Affirmed and Memorandum Opinion filed January 31, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00777-CV

           IN THE INTEREST OF N.R. AND J.R., II., CHILDREN

                    On Appeal from the 300th District Court
                           Brazoria County, Texas
                        Trial Court Cause No. 90413F

                 MEMORANDUM                       OPINION


      In this appeal from a non-jury trial culminating in the termination of parental
rights concerning two children, Father argues that (1) the evidence conclusively
establishes that he complied with the Department of Family and Protective Services’
(“the Department’s”) family services plan, and (2) the evidence is legally and
factually insufficient to support the trial court’s finding that termination is in the
children’s best interest. Father’s alleged failure to comply with the family services
plan was only one of three grounds on which his parental rights were terminated.
Because Father does not challenge the trial court’s findings concerning the other two
grounds for termination, and because the evidence is legally and factually sufficient
to support the trial court’s best-interest finding, we affirm.

                                        I. BACKGROUND

       Father’s son Jerry1 was born in the autumn of 2014. When Jerry was six
months old, Father was arrested for possession of cocaine and given two years’
deferred probation. That same year, Father was placed on probation for possession
of marijuana.

       Father’s daughter Nadine was born in July 2016. The month before Nadine
was born, Father tested positive for methamphetamines; a month after she was born,
law-enforcement personnel were called to the house after Mother struck Father in
the head with a hammer. When the officers arrived, Nadine was in a room with
Mother, and Mother still had access to the hammer. Mother was sent to the Mental
Health and Mental Retardation Administration. Within a week, law-enforcement
personnel again were called to the home because Mother was having a manic
episode.

A.     The Initial Placement

       In September 2016, Father, Mother, both grandmothers, Family-Based Safety
Services caseworker Carla Burgess, Burgess’s supervisor, and another caseworker
attended a “family team meeting.” Burgess testified at trial that Father admitted
during the meeting that he was using methamphetamine two or three times a week
“[f]or energy for his job,” and that he had a history of cocaine and marijuana use.
Although Father had been diagnosed with bipolar disorder ten years earlier, he was
receiving no medication or other treatment at that time. Mother has more severe

       1
         To increase readability while protecting the children’s identities, we refer to the children
by pseudonyms, which we have drawn from the National Hurricane Center’s 2018 and 2019 lists
of tropical-cyclone names having the same first initial as the children’s respective names.

                                                 2
bipolar disorder, and at the family meeting, Mother was psychotic and delusional.
The parents agreed to place the children with their maternal grandmother while
Father and Mother worked on their substance-abuse and mental-health issues.

B.     Events After the Children’s Return

       By November 10, 2016, Father had completed his drug and alcohol treatment
and Mother had been stabilized by medication, so the children were returned to their
parents. The family lived with Father’s mother, who was to monitor the children’s
safety. The Department was unaware at that time that the children’s paternal
grandmother has a history of drug use and a prior assault conviction.2

       After the children’s return, Father’s substance abuse continued. According to
statements    Father    made     during    later   psychological     testing,   he   used
methamphetamine again in December 2016. In February 2017, Burgess conducted
an unannounced home visit while the children were at daycare, and both parents
appeared to her to be under the influence of drugs. Father’s mother told Burgess
that both parents had used synthetic marijuana on multiple occasions since the
children’s return. Although Father and Mother either refused to answer questions
about their drug use or denied using drugs, Burgess would not allow them to pick up
the children from daycare until they completed a drug test. Both parents tested
positive for marijuana; Father’s mother refused to complete a drug test. Although
the children had been returned to their parents almost three months earlier, Father




       2
        The children’s paternal grandmother has been known by different names, and the
Department’s background check of one name did not reveal information recorded under another
name.

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told a psychologist that he used marijuana in February 2017 because “he ‘was
celebrating’ the close of his CPS case.”3

C.      Events During the Children’s Second and Third Placements

        Due to Father’s and Mother’s continuing drug use, the children initially were
returned to their maternal grandmother; however, the maternal grandmother already
was caring for Mother’s two older children and found it too difficult to care for all
four children. Jerry and Nadine therefore were placed with the family of a maternal
cousin in Louisiana in March 2017.

        Father entered into a new service plan that required him to “maintain stable
and secure housing that is free of drugs, alcohol, and domestic violence” and to
attend Alcoholics Anonymous or Narcotics Anonymous at least three times a week.
That summer, Father received an eviction notice, but he had not yet been
dispossessed when Hurricane Harvey caused water damage to the residence in
August 2017.4 FEMA then paid for Father and Mother to live in a motel. Father
testified at trial that he has since paid his former landlord all of the rent that was
owed.

        In October 2017, Father, Mother, the children, the children’s maternal
grandmother, and the children’s guardian ad litem Kimberly Marshall celebrated
Jerry’s birthday at a McDonald’s restaurant in Texas. Marshall testified that Father
“show[ed] up at the birthday party at McDonald’s with Jack and Coke in his cup.”
She did not ask that CPS test Father for alcohol because Father admitted that he was
drinking; the children’s maternal grandmother similarly testified that Father



        3
         “CPS” is the acronym used for Child Protective Services. Family-Based Safety Services
are offered through CPS.
        4
            It is unclear whether he received the eviction notice before or after the hurricane.

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admitted drinking at this party. At trial, Father denied that he had been drinking
alcohol and stated that he quit drinking in July 2017.

D.    Events During the Children’s Fourth Placement

      In January 2018, the children were moved to the home of Mother’s sister in
Texas. The children’s aunt testified that when Jerry arrived, he had been shy and his
speech had been slightly delayed, but “after he kind of came out of his shell, he
started talking a lot more.” She further testified that she plans to adopt the children,
just as she adopted a young cousin who first began living with her through a similar
kinship placement.

      In the time since the children have been living with their aunt, Father has been
arrested twice: once for driving while intoxicated, and once for domestic violence.

      The charges for driving while intoxicated were dropped, but Deputy Thomas
Liles of the Brazoria County Sheriff’s Department testified at trial to the
circumstances of the arrest. Liles stated that he observed Father driving in two
lanes—“down the dotted lines”—and traveling at a speed of 15 miles per hour in a
30-miles-per-hour zone. During the traffic stop, Liles noticed a strong odor of burnt
marijuana coming from the inside of the vehicle. Father was asked to step outside,
and according to Liles, Father could barely walk. As Liles described the scene,
Father had difficulty putting on a shoe and had to hold onto the vehicle to stand.
Although no illicit narcotics were found in the vehicle, officers found what appeared
to be the small burnt end of a marijuana cigarette but did not collect it. A different
officer arrested Father for driving while intoxicated, and Liles arrested Mother, who
also was present, for an outstanding warrant. While being transported to jail, Mother
admitted on camera that she and Father both had been smoking synthetic marijuana
that day.


                                           5
      Father’s version of events was markedly different. He testified that when he
was arrested, the car actually had been stopped. He stated that he could not recall
his physical condition at the time of the arrest, but that he was not alert. When asked
what he was doing when the police approached him, Father testified, “I guess I had
passed out.” He denied that he had been using drugs but stated that he had taken
some sleep aid medication.

      Two weeks after his arrest for driving while intoxicated, Father was arrested
for assaulting Mother. Deputy Rachel Houston of the Brazoria County Sheriff’s
Department testified that Father and Mother’s neighbor had called to report a man
and woman arguing outside the residence. When officers arrived, Mother was not
there, but Father stated that Mother “was being crazy” and hadn’t slept for days.
Houston referred Father to the mental-health officer on duty. Later that day, Father
called for help. He stated that he was riding in the back of a pickup truck driven by
Mother, who was driving recklessly and would not stop. When Houston located
Father, he was standing next to the truck and Mother was walking down the road in
the rain. Father stated that he had looked for Mother and found her at a convenience
store, and when she tried to leave in his pickup truck, he jumped in the back.
Houston spoke to Mother, who reported that Father had been up smoking synthetic
marijuana all night and she wanted him out of the house. She stated that Father had
thrown her to the ground, but Houston found no marks or bruises on Mother or
Father; Mother’s mother later testified, however, that Mother showed her bruises on
her arm and the back of her leg that Mother said were from that incident. Houston
arrested Father for assault by contact, and Mother obtained a protective order. Father
then moved in with his mother.

      The trial court also heard testimony about Father and Mother’s monthly visits
with the children, which usually take place at their maternal grandmother’s house.

                                          6
The children’s grandmother testified that up until a few months earlier, Father and
Mother would sometimes go out to Father’s truck during visitation and become
intoxicated. She stated that she did not feel comfortable allowing Father and Mother
around the children in that condition, and that she warned Father and Mother, “if
that’s what they’re going to do, then they need to leave.” Nevertheless, she did not
in fact ask them to leave, and she stated that Father had not appeared intoxicated in
the most recent three or four visits before trial.

      Sometime during this period, Father voluntarily completed a 21-day drug
rehabilitation program. Father denies that he used drugs after February 2017, but he
stated that he believed voluntarily completing such a program would help in
obtaining his children’s return. The children’s maternal grandmother testified that
she has seen Father feed the children and change diapers; that he plays with the
children; that the children are excited to see him; and that she has no knowledge of
the children ever being harmed or malnourished in his care. She concluded, “As
long as [Father] is not on any type of drugs or drinking, he’s not a danger to them.”

      Finally, the aunt with whom the children reside described an incident that had
taken place at Nadine’s second birthday party, which, according to their maternal
grandmother, took place just five days before trial. The party was held at a house
with a pool. The children’s aunt, who was responsible for the children, wanted to
go into the house for a piece of cake. Mother and Father were in the pool area with
the children, and Father told the aunt that he was watching the children. The
children’s aunt went into the house and returned in time to see Nadine fall into the
pool. The children’s aunt grabbed Nadine’s arm and pulled her out of the pool. As
the aunt testified at trial, Father responded, “I’m sorry, [Mother] distracted me.” The
children’s aunt expressed regret for leaving the children with their parents for even



                                            7
a few seconds and testified that she would not allow visitation if permitted to adopt
the children.

      The trial court rendered judgment terminating Mother’s and Father’s parental
rights and appointing the Department as permanent managing conservator. Father
brings this accelerated appeal challenging the termination of his parental rights.

                             II. STANDARD OF REVIEW

      Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980);
In re S.R., 452 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). Although parental rights are of constitutional magnitude, they are not
absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The child’s emotional and
physical interests must not be sacrificed merely to preserve the parent’s rights. Id.

      The party seeking to terminate a person’s parental rights bears the burden of
proof. In re L.M.I., 119 S.W.3d 707, 720 (Tex. 2003). Due to the severity and
permanency of the termination of parental rights, the burden of proof is heightened
to clear and convincing evidence. TEX. FAM. CODE § 161.001; In re J.F.C., 96
S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing evidence’ means the measure
or degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” TEX. FAM.
CODE § 101.007; In re J.F.C., 96 S.W.3d at 264. This heightened burden of proof
results in a heightened standard of review. In re S.R., 452 S.W.3d at 358.

      In reviewing the legal sufficiency of the evidence in a termination case, we
must consider all the evidence in the light most favorable to the finding to determine
whether a reasonable factfinder could have formed a firm belief or conviction that
its finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In re J.F.C.,


                                          8
96 S.W.3d at 266. We assume the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so, and we disregard all evidence a
reasonable factfinder could have disbelieved. In re J.O.A., 283 S.W.3d at 344; In re
J.F.C., 96 S.W.3d at 266.

      In reviewing the factual sufficiency of the evidence, we consider and weigh
all the evidence, including disputed or conflicting evidence. See In re J.O.A., 283
S.W.3d at 345. “If, in light of the entire record, the disputed evidence that a
reasonable fact finder 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.” In re J.F.C., 96 S.W.3d at 266. We do not
substitute our own judgment for that of the factfinder but give due deference to its
findings. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). The
factfinder is the sole arbiter when assessing the credibility and demeanor of
witnesses. Id. at 109. We are not to “second-guess the trial court’s resolution of a
factual dispute by relying on evidence that is either disputed, or that the court could
easily have rejected as not credible.” In re L.M.I., 119 S.W.3d at 712.

                     III. PREDICATE TERMINATION GROUNDS

      Parental rights can be terminated upon clear and convincing evidence that
(a) the parent has committed an act described in section 161.001(b)(1) of the Family
Code and (b) termination is in the best interest of the child. TEX. FAM. CODE
§ 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Only one
predicate finding under section 161.001(b)(1) is necessary to support a decree of
termination when termination is in the child’s best interest. See In re A.V., 113
S.W.3d 355, 362 (Tex. 2003).

      Father’s parental rights were terminated on the following statutory grounds:


                                           9
       (b)    The court may order termination of the parent-child relationship
              if the court finds by clear and convincing evidence:
              (1)    that the parent has:
                                            ...
                     (D)    knowingly placed or knowingly allowed the child to
                            remain in conditions or surroundings which
                            endanger the physical or emotional well-being of
                            the child;
                     (E)    engaged in conduct or knowingly placed the child
                            with persons who engaged in conduct which
                            endangers the physical or emotional well-being of
                            the child;
                                            ...
                     (O)    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(b)(1)(D), (b)(1)(E), (b)(1)(O). On appeal, Father
argues that the evidence is legally and factually insufficient to support the trial
court’s findings that (a) he failed to comply with the court-ordered family service
plan as described in subsection (b)(1)(O), and (b) termination of his parental rights
is in the children’s best interest.

       By failing to challenge the trial court’s findings under sections
161.001(b)(1)(D) and 161.001(b)(1)(E), Father has tacitly conceded that the
evidence is sufficient to support those findings. See In re T.C., No. 07-18-00080-
CV, 2018 WL 4039426, at *5 (Tex. App.—Amarillo Aug. 23, 2018, pet. denied)
(mem. op.). Unchallenged findings of fact are binding on an appellate court “unless

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the contrary is established as a matter of law, or if there is no evidence to support the
finding.” McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986).

      The record supports the trial court’s findings of endangerment under
subsections (b)(1)(E). Under this provision, courts may consider conduct both
before and after the Department removed the children from the home. See In re S.R.,
452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). And
endangering conduct is not limited to actions directed toward the child. See In re
J.O.A., 283 S.W.3d at 345. A parent’s continuing substance abuse can qualify as a
voluntary, deliberate, and conscious course of conduct endangering the child’s well-
being. See J.O.A., 283 S.W.3d at 345; In re S.R., 452 S.W.3d at 361. By using
drugs, a parent exposes the child to the possibility that the parent may be impaired
or imprisoned and, therefore, unable to take care of the child. See Walker v. Tex.
Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617–18 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied). Continued illegal drug use after a child’s removal is
conduct that jeopardizes parental rights and may be considered as establishing an
endangering course of conduct. Cervantes–Peterson v. Tex. Dep’t of Family &
Protective Servs., 221 S.W.3d 244, 253–54 (Tex. App.—Houston [1st Dist.] 2006,
no pet.) (en banc).

      Given the evidence of illegal substance abuse both before the children’s
removal and during their brief return, as well as the statements by Mother to law-
enforcement personnel and the testimony of the children’s maternal grandmother
regarding Father’s continued substance abuse after the children again were removed
from the home, we conclude that the record supports Father’s tacit admission that he
endangered the children’s well-being as described in subsection E. It is therefore
unnecessary for us to consider whether the evidence supports the trial court’s finding
regarding subsection D or to address Father’s arguments concerning subsection O.

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                       IV. THE CHILDREN’S BEST INTEREST

      In considering whether the evidence is sufficient to support a finding that the
termination of parental rights is in a child’s best interest, courts consider the non-
exhaustive list of factors set forth in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976). These factors include (a) the child’s desires, (b) the child’s present and future
emotional and physical needs, (c) the present and future emotional and physical
danger to the child, (d) the parental abilities of the individuals seeking custody,
(e) the programs available to assist those individuals to promote the child’s best
interest, (f) the plans for the child by those individuals or by the agency seeking
custody, (g) the stability of the home or the proposed placement, (h) the parent’s acts
or omissions that may indicate that the existing parent-child relationship is not a
proper one, and (i) any excuse for the parent’s acts or omissions. See id. The
absence of evidence about some of these factors does not preclude a factfinder from
reasonably forming a firm conviction or belief that termination is in a child’s best
interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). To the contrary, evidence of
only one factor may be sufficient to support termination. See In re S.J.R.-Z., 537
S.W.3d 677, 692 (Tex. App.—San Antonio 2017, pet. denied) (op. on reh’g).

      The Family Code also sets out additional factors to be considered in evaluating
a parent’s willingness and ability to provide the child with a safe environment. These
include, inter alia, the child’s age and physical and mental vulnerabilities; the
frequency and nature of out-of-home placements; whether there is a history of
substance abuse by the child’s family or those who have access to the child’s home;
whether there is a history of abusive or assaultive conduct by the child’s family or
others who have access to the child’s home; the willingness and ability of the child’s
family to effect positive environmental and personal changes within a reasonable



                                          12
time; and whether the child’s family demonstrates adequate parenting skills. TEX.
FAM. CODE ANN. § 263.307(b).

A.    The Children

      Jerry and Nadine were, respectively, three and two years old at the time of
trial. When children are too young to express their desires, the factfinder may
consider whether the children have bonded with the family with whom they are
placed, whether the children are well cared-for by them, and whether the children
have spent minimal time with the parent. In re. L.G.R., 498 S.W.3d at 205.

      At the time of trial, Jerry had spent nearly half of his life in out-of-home
placements, and Nadine has lived almost entirely with relatives other than her
parents. There is no evidence that the children have any special needs, and their aunt
testified that the children are current on all medical and dental check-ups. The trial
testimony indicates that the children are happy and thriving living with their aunt,
who plans to adopt them.

B.    Father

      We already have discussed Father’s continuing substance abuse, and the same
evidence is probative of endangerment in our best-interest analysis. See In re C.H.,
89 S.W.3d at 28. Although Father points to testimony that he always passed his
monthly drug tests, the evidence is conflicting. During a psychological consultation
on May 26, 2017, Father stated that he hadn’t been given a drug test since February
2017, and he admits that he tested positive at that time. The trial court reasonably
could have found the testimony of Father’s continuing substance abuse to be the
more credible.

      Evidence of criminal conduct, convictions, or imprisonment is relevant to a
review of whether a parent engaged in a course of conduct that endangered the well-

                                         13
being of the child. See In re S.R., 452 S.W.3d at 360–61. In addition to Father’s
drug-related criminal conduct, he was arrested for assaulting Mother after the
children’s removal. And were the children returned to him, he would not be the only
one in the home with a such a criminal history; Father now lives with his mother,
who also has a history of substance abuse and assault.

      As further evidence of endangerment and of Father’s parenting abilities, just
five days before trial, Father failed to prevent Nadine from falling into a pool at her
birthday party. At trial, he maintained that supervising the children was their aunt’s
responsibility.

      But perhaps the strongest evidence of endangerment is the note in Father’s
psychological evaluation that Father explained his February 2017 substance abuse
by stating that he was celebrating the end of this case. This suggests that Father’s
goal has been to moderate his drug use only while the Department is watching. This
inference is further supported by some of his trial testimony. When asked if he
believed his methamphetamine use was bad for the children, Father agreed, but he
qualified his answer by adding “if it’s habitual and it’s steady use and you don’t
change your ways.” And when asked if his multiple arrests and his use of synthetic
marijuana were bad for the children, Father answered, “It’s all bad but my present
situation what I have been going through, I am surprised I haven’t done worse.”

      We conclude that the record evidence is both legally and factually sufficient
to support the trial court’s best-interest finding.




                                           14
                                 V. CONCLUSION

      We affirm the trial court’s judgment.



                                      /s/     Tracy Christopher
                                              Justice

Panel consists of Justices Christopher, Hassan, and Poissant




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