                                   NO. 07-12-00412-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                   DECEMBER 11, 2012


                         IN THE INTEREST OF R.M., C.C., C.C.,
                          P.C., A.C., B.C. AND K.C., CHILDREN


             FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

               NO. 54,863-D; HONORABLE DON R. EMERSON, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.

                                MEMORANDUM OPINION


       Appellant, Christy, appeals the trial court’s order terminating her parental rights to

five of her children, C.C., P.C., A.C., B.C., and K.C. 1 On appeal, Christy contends the

evidence is insufficient to support the trial court’s order of termination. We will affirm.


                              Factual and Procedural History


       Following reports of domestic violence, drug use, and neglectful supervision, the

Texas Department of Family and Protective Services (the “Department”) began its


       1
         Throughout this opinion, appellant will be referred to as “Christy,” and the
children will be identified by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West
Supp. 2012); TEX. R. APP. P. 9.8(b). The trial court also terminated the parental rights of
the children’s father, but he does not appeal the judgment.
investigation into the well-being of Christy’s children and, in May 2008, took custody of

Christy’s seven children. 2 Since that time, the Department has implemented family

service plans and initiated various suits affecting the parent-child relationship between

the children’s parents and the children, and Christy has continued to test positive for

drugs, remain unemployed, and either offer excuses or shift blame for the continued

parental shortcomings she has demonstrated.


       On May 3, 2010, following several years in which Christy and her children were

involved with the Department, the Department filed its petition seeking the termination of

Christy’s parental rights and alleging a number of grounds for such termination. The

Department amended its petition on December 6, 2011, and the trial court held a

hearing on the Department’s allegations on June 26, 2012. At the end of the hearing,

the trial court granted the Department’s petition seeking termination of Christy’s parental

rights. More specifically, it found by clear and convincing evidence (1) that Christy had

engaged in conduct or knowingly placed the children with persons who engaged in

conduct which endangered the physical or emotional well-being of the children, (2) that

Christy failed to comply with provisions of a court order that specifically established the

actions necessary for her to obtain the return of the children who had been in the


       2
         Christy’s parental rights to only five of those children are at issue in this appeal
however. Though R.M. and the elder C.C. are included in the style of the case,
Christy’s rights as to R.M. and the elder C.C. are not at issue. As the trial court
recognized, R.M. has reached the age of majority and is no longer in the Department’s
care. We note, however, that the order of termination, while it does not address the
parent-child relationship between Christy and R.M., does name the Department as
R.M.’s permanent managing conservator. The Department’s petition explains that the
elder C.C. was in custody of the Texas Youth Commission and his custody was not at
issue. The elder C.C. is not named in the order of termination. So, we are left with the
termination of Christy’s rights as to the above-identified five children.
                                             2
permanent or temporary managing conservatorship of the Department not less than

nine months as a result of the children’s removal from the parent under Chapter 262 for

the abuse or neglect of the children, and (3) that termination of Christy’s parental rights

was in the children’s best interest. See TEX. FAM. CODE ANN. § 161.001 (West Supp.

2012). The trial court signed its order of termination on August 28, 2012.


       Christy contends on appeal from the trial court’s order that the evidence was

legally and factually insufficient to sustain the termination of her parent-child

relationships with her five children. She challenges the evidence of both the predicate

act or omission and the best interest determination. After having reviewed the record,

we conclude that the evidence is sufficient as to both elements and will affirm.


                                    Standards of Review


       The natural right existing between parents and their children is of constitutional

dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,

455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A decree terminating

this natural right is complete, final, irrevocable, and divests for all time that natural right

as well as all legal rights, privileges, duties, and powers between the parent and child

except for the child’s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are

required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846

(Tex. 1980). However, parental rights are not absolute, and the emotional and physical

interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89

S.W.3d 17, 26 (Tex. 2002).



                                              3
         The Texas Family Code permits a court to terminate the parent-child relationship

if the petitioner establishes (1) one or more acts or omissions enumerated under section

161.001(1) and (2) that termination of the parent-child relationship is in the best interest

of the child. TEX. FAM. CODE ANN. § 161.001. Though evidence may be relevant to both

elements, each element must be proved, and proof of one does not relieve the burden

of proving the other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground

and best interest of the child must be proved, only one statutory ground is required to

terminate parental rights under section 161.001. In re A.V., 113 S.W.3d 355, 362 (Tex.

2003).    Therefore, we will affirm the trial court’s order of termination if legally and

factually sufficient evidence supports any one of the grounds found in the termination

order, provided the record shows that it was also in the best interest of the child for the

parent’s rights to be terminated. See id.


         Due process requires the application of the clear and convincing standard of

proof in cases involving involuntary termination of parental rights.      In re J.F.C., 96

S.W.3d 256, 263 (Tex. 2002); see TEX. FAM. CODE ANN. § 161.206(a) (West 2008).

“‘Clear and convincing evidence’ means the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of the

allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (West 2008).

This standard, which focuses on whether a reasonable jury could form a firm belief or

conviction, retains the deference a reviewing court must have for the factfinder’s role. In

re C.H., 89 S.W.3d at 26.




                                             4
       In reviewing the legal sufficiency of the evidence supporting an order terminating

parental rights, we look at all the evidence in the light most favorable to the finding to

determine whether a reasonable trier of fact could have formed a firm belief or

conviction as to the truth of the allegations sought to be established. See In re J.F.C.,

96 S.W.3d at 266. “To give appropriate deference to the factfinder’s conclusions and

the role of a court conducting a legal sufficiency review, looking at the evidence in the

light most favorable to the judgment means that a reviewing court must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could

do so.” Id. In other words, we will disregard all evidence that a reasonable factfinder

could have disbelieved or found to have been incredible. Id.


       When reviewing the factual sufficiency of the evidence supporting a termination

order, we determine “whether 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 at 25. In conducting this review, we consider whether the disputed

evidence is such that a reasonable factfinder could not have resolved the disputed

evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “If, in light of the entire

record, the disputed evidence that a reasonable factfinder could not have credited in

favor of the finding is so significant that a factfinder could not reasonably have formed a

firm belief or conviction, then the evidence is factually insufficient.” Id.




                                               5
                               Applicable Law and Analysis


       Christy contends that the evidence is insufficient to support a finding of a

predicate act or omission that would serve as grounds for terminating her parental rights

to her five children.    In response, the Department points to evidence that Christy

engaged in drug use before and during the case and that she failed to regularly visit the

children, characterizing such evidence as endangering conduct under subsection (E).

See TEX. FAM. CODE ANN. § 161.001(1)(E). Christy also challenges the sufficiency of

the evidence that would support the best interest determination. In support of the trial

court’s determination that termination of the parent-child relationship was in the

children’s best interest, the Department directs us to evidence, in addition to the

aforementioned endangering conduct, that the children desired to be adopted, Christy

has done nothing to avail herself of the services available to her, she has no concrete

plans for the children should they be returned to her, and she has not altered her

pattern of destructive behavior and instability.


Predicate act or omission


       One of the grounds the trial court found as supporting termination of Christy’s

parental rights to the children was subsection (E)’s course-of-conduct endangerment of

the physical or emotional well-being of the children. See id. “[E]ndanger” means “to

expose to loss or injury; to jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987).        Although “‘endanger’ means more than a threat of

metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is

not necessary that the conduct be directed at the child or that the child actually suffers

                                              6
injury.” Id.; see In re P.E.W., 105 S.W.3d 771, 777 (Tex.App.—Amarillo 2003, no pet.)

(observing that child “need not develop or succumb to a malady” in order to prove

endangering conditions). In our review, we look not only at evidence regarding the

parent’s active conduct, but also evidence showing the parent’s omissions or failures to

act. In re A.B., 125 S.W.3d 769, 777 (Tex. App.—Texarkana 2003, pet. denied). The

Texas Supreme Court has reiterated that endangering conduct is not limited to actions

directed toward the child: “It necessarily follows that the endangering conduct may

include the parent’s actions before the child’s birth, while the parent had custody of

older children, including evidence of drug usage.” In re J.O.A., 283 S.W.3d 336, 345

(Tex. 2009); see In re T.N., 180 S.W.3d 376, 383 (Tex.App.—Amarillo 2005, no pet.).


       A parent’s use of narcotics and its effect on his or her ability to parent may qualify

as an endangering course of conduct. In re J.O.A., 283 S.W.3d at 345. A parent’s

illegal drug use can support termination for endangerment because it exposes the child

to the possibility that the parent may be impaired or imprisoned. Walker v. Tex. Dep’t of

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

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

denied) (characterizing continued drug use as conduct which “subjects a child to a life of

uncertainty and instability”).


       The record in the case at bar contains evidence indicating that the drug abuse in

the household was more than simply “remote and isolated incidents.” See In re R.W.,

129 S.W.3d 732, 741 (Tex.App.—Fort Worth 2004, pet. denied).                    Department

caseworker Jessica Hoskins testified that Christy had submitted to three drug screens,

                                             7
all of which yielded results showing she had used illegal drugs. Christy admitted that

she tested positive for drugs during the initial phase of the investigation by the

Department and multiple times during the pendency of the case. She admitted having

last used methamphetamine during the month of January 2012, only months prior to the

final hearing. However, she also acknowledged that she later tested positive for both

methamphetamine and crack cocaine in March 2012. She claimed that she did not use

crack cocaine and only tested positive for cocaine because she was around others who

did use it. Christy admitted that she understood that staying free of drugs was an

important factor in obtaining the return of her children but admitted, too, that she had

tested positive for drugs in the years 2010, 2011, and 2012.         Christy’s history of

admitted methamphetamine use and of drug screen results also indicating crack

cocaine use represents conduct that subjects the children to a life of uncertainty and

instability, thereby endangering their physical and emotional well-being. See In re A.B.,

125 S.W.3d at 777; In re T.N., 180 S.W.3d at 383; In re S.D., 980 S.W.2d at 763. This

remains so despite the absence of evidence that Christy’s drug use actually injured any

of the children. See Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190

S.W.3d 189, 196 (Tex.App.—Houston [1st Dist.] 2005, pet. denied).


       Christy expressed a desire to work and a qualified desire to attend drug

rehabilitation:


      And I had asked [Hoskins], when I had talked to her and everything, I had
      asked her, okay, could they send me to the rehab? She was supposed to
      [get] back in touch with me about that. She never did. Because that’s what
      I want to do, I want to go to a rehab. But I don’t need no rehab for no year
      or no two years. I want to go to rehab, you know what I’m saying, for two
      months.
                                            8
Though Christy’s testimony could be read as an expression of a desire—albeit one

accompanied by a seemingly less-than-earnest effort—to behave more responsibly and

attempt to free herself of drug abuse, the trial court, as finder of fact, was “not required

to ignore a long history of dependency and destructive behavior merely because it

allegedly abated before trial.” In re R.W., 129 S.W.3d at 741 (citing In re M.G.D., 108

S.W.3d 508, 513 (Tex.App.—Houston [14th Dist.] 2003, pet. denied)); see In re J.O.A.,

283 S.W.3d at 346.


       Along with evidence of Christy’s prolonged, unchecked drug abuse, the record

suggests that Christy’s attendance at the scheduled visits with her children was

sporadic at best. By her own admission, when she did attend visits with the children,

some visits went well, and others went poorly. She acknowledged that she failed to

correct the disruptive and disrespectful behavior the children often exhibited at the visits

and could offer no explanation for her failure to do so. She claimed that she always

called when she was going to miss a visit, and the only reason she ever did miss a visit

was due to a lack of transportation. She explained that the messages she left regarding

her absences must never have been delivered to the caseworker. She denies that the

Department offered her transportation so that she could attend the visits, and instead

told of hardships in attending when she was dependent on busses or other people to

give her a ride. Evidence of Christy’s inconsistent participation in visitation with the

children also support the trial court’s finding that she engaged in conduct which

endangered the children’s physical or emotional well-being. Cf. In re U.P., 105 S.W.3d

222, 236 (Tex.App.—Houston [14th Dist.] 2003, pet. denied) (op. on reh’g)

(characterizing parent’s absence as creating an “emotional vacuum” in child’s life); see
                                             9
also In re S.I.H., No. 02-11-00489-CV, 2012 Tex. App. LEXIS 2081, at *16 (Tex.App.—

Fort Worth Mar. 15, 2012, no pet.) (mem. op.) (noting evidence presented “that children

thrive on consistency” and inconsistent visitation and lack of parental contact “can be

very damaging”).


       In addition to Christy’s failure, through her sporadic, chaotic visitation, to provide

the children with consistency and security, Christy’s prolonged history of unemployment

and financial instability indicate an inability to provide for her five children, a relevant

consideration in the trial court’s finding of endangerment. See In re M.N.G., 147 S.W.3d

521, 538–39 (Tex.App.—Fort Worth 2004, pet. denied) (op. on reh’g); In re H.N.H., No.

02-11-00141-CV, 2012 Tex. App. LEXIS 326, at *69–71 (Tex.App.—Fort Worth Jan. 12,

2012, no pet.) (mem. op.). Christy testified that she had secured employment the week

before the hearing and that she was planning to start her job in the next few days. She

explained that her criminal record had prevented her from getting a job in the four-plus

years in which the Department had cared for her children. She admitted that she really

had done nothing in an effort to have the children returned to her.


       Based on evidence that Christy continued to use drugs, failed to maintain

consistent visitation or financial stability, and failed to make any discernible effort to

improve her life in such a way that she might obtain the return of her children, the trial

court could have formed a firm belief or conviction that Christy endangered the physical

or emotional well-being of the children. We conclude that legally and factually sufficient

evidence supports the trial court’s finding of a predicate act or omission supporting

termination of Christy’s parental rights.

                                             10
Best Interest of the Children


       The Texas Supreme Court has recognized a non-exhaustive list of factors that

are pertinent to the inquiry whether termination of parental rights is in the best interest of

the child: (1) the desires of the child, (2) the emotional and physical needs of the child

now and in the future, (3) the emotional and physical danger to the child now and in the

future, (4) the parental abilities of the individuals seeking custody, (5) the programs

available to assist these individuals to promote the best interest of the child, (6) the

plans for the child by these individuals or by the agency seeking custody, (7) the

stability of the home or proposed placement, (8) the acts or omissions of the parent

which may indicate that the existing parent-child relationship is not a proper one, and (9)

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 TEX. FAM. CODE ANN. § 263.307 (West 2008)

(providing extensive list of factors that may be considered in determining child’s best

interest). In examining the best interest of the child, we may consider evidence that was

also probative of the predicate act or omission. See In re C.H., 89 S.W.3d at 28. The

best interest determination may rely on direct or circumstantial evidence, subjective

facts, and the totality of the evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex.App.—

Amarillo 2011, no. pet).


       The Department need not prove all nine Holley factors, and the absence of

evidence relevant to some of those factors does not bar a finding that termination is in

the child's best interest, especially in the face of undisputed evidence that the parental

relationship endangered the child. See In re C.H., 89 S.W.3d at 27. No one Holley

                                             11
factor is controlling, and evidence of one factor may be sufficient to support a finding

that termination is in the child’s best interest.    In re A.P., 184 S.W.3d 410, 414

(Tex.App.—Dallas 2006, no pet.)


      Here, the record reveals that the older children understand the concept of

adoption and have expressed their desires to be adopted, even going so far as to ask

their mother during visitation if they could be adopted. C.C. and P.C., the two oldest of

these five children, also expressed to Hoskins that they wished for their younger siblings

to be adopted so that the younger children would be able to get out of foster care.


      The record suggests that Christy has demonstrated little to no skill in parenting.

Most obviously, we note that her children have been in the Department’s care since

May 2008, a strong indication that Christy has demonstrated little skill in parenting.

During those four years, the record reflects, Christy has been unemployed.            She

explained that only days before the hearing she was able to find employment, but she

acknowledged that the job paid minimum wage for thirty hours a week and that she

knew she would have to get another job, too. She has lived with her mother in an

apartment for the past two and a half years, and she testified that, despite financial

assistance from her cousin, she was unable to secure other living arrangements—

presumably arrangements more accommodating to a household with five or more

children. And, from her own testimony and from the positive drug screens over the

years, it would appear that Christy’s drug abuse has continued unabated.


      By contrast, the Department identified adoption as the goal for the five remaining

minor children. Though there are no definite prospective adoptive families for four of

                                           12
the children, B.C. is in a foster home and thriving there. B.C. considers his foster

parents “his mommy and daddy,” and the family has expressed its intent to adopt him in

the event Christy’s rights are terminated.


       Although the Department has in place various programs designed to help a

parent situated similarly to Christy, it would appear that the Department has exhausted

both the available programs it can offer and its willingness to expect Christy’s full

participation in any of those programs or her cooperation in general. Hoskins testified

that the Department requested that Christy participate in parenting classes, individual

therapy, psychological evaluation, visitation, and drug treatment. Christy did attend

some therapy sessions and did attend some of the scheduled visits with the children,

and she indicated some amount of desire to have the children back. However, the trial

court was not required, in light of Christy’s expressed desire to change, to ignore or

discount her patterns of drug abuse and instability. See In re D.M., 58 S.W.3d 801,

813–14 (Tex.App.—Fort Worth 2001, no pet.).


       When asked whether she had made effort over the years to regain custody of her

children, Christy could offer very little to show that she had: “Just to be honest with you,

last in the four and a half years, I really haven’t because it [has] been real hard on me

when they took my kids, and the service, you know what I’m saying?” She went on to

explain that her criminal record prevented her from getting a job.         The only really

concrete or definite aspect of her plans for caring for the children involved leaving them

in the Department’s care while she had more time to get her life together. So, her plans




                                             13
for the children were to permit the Department to continue to care for them until some

uncertain point in the future.


       Christy testified that she did tell all the children that she loved them and that she

“hope[d] and pray[ed]” that her parental rights were not terminated. While we recognize

the special bond between mother and child, we cannot permit that recognition or our

own sentiment to override the best interest of these five children. See In re W.S.M., 107

S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.). The late Chief Justice William

J. Cornelius observed:


       Although a child’s love of his natural parents is a very important
       consideration in determining the best interests of the child, it cannot
       override or outweigh the overwhelming and undisputed evidence showing
       that the parents placed or allowed the child to remain in conditions, and
       engaged in conduct or placed the child with persons who engaged in
       conduct, which endangers the physical and emotional well-being of the
       child. The child’s love of his parents cannot compensate for the lack of an
       opportunity to grow up in a normal and safe way equipped to live a
       normal, productive, and satisfying life.
Id.


       Instead, a child’s need for permanence is of paramount importance in evaluating

his or her present and future emotional and physical needs. Dupree v. Tex. Dep’t of

Protective & Regulatory Servs., 907 S.W.2d 81, 87 (Tex.App.—Dallas 1995, no writ).

Christy’s plans for the children did not appear to be well-developed or planned. They,

instead, appeared conditional and would happen, if at all, at an uncertain date in the

future. Nevertheless, we are mindful that we are to focus, not on Christy’s future plans

and designs for the parent-child relationship, but whether termination of that relationship

is in the best interest of the children. And the record before us supports the trial court’s

                                            14
finding that it is. We overrule Christy’s challenge to the evidence supporting the trial

court's finding regarding the children’s best interest.


       Having reviewed the record in the light most favorable to the trial court’s findings,

we conclude that a rational trier of fact could have reasonably formed a firm belief or

conviction that (1) Christy engaged in conduct which endangered the physical or

emotional well-being of her five children and (2) termination of Christy’s parental rights

was in the children’s best interest. Likewise, viewing the evidence as a whole in a

neutral light, a rational trier of fact reasonably could have arrived at the same firm belief

or conviction.   We conclude that the evidence is legally and factually sufficient to

support the trial court’s order terminating Christy’s parental rights to her five children

and, accordingly, overrule her sole point of error.


                                         Conclusion


       Having overruled the sole issue Christy has presented to this Court, we affirm the

trial court’s order terminating Christy’s parental rights to C.C., P.C., A.C., B.C., and K.C.




                                                  Mackey K. Hancock
                                                      Justice




                                             15
