Opinion filed August 1, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-19-00044-CV
                                   __________

  IN THE INTEREST OF I.A.V., R.A.J., AND C.N.J., CHILDREN


                     On Appeal from the 318th District Court
                             Midland County, Texas
                        Trial Court Cause No. FM 52,317


                      MEMORAND UM OPI NI ON
      This is an appeal from an order in which the trial court terminated the parental
rights of the mother and the father of I.A.V., R.A.J., and C.N.J. Both parents appeal.
The mother presents four issues in which she challenges the sufficiency of the
evidence, and the father presents two issues: one in which he complains of the
admission of hearsay and one in which he challenges the sufficiency of the evidence.
We affirm.
      The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). To terminate
parental rights, it must be shown by clear and convincing evidence that the parent
has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id.
      In this case, the trial court found that the mother had committed three of the
acts listed in Section 161.001(b)(1)—those found in subsections (E), (N), and (O)—
and that the father had committed four of the acts listed in Section 161.001(b)(1)—
those found in subsections (D), (E), (N), and (O). Specifically, the trial court found
that the father had knowingly placed or knowingly allowed the children to remain in
conditions or surroundings that endangered the physical or emotional well-being of
the children, that both parents had engaged in conduct or knowingly placed the
children with persons who engaged in conduct that endangered the children’s
physical or emotional well-being, that both parents had constructively abandoned
the children, and that both parents had 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 children. The trial court also found, pursuant to Section 161.001(b)(2),
that termination of each parent’s parental rights would be in the best interest of the
children.
      On appeal, the mother challenges the legal and factual sufficiency of the
evidence with respect to the findings made pursuant to subsections (E), (N), and (O)
and the best interest finding. The father challenges the sufficiency of only the best
interest finding. To determine if the evidence is legally sufficient in a parental
termination case, we review all of the evidence in the light most favorable to the
finding and determine whether a rational trier of fact could have formed a firm belief
or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
To determine if the evidence is factually sufficient, we give due deference to the
finding and determine whether, on the entire record, a factfinder could reasonably


                                            2
form a firm belief or conviction about the truth of the allegations against the parent.
In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002).
        With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (1) the desires of the child, (2) the emotional and physical needs of the
child now and in the future, (3) the emotional and physical danger to the child now
and in the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent 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. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
        The Department of Family and Protective Services received an intake that
included allegations of drug abuse, domestic violence, and physical neglect of the
children 1 by the father. The children were removed from the father’s home after an
investigation by the Department. At that time, I.A.V. was eleven years old, R.A.J.
was ten years old, and C.N.J. was nine years old. The children had not bathed in
days and were living in deplorable conditions. The father’s house had no running

        1
         We note that another child, two-year-old A.M.J., was also removed from the father’s home. A.M.J.
has the same father as, but a different mother than, the three children involved in this cause. A.M.J. is the
subject of the father’s appeal in Cause No. 11-19-00047-CV. Therefore, when we refer to “the children” in
this opinion, we mean I.A.V., R.A.J., and C.N.J.



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water, and the toilet was three-fourths full of solid waste. Wiring inside the house
was exposed. Dirty clothes were strewn about everywhere. Four children and two
adults were sleeping in the same bedroom, where there were two mattresses on the
floor, because that was the only room in the house that was heated. In the room next
to the bedroom, the roof was partially caved in. Also, there were lots of random
people in and out of the home, and the father’s girlfriend indicated that “they were
involved in drugs.” Furthermore, although the father denied it, other evidence
indicated that he was violent and engaged in domestic violence.
      Both the mother and the father had been involved with the Department in the
past. The father admitted to having problems with alcohol and marihuana and said
that he could not stay clean long enough to maintain a job. At the time of the
removal, the father was arrested based on a warrant for failure to appear that was
related to a charge of felony driving while intoxicated. At the time of trial, the father
had pleaded true to a motion to revoke the felony DWI and was in jail due to a
pending charge of forgery of a financial instrument. The father had no idea how
long he would be incarcerated. The father admitted to a “small” criminal history,
including drug possession and several DWIs; he denied that his criminal history
included burglary. He testified that he had been arrested for the possession of
cocaine but said that marihuana was his drug of choice. While this case was pending,
the father tested positive for methamphetamine. Between the time of removal and
the time of trial, the father had not seen the children at all.
      The children wanted to live with their mother, but she had a history with the
Department, which included a finding of “reason to believe” for physical abuse, as
well as a pending criminal charge for the assault of a family member with a deadly
weapon. The mother’s criminal history included a charge for possession of a
controlled substance. The evidence further showed that R.A.J. tested positive for


                                            4
methamphetamine at the time of his birth; that the mother tested positive for cocaine
while pregnant with I.A.V.; and that the mother tested positive for methamphetamine
during a previous CPS case, at the beginning of this case, and again midway through
the case. The mother refused all other requests to submit to a drug test while this
case was pending; those refusals were considered to be positive results. The mother
also failed to submit to a drug and alcohol assessment, failed to complete parenting
classes, failed to complete individual counseling, and failed to maintain any
significant contact with the children while this case was pending.
      While this case was pending, the Department lost contact with the mother for
about three months. The mother had left town to live with a boyfriend. When she
returned, her car had been destroyed—apparently by that boyfriend.
      When the children were removed, the Department could not find a suitable
family member that was available as a placement for the children. Both parents were
ordered by the trial court to comply with the provisions of their family service plan
so that the children could be returned to them; neither parent did so. I.A.V. and
C.N.J. had been placed together in a foster home, and R.A.J. had been placed in a
different foster home. R.A.J.’s foster parents were interested in adopting him.
Although the children were happy and doing very well in their placements, they
missed each other.
      The Department’s goal for the children was termination of both parents’
parental rights. The Department believed that termination of both parents’ rights
would be in the best interest of the children. The conservatorship caseworker
believed, however, that it would not be in the children’s best interest for them to
have no further contact with their mother. At the time of the final hearing on
termination, a fictive-kin placement for all three children together was still being
considered by the Department. That placement had been recommended by the


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mother. The children’s guardian ad litem, a CASA volunteer, informed the trial court
that the children were happy, safe, and secure “where they’re at” and that they are
“ready for this to be done.” The guardian ad litem recommended that the trial court
terminate both parents’ parental rights and leave the children in their current
placements until the Department could find a suitable placement for all three
children together.
      In her first issue, the mother challenges the finding under subsection (E). We
are required to address this issue. See In re N.G., No. 18-0508, 2019 WL 2147263,
at *4 (Tex. May 17, 2019) (concluding that due process and due course of law require
an appellate court to address grounds (D) and (E) when raised by the parent on appeal
and also require the appellate court to detail its analysis on grounds (D) and (E)).
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 33 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and conscious
course of conduct by the parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex.
App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex.
App.—Eastland 1999, no pet.). The offending conduct does not need to be directed
at the child, nor does the child actually have to suffer an injury. In re J.O.A.,
283 S.W.3d 336, 345 (Tex. 2009).          Drug use may constitute evidence of
such endangerment. Id. Domestic violence may also constitute evidence of
endangerment. C.J.O., 325 S.W.3d at 265.
      The record reflects that the mother had a history of drug use and a recent
charge related to domestic violence. She tested positive for methamphetamine
around the time of the children’s removal, and she refused to test again until five


                                          6
months later, when she again tested positive for methamphetamine. The mother
refused most of the Department’s requests to submit to a drug test; her refusals were
presumed to be positive results. The mother’s drug use constituted a continuing
course of conduct that endangered her children. We note that she tested positive for
cocaine while pregnant with I.A.V. and that she also tested positive for drugs while
pregnant with R.A.J. R.A.J. tested positive for methamphetamine at birth.
      We hold that the trial court could have determined from the evidence
presented at trial that the mother voluntarily engaged in an endangering course of
conduct. See J.O.A., 283 S.W.3d at 345–46. The evidence is legally and factually
sufficient to show by clear and convincing evidence that the mother engaged in a
continuing course of conduct that endangered the children’s physical or emotional
well-being; therefore, we overrule her first issue on appeal. Because a finding that
a parent committed one of the acts listed in Section 161.001(b)(1)(A)–(U) is all that
is required and because the evidence is sufficient to support a finding under
subsection (E), we need not address the mother’s second and third issues, in which
she challenges the findings made pursuant to subsections (N) and (O). See TEX. R.
APP. P. 47.1.
      We next address both parents’ legal and factual sufficiency challenges to the
trial court’s best interest findings, which the mother asserts in her fourth issue and
the father asserts in his second issue. We note that the trier of fact is the sole judge
of the credibility of the witnesses at trial and that we are not at liberty to disturb the
determinations of the trier of fact as long as those determinations are not
unreasonable. J.P.B., 180 S.W.3d at 573. We have considered the record as it relates
to the desires of the children (who all wanted to live with their mother), the emotional
and physical needs of the children now and in the future, the emotional and physical
danger to the children now and in the future, the parental abilities of the


                                            7
mother and the father and of the persons with whom the children were placed, the
Department’s plans for the children, the parents’ inability to provide a safe home for
the children, the mother’s continued use of methamphetamine, the father’s use of
methamphetamine, the father’s history of alcohol and drug abuse, the deplorable
conditions of the father’s home, the parents’ failure to comply with their court-
ordered services, and both parents’ criminal history.
      Despite the children’s desires to be returned to their mother and some
evidence that it would not be in the children’s best interest to sever all ties with their
mother, the trial court could reasonably have formed a firm belief or conviction,
based on clear and convincing evidence presented at trial and the Holley factors, that
termination of the mother’s parental rights would be in the best interest of all three
children. See Holley, 544 S.W.2d at 371–72. Additionally, based on clear and
convincing evidence presented at trial and the Holley factors, the trial court could
reasonably have formed a firm belief or conviction that termination of the father’s
parental rights would be in the best interest of all three children. See id. Therefore,
we hold that the evidence is legally and factually sufficient to support the finding
that termination of the mother’s and the father’s parental rights is in the best interest
of all three children. See id. We overrule the mother’s fourth issue and the father’s
second issue.
      The father presents an evidentiary complaint in his first issue. The inclusion
and exclusion of evidence is a matter committed to the sound discretion of the trial
court. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). A trial court
abuses its discretion if it acts without reference to any guiding rules or principles.
E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). An
error in the admission of evidence requires reversal only if it probably caused the




                                            8
rendition of an improper judgment. Nissan Motor Co. v. Armstrong, 145 S.W.3d
131, 144 (Tex. 2004); see TEX. R. APP. P. 44.1(a)(1).
      The father contends that the trial court erred when it overruled his hearsay
objection and permitted the conservatorship caseworker to testify about the father’s
criminal history. See TEX. R. EVID. 801 (hearsay). Prior to the caseworker’s
testimony, the father had testified about his own criminal history, acknowledging
that he was currently in jail on a forgery charge and that he had been convicted once
for the possession of a controlled substance and more than once for driving while
intoxicated. The father denied that he had been arrested for burglary.
      The caseworker subsequently testified that she had run the father’s criminal
history at the onset of the case. When the caseworker was asked about the particulars
of the father’s criminal history, the father objected on the basis of hearsay and noted
the absence of a certified copy of any judgment of conviction. The trial court
overruled the father’s objection, and the caseworker testified that the father’s
criminal history included convictions for burglary of a habitation, burglary of a
vehicle, and illegal possession of a weapon.
      While we agree that the caseworker’s testimony constituted hearsay, we note
that an exhibit had already been admitted at trial that contained the same information
about which the father objected. Prior to any testimony at the trial, the Department
offered several exhibits into evidence.       All were admitted without objection,
including Exhibit No. 1. Exhibit No. 1, the father’s psychological evaluation,
contained the following statement: “[The father] has an extensive criminal history
dating from 1996 to 2015 including burglary, riot participation, drug possession,
unlawful carrying of a weapon, and numerous drunk driving charges.” Because the
psychological evaluation had already been admitted into evidence without objection,
the complained-of testimony was cumulative evidence, and any error related to its


                                          9
admission was harmless. See State Office of Risk Mgmt. v. Allen, 247 S.W.3d 797,
800 (Tex. App.—Dallas 2008, no pet.). We overrule the father’s first issue.
        We affirm the trial court’s order of termination.




                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE


August 1, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.



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