable to meet their children’s needs, lacked parenting abilities, and failed to make use

of available programs at the outset when they exposed their children to unsuitable living




                                             21
conditions, drug use, and domestic violence.12 See Holley, 544 S.W.2d at 371–72; see

also D.O. v. Tex. Dep’t of Human Servs., 851 S.W.2d 351, 356 (Tex. App.—Austin 1993,

no writ) (providing that factfinder may infer that a parent’s past inability to meet a child’s

physical and emotional needs at the time the child was in the parent’s custody may be

indicative of the parent’s future inability to meet the child’s physical and emotional needs

if the child is returned to the parent); Garza v. Tex. Dep’t of Human Servs., 794 S.W.2d

521, 525 (Tex. App.—Corpus Christi–Edinburg 1990, no writ) (holding that a parent’s lack

of judgment and parenting skills are factors to consider in a parental termination analysis).

        The Department contends that severe problems persist, affecting the parents’

ability to meet their children’s needs now and in the future because any adherence to the

Department’s requirements for program participation is too superficial to effectuate any

real change. See Holley, 544 S.W.2d at 371–72; In re G.M.G., 444 S.W.3d 46, 60 (Tex.

App.—Houston [14th Dist.] 2014, no pet.) (considering a parent’s willingness to effect

positive changes to improve their situation for the benefit of their children); see also In re

J.L.C., 582 S.W.3d 421, 432–33 (Tex. App.—Amarillo 2018, pet. ref’d) (noting that a

parent’s delay in beginning services is a consideration in the best interest determination).

Father and Mother were required, in part, to participate in therapy and substance abuse

classes. Though Father and Mother returned to therapy three months before the

termination hearing, their counselor opined that they remained uncooperative, no

advancements had occurred to treat either parent’s mental health problems, and the



        12   Moreover, Father and Mother’s inability to meet their children’s needs extends far beyond the
Department’s second 2018 case. Four years prior, the parents voluntarily and informally relinquished their
rights to their third child because they were homeless, struggling with substance abuse, and already having
difficulty raising A.B. and G.B. One year later, L.B. was born, followed by S.B. and K.B.



                                                   22
parents continue to deny domestic violence in the home in the face of divergent evidence.

See Holley, 544 S.W.2d at 371–72; In re O.N.H., 401 S.W.3d 681, 684–85 (Tex. App.—

San Antonio 2013, no pet.) (stating that simply exposing a child to the other parent’s

violence is a relevant consideration in determining a child’s best interest); see also In re

R.J., 579 S.W.3d 97, 118 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (“While mental

illness is not a ground for parental termination, the impact of a parent’s mental illness on

his ability to parent and the stability of the home are relevant factors in the best interest

of the child analysis.”). Similarly, though Father and Mother began substance abuse

counseling in February, they continued to test positive for drugs throughout the pendency

of this case; only Father tested negative for drugs for more than a two-month period.

There has been no evidence presented that either parent has learned how to cope with

their mental health, substance abuse, or Father’s violent propensities. See In re J.H.G.,

313 S.W.3d 894, 899 (Tex. App.—Dallas 2010, no pet.) (providing that where a parent

attended services, but “did not take full advantage of them nor show that she would use

them to care for [her child],” this factor weighs in favor of termination).

       3.     Plans for the Children; Stability of Home or Proposed Placement

       The stability of the children’s proposed home environment is a significant

consideration in determining whether termination of parental rights is in their best interest.

In re J.G.S., 574 S.W.3d 101, 126 (Tex. App.—Houston [1st Dist.] 2019, no pet.); In re

J.D., 436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“Stability and

permanence are paramount in the upbringing of children.”). According to Moretish, the

children are doing exceedingly well in their current placement, meeting their

developmental milestones and, with the exception of G.B., they are excelling in school.



                                              23
The Department also presented evidence that the foster family is open to adoption. See

Holley, 544 S.W.2d at 371–72; In re W.E.C., 110 S.W.3d 231, 245 (Tex. App.—Fort Worth

2003, no pet.).

       Conversely, the trial court reasonably could have determined that Father and

Mother’s stability remains just as precarious as it has always been. Father’s articulated

plans for stability—which included possibly securing contracted employment with local

law enforcement, inheriting a larger trailer conditioned on the landlord “kicking people out

of” it first, and promising to continue therapy in addition to taking his required medication—

were, as Father acquiesced, “not guaranteed” or unlikely to come to fruition based on

Father and Mother’s prior inability to prioritize their children’s needs, as discussed at

length above. See Holley, 544 S.W.2d at 371–72; In re N.J.H., 575 S.W.3d at 832

(“[E]vidence of improved conduct, especially of short[]duration, does not conclusively

negate the probative value of a long history of . . . irresponsible choices.” (quoting In re

J.O.A., 283 S.W.3d at 346)); In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth

2007, no pet.) (“Evidence of a parent’s unstable lifestyle can . . . support a factfinder’s

conclusion that termination is in the child’s best interest.”).

       4.     Remaining Factors

       Based on witness depictions of the visitations and interactions between the parents

and their children, Father and Mother’s acts and omissions, at minimum, continue to

suggest an undervalued parent-child relationship. See Holley, 544 S.W.2d at 371–72; In

re J.H.G., 313 S.W.3d at 900 (where a parent engaged very little with her child, had a “flat

affect and did not seem excited to see [her child] when she arrived for her visits and

showed no emotion when she left,” the parent’s acts and omissions weighed in favor of



                                              24
termination); see also In re D.W., 445 S.W.3d 913, 932 (Tex. App.—Dallas 2014, pet.

denied) (providing that evidence considered in other Holley factors may be relevant in

analyzing the final two factors).

       We observe that Father and Mother have taken several steps to improve their lives

so that they may be equipped to better provide for themselves and by extension, their

children—including becoming sober and attending therapy. However, Father and Mother

have found sobriety and attended therapy in the past, only to relapse shortly thereafter to

the detriment and neglect of their six children. 13 While it is “our obligation to strictly

scrutinize termination proceedings and strictly construe the statute in favor of the parent,”

In re L.J.N., 329 S.W.3d 667, 673 (Tex. App.—Corpus Christi–Edinburg 2010, no pet.),

we remain mindful that the critical inquiry remains what is in the best interest of the child,

not what is in the parent’s best interest. In re C.L.C., 119 S.W.3d 382, 399 (Tex. App.—

Tyler 2003, no pet.).

       Having analyzed the evidence under the applicable law and appropriate standards

of review, we conclude that a reasonable trier of fact could have formed a firm belief or

conviction that termination of both appellants’ parental rights was in the best interest of

A.B., G.B., L.B., S.B., and K.B. See Holley, 544 S.W.2d at 371–72; In re J.O.A., 283

S.W.3d at 346; cf. In re J.E.M.M., 532 S.W.3d at 891 (holding that the “record evidence

falls short of the requisite legal standard and cannot support termination of [a parent’s]



       13   The trial court noted as much in an explanation of its findings:
       The incompletion of services[,] particular[ly] pertaining to drug use, counseling[,] and
       mental health and anger management is disturbing, particularly in light of the fact they had
       already been through services once to some degree, and yet when it came to this time it
       was—well, just wasn’t pursued in a manner that left one feeling that it was going to get
       done, and in fact it didn’t get done. . . .



                                                      25
parental rights” where the parent failed to complete the Department’s services but the

parent “has no prior history with the Department, no history of drug abuse or committing

family violence, no criminal history, . . . [and] no mental-health diagnosis” and there was

“no legally sufficient evidence of endangerment or abandonment”). We overrule Father

and Mother’s last issue on appeal.

                                     IV.   CONCLUSION

      We affirm the trial court’s judgment.

                                                              GREGORY T. PERKES
                                                              Justice

Delivered and filed the
27th day of February, 2020.




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