                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-18-00339-CV

              IN THE INTEREST OF W.D AND C.D., CHILDREN



                              From the County Court at Law
                                   Ellis County, Texas
                                Trial Court No. 95441CCL


                               MEMORANDUM OPINION


        Linda D. and William D. appeal from a judgment that terminated their parental

rights to their children, W.D. and C.D. See TEX. FAM. CODE ANN. § 161.001 (West 2014).

Linda and William complain that the evidence was legally and factually insufficient for

the trial court to have found the four predicate acts upon which the termination was

based to be true and that termination was in the best interest of the children. 1 Because

we find that the evidence was legally and factually sufficient as to Section 161.001(b)(1)(E)

and termination was in the best interest of the children, we affirm the judgment of the




1
 Linda and William have filed separate briefs in this appeal; however, their issues are substantially the
same and will be addressed together in this opinion.
trial court.

STANDARD OF REVIEW

       The standards of review for legal and factual sufficiency in termination cases are

well established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re

C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). In reviewing the legal sufficiency

of the evidence, we view all the evidence in the light most favorable to the finding to

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

about the truth of the Department's allegations. In re J.L., 163 S.W.3d 79, 84-85 (Tex. 2005);

J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed evidence that does

not support the finding. J.F.C., 96 S.W.3d at 266. In reviewing the factual sufficiency of

the evidence, we must give due consideration to evidence that the factfinder could

reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. We must

consider the disputed evidence and determine whether a reasonable factfinder could

have resolved that evidence in favor of the finding. Id. If the disputed evidence is so

significant that a factfinder could not reasonably have formed a firm belief or conviction,

the evidence is factually insufficient. Id.

       We give due deference to the factfinder's findings, and we do not substitute our

own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

The factfinder is the sole arbiter when assessing the credibility and demeanor of

witnesses. Id. at 109.



ITIO W.D and C.D., Children                                                             Page 2
FAMILY CODE SUBSECTION 161.001(b)(1)(E)

       Linda and William each challenge the legal and factual sufficiency of the evidence

to support the trial court's findings regarding the predicate acts listed in Family Code

subsection 161.001(b)(1)(E).    TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (West 2014).

Subsection (E) permits termination when clear and convincing evidence shows that the

parent has "engaged in conduct or knowingly placed the child with persons who engaged

in conduct that endangers the physical or emotional well-being of the child." TEX. FAM.

CODE ANN. § 161.001(b)(1)(E) (West 2014).         Within the context of subsection (E),

endangerment encompasses "more than a threat of metaphysical injury or the possible ill

effects of a less-than-ideal family environment." Tex. Dep't of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987). Instead, "endanger" means to expose a child to loss or injury

or to jeopardize a child's emotional or physical health. Id.; see also In re M.C., 917 S.W.2d

268, 269 (Tex. 1996).

       It is not necessary to establish that a parent intended to endanger a child in order

to support termination of the parent-child relationship under subsection (E). See In re

M.C., 917 S.W.2d at 270. The specific danger to the child's well-being may be inferred

from parental misconduct standing alone. Boyd, 727 S.W.2d at 533.

       "Endangerment can occur through both acts and omissions." Phillips v. Texas Dep't

of Protective & Regulatory Servs., 25 S.W.3d 348, 354 (Tex. App.—Austin 2000, no pet.). The

statute does not require that conduct be directed at a child or cause actual harm; rather,



ITIO W.D and C.D., Children                                                            Page 3
it is sufficient if the parent's conduct endangers the well-being of the child. See Walker v.

Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.]

2009, pet. denied). A parent's past endangering conduct may create an inference that the

parent's past conduct may recur and further jeopardize a child's present or future

physical or emotional well-being. See In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort

Worth 2001, no pet.).

       As a general rule, subjecting a child to a life of uncertainty and instability

endangers the child's physical and emotional well-being. In re R.W., 129 S.W.3d 732, 739

(Tex. App.—Fort Worth 2004, pet. denied). Here, the evidence of parental drug use and

domestic violence support the endangerment findings. See In re S.C.F., 522 S.W.3d 693,

703 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (holding evidence of mother's drug

use and history of domestic violence supported finding that placement would put

children in emotional danger).

       A parent's use of illegal drugs, and its effect on his or her ability to parent, may

qualify as endangering conduct. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). 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. Walker, 312 S.W.3d at 617-

18 (upholding termination of parental rights despite there being no direct evidence of

parent's continued drug use actually injuring child). And a mother's use of narcotics

during pregnancy may constitute conduct that endangers the physical and emotional



ITIO W.D and C.D., Children                                                            Page 4
well-being of a child. Cervantes-Peterson v. Tex. Dep't of Family & Protective Servs., 221

S.W.3d 244, 253 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

       Additionally, evidence of a child's exposure to domestic violence is supportive of

an endangerment finding. In re J.J.S., 272 S.W.3d 74, 79 (Tex. App.—Waco 2008, pet.

denied) (upholding endangerment finding when trial court found that mother

"conducted herself in a manner, namely her abusive relationships, which exposed her

children to a home where physical violence was present"). Domestic violence may

constitute endangerment, even if the violence is not directed at the child. In re C.J.O., 325

S.W.3d 261, 265 (Tex. App.—Eastland 2010, pet. denied).

       The children were removed after an outcry by an older child, C.P., residing in the

home who claimed that she was afraid to go home because Linda and William had gotten

into a fight and William threw a wallet at Linda which hit C.D. C.P. also claimed that

William had hit her in the face and that there was extensive marijuana use by Linda and

William in the home. When the Department's investigator went to the residence to

investigate, she smelled marijuana strongly emitting from the residence. Linda denied

using marijuana and claimed that C.P. was using marijuana at that time.

       Two weeks later, law enforcement was called to the home for a domestic

disturbance. The officers smelled a "very strong" odor of marijuana. Linda stated that

William was not at home, but he came from another room when she began screaming for

him because the officers were going to get a search warrant for the residence. Both Linda



ITIO W.D and C.D., Children                                                            Page 5
and William struggled with law enforcement and the children were present and observed

the entire incident. Marijuana and drug paraphernalia were found in the residence where

the children could have easily had access. The children and William all tested positive

for marijuana. Both Linda and William pled guilty to possession of marijuana and

William was also convicted of resisting arrest from this incident.

       During the pendency of this case, Linda and William failed or refused to take

multiple    drug    tests,    and   when   tested,   tested   positive   for   amphetamine,

methamphetamine, and marijuana. Linda admitted that she had used marijuana and

cocaine during at least two of her pregnancies and that she had also used cocaine and

MDMA after the children were removed by the Department. After the removal of the

children, on one occasion law enforcement discovered methamphetamine, miscellaneous

pills, marijuana, a digital scale, and other items commonly associated with the

distribution of drugs in the residence where they were staying with another individual.

Both Linda and William were arrested and charged with possession and delivery of

controlled substances after this incident. The individual with whom they were residing

also participated with them in the distribution of drugs. Linda and William were accused

of assaulting this individual with whom they were residing.

       Neither parent completed the tasks on their service plan to address the reasons for

removal. Their attendance at scheduled appointments was poor and they were each

discharged from multiple providers for failure to attend appointments. Neither parent



ITIO W.D and C.D., Children                                                           Page 6
completed counseling or provided proof of having completed drug treatment. Both

parents blamed the Department for the removal of the children and neither accepted any

responsibility for their actions.

       The children exhibited signs of having witnessed domestic violence in the home.

Their therapist testified that the children told her that there was a lot of yelling in the

home. W.D. understood that part of the reason for his removal was because his parents

hit each other. The therapist believed that C.D. has seen a lot of violence.

       Given the record, we conclude that the evidence of both parents' drug use, which

resulted in the children testing positive for marijuana, and the domestic violence in the

parents' home, viewed in the light most favorable to the subsection (E) finding, was

sufficiently clear and convincing that a reasonable factfinder could have formed a firm

belief or conviction that Linda and William engaged in conduct or knowingly placed the

children with persons who engaged in conduct that endangered the physical or

emotional well-being of the children. We further conclude that, viewed in light of the

entire record, any disputed evidence could have been reconciled in favor of the

subsection (E) finding or was not so significant that the factfinder could not reasonably

have formed a firm belief or conviction that the elements of subsection (E) were shown.

Accordingly, we hold that the evidence was legally and factually sufficient to support the

subsection (E) finding in each case. We overrule each parent's issue two.

       Because there is sufficient evidence of subsection (E), we need not address Linda



ITIO W.D and C.D., Children                                                          Page 7
or William's issues one, three, or four which challenge the sufficiency of the evidence to

support the trial court's predicate findings under subsections (D), (O), and (P). See In re

A.V., 113 S.W.3d at 362 ("Only one predicate finding under section 161.001(1) is necessary

to support a judgment of termination when there is also a finding that termination is in

the child's best interest.").

BEST INTEREST OF THE CHILDREN

       In each parent's fifth issue, Linda and William argue that the evidence was legally

and factually insufficient for the trial court to have found that termination was in the

children's best interest. In Holley v. Adams, the Supreme Court of Texas identified factors

that courts may consider when determining the best interest of the child. Holley v. Adams,

544 S.W.2d 367, 371-72 (Tex. 1976). The list is not exhaustive, and a court need not have

evidence on every element in order to make a valid finding as to the child's best interest.

In re 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.). The evidence supporting the 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. In re C.H., 89 S.W.3d at 28.

       The trial court heard evidence indicating that Linda and William engaged in

substance abuse both before this proceeding was filed and while it was pending.



ITIO W.D and C.D., Children                                                           Page 8
Evidence of a parent's past pattern of drug use is relevant not only to the stability of the

home that the parents can provide, but it is relevant to the emotional and physical needs

of the children now and in the future and to the emotional and physical danger in which

they could be placed now and in the future. See Holley, 544 S.W.2d at 371-72. A parent's

drug use is a condition indicative of instability in the home environment because it

exposes a child to the possibility that the parent may be impaired or imprisoned. See In

re A.M., 495 S.W.3d 573, 579 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

       The trial court also heard evidence regarding domestic violence, which is

supportive of the trial court's best-interest finding relating to the emotional and physical

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

       Both parents have a history of domestic violence against each other. "Evidence

that a person has engaged in abusive conduct in the past permits an inference that the

person will continue violent behavior in the future." Jordan v. Dossey, 325 S.W.3d 700, 724

(Tex. App.—Houston [1st Dist.] 2010, pet. denied). This is especially true as in this case,

where neither parent adequately addressed their abusive behavior and continued

committing violence against an individual with whom they were residing after the

removal of the children. Thus, the trial court was permitted to infer that Linda and



ITIO W.D and C.D., Children                                                           Page 9
William would continue their violent behavior in the future.

       The children were five and six years old at the time of the termination trial. The

children were bonded to their parents, but also seemed conflicted about living with their

parents and W.D. indicated that he would like to remain in his foster home. The children

exhibited sadness and would act out around the time of visits or when their parents

would miss visits. The parents missed multiple visits during the proceedings. Although

the children's love of their parents is a very important consideration in determining the

best interest of the children, it can neither override or outweigh evidence of danger to the

children nor "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." In re W.S.M., 107 S.W.3d

772, 773 (Tex. App.—Texarkana 2003, no pet.).

       Both children are in a foster home together where they had been for approximately

eighteen months at the time of the trial. The children were very bonded to the foster

family and had indicated that they wanted to stay there. The foster family was hoping

to adopt the children. 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 foster family was taking care of the children's needs and was

willing to continue to do so in the future. The Department was also considering a relative

placement in Michigan but had been unable to complete the home study prior to trial.



ITIO W.D and C.D., Children                                                          Page 10
       The evidence also showed that, although the parents contend that they

substantially completed their service plan, neither Linda nor William completed their

services. Neither Linda nor William completed therapy, and both parents continued their

drug use and criminal behavior in express violation of their service plans. A parent's

failure to complete a family service plan may be considered in assessing whether

termination was in the best interest of the child. See, e.g., In re E.C.R., 402 S.W.3d 239, 249

(Tex. 2013) (recognizing that finding that parent failed to complete court-ordered services

can be considered in support of best-interest finding).

       Linda and William argue that because they and the children are bonded and their

visits went well between them and the children, termination is not in the best interest of

the children. Linda and William assert that, but for the Department's intervention, the

children would be safe in their care. Additionally, Linda and William argue that the

children had close relationships with their relatives in other states which the termination

would sever and harm the children if the termination were upheld. However, to the

degree that these factors would support Linda and William's positions, when considered

along with the overwhelming evidence to the contrary, these assertions are not sufficient

to render the evidence regarding the best interest of the children legally or factually

insufficient to support the termination of their parental rights.

       After viewing all of the evidence in the light most favorable to the findings

regarding the best interest of the children, we conclude that the evidence was sufficiently



ITIO W.D and C.D., Children                                                            Page 11
clear and convincing that a reasonable factfinder could have formed a firm belief or

conviction that termination of the parent-child relationship between Linda and William

and the children was in the children's best interest. We also conclude that, viewed in

light of the entire record, any disputed evidence could have been reconciled in favor of

the trial court's findings that termination of the parent-child relationship between Linda

and William and the children was in the children's 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 the children's best interest. 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 findings that termination of the parent-

child relationship between Linda and William and the children, W.D. and C.D. was in the

children's best interest. We overrule Linda and William's fifth issues.

CONCLUSION

       Having found no reversible error, we affirm the judgment of the trial court.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed March 20, 2019
[CV06]



ITIO W.D and C.D., Children                                                        Page 12
