Opinion issued March 16, 2017




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-16-00806-CV
                            ———————————
                IN THE INTEREST OF T.L.B. JR. A/K/A T.B.



                    On Appeal from the 314th District Court
                            Harris County, Texas
                      Trial Court Case No. 2015-05274J


                          MEMORANDUM OPINION

      Following a bench trial, the trial court signed a judgment terminating the

parent-child relationship between T.M.J. (“Mother”) and her two-year-old son,

T.L.B. On appeal, Mother identifies five issues, asserting that the evidence was

not legally or factually sufficient to support the trial court’s judgment. Because we

hold that the evidence was legally and factually sufficient, we affirm.
                                        Background

      On September 14, 2015, the Department of Family and Protective Services

(“the Department”) filed suit, seeking to terminate Mother’s parental rights to

T.L.B. and to obtain sole managing conservatorship if family reunification could

not be achieved. In the petition, the Department also sought temporary managing

conservatorship and requested emergency orders.

      With respect to the emergency orders, the Department asserted that the

Department had taken possession of T.L.B. on September 12, 2015. To support

the request for emergency order, the Department offered the affidavit of

caseworker T. Duncan.

      In her affidavit, Duncan testified that, on April 29, 2015, the Department

“received an intake referral” reporting that T.L.B.’s caregiver, Tiffany, had

physically abused Mother in front of one-year-old T.L.B. In the affidavit, Duncan

indicated that Tiffany was Mother’s “paramour.” Duncan further indicated that

Tiffany’s father, L.J., was the biological father of T.L.B.

      With regard to the physical abuse, the report indicated that Tiffany had

punched Mother while she was holding T.L.B. The referral had stated that Tiffany

“assaulted [Mother] by throwing a picture frame at her and using pepper spray on

her.” The picture frame hit T.L.B. in the back of the head, and T.L.B. “began to

wheeze when [Tiffany] sprayed the pepper spray.”


                                           2
      Duncan stated that the Department received another referral on June 18,

2015, “alleging neglectful supervision” of T.L.B. The report indicated that Tiffany

was “using drugs” while caring for T.L.B.

      Duncan explained in her affidavit that, following the referrals, CPS began an

investigation. Duncan was part of the investigation. CPS learned that Tiffany, not

Mother, was the primary caregiver for T.L.B. During the investigation, Tiffany did

not want to speak to CPS and referred CPS to her attorney; however, neither

Tiffany nor her attorney were cooperative during the investigation. Ultimately, in

August 2015, Tiffany told Duncan that “she would not allow [Duncan] to see

T.L.B.” On September 11, 2015, Duncan and a CPS investigator could not locate

T.L.B. They learned that Tiffany had been “evicted from her apartment due to the

domestic disputes that occurred at her apartment.” Tiffany learned that CPS was

trying to locate her and contacted Duncan. When Duncan went to Tiffany’s new

residence, Tiffany would not allow Duncan inside the residence but spoke to

Duncan at the front door.     T.L.B. was then removed from the home by the

Department.

      Duncan testified in the affidavit that Mother and Tiffany each had a “CPS

history.” Mother’s parental rights had been terminated with respect to another

child, an infant, in 2012, following reports that Mother had “placed [the child] at




                                         3
risk of harm due to inadequate supervision, chronic domestic violence, drug use

and inadequate medical attention.”

      The Department had also received two referrals for “negligent supervision”

of T.L.B. in 2014. During the investigation of the first 2014 referral, Mother tested

positive for marijuana. The second 2014 referral was made after Mother and

Tiffany were both arrested on outstanding warrants, and there was no one to care

for T.L.B. Duncan averred that the Department received another referral in 2015

for negligent supervision of T.L.B. when it was reported that Mother smoked

marijuana around T.L.B.

      In her affidavit, Duncan further indicated that Mother and Tiffany had

criminal histories. Mother had a criminal history for theft, and Tiffany had a

lengthier criminal history involving offenses of burglary, theft, forgery, and

possession of a controlled substance.

      Duncan concluded her affidavit by asserting that the Department should be

named T.L.B.’s temporary managing conservator “due to the mother’s prior

[Department] history, drug history, extensive domestic violence history, and her

lack of cooperation with [the Department].” Duncan further stated, “At the time of

removal[,] the child was being cared for by [Tiffany]. [Tiffany] is not a parent of

this child. She is not an appropriate caregiver, due to her domestic violence history




                                         4
with the mother, drug history, and history of not cooperating with [the

Department].”

      On September 14, 2015, the trial court signed an emergency order for the

protection of T.L.B. In the order, the trial court indicated that it had “examined

and reviewed” Duncan’s affidavit. The trial court found that T.L.B. had been

removed pursuant to Family Code section 262.104, which authorizes possession

without a court order if circumstances would lead a person of ordinary prudence

and caution to believe that the child faced “an immediate danger to [his] physical

health or safety.”1 The court also found that T.L.B. faced a continuing danger to

his physical health or safety if returned to “the parent” or “caretaker.” The trial

court appointed the Department as the temporary managing conservator of the

children.

      Following a full adversary hearing, the trial court signed a temporary order

on October 23, 2015. In the order, the trial court found as follows:

      [T]here is sufficient evidence to satisfy a person of ordinary prudence
      and caution that (1) there was a danger to the physical health or safety
      of the child which was caused by an act or failure to act of the person
      entitled to possession and for the child to remain in the home is
      contrary to the welfare of the child; (2) the urgent need for protection
      required the immediate removal of the child and makes efforts to
      eliminate or prevent the child’s removal impossible or unreasonable;
      and (3) notwithstanding reasonable efforts to eliminate the need for
      the child’s removal and enable the child to return home, there is a
      substantial risk of a continuing danger if the child is returned home.

1
      See TEX. FAM. CODE ANN. § 262.104 (Vernon Supp. 2016)
                                          5
      The trial court further found there was “sufficient evidence to satisfy a

person of ordinary prudence and caution that there is a continuing danger to the

physical health or safety of the child and for the child to remain in the home is

contrary to the welfare of the child.” The trial court appointed the Department as

T.L.B.’s temporary managing conservator.

      The Department prepared a family service plan and filed it with the trial

court on November 5, 2015. The plan set out several tasks and services for Mother

to complete before reunification with T.L.B. could occur. Specifically, Mother

was required to do the following: (1) attend all scheduled appointments and

provide copies of certificates to demonstrate attendance at the required services;

(2) participate in all court hearings; (3) “maintain housing for a minimum of six

consecutive months that is safe, stable, and free of environmental hazards” and

“provide [case] worker with a copy of the signed lease agreement”; (4) “submit to

random drug/alcohol testing” and “not test positive for any illegal drugs or any

drugs that were not prescribed to her”; (5) “complete a drug and alcohol

assessment/evaluation”; (6) “actively participate in domestic violence counseling,”

from which Mother “will be successfully discharged from counseling and provide

the [case] worker with a copy of the certificate of completion”; (7) complete a

psycho-social evaluation; (8) actively participate in individual therapy; (9) seek

and maintain full time employment and “provide the caseworker with monthly


                                        6
income statements to verify the legitimacy of the employment”; and

(10) participate in and complete at least eight weeks of parenting classes and

provide the caseworker with a certificate of completion. The timeframe for Mother

to complete each of these tasks and services was “11/10/2015 thru the duration of

the case.”

      The service plan warned Mother:

      THE PURPOSE [OF THE SERVICE PLAN] IS TO HELP YOU
      PROVIDE YOUR CHILD WITH A SAFE ENVIRONMENT
      WITHIN THE REASONABLE PERIOD SPECIFIED IN THE
      PLAN. IF YOU ARE UNWILLING OR UNABLE TO PROVIDE
      YOUR CHILD WITH A SAFE ENVIRONMENT, YOUR
      PARENTAL AND CUSTODIAL DUTIES AND RIGHTS MAY BE
      RESTRICTED OR TERMINATED OR YOUR CHILD MAY NOT
      BE RETURNED TO YOU.

      The trial court conducted a status hearing on November 10, 2015. Mother

and her counsel attended the hearing. That same day, the trial court signed a status

hearing order, which approved and incorporated the service plan by reference.

Specifically, the order provided: “[T]he plans of service for [Mother] filed with the

Court, and incorporated by reference as if the same were copied verbatim in this

order, is APPROVED and made an ORDER of this Court.” The trial court also

found that Mother had reviewed the service plan, understood the plan, and had

signed it.

      Mother and her attorney attended a permanency hearing on May 19, 2016.

That same day, the trial court signed a “Permanency Hearing Order Before Final

                                          7
Hearing.” The trial court ordered, “The actions specified in each service plan . .

. on file as of the date of this order represent actions which this Court requires of

the Parent specified in the service plan[.]” The order also provided “that all

previous orders issued by this Court shall continue without modification.” The

order made clear that “the actions [required in the service plan must] be performed

in order for the parent to regain custody of the child who [is] presently in the

temporary managing conservatorship of the Department.” At the bottom of the

order, the trial court set trial for September 1, 2016.

      The case was tried to the bench on September 1, 2016. The Department

sought to terminate the parent-child relationship between Mother and T.L.B.2

      At trial, the Department offered the testimony of the Department caseworker

R. Nelson. She testified that two-year old T.L.B. was “fine” and healthy when he

came into the Department’s care; however, the Department’s “concern was that he

[was] exposed to domestic violence and the lack of cooperation with Mom and her

girlfriend [Tiffany] at the time.” Nelson stated that T.L.B. had been “removed

from the home” because of domestic violence. She testified that the referral to the

Department had “involved [Mother] and her boyfriend [sic] at the time [Tiffany] .

. . . [T]he referral indicated that Tiffany [] punched [Mother] in the face while


2
      The parental rights of T.L.B.’s father were also terminated following the trial.
      However, the father did not appear at trial, and he does not appeal the termination
      of his parental rights.
                                           8
holding [T.L.B.].” Nelson testified that the referral had indicated that, during the

altercation, T.L.B. was “hit in the back of the head with a picture frame.” During

questioning, Nelson agreed that, “[w]hen the case came in, several officers testified

at the show cause [hearing] about the domestic violence between the mother and

Tiffany.” She confirmed that there had been “at least” ten referrals for domestic

violence, but Mother had “refused to press charges” against Tiffany. Nelson also

confirmed that Tiffany had “a violent criminal history.” Nelson agreed that, while

the case was pending, Tiffany had threatened Nelson, Nelson’s children, and the

Department’s attorney.

      Nelson agreed that one of the reasons that the Department was requesting

termination of the parent-child relationship was Mother’s continued drug use.

Nelson confirmed that Mother had positive drug tests while the case was pending.

She stated that Mother had testified positive for marijuana and cocaine use. The

Department offered into evidence lab reports, showing that the Mother had tested

positive for marijuana in September 2015, for cannabinoids in November 2015,

and for cocaine in February 2016. Nelson confirmed that Mother was pregnant

with another child when she tested positive for marijuana, cocaine, and

cannabinoids. Mother gave birth to a daughter in April 2016.

      Nelson also testified that Mother had not completed the tasks and services

required in the family service plan, even though the Department had made referrals


                                         9
for the services. Nelson stated that “[Mother] could have already completed the

services on this service plan,” but she indicated that Mother was “just now”

engaging in services.

      Nelson testified that Mother claimed to be engaging in many of the required

services, but Nelson confirmed that the service plan required Mother to provide

verification of completion of the services. Nelson stated that Mother had provided

verification of completion of only one service: the psychosocial evaluation.

Nelson stated that the psychosocial evaluation had resulted in Mother being

referred for substance abuse counseling and domestic violence classes, which

Mother also had not completed.

      On cross-examination, Nelson acknowledged that Mother had reported to

her that she was working two jobs. However, Nelson testified that Mother had not

provided her with proof of employment as required by the service plan. Nelson

also acknowledged that Mother had reported to her that she had rented her own

apartment, which “had a place” for T.L.B., but Nelson further stated that Mother’s

claim of renting a suitable apartment also had not been confirmed. Nelson also

acknowledged that Mother’s last drug test was negative.

      In addition, Nelson testified regarding the family structure in this case. She

stated that T.L.B.’s father, L.J., is also the father of Tiffany, Mother’s girlfriend.

Thus, Tiffany is T.L.B.’s sibling. Nelson indicated that it was her understanding


                                         10
that Mother and L.J. had sex to “make [T.L.B.]” to provide a child for Mother and

Tiffany to parent as a couple. Nelson also confirmed that L.J. was married and a

registered sex offender.

      On direct examination, Nelson agreed that, when he came into the

Department’s care, “[T.L.B.] was evaluated by Early Childhood Intervention due

to some pretty severe delays.”         The evaluation showed that T.L.B. was

developmentally delayed, and the evaluator, who examined T.L.B., was concerned

that T.L.B. “was severely neglected.” To address the delays, ear tubes were placed

in T.L.B.’s ears “because he wasn’t hearing properly.” T.L.B. also received speech

therapy, which he continued to receive at the time of trial. Nelson stated that there

has been “a drastic improvement in [T.L.B.’s] development” since being in the

Department’s care.

      In addition, Nelson testified that T.L.B. is currently in a foster home where

T.L.B. is doing “very well” and has bonded with his foster family. T.L.B.’s

younger sibling, the baby Mother gave birth to in April 2016, is also placed in the

foster home. The foster parents have committed to adopting both children. Nelson

stated that T.L.B. identifies his foster parents as his mother and father. However,

she also agreed that Mother and T.L.B. respond well to each other and that he still

thinks of her as his mother. Nelson also stated that she had witnessed Mother’s

visits with T.L.B. and that they are “appropriate.”


                                         11
      The Department also offered the testimony of T.L.B.’s foster mother. She

stated that she has been caring for T.L.B. for three-and-one-half months. She

confirmed that T.L.B. is growing, healthy, and happy. She also confirmed that she

and T.L.B. are bonded and that she wishes to adopt him. She testified that she

provides T.L.B. a safe and stable home where all of his needs are being met. The

foster mother also agreed that T.L.B.’s behavior has improved since he had been

living in her home and that his delays in development have improved

“tremendously.”

      On cross-examination, the foster mother stated that she had observed the

interactions between Mother and T.L.B. during the pick-up and drop-off times of

her visitations with him. She acknowledged that the interactions between them

seemed appropriate and that they seemed to love one another.

      Mother also testified at trial. She stated that she works at a hair salon and

has a part-time job at a fast-food restaurant. Mother testified that, since she has

been working, she had provided support to T.L.B. in the form of clothes, food, and

toys. Mother also testified that she had signed a lease for an apartment in June

2016. She offered pictures of the apartment and testified that T.L.B. would have

his own room.

      Mother indicated that she was aware of the programs she was required to

attend under the family service plan. She stated that she was “halfway through”


                                        12
“the substance abuse and alcohol assessment” and had started the “one on one

counseling.” She also stated that she was “almost done” with a domestic violence

program and had completed an eight-week parenting class.

      When asked whether T.L.B. had ever been “injured in an episode of

domestic violence,” Mother responded “no.” She also indicated that she had never

filed domestic-abuse charges against Tiffany, stating that there had never been “no

violence.” On cross-examination, Mother acknowledged that, at a “show cause

hearing,” “several officers” had testified that there had been domestic-violence

calls made involving her and Tiffany. Mother averred that the officers’ testimony

was “hearsay” and stated that she did not make the calls.

      At the conclusion of trial, the court granted the Department’s request for

termination of the parent-child relationship between Mother and T.L.B.          On

September 22, 2016, the trial court signed a judgment terminating Mother’s

parental rights, finding that termination was in T.L.B.’s best interest and that

Mother had engaged in the predicate acts listed in Family Code Subsections

161.001(b)(1)(D),(E), and (O). The trial court also appointed the Department to be

T.L.B.’s sole managing conservator.

      Mother now appeals the trial court’s judgment, challenging the termination

of her parental rights. She identifies two global issues, with a number of sub-




                                         13
issues, challenging the legal and factual sufficiency of the evidence to support the

trial court’s judgment.

                               Sufficiency of the Evidence

      In two global issues, with a number of sub-issues, Mother claims that the

evidence was not legally or factually sufficient to support the trial court’s findings

that she had committed a predicate act necessary for termination or to support the

trial court’s determination that termination was in T.L.B.’s best interest.

A.    Standard of Review

      Termination of parental rights requires proof by clear and convincing

evidence. See TEX. FAM. CODE ANN. § 161.001(b) (Vernon Supp. 2016). The

Family Code defines clear and convincing evidence as “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 (Vernon 2014); see In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Here,

the Department was required to establish, by clear and convincing evidence, that

Mother’s actions satisfied one of the predicate grounds listed in Family Code

section 161.001(b)(1) and that termination was in the children’s best interest. See

TEX. FAM. CODE ANN. § 161.001(b)(1), (2).

      When determining legal sufficiency, we review all the evidence in the light

most favorable to the trial court’s finding “to determine whether a reasonable trier


                                          14
of fact could have formed a firm belief or conviction that its finding was true.”

J.F.C., 96 S.W.3d at 266. To give appropriate deference to the fact finder’s

conclusions, we must assume that the fact finder resolved disputed facts in favor of

its finding if a reasonable fact finder could do so. Id. We disregard all evidence

that a reasonable fact finder could have disbelieved or found to have been not

credible. Id. This does not mean that we must disregard all evidence that does not

support the finding. Id. The disregard of undisputed facts that do not support the

finding could skew the analysis of whether there is clear and convincing evidence.

Id. Therefore, in conducting a legal-sufficiency review in a parental-termination

case, we must consider all of the evidence, not only that which favors the verdict.

See City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).

      In determining a factual-sufficiency point, the higher burden of proof in

termination cases also alters the appellate standard of review. In re C.H., 89

S.W.3d 17, 25–26 (Tex. 2002). “[A] finding that must be based on clear and

convincing evidence cannot be viewed on appeal the same as one that may be

sustained on a mere preponderance.” Id. at 25. In considering whether evidence

rises to the level of being clear and convincing, we must consider whether the

evidence is sufficient to reasonably form in the mind of the fact finder a firm belief

or conviction as to the truth of the allegation sought to be established. Id. We

consider whether disputed evidence is such that a reasonable factfinder could not


                                         15
have resolved that disputed evidence in favor of its finding. 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 fact

finder could not reasonably have formed a firm belief or conviction, then the

evidence is factually insufficient.” Id.

      We give due deference to the fact finder’s findings, and we cannot substitute

our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108

(Tex. 2006). The fact finder is the sole arbiter when assessing the credibility and

demeanor of witnesses. Id. at 109.

B.    Predicate Finding under Subsection 161.001(1)(O)

      Mother asserts that the evidence was legally and factually insufficient to

support the trial court’s predicate finding that termination was warranted under

Family Code subsection 161.001(1)(O). Family Code subsection 161.001(b)(1)(O)

provides that the court may order termination of the parent-child relationship if the

court finds by clear and convincing evidence

      that the parent has failed 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 who has been in the permanent or
      temporary managing conservatorship of the Department of Family and
      Protective Services for not less than nine months as a result of the
      child’s removal from the parent under [Family Code] Chapter 262 for
      the abuse or neglect of the child.




                                           16
TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Thus, pursuant to Subsection (O), the

Department must prove that (1) it has been the child’s temporary or permanent

managing conservator for at least nine months; (2) it took custody of the child as a

result of a removal from the parent under Chapter 262 for abuse or neglect; (3) a

court issued an order establishing the actions necessary for the parent to obtain the

return of the child; and (4) the parent did not comply with the court order. See id.

Here, Mother asserts that the evidence was not legally or factually sufficient (1) to

show that T.L.B. was removed from her under Chapter 262 for abuse or neglect or

(2) to show that there was a court order specifically establishing the actions

necessary for her to take to obtain the return of T.L.B.

      1. Removal under Chapter 262 for abuse or neglect

      We interpret the words “abuse” and “neglect” broadly to necessarily include

the risks or threats of the environment in which the child is placed. In re J.R.W.,

No. 01–14–00442–CV, 2014 WL 6792036, at *5 (Tex. App.—Houston [1st Dist.]

Nov. 26, 2014, no pet.) (mem. op.) (citing In re E.C.R., 402 S.W.3d 239, 246, 248

(Tex. 2013)). In E.C.R., the supreme court considered whether the evidence was

sufficient to support the trial court’s determination that the children involved had

been removed because of abuse or neglect. Id. at 246. In so doing, the court

considered an affidavit that the Department had filed in support of its petition, in

which the affiant noted allegations that the child’s sibling had been physically


                                          17
abused. Id. at 248. The supreme court noted that, “[t]his affidavit, even if not

evidence for all purposes, shows what the trial court relied on in determining

whether removal was justified.” Id. The trial court found “sufficient evidence to

satisfy a person of ordinary prudence and caution that [the child] faced an

immediate danger to his physical health or safety, that the urgent need to protect

him required his immediate removal, and that he faced a substantial risk of a

continuing danger if he were returned home [.]” Id. The supreme court then held

that the affidavit and the trial court’s unchallenged findings in the temporary order,

which authorized the child’s removal, were sufficient evidence to establish, as a

matter of law, that the child had been removed under chapter 262 for abuse or

neglect.3 Id. at 249.


3
      In E.C.R., the supreme court cited a number of decisions in which courts have held
      that documentary evidence, including caseworker affidavits, offered in support of
      the Department’s petition and the trial court’s temporary orders for removal were
      sufficient evidence to show that the child had been removed for abuse or neglect.
      See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (citing D.F. v. Tex. Dep’t of
      Family & Protective Servs., 393 S.W.3d 821, 830–31 (Tex. App.—El Paso 2012,
      no pet.) (noting that trial court’s finding of immediate danger to child’s physical
      health or safety or that children were neglected or abused supported finding of
      neglect); In re S.N., 287 S.W.3d 183, 190 (Tex. App.—Houston [14th Dist.] 2009,
      no pet.) (holding that affidavit, family service plan, and temporary orders showing
      danger to physical health or safety and substantial risk of continuing danger
      supported finding that children were removed under Chapter 262 for neglect); In
      re J.S.G., No. 14–08–00754–CV, 2009 WL 1311986, at *6–7 (Tex. App.—
      Houston [14th Dist.] May 7, 2009, no pet.) (mem. op.) (relying on caseworker’s
      affidavit in support of Department’s removal request, as well as trial court’s
      temporary orders concluding that children faced danger to their physical health or
      safety and substantial risk of continuing danger if returned home, to conclude that
      evidence established that children were removed “as a result of neglect specific to
                                          18
      Here, the Department’s original petition, seeking emergency temporary

orders, conservatorship, and termination of parental rights, filed on September 14,

2015, was supported by caseworker Duncan’s affidavit. In the affidavit, Duncan

testified regarding allegations of domestic abuse between Tiffany and Mother that

had directly affected T.L.B. Duncan testified that in April 2015 the Department

received a report that Tiffany had punched Mother while Mother was holding

T.L.B. and that Tiffany had “assaulted [Mother] by throwing a picture frame at her

and using pepper spray on her.” The picture frame had reportedly hit T.L.B. in the

back of the head, and T.L.B. had begun “to wheeze when [Tiffany] sprayed the

pepper spray.” She stated that in June 2015 the Department learned of allegations

that Tiffany, who was T.L.B.’s primary caregiver, was “using drugs.”

      Duncan further testified that Tiffany had not been cooperative with CPS’s

investigation into the allegations.     In August 2015, Tiffany refused to allow

Duncan to see T.L.B. The following month, the Department could not locate

Tiffany and T.L.B. The Department learned that Tiffany had been evicted from

her apartment for domestic abuse issues.

      During the investigation, CPS learned that Mother and Tiffany had a history

with CPS involving allegations of past neglectful supervision of T.L.B. and for

      them by” mother); In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [1st
      Dist.] 2008, pet. denied) (considering affidavit in support of removal and trial
      court’s temporary orders finding continuing danger to physical health or safety of
      child if returned to parent as evidence that child was removed because of neglect)).
                                           19
drug use. Duncan also determined that Mother had her parental rights terminated

to another child in 2012 following reports that Mother had “placed [the child] at

risk of harm due to inadequate supervision, chronic domestic violence, drug use

and inadequate medical attention.”

      At the end of her affidavit, Duncan averred that the Department should be

named T.L.B.’s temporary managing conservator “due to the mother’s prior

[Department] history, drug history, extensive domestic violence history, and her

lack of cooperation with [the Department].” Duncan further stated, “At the time of

removal[,] the child was being cared for by [Tiffany]. [Tiffany] is not a parent of

this child. She is not an appropriate caregiver, due to her domestic violence history

with the mother, drug history, and history of not cooperating with [the

Department].”

      In the order for emergency protection signed by the trial court on September

14, 2015, the trial court indicated that it had “examined and reviewed” Duncan’s

affidavit. The trial court found that T.L.B. had been removed pursuant to Family

Code section 262.104, which authorizes possession without a court order if

circumstances would lead a person of ordinary prudence and caution to believe that

the child faced “an immediate danger to [his] physical health or safety.” See TEX.

FAM. CODE ANN. § 262.104 (Vernon Supp. 2016). The court also found that T.L.B.

faced a continuing danger to his physical health or safety if returned to “the parent”


                                         20
or “caretaker.”    The trial court appointed the Department as the temporary

managing conservator of the children.

      Following a full adversary hearing, the trial court signed a temporary order

on October 23, 2015. In the order, the trial court found as follows:

      [T]here is sufficient evidence to satisfy a person of ordinary prudence
      and caution that (1) there was a danger to the physical health or safety
      of the child which was caused by an act or failure to act of the person
      entitled to possession and for the child to remain in the home is
      contrary to the welfare of the child; (2) the urgent need for protection
      required the immediate removal of the child and makes efforts to
      eliminate or prevent the child’s removal impossible or unreasonable;
      and (3) notwithstanding reasonable efforts to eliminate the need for
      the child’s removal and enable the child to return home, there is a
      substantial risk of a continuing danger if the child is returned home.

The trial court further found there was “sufficient evidence to satisfy a person of

ordinary prudence and caution that there is a continuing danger to the physical

health or safety of the child and for the child to remain in the home is contrary to

the welfare of the child.”

      At trial, caseworker Nelson testified that, although T.L.B. had been “fine”

and “healthy” when removed from Mother’s custody, T.L.B. had been “removed

from the home” because of domestic violence. She testified that the referral to the

Department had “involved [Mother] and her boyfriend [sic] at the time

[Tiffany] . . . . [T]he referral indicated that Tiffany [] punched [Mother] in the face

while holding [T.L.B.].” Nelson testified that the referral had also indicated that,

during the altercation, T.L.B. was “hit in the back of the head with a picture

                                          21
frame.” During questioning, Nelson agreed that, “[w]hen the case came in, several

officers testified at the show cause [hearing] about the domestic violence between

the mother and Tiffany.” She confirmed that there had been “at least” ten referrals

for domestic violence, but Mother had “refused to press charges” against Tiffany,

who, Duncan’s affidavit had shown, was T.L.B.’s primary caregiver.

      Duncan’s affidavit offered in support of the Department’s original petition,

the unchallenged findings by the trial court in its temporary orders for emergency

protection and for continued removal of T.L.B., and Nelson’s trial testimony is the

type of evidence relied on by the supreme court in E.C.R. to conclude that “E.C.R.

was removed from [her mother] under chapter 262 for abuse or neglect.” E.C.R.,

402 S.W.3d at 248; see also In re J.R.W., 2014 WL 6792036, at *6 (citing In re

R.M.S., No. 01–13–00331–CV, 2013 WL 5637703, at *3–4 (Tex. App.—Houston

[1st Dist.] Oct. 11, 2013, no pet.) (mem. op.) (concluding caseworker’s affidavit

and trial court’s temporary order removing child from mother’s home was type of

evidence on which E.C.R. court relied in determining that evidence was sufficient

to support trial court’s finding that child had been removed for abuse or neglect)).

As the E.C.R. court made clear, “‘abuse or neglect’ of the child necessarily

includes the risks or threats of the environment in which the child is placed.”

E.C.R., 402 S.W.3d at 248.      Thus, we conclude that Duncan’s affidavit, the

unchallenged findings in the trial court’s temporary orders, and Nelson’s trial


                                        22
testimony establish that T.L.B. was removed from Mother under chapter 262 for

abuse or neglect. See id. at 248.

      2. Court order specifying necessary actions

      Mother also intimates that the evidence was legally and factually insufficient

to show that there was a court order specifically establishing the actions necessary

for her to take to obtain the return of T.L.B.             See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(O). Mother first asserts that the Department did not prove that the

family service plan was a court order. We disagree.

      At trial, the status hearing order signed by the trial court on November 10,

2015 was admitted into evidence. In the order, the trial court expressly ordered

that “the plans of service for [Mother] filed with the Court [on November 5, 2015],

and incorporated by reference as if the same were copied verbatim in this order, is

APPROVED and made an ORDER of this Court.” Thus, the evidence showed that

the family service plan was an order of the trial court.

      Mother also asserts that the Department did not show that she had received a

copy of the service plan and, thus, she was not aware of the plan’s requirements.

She points out that the copy of the service plan admitted at trial as an exhibit did

not contain her signature but contained only the signature of the Department’s

representative. However, in the status-hearing order, admitted into evidence, the

trial court expressly found that Mother had signed the service plan. The trial court


                                          23
also found that Mother had reviewed the service plan and understood it. The trial

court further found that

      unless she is willing and able to provide the child with a safe
      environment, even with the assistance of a service plan, within the
      reasonable period of time specified in the plan, her parental and
      custodial duties and rights may be subject to restriction or to
      termination or the child may not be returned to her.

      In addition, while the evidence showed that Mother had not completed the

tasks and services required in the court-ordered service plan, evidence was

presented at trial, including Mother’s own testimony, indicating that she had

completed one of the required services, and she had partially completed several

other services. In addition, the evidence showed that Mother had taken a number

of the drug tests required by the service plan. A reasonable factfinder could have

inferred from Mother’s partial compliance with the service plan that she was aware

of its existence and its content. See In re K.N.D., No. 01–12–00584–CV, 2014 WL

3970642, at *7 (Tex. App.—Houston [1st Dist.] Aug. 14, 2014, no pet.) (mem. op.

on reh’g).

      Finally, Mother contends that the evidence did not show that the court-

ordered service plan was sufficiently specific for her to comply with its terms

because it did not contain a date by which she had to complete all the plan’s

requirements. The record does not support Mother’s claim.




                                       24
      The service plan had a column titled “Task/Service including timeframes.”

In the column, the task or service Mother was required to complete was described.

Before the description of each task was the following: “11/10/2015 thru duration of

the case,” indicating that the timeframe for Mother to complete the task or service

was during the pendency of the case.

      The record shows that the trial court conducted a permanency hearing on

May 19, 2016, which was attended by Mother and her attorney. Following the

hearing, the trial court signed an order setting trial for September 1, 2016. 4 Thus,

at that point, Mother knew that the “duration of the case” would end on September

1, 2016 and that she would need to have her services completed by that time.

      Reviewing all of the evidence in the light most favorable to the termination

findings, we conclude that a reasonable fact finder could have formed a firm belief

or conviction as to the truth of the termination findings under subsection (O). See

J.F.C., 96 S.W.3d at 266. In light of the entire record, the disputed evidence that a

reasonable fact finder could not have credited in favor of the termination finding

under subsection (O) is not so significant that a fact finder could not reasonably


4
      The May 19, 2016 permanency order was not admitted into evidence; however,
      “in a bench trial, we may ‘presume the trial court took judicial notice of its record
      without any request being made and without any announcement that it has done
      so.’” In re K.N.D., No. 01–12–00584–CV, 2014 WL 3970642, at *7 (Tex. App.—
      Houston [1st Dist.] Aug. 14, 2014, no pet.) (mem. op. on reh’g) (quoting In re
      K.F., 402 S.W.3d 497, 504 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)).

                                           25
have formed a firm belief or conviction as to the truth of the termination finding

under that subsection. See H.R.M., 209 S.W.3d at 108. We hold that the evidence

is legally and factually sufficient to support the trial court’s predicate finding under

Subsection (O). See TEX. FAM. CODE ANN. § 161.001(b)(1)(O).

      We overrule Mother’s sub-issues challenging the legal and factual

sufficiency of the trial court’s Subsection (O) finding. 5

C.    Best-Interest Finding

      Mother also challenges the legal and factual sufficiency of the evidence to

support the trial court’s finding that termination of the parent-child relationship

was in T.L.B.’s best interest.

      1.     Legal Standards

      There is a strong presumption that the best interest of the child will be

served by preserving the parent–child relationship. See In re R.R., 209 S.W.3d

112, 116 (Tex. 2006). Prompt and permanent placement of the child in a safe

environment is also presumed to be in the child’s best interest. TEX. FAM. CODE

ANN. § 263.307(a) (Vernon Supp. 2016).


5
      Because only one predicate ground is needed to support a termination order, we
      need not address Mother’s other sub-issues, challenging the legal and factual
      sufficiency of the evidence to support the trial court’s findings under Subsections
      161.001(b)(1)(D) and (E). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)
      (recognizing, “Only one predicate finding” under section 161.001(b)(1) “is
      necessary to support a judgment of termination when there is also a finding that
      termination is in the child’s best interest.”).
                                          26
      The Supreme Court of Texas has identified factors that courts may consider

when determining the best interest of the child, including: (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 individual 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 that 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. Holley v. Adams, 544 S.W.2d 367,

371–72 (Tex. 1976). This is not an exhaustive list, and a court need not have

evidence on every element listed in order to make a valid finding as to the child’s

best interest. C.H., 89 S.W.3d at 27. While no one factor is controlling, analysis

of a single factor may be adequate in a particular factual situation to support a

finding that termination is in the best interest of the child. In re A.P., 184 S.W.3d

410, 414 (Tex. App.—Dallas 2006, no pet.). In addition, the Texas Family Code

sets out factors to be considered in evaluating a parent’s willingness and ability to

provide the child with a safe environment.           See TEX. FAM. CODE ANN.

§ 263.307(b).




                                         27
      The evidence supporting the statutory predicate grounds for termination may

also be used to support a finding that the best interest of the child warrants

termination of the parent–child relationship. C.H., 89 S.W.3d at 28; In re H.D.,

No. 01–12–00007–CV, 2013 WL 1928799, at *13 (Tex. App.—Houston [1st Dist.]

May 9, 2013, no pet.) (mem. op.). Furthermore, in conducting the best-interest

analysis, a court may consider not only direct evidence but also may consider

circumstantial evidence, subjective factors, and the totality of the evidence. H.D.,

2013 WL 1928799, at *13.

      2.    Analysis

      Multiple factors support the trial court’s determination that termination of

Mother’s parental rights was in T.L.B.’s best interest.      The trial court heard

evidence that Mother engaged in illegal drug use while this case was pending and

while she was pregnant with another child. Mother had three separate positive

drug tests, testing positive for marijuana, cocaine, and cannabinoids. In addition,

the evidence also showed that she walked out of one drug screening appointment

without being tested.

      Parental drug abuse reflects poor judgment and may be a factor to be

considered in determining a child’s best interest. In re M.R., 243 S.W.3d 807, 820

(Tex. App.—Fort Worth 2007, no pet.); see also TEX. FAM. CODE ANN.

§ 263.307(b)(8) (stating courts may consider whether there is history of substance


                                        28
abuse by child’s family or others who have access to child’s home). Evidence

relating to Mother’s involvement with illegal drugs supported the trial court’s best-

interest finding under the following Holley factors: T.L.B.’s emotional and

physical needs now and in the future; the emotional and physical danger to T.L.B.

now and in the future; and acts or omissions indicating that the existing parent-

child relationship is not a proper one. See Holley, 544 S.W.2d at 371–72 (listed

above as Holley factors two, three, and eight). A parent’s drug use has also been

found to be a condition that can indicate instability in the home environment. In re

J.M., No. 01–14–00826–CV, 2015 WL 1020316, at *7 (Tex. App.—Houston [1st

Dist.] Mar. 5, 2015, no pet.) (mem. op.).

      In addition, caseworker Nelson testified at trial that T.L.B. had come into the

Department’s care because of domestic abuse between Mother and Tiffany.

Nelson explained that there had been reports that Tiffany had hit Mother while she

was holding T.L.B. and that T.L.B. had been hit in the head with a picture frame.

There was also a report that T.L.B. had been exposed to pepper spray during an

altercation between Mother and Tiffany that caused T.L.B. to wheeze. During

trial, Mother acknowledged that there had been numerous reports that Tiffany had

perpetrated acts of domestic violence against her, but she denied that there had

ever been any violence between them.




                                            29
      Evidence of domestic violence in the home is supportive of a trial court’s

best-interest finding under the third Holley factor: the emotional and physical

danger to the child now and in the future. See Holley, 544 S.W.2d at 371–72; see

also TEX. FAM. CODE ANN. § 263.307(b)(12)(E) (providing that courts may

consider whether parent has adequate skills to protect child from repeated exposure

to violence although violence may not be directed at the child); In re J.I.T.P., 99

S.W.3d 841, 846 (Tex. App.—Houston [14th Dist. ] 2003, no pet.) (stating

domestic violence, even when child is not intended victim, supports finding that

termination is in child’s best interest). “It is well established that, in a bench trial,

the judge as the trier of fact weighs the evidence, assesses the credibility of

witnesses and resolves conflicts and inconsistencies.” In re D.D.D.K., No. 07–09–

0101–CV, 2009 WL 4348760, at *6 (Tex. App.–Amarillo Dec. 1, 2009, no pet.)

(mem. op.).     Here, the trial court was free to disbelieve Mother testimony,

including her testimony that there had never been acts of violence committed

against her by Tiffany. In addition, during her testimony Nelson agreed that

Tiffany has “a pretty violent criminal history,” and she testified that, while the case

was pending, Tiffany had threatened her, her children, and the Department’s

attorney.

      In addition, as discussed, Mother failed to complete all but one of the tasks

and services required in her service plan. Among the required services that Mother


                                           30
failed to complete were substance-abuse counseling and a domestic-violence

program.   The evidence showing that Mother failed to complete the required

services supports the trial court’s best-interest finding. See TEX. FAM. CODE ANN.

§ 263.307(b)(11) (stating courts may consider the willingness and ability of child’s

family to effect positive environmental and personal changes within reasonable

period of time). A factfinder may infer from a parent’s failure to take the initiative

to complete the services required to regain possession of her children that she does

not have the ability to motivate herself to seek out available resources needed now

or in the future. See J.M., 2015 WL 1020316, at *7; see also Holley, 544 S.W.2d

at 371–72 (listing parental abilities of individual seeking custody as best-interest

factor).

       Given the evidence in the record, the trial court could have inferred that

Mother is at risk for continuing to engage in illegal drug use and to subjecting

herself and T.L.B. to domestic violence. In re E.D., 419 S.W.3d 615, 620 (Tex.

App.—San Antonio 2013, pet. denied) (recognizing that trial court may measure a

parent’s future conduct by his past conduct). Such inference is relevant not only to

the stability of Mother’s home but also to the emotional and physical danger in

which T.L.B. could be placed now and in the future. See Holley, 544 S.W.2d at

371–72 (factors three and seven).




                                         31
      The Department also presented evidence supportive of the best-interest

finding under the following factors: the emotional and physical needs of the

children now and in the future, the parental abilities of those seeking custody, and

the plans for the children by those seeking custody. See Holley, 544 S.W.2d at

371–72 (factors two, four, six); see also TEX. FAM. CODE ANN. § 263.307(b)(12)

(providing that court may consider whether child’s family demonstrates adequate

parenting skills). The evidence indicated that T.L.B. is currently placed in a foster

home with his sibling. The evidence also showed that the foster home is safe,

stable, and meets T.L.B.’s needs. See In re Z.C., 280 S.W.3d 470, 476 (Tex.

App.—Fort Worth 2009, pet. denied) (stating that stability and permanence are

important to upbringing of a child and affirming finding that termination was in

child’s best interest when child was thriving in foster care). The evidence showed

that T.L.B. is bonded with his foster parents, who wish to adopt him and his

younger sibling. See In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th

Dist.] 2003, pet. denied) (considering child’s bond with foster family in reviewing

best-interest determination). The evidence further showed that, when he came into

foster care, T.L.B. was developmentally delayed. However, after he received ear

tubes to help with his hearing and speech therapy, his developmental delays greatly

improved. See Holley, 544 S.W.2d at 371–72 (factor five: the programs available

to assist these individuals to promote the best interest of the child).


                                           32
      We also note that T.L.B. was only two years old at the time of trial. As

such, the Holley factor regarding the desires of the child is neutral in this case. See

Holley, 544 S.W.2d at 371–72 (factor one).

      Mother points out that evidence was presented weighing against the best-

interest finding. She points to evidence indicating that she was working two jobs

at the time of trial and that she had signed a lease for an apartment that would

provide T.L.B. with his own bedroom. In addition, she highlights the evidence that

she has brought food, clothing, and toys to her visits with T.L.B. However, the

evidence also showed that Mother had not provided proof of her employment to

the Department, and Nelson testified that she had not visited Mother’s apartment to

confirm the housing. Nelson also testified that Mother had brought items for

T.L.B. only to her last two visits with him.

      Mother also relied on evidence showing that she and T.L.B. were bonded,

that they loved one another, that he still considered her to be his Mother, and that

she behaved appropriately during the visits. Mother also cites Nelson’s testimony

that T.L.B. was “fine” and “healthy” when he came into the Department’s care.

      In addition, Mother points to evidence indicating that she had partially

completed some of the services required in the service plan. And she points out

that her last drug test was negative.




                                          33
      Although there is evidence that weighs against the best-interest finding,

evidence cannot be read in isolation; it must be read in the context of the entire

record. See In the Interest of K.C.F., No. 01–13–01078–CV, 2014 WL 2538624, at

*16 (Tex. App.–Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.).            As

discussed, evidence was presented indicating that Mother cannot provide a stable

home for T.L.B. due to her past drug use and the reported domestic violence

perpetrated by Tiffany. Evidence was also presented showing that Mother did not

take the necessary steps to remedy the instability of her home while this case was

pending, even though she was offered services to assist her. As the fact finder, the

trial court, after assessing the credibility of the witnesses and weighing the

evidence, could have reasonably inferred that Mother would continue her past

behaviors, which have the potential to compromise T.L.B.’s emotional and

physical well-being.

      After viewing all of the evidence in the light most favorable to the best-

interest finding, we conclude that the evidence was sufficiently clear and

convincing that a reasonable factfinder could have formed a firm belief or

conviction that termination of the parent-child relationship between Mother and

T.L.B. was in the child’s best interest. J.F.C., 96 S.W.3d at 266. We further

conclude that, viewed in light of the entire record, any disputed evidence could

have been reconciled in favor of the trial court’s finding that termination of the


                                        34
parent-child relationship between Mother and T.L.B. was in his best interest or was

not so significant that the trial court could not reasonably have formed a firm belief

or conviction that termination was in T.L.B.’s best interest. See H.R.M., 209

S.W.3d at 108.      Therefore, after considering the relevant factors under the

appropriate standards of review, we hold the evidence is legally and factually

sufficient to support the trial court’s finding that termination of the parent-child

relationship was in T.L.B.’s best interest.           See TEX. FAM. CODE ANN.

§ 161.001(b)(2).

      We overrule Mother’s sub-issues challenging the legal and factual

sufficiency of the evidence to support the trial court’s best-interest finding.

                                         Conclusion

      We affirm the judgment of the trial court.




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Jennings, Higley, and Massengale.




                                          35
