Opinion issued November 26, 2014




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00442-CV
                            ———————————
                    IN THE INTEREST OF J.R.W., a Child



                    On Appeal from the 314th District Court
                            Harris County, Texas
                      Trial Court Case No. 2013-02967J


                        MEMORANDUM OPINION

      T.M.’s parental rights to her son, J.R.W., were terminated. In three issues,

she contends the evidence to be legally and factually insufficient to support the

trial court’s findings that she committed a predicate act required for termination

and that termination was in her son’s best interests. We affirm.
                                   Background

      T.M. tested positive for benzodiazepines, opiates, and marijuana when she

gave birth to J.R.W. on May 5, 2013. The next day, the Department of Family and

Protective Services received a referral of neglectful supervision of J.R.W.

Following its investigation, the Department filed its original petition for

conservatorship and termination of parental rights, accompanied by a supporting

affidavit of Bianca Almaguer, a Department caseworker.

      Almaguer attested that when she and T.M. met on May 7, 2013, T.M. denied

any drug use and theorized that because her boyfriend (J.R.W.’s putative father,

B.W.) used drugs and “smokes a lot,” the marijuana might have transmitted to her

when they had sex. T.M. further claimed to have taken no pills since learning she

was pregnant, and ascribed her positive results for benzodiazepines and opiates to

the pain medication her doctor prescribed.      Her medical personnel, however,

denied prescribing anything that would test positive for benzodiazepines or opiates.

      T.M initially said that she lived with B.W. and his mother, but later told

Almaguer that she lived with her grandmother. B.W.’s mother clarified that T.M.

stayed with her for only a few nights at the end of her pregnancy but was not

welcome to return.     Caseworker Almaguer’s affidavit further noted that the

Department’s attempts to reach B.W., both by phone and in person, were




                                         2
unavailing.1 J.R.W. was placed into foster care by the Department on May 10,

2013, and a full adversary hearing was held in the trial court eleven days later at

which T.M. testified that J.R.W.’s removal was due to her having tested positive

for marijuana, benzodiazepines, and opiates when he was born.           She further

testified that the last time she had smoked marijuana was May 5, 2013—the day

J.R.W. was born. The trial court subsequently signed an order appointing the

Department temporary managing conservator of J.R.W.

      Following the hearing, the Department created a family service plan for

T.M. that included parenting classes, individual and couple’s therapy, drug/alcohol

assessment, a psychosocial evaluation, and requirements for stable housing and

financial responsibility.   Of particular note was the plan’s requirement to

“participate in drug/alcohol testing” and to “show progress by testing negative for

drugs or alcohol.” The plan also identified family reunification as a “goal.”

      At a July 11, 2013, status hearing the trial court approved the plan, noting

that T.M. had reviewed and understood the plan and had been advised that her

parental rights could be subject to restriction or termination unless she was willing

and able to provide J.R.W. with a safe environment, with the assistance of the

Department and within the period of time specified in the plan.



1
      Although DNA testing subsequently excluded B.W. as J.R.W.’s biological father,
      T.M refused to provide information as to the identity of J.R.W.’s father.
                                         3
      T.M. completed a parenting program, individual therapy courses, and

outpatient substance abuse treatment, signed a six-month lease, obtained

employment, and participated in weekly family visits with J.R.W. She also tested

negative on drug tests performed in May, July, and October 2013.

      At a hearing the following February, the trial court, noting T.M.’s

compliance with the plan’s requirements thus far, signed an order that recited it

would “approve a transitional placement of the child in the mother’s home

contingent upon attorney ad litem’s approval.”

      That same day, T.M. submitted to the final court-ordered urinalysis and hair

follicle test and although the urinalysis results were negative, the hair follicle

sample tested positive for both cocaine and marijuana.

      Trial commenced May 8, 2014. Department caseworker Michelle Copeland

testified that T.M. had been cooperative, completed parenting classes, individual

therapy, outpatient substance abuse treatment, appeared for visits with J.R.W., and

tested negative on all drug tests until February 2014 but that her February drug test

results precluded her full compliance with the plan. Copeland further testified that

T.M. had admitted drug use during a family group conference and, although she

“went back and forth” on whether she had used marijuana, admitted that she had

tested positive for it. Copeland believed that termination of T.M.’s parental rights

was in J.R.W.’s best interests because, as a one year old, the child was unable to

                                         4
protect himself; T.M. had no meaningful support system, and although having

completed out-patient services and been taught coping skills, T.M. had not used

them. Copeland further testified that J.R.W.’s current placement was meeting all

of his basic physical and emotional needs and the foster parents wished to adopt

him.

       On cross-examination, Copeland testified that with the exception of testing

positive for cocaine in February 2014 (and noting that cocaine was a stronger drug

than marijuana), T.M. had done everything the family service plan required and

that, but for the positive drug test, the Department would not be seeking

termination of T.M.’s parental rights.

       Bruce Jeffries, the owner of the company that conducted the February drug

tests, testified that T.M. tested negative on the urinalysis test but the hair follicle

test was positive for ingestion of cocaine and exposure to marijuana. These results

indicated that T.M. “never did use marijuana. She’s been around it and she used

cocaine more than one time.” On cross-examination, Jeffries acknowledged that

the results showed that the amount of cocaine detected was a “trace,” but for

cocaine “to get trapped in the hair, you have to do it consecutive days, at least

twice in a row.” Jeffries also testified that after the February test, T.M. paid for a

hair follicle test to be performed on March 12, 2014, the results of which were

negative.

                                          5
      T.M. testified that she tested positive for marijuana when J.R.W. was born

and that, at the March 21, 2013 hearing, she admitted that she had last used

marijuana on May 5, 2013, the day her son was born.2 However, when asked

about the February 6th test, T.M. denied ever using cocaine. She testified that she

was shocked at the positive test results and requested that she be re-tested; when

the request was denied, she paid to have another test done on March 12, 2014, the

results of which were negative. T.M. further testified that she had maintained

steady employment throughout the case, leased an apartment, and had completed

her family service plan. T.M. stated that she has not abused or neglected J.R.W.

and that he was not born addicted to drugs. According to T.M., her visits with

J.R.W. went very well, he smiled when he saw her and had bonded with her, and

he cried when she had to leave.

      Vanessa Finzetto with Child Advocates, Inc. testified that T.M. had been

doing great until the positive drug test, and that she was concerned because,

although T.M. had done well, she “collapsed at the end.” In her report to the court,

Finzetto stated that “[T.M.’s] ability to refrain from using substances is critical in

determining her ability to properly care for her child.” She further testified that she

was also concerned because there was a gap in sample drug tests for T.M. from



2
      On cross-examination, she testified that J.R.W. was delivered six days early and
      that she had actually smoked marijuana shortly before J.R.W. was born.
                                          6
November to December 2013.            In Finzetto’s opinion, termination of T.M.’s

parental rights was in J.R.W.’s best interests.

      At the conclusion of the hearing, the trial court terminated T.M.’s parental

rights under Family Code section 161.001(1)(E) and (O), and it appointed the

Department as the sole managing conservator of J.R.W. The court signed the final

decree of termination on May 27, 2014. T.M. timely filed this appeal.

                                       Discussion

      In three issues, T.M. challenges the legal and factual sufficiency of the

evidence supporting the judgment terminating her parental rights to J.R.W. under

Family Code section 161.001(1)(E) and (O), and the finding that termination of her

parental rights are in the best interests of the child.

   A. Applicable Law

      Protection of the best interest of the child is the primary focus of the

termination proceeding in the trial court and our appellate review. See In re A.V.,

113 S.W.3d 355, 361 (Tex. 2003). A parent’s rights to the “companionship, care,

custody, and management” of his or her child is a constitutional interest “far more

precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102

S. Ct. 1388, 1397 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).

Accordingly, we strictly scrutinize termination proceedings and strictly construe

the involuntary termination statutes in favor of the parent. Holick v. Smith, 685

                                            7
S.W.2d 18, 20 (Tex. 1985). Nonetheless, “the rights of natural parents are not

absolute” and “[t]he rights of parenthood are accorded only to those fit to accept

the accompanying responsibilities.” In re A.V., 113 S.W.3d at 361. Recognizing

that a parent may forfeit his or her parental rights by their acts or omissions, the

primary focus of a termination suit is protection of the child’s best interests. Id.

       In a case to terminate parental rights under section 161.001 of the Family

Code, the Department must establish, by clear and convincing evidence, that (1)

the parent committed one or more of the enumerated acts or omissions justifying

termination and (2) termination is in the best interest of the child. TEX. FAM.

CODE ANN. § 161.001 (West Supp. 2012). Clear and convincing evidence is “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.” Id.

§ 101.007 (West 2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “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.”   In re A.V., 113 S.W.3d at 362.         Here, the trial court based the

termination of T.M.’s parental rights on the predicate grounds of endangerment,

see TEX. FAM. CODE ANN. § 161.001(1)(E), and failure to comply with a court

order, see id. § 161.001(1)(O).




                                           8
   B. Standard of Review

      In a legal sufficiency review in a parental rights termination case, we must

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

that its finding was true. In re J.F.C., 96 S.W.3d at 266. We assume that the

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

could do so, disregarding all evidence that a reasonable factfinder could have

disbelieved or found to have been incredible. Id. If, after conducting a legal

sufficiency review of the record, we determine that no reasonable factfinder could

form a firm belief or conviction that the matter that must be proven is true, then we

must conclude that the evidence is legally insufficient. Id.

      In conducting a factual sufficiency review, we must determine whether,

considering the entire record, including evidence both supporting and contradicting

the finding, a factfinder reasonably could have formed a firm conviction or belief

about the truth of the matter on which the Department bore the burden of proof. In

re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should 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 266–67. “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

                                          9
reasonably have formed a firm belief or conviction, then the evidence is factually

insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

   C. Analysis

   1. Failure to Comply with a Court Order (§ 161.001(1)(O))

      T.M.’s second issue contends the evidence to be legally and factually

insufficient to support the trial court’s decree under subsection (O), which provides

for termination of the parent–child relationship if the trial 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 Chapter 262 for the abuse or neglect of the child.

TEX. FAM. CODE ANN. § 161.001(O). Thus, under 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 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. Here, T.M. argues that

there was no evidence showing that J.R.W. was removed for abuse or neglect, and




                                           10
thus, there was no need to create a series of actions for her to complete in order to

return him to her care.

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

the risks or threats of the environment in which the child is placed. See 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 finding

that the children involved had been removed because of abuse or neglect. Id. at

246. In particular, 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 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

subsequently 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 subsequent finding by the trial

court authorizing the child’s removal were sufficient evidence to establish, as a




                                         11
matter of law, that the child had been removed under chapter 262 for abuse or

neglect.3 Id. at 249.

      Here, the Department’s original petition for conservatorship and termination

of parental rights, filed on May 13, 2013, was accompanied by Almaguer’s

supporting affidavit that T.M. tested positive for marijuana, benzodiazepines, and

opiates when J.R.W. was born; T.M.’s denial of smoking marijuana and her theory

of “transmittal” during sex with her pot-smoking boyfriend; and T.M’s denial of

taking pills and her attribution of the positive test result for benzodiazepines and

opiates to prescribed pain medication—despite medical personnel’s disavowal of


3
      The E.C.R. court also cited several similar cases in which documentary evidence
      supporting DFPS’s petition and the trial court’s subsequent temporary order for
      removal of the child were held to be sufficient evidence to establish that the child
      had been removed for abuse or neglect. In re E.C.R., 402 S.W.3d 239, 249 (Tex.
      2013); see, e.g., 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 them by” mother); see also 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 AAA.,
      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).
                                           12
having provided T.M. any medication that would have caused her to test positive

for those substances.

      At the full adversary hearing on May 21, 2013, T.M. testified that the last

time she had smoked marijuana was on May 5, 2013—the day J.R.W. was born,

and that B.W. told her at the hospital that he would stop smoking marijuana but

that she did not know whether he had, in fact, stopped.             The trial court

subsequently signed an order appointing the Department temporary managing

conservator of J.R.W. and found as follows:

      The Court finds there 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 Court finds 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 affidavit in support of the Department’s petition, T.M.’s testimony at

the May 21, 2013 hearing, and the trial court’s subsequent temporary order

authorizing removal of the child is the type of evidence upon which the supreme


                                        13
court relied in E.C.R. in concluding that the evidence was sufficient to support the

trial court’s finding that the child had been removed for abuse or neglect. See 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.) (concluding caseworker’s affidavit and trial

court’s subsequent temporary order removing child from mother’s home was type

of evidence upon which E.C.R. court relied in finding evidence sufficient to

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

the court in E.C.R. clarified, “‘abuse or neglect’ of the child necessarily includes

the risks or threats of the environment in which the child is placed.” In re E.C.R.,

402 S.W.3d at 248. Here, the evidence showed that T.M. had used drugs while

pregnant with J.R.W. and maintained a relationship with a man who used drugs

and was on probation for possession of a controlled substance. Further, T.M.’s

positive drug test in February 2014 showed she had used cocaine on consecutive

days several months after the initial removal, so as to support J.R.W.’s continued

removal. Thus, the trial court had before it evidence showing that T.M. committed

acts that endangered the health and safety of her child. See In re E.C.R., 402

S.W.3d at 248 (“If a parent has neglected, sexually abused, or otherwise

endangered her child’s physical health or safety, such that initial and continued

removal are appropriate, the child has been ‘remov[ed] from the parent under

Chapter 262 for the abuse or neglect of the child.’”)        Because a reasonable

                                         14
factfinder could have formed a firm belief or conviction that J.R.W. was removed

from T.M. for abuse or neglect, we conclude that the evidence is legally sufficient.

See id. at 249.

      After considering the entire record, we conclude that the evidence is

factually sufficient for a reasonable factfinder to have formed a firm belief that

J.R.W. was removed from T.M.’s home for abuse or neglect. See In re J.F.C., 96

S.W.3d at 266.4 We therefore hold that the evidence is legally and factually

sufficient to support the court’s termination decree on the grounds of §

161.001(O). See J.F.C., 96 S.W.3d at 265–66. Because we overrule T.M.’s

second issue challenging the sufficiency of the evidence with respect to subsection

(O), we need not consider her argument as to subsection (E). See A.V., 113 S.W.3d

at 362.




4
      Although T.M. states in the “Summary of the Argument” section of her brief that
      she “completed all the provisions of her court-ordered service plan,” she does not
      present any argument in her discussion of the issues that she complied with the
      provisions of the court’s order adopting the family services plan. Instead, T.M.
      asserts that “[a]ppellant’s challenge to the legal and factual sufficiency of
      termination on [Subsection (O)] is simple: there was no evidence to remove
      J.R.W. from appellant’s care for abuse or neglect, and thus no need to create a
      series of actions for mother to complete in order to obtain the return of her
      child[].” Thus, rather than argue that she substantially complied, T.M. asserts that
      because there was no abuse or neglect there was no need to create a family service
      plan with which she had to comply.
                                           15
      2.     Best Interests of the Child (§ 161.001(2))

      T.M. 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 the child’s best interest.      In determining whether termination of the

mother’s parental rights was in the child’s best interest, we consider several non-

exclusive factors, including (1) the child’s desires, (2) the current and future

physical and emotional needs of the child, (3) the current and future physical

danger to the child, (4) the parental abilities of the person seeking custody, (5)

whether programs are available to assist the person seeking custody in promoting

the best interests of the child, (6) plans for the child by the person seeking custody,

(7) stability of the home, (8) acts or omissions of the parent that may indicate that

the parent-child relationship is improper, and (9) any excuse for acts or omissions

of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The

Department is not required to prove all of these factors, and the absence of

evidence about some factors does not preclude the factfinder from reasonably

forming a strong conviction that termination is in the child’s best interest. See In

re C.H., 89 S.W.3d at 27. Evidence establishing one of the predicate acts under

section 161.001(1) may also be relevant to determining the best interest of the

child. See id. at 27–28.




                                          16
      a.     Child’s desires and plans for the child

      At the time of trial, J.R.W. was only a year old and was too young to testify

about his desires. See In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex. App.—Houston

[1st Dist.] 2013, no pet.). “The young age of the child render[s] consideration of

the child’s desires neutral.” In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston

[1st Dist.] 2012, no pet.). There was evidence that T.M.’s visits with J.R.W. went

well and that mother and child had bonded. However, there was also evidence that

J.R.W. was “happy and comfortable in [his foster] home, “ha[d] great interactions

with his foster parent as well as with other members in the house,” and that the

foster parents wished to adopt him. In light of this evidence and J.R.W.’s age, the

first Holley factor (i.e., the child’s desires) is neutral in this case. The sixth Holley

factor (i.e., plans for the child by the person seeking custody) is related to the first

factor and is also neutral. While T.M. had her own apartment at the time of trial

and planned for J.R.W. to live with her, the foster parents also expressed their

desire to adopt him.

      b.     Needs of the child, mother’s parenting abilities, and stability of
             the home

      The second and fourth Holley factors are related in our consideration of the

best interests of the child. The second factor considers current and future physical

and emotional needs, while the fourth considers the parental abilities of the person

seeking custody. In re A.S., No. 01-14-00113-CV, 2014 WL 3779022, at *9 (Tex.
                                           17
App.—Houston [1st Dist.] July 31, 2014, pet. filed) (mem. op.).        There was

evidence showing that during her visits with J.R.W., T.M. interacted appropriately

with him, changed his diapers, brushed his hair, and fed him. However, we note

that because J.R.W. was removed at birth and had been in foster care since he was

born, T.M. had never parented the child or cared for him for any length of time.

The evidence also showed that all of J.R.W.’s physical and emotional needs were

being met in his foster care placement, he had “great interactions” with all

members of his foster family, he seemed happy and comfortable, and his foster

parents wished to adopt him. This is some evidence that J.R.W.’s current and

future emotional and physical needs would be appropriately met by termination of

the mother’s parental rights. See In re S.T., 127 S.W.3d 371, 379 (Tex. App.—

Beaumont 2004, no pet.) (holding evidence that foster parents met children’s needs

and plans for unrelated adoption were some evidence that termination of parental

rights was in children’s best interest).

      The seventh Holley factor is the stability of the home. There was evidence

that all of J.R.W.’s needs were being met in his foster placement and that he was

eating and sleeping normally.        There was also evidence that T.M. had an

“appropriate” apartment and was prepared with tangible items needed to care for

him, including clothing, toys, and diapers. However, we also note that T.M.’s

February 2014 drug test showed that she had used cocaine on consecutive days in

                                           18
the face of a court order conditioning her reunification on her ability to remain

drug-free. A parent’s drug use has been found to be a condition that can indicate

instability in the home environment. See P.W. v. Dep’t of Family and Protective

Svcs., 403 S.W.3d 471, 479 (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d

w.o.j.); In re G.A., No. 01–11–00565–CV, 2012 WL 1068630, at *6 (Tex. App.—

Houston [1st Dist.] Mar. 29, 2012, pet. denied) (mem. op.) (citing Edwards v. Tex.

Dep’t of Protective Servs., 946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no

writ)). These factors weigh in favor of termination.

      c.     Physical danger to the child and parental acts or omissions

      The third factor is the current and future physical danger to the child.

Holley, 544 S.W.2d at 371–72. The evidence showed that T.M. tested positive for

marijuana, benzodiazepines, and opiates at J.R.W.’s birth. She also maintained a

relationship with B.W. who used drugs and was on probation for possession of a

controlled substance. In her report to the court, Finzetto stated that “[T.M.’s]

ability to refrain from using substances is critical in determining her ability to

properly care for her child.” Nevertheless, during the pendency of the case, T.M.

tested positive for cocaine use. T.M.’s inability to refrain from drug use, despite

having completed substance abuse treatment to help her learn coping skills and

remain drug-free, as well as her continued relationship with B.W., reflect an

inability to perceive the danger that parental drug use would pose to a child. See In

                                         19
re G.A., 2012 WL 1068630, at *6 (concluding father’s concealment of drug use

and continued relationship with mother who abused drugs, demonstrated father’s

inability to perceive danger that parental drug use posed to child). This factor

supports termination.

      Finally, we consider the eighth and ninth factors together. These factors

consider acts or omissions of the parent that indicate the parent-child relationship

is improper, as well as any excuses for them.         Holley, 544 S.W.2d at 372.

Although T.M. initially denied using marijuana, she subsequently admitted to

smoking on or about the day J.R.W. was born. With regard to her positive test for

benzodiazepines and opiates, T.M. denied having taken any pills and claimed that

the positive test must be due to the medication her doctor had prescribed to her;

medical personnel, however, stated that they never gave T.M. any medication that

would cause her to test positive for those substances. Jeffries testified that the

amount of cocaine detected in T.M.’s hair follicle sample collected on February 6,

2014, was indicative of using cocaine “[on] consecutive days, at least twice in a

row.” Although T.M. denied having used cocaine and later tested negative on a

hair follicle test performed on March 12, 2014, there is no evidence in the record

showing the period of time the test covered or the length of time drug usage is

reflected in a hair follicle test, and therefore the later test results did little, if

anything, to undermine the positive results obtained in February. See In re Z.L.W.,

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No. 01-12-00736-CV, 2013 WL 396270, at *2 (Tex. App.—Houston [1st Dist.]

Jan. 31, 2013, no pet.) (mem. op.) (concluding later drug tests arranged by mother

did not undermine earlier positive results because evidence showed that earlier test

used more sophisticated testing technique and reflected different period of time

than later tests). Further, it was for the judge as finder of fact to resolve disputed

questions based on its determination of the credibility of the witnesses. See In re

A.S., 2014 WL 3779022, at *10. These three factors support termination.

      Viewing all the evidence in the light most favorable to the judgment, we

conclude that a factfinder could have formed a firm belief or conviction that

termination of T.M.’s parental rights was in J.R.W.’s best interest. See TEX. FAM.

CODE ANN. § 161.001(2); J.F.C., 96 S.W.3d at 265–66. Viewing the same

evidence in a neutral light, the disputed evidence is not so significant as to prevent

a factfinder from forming a firm belief or conviction that termination of T.M.’s

parental rights was in J.R.W.’s best interest.      See TEX. FAM. CODE ANN. §

161.001(2); J.F.C., 96 S.W.3d at 265–66. Accordingly, we hold that the evidence

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

termination of T.M.’s parental rights was in J.R.W.’s best interest. We overrule

T.M.’s third issue.

                                    Conclusion

      We affirm the trial court’s judgment.

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                                             Jim Sharp
                                             Justice

Panel consists of Justices Higley, Bland, and Sharp.




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