## NUMBER 13

- 19

- 00 442

- CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRIST I

– EDINBURG

IN THE INTEREST OF S.L.L

., A CHILD

On a ppeal from the County Court at Law

of Aransas County, Texas.



## MEMORANDUM OPINION

Before Chief Justice Contreras and Justice s Longoria and Perkes

Memorandum Opinion by Justice Perkes

Appellant S.L. (Mother) challenges the termination of her parental rights to her only

daughter, S.L.L. 1 See T EX

. F AM

. C ODE A NN

. §§ 161.001(b)(1)(D), (E), (O), (b)(2). By

what we construe as two issues, Mother argues the evidence is legally and factually

insufficient 2 to support a finding that appellee, the Department of Family and Protective

1 To protect the identity of the minor child, we utilize aliases for the child and related parties. See

T EX

. F AM

. C ODE A NN . § 109.002(d); T EX

. R. A PP

. P . 9.8(b)(2).

2 Mother does not specif y whether she challenges the legal or factual sufficiency of the evidence.

Regardless , we address both. See T EX

. R. A PP

. P . 38.9; In re Z.M.M. , 577 S.W.3d 541, 542

– 43 (Tex.

2019) (per curiam)

.2

Services (the Department)

, met its burden to show that : (1) Mother committed one or

more statutory predicate acts or omissions under family code § 161.001(b)(1); and (2)

termination is in the child ’ s best interest

. See id. We affirm.

I. B ACKGROUND

According to Brandy Ritter, a family

- based safety supervisor with the Department,

S

. L

. L

. , Mother, and S.L. (Father) 3 were residing together in Aransas Pass , Texas when

the Department first intervened in May 2018 after receiving an anonymous tip regarding

methamphetamine use and domestic violence in the home

.

During a bench trial in August 2019, Ritter testified that t he family was initially

referred to individual counseling, family counseling, substance abuse assessments,

substance abuse therapy

, and random drug testing. Ritter stated that neither parent was

cooperative at the outset

. Mother denied drug use and domestic violence, and Father

claim ed that counseling was “against his religion

. ” On May 21, 2018, the trial court

issued an order for required participation in the Department ’ s services.

Three months later in August 2018

, the Department was notified that there had

been a domestic violence altercation 4 involving Mother and Father

, and law enforcement

had been called out to the home for a welfare check. Mother admitted to police

, and

later to the Department, that she feared for her and S.L. L. ’ s li ves

. A rrangements were

made to transport Mother and S.L. L. to The Purple Door, a women ’ s shelter in San

Antonio , Texas

. Mother thereafter remained in contact with Father.

3 The parties do not dispute that Father is S.L.L.’s biological father. According to Mother, Father

and Mother separated when she was eight months pregnant with S.L.L. so Father could “try to make it

work” with his then

- wife for the sake of his two biolog ical children, S.L.L.’s half siblings. Shortly after S.L.L.

was born, Father relinquished his parental rights over S.L.L. Therefore, Father is not a party to this suit.

Mother and Father reconciled less than a year after Father’s parental rights were te rminated, and he

remains involved in S.L.L.’s life as Mother’s paramour.

4 Neither party expounded on the details of the altercation.3

Ritter testified, “[Father] was threatening the family, and [saying] that he was going

to shoot

— that he was planning on shooting [Mother] if she wasn ’ t cooperating with him

to go back.” L aw enforcement intervened in San Antonio before Father could reach

Mother ’ s location, and Father was found in possession of a firearm

. Within days of

Father ’ s arrest

, he was bailed out of jail

, and Mother, Father, and S.L.L. returned to

Aransas Pass together. The family was subsequently evicted from their home for failure

to pay past

- due rent

. In August, Mother test ed positive for methamphetamine despite

continuing to deny any drug use

.

On September 6, 2018, S.L .L

. was removed from the home

. Ritter testified that

the Department removed S.L.L. because : (1) Mother had not been cooperating with

service s; (2) Mother had tested positive for methamphetamine use; and (3) the

Department believed Mother had shown diminished protective abilities by exposing S.L.L.

to an unsafe

, unstable home environment. According to Ritter, Father suffers from an

undisclosed mental illness, and S.L.L

. has been exposed to his alarming behaviors. The

child has seen Father “acting like people are chasing him, believing things that [sic] are

following him, hiding from people, [and] physically harming her mother

. ”

On October 5, 2018, the Department held a family group conference, detailing

Mother ’ s goals and expectations for family reunification

. Valerie Moretich, S.L. L. ’ s case

worker, testified that Mother was tasked with , among other things: (1) ensuring a home

free of domestic violence; (2) participating in child

- parent visitations; (3) participating in

random drug testing and substance abuse counseling; (4) attending individual counseling ;

and (5) maintaining stabl e housing and employment

.

Between September 2018 and August 2019, when the bench trial on the merits

was held, Mother moved multiple times

— residing in Corpus Christi

, Houston, San4

Antonio, and Dallas. 5 Ritter said Mother remained in contact with the Department and

notified the Department anytime she moved or traveled, which she often did to

accompany Father to his criminal court proceedings in various counties

. Moretich

testified that Mother ’ s inability to maintain residence in one city for a significant period

resulted in a delay of service initiation and completion

. Moretich said that e very time

Mother moved, Mother was aware that “we [had] to restart those services .”

By May 2019

, Mother had settled in Dallas with Father and his relatives , obtained

fulltime employment at a veterinary clinic , and consistently visited her daughter once

every other week

. Mother was only permitted two

- hour visitations every other Thursday.

Moretich stated that there were no reported incidents during any visitations, and for the

exception of a two

- month period shortly after Mother moved to Dallas when Mother “was

going back and forth to Aransas Pass with [Father],” Mother attended her visitations.

One month before trial, Mother initiated individual counseling services. One week before

trial, Mother began attending substance abuse counseling.

Moretich said that Mother was c ompliant with random drug testing requests since

September 2018

, submitting to fifteen urinary analysis requests

, all of which returned

negative results

. However, Moretich then informed the court that the window for drug

detection is seven days for a urinary analysis and that several of Mother ’ s thirteen hair

follicle tests, although presenting largely declining levels, were positive for

methamphetamine. Moretich stated Mother ’ s results indicated an “increase” in

5 The testimony was unclear regarding the precise timeline

. However, Mother testified that once

S.L.L. was removed from the home in September 2018 , she moved to Houston to live with her biological

father. Because t he two were unemployed and Mother was without means of transportation to visit S.L.L.

, Mother moved once more in December 2018 to stay with her own mother in San Antonio. Mother then

determined it was an unfit household because her mother is “unstable” and struggles with substance abuse

. After “four or five months,” Mother moved again to join Father in Dallas

.5

methamphetamine levels between January and February 201 9

— eight months after the

Department first intervened

. T he Department did not receive a “clean” hair follicle test

from Mother until May 2019.

In late June 2019, in support of Mother ’ s progress to regain custody of S.L.L.,

Father approached the Department requesting inclusion in the family service plan.

Father was asked to complete “an MH

- MR screening, substance abuse assessment and

counseling, individual counseling for perpetrators of domestic violence, random drug

testing, and to maintain a safe and stable home environment.” Father

, who was on

felony probation in two different counties

, then tested positive for amphetamines and

methamphetamines one month before termination proceedings

.

Moretich testified that the Department’s concerns regarding Mother ’ s parental

fitness stemmed largely from Mother ’ s prioritization of her tumultuous relationship with

Father over her daughter

. According to Moretich, Father most recently displayed erratic

behavior in April 2019 in a purposeful effort to frustrate a mother

- daughter reunification

.

“ [Father] had threatened to kill himself and he had threatened to make sure that [Mother]

never got [S.L.L.] back. And then she ha d left him again and several weeks later they

were back in a relationship

, ” said Moretich. To date, Mother relies on Father for

transportation to and from her employment, her classes, and any time she wishes to leave

th eir home

. Mother told Moretich that she plans to marry Father.

Moretich testified that Mother continues to struggle to find a suitable residence,

currently relying on the goodwill of Father ’ s relative , M.R. M.R. confirmed that Mother

and Father currently reside with her and her husband in Dallas. Although neither Mother

nor Father contribute financially to the household, M.R. said “they cook, they clean, they

vacuum,” and find other ways to help around the home. M.R. maintained that she has6

seen a change in Mother and Father since they first began living with her. When

questioned regarding Father ’ s most recent positive drug test, M.R. stated, “I was told it

was a one

- time situation that was kind of a mistake, thought maybe he was taking

something different. I really don ’ t believe that he went out actively looking for any drugs,

I really don ’ t.” M.R. stated that “if it ever happens again[,] he has to go,” but reiterated

that she did not believe Father would relapse.

At trial, Mother was reluctant to discuss her history of domestic violence

.

Although Mother conceded the existence of several domestic violence “altercations

, ” two

of which resulted in protective orders in two different counties that she later withdrew

,

Mother stated that the incidents were “just arguments” and that she did not “feel

comfortable talking about it

. ” M other could not remember whether Father ever

threatened to kill her

, and she denied that he ever pointed a gun at her

— contrary to her

prior protective order affidavit

. When asked whether her daughter was ever privy to

these unspecified altercations, Mother wavered, first testifying t hat S.L.L. “was not” in the

home at the time

. Mother then stated, “She may or may not have been.” When

pressed, Mother explained, “No, it is a little blurry, that ’ s when we were using

. ” Mother

later clarif ied that the altercations occurred “behind closed doors.” While Mother

admitted to prior methamphetamine use, she denied using drugs in the home. Mother

also denied being aware of any incidents of domestic violence resulting in criminal

charges between Father and his ex

- wife.

Mother was questioned extensively on her decision to remain in a relationship with

Father and stated that she only “intend[s] to continue [being with him] if he ’ s going down

the right path.” Mother testified she ultimately decided to move back to Dallas to live with

Father because he was “drug free, getting himself back together, and stab [le ].” She also7

attributed any of Father ’ s past violent behavior to his drug use. However, w hen

confronted with Father ’ s recent positive drug test

, Mother reaffirmed her decision to keep

Father in S.L.L. ’ s life.

Q. Would you agree that [a] home where someone is using is not a

safe home for a child?

A. I do.

Q. So as we said today you don ’ t have a safe and stable home for

your child to return to.

A. I mean, if more hair follicles and UAs come up positive [,] I do not.

Q. As of right now [Father] has a positive hair follicle.

A. Yes, he does.

Q. And you ’ re not concerned about that for your daughter?

A. I am, but I ’ ve done plenty of hair follicles, they ’ ve gone up, they ’ ve

gone down, that ’ s what I look at.

Q. So you ’ re siding with [Father] at this point.

A. I ’ m looking over one of his mistakes, yes.

At the time of trial, S.L.L. was eight years old and residing with Father ’ s uncle and

aunt

, V.R. and P.R

. , in San Antonio

. V.R. described S.L.L. as a happy child, who ha s

recently taken an interest in 4

- H and is excelling in school under the gifted and talented

program. V.R. said S.L.L. is reluctant to discuss any incidents involving Mother and

Father

, although she did express that “ one time that she was fearful for her mother [sic]

something about her dad breaking the windshield trying to get to her, and she remembers

just holding on to her dog Diesel and crying .” According to V.R., that has been the extent

of S.L.L. ’ s disclosures.

V.R. voiced concerns about Mother ’ s ability to care for S.L.L. because Mother is

wholly dependent on Father. V.R. said he initially believed his nephew had been sincere8

about rehabilitation ; however, Father ’ s recent d ecision to continue to use drugs changed

his opinion on Father and

, by extension, on Mother ’ s ability to prioritize and care for S.L. L.

V.R. said he and his wife were open to adopting S.L.L. and allowing Mother and Father

to continue to see S.L.L. even after adoption

— provided that they “prove that they’re drug

free and currently employed and doing the right thing.”

S.L.L. did not testify at trial

. Moretich , however, informed the trial court that she

discussed conservatorship with S.L.L. Moretich asked S.L.L. how she “would feel if she

were to stay where she was,” and S.L.L. replied that “she would like to stay [with V.R. and

P.R.] as long as she was able to still see her mom.”

The trial court determined the Department had proven by clear and convincing

evidence that termination was appropriate under Texas Family Code § 161.001(b)(1)( D )

,

( E )

, and that termination was in S.L.L. ’ s best interest. See id. §§ 161.001(b)(1)(D), (E),

(O), (b)(2). This appeal followed.

II. T HE S TATUTORY P REDICATE F INDING

A. Standard of Review and Applicable Law

Section 161.001 of the Texas Family Code balances the convergent and divergent

interests of a parent ’ s constitutional right to “ the companionship, care, custody, and

management” of his or her child

, see Stanley v. Illinois

, 405 U.S. 645, 651 (1972), and

the necessity of protecting a child ’ s physical and emotional well

- being via a promulgated

two

- part test. See In re A.C.

, 560 S.W.3d 624, 630 (Tex. 2018) ; see also In re A.V.

, 113

S.W.3d 355, 361 (Tex. 2003) ( “[T]he rights of natural parents are not absolute; protection

of the child is paramount

. . . . The rights of parenthood are accorded only to those fit to

accept the accompanying responsibilities.” (quoting In re J.W.T.

, 872 S.W.2d 189, 195

(Tex. 1994)))

.9

T o terminate parental rights

, t he movant must prove by clear and convincing

evidence that (1) the parent committed one or more statutory predicate acts or omissions

,

and (2) termination is in the child ’ s best interest. See T EX

. F AM

. C ODE A NN

. § § 101.007

,

161.001(b)

. “ 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. ” Id. § 101.007. “This heightened proof

standard carries the weight and gravity due process requires to protect the fundamental

rights at stake.” In re A.C.

, 560 S.W.3d at 630.

“Evidence is legally sufficien t if, viewing all the evidence in the light most favorable

to the [fact finder] and considering undisputed contrary evidence, a reasonable [fact

finder] could form a firm belief or conviction that the finding was true.” Id. (citing In re

J.F.C.

, 96 S.W.3d 256, 266 (Tex. 2002))

. Only when the factual sufficiency of the

evidence is challenged

, does the inquiry become “ whether disputed evidence is such that

a reasonable [fact finder] could not have resolved it in favor of the finding.” Id.

Generally, a single predicate finding under § 161.001(b)(1) of the f amily c ode is

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

is in the child ’ s best interest. In re N.G.

, 577 S.W.3d 230, 234 (Tex. 2019) (per curiam)

.

However, a trial court ’ s affirmative finding of endangerment under §§ 161.001(b)(1)(D) or

(E)

— even when another ground is sufficient for termination

— necessitates the appellate

court ’ s additional review of (D) or (E) because of the potential consequences for parental

rights to a different child. I d.

Mother first argues that the evidence is legally and factually insufficient to support

a predicate finding under sub section s ( D )

, (E), or ( O ). See T EX

. F AM

. C ODE A NN

.

§ 161.001(b)(1)( D ), ( E ) , (O)

. W hile both subsections ( D ) and ( E ) focus on10

endangerment, they differ regarding the source and proof of endangerment

, and

therefore

, we address each subsection in turn. See In re M.M.

, 584 S.W.3d 885, 889

(Tex. App.

— Amarillo 2019, pet. denied)

.

B. Termination under § 161.001(b)(1)(D)

Sub section ( D ) requires a showing that a parent “ knowingly placed or knowingly

allowed the child to remain in conditions or surroundings which endanger the physical or

emotional well

- being of the child.” See T EX

. F AM

. C ODE A NN

. § 161.001 (b) (1)( D ).

Endanger “means to expose to loss or injury, to jeopardize.” In re N.J.H.

, 575 S.W.3d

822, 831 (Tex. App.

— Houston [1st Dist.] 2018, pet. denied) (citing In re M.C.

, 917 S.W.2d

268, 269 (Tex. 1996) (per curiam)). “Knowingly” requires that “the parent be aware of

but disregard” the potentially endangering environment at issue

. See In re E.R.W.

, 528

S.W.3d 251, 264 (Tex. App.

— Houston [14th Dist.] 2017, no pet.). It is not necessary

,

however, that the Department show the child ’ s environment directly threatened or injured

the child. S ee In re M.M.

, 584 S.W.3d at 889

. Further, t ermination under subsection

( D ) is permitted on the basis of a single act or omission. See id. at 889

– 90 ; In re E.M.

,

494 S.W.3d 209, 22 1

– 22 (Tex. App.

— Waco 2015, pet. denied).

E vidence of a child ’ s environment before the Department obtained custody

,

including the acceptability of the child ’ s living conditions and parental conduct in the

home, is subsumed in the endanger ment analysis. See In re J.E.M.M

, 532 S.W.3d 874,

880

– 81 (Tex. App.

— Houston [14th Dist.] 2017, no pet.). Likewise, “[i]nappropriate,

abusive

, or unlawful conduct by persons who live in the child ’ s home or with whom the

child is compelled to associate on a regular basis in the home is a part of the ‘ conditions

or surroundings ’ of the child ’ s home ” under sub section (D). In re M.D.M.

, 579 S.W.3d

744, 764 (Tex. App.

— Houston [1st Dist.] 2019, no pet.) (quoting Jordan v. Dossey

, 32511

S.W.3d 700, 721 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied ) ) ; see also In re E.M.

,

494 S.W.3d at 222 (“ Abusive or violent conduct by a parent or other resident of a child ’ s

home may produce an environment that endangers the physical or emotional well

- being

of a child.”).

Mother contends that “[n]o evidence was introduced, either expert or lay witness

evidence, to demonstrate that [she] had ever endangered or neglected her child, or that

her behavior was likely to ever endanger or neglect the child.” However, Mother ’ s own

testimony provided evidence of endangerment prior to the Department ’ s intervention :

Mother confirmed Mother and Father ’ s methamphetamine use and domestic violence in

the home. See In re B.M.S.

, 581 S.W.3d 911, 917 (Tex. App.

— El Paso 2019, no pet.)

(providing that e vidence of a parent ’ s use of drugs may qualify as an endangering course

of conduct ) ; In re K

- A.B.M.

, 551 S.W.3d 275, 287 (Tex. App.

— El Paso 2018, no pet.)

(same). Although Mother maintained that any violence w as limited to when they were

“using” methamphetamine and occurred outside S.L.L. ’ s presence, the trial court was also

privy to contradictory evidence : V.R. testified S.L.L. disclosed an incident whe n Father

broke a windshield trying to assault Mother while S.L.L. was in the vehicle

. Furthermore

,

S.L.L. ’ s caseworker testified to the severity of the domestic violence, wherein Mother

confided that she has feared for her and S.L.L. ’ s lives on more than one occasion

, that

she had sought and requested the removal of multiple protective orders against Father,

and that weapons were involved in prior disputes

.

Evidence of Father’s erratic and violent behavior, combined with Mother’s

persistent willingness to tolerate and excuse such behavior, also supports the

endangerment finding. Mother argues on appeal that her repeated decisions to remove

herself and her da ughter “from the situation” after each incident is indicative of her12

protective capabilities. We disagree to the extent that Mother ’ s separation from the

relationship was always followed by reconciliation and subsequent patterns of vol a tility

—

a hazardous cycle pursued by Mother at the expense of her daughter ’ s physical and

emotional well

- being. See In re I.G.

, 383 S.W.3d 763, 770 (Tex. App.

— Amarillo 2012,

no pet.) (“A parent ’ s failure to remove himself and his children from a violent relationship

endangers the physical or emotional well

- being of the children.”). We note that evidence

of the relationships ’ ins t ability i s further compounded by Father ’ s documented mental

illness, which include s reports of Father ’ s behavior in S.L.L. ’ s presence: “acting like

people are chasing him, believing things that are following him, [and] hiding from people.”

Considering all the evidence in the light most favorable to the finding, we conclude

the trial court could have formed a firm conviction or belief that Mother ’ s past drug use

and resolve to remain with an unstable , drug

- addicted, abusive individual support s an

endangerment finding under subsection (D). See T EX

. F AM

. C ODE A NN

.

§ 161.001(b)(1)(D); In re O.E.R.

, 573 S.W.3d 896, 905 (Tex. App.

— El Paso 2019, no

pet.) (providing that evidence of domestic violence between mother and father was

sufficient to establish endangerment under § 161.001(b)(1)(D) ) ; In re J.E.M.M

, 532

S.W.3d at 881 ( same) ; In re M.R.J.M.

, 280 S.W.3d 494, 502 (Tex. App.

— Fort Worth 2009,

no pet.) (same)

.

Our factual sufficiency analysis similarly considers many of the disputed

aforementioned facts, including the magnitude of the domestic violence and the extent

S.L.L. was privy to any violence

. W e conclude the evidence is factually sufficient to

support the subsection ( D ) finding because the trial court could have reasonably resolved

those disputes in favor of that finding. See T EX

. F AM

. C ODE A NN

. § 161.001(b)(1)(D) ; see

also In re J.J.L.

, 578 S.W.3d 601, 609 (Tex. App.

— Houston [14th Dist.] 2019, no pet.)13

( “We may not second

- guess the fact finder ’ s resolution of actual dispute by relying on

disputed evidence or evidence the fact finder ‘ could easily have rejected as not credible. ’ ”

(quoting In re L.M.I.

, 119 S.W.3d 707, 712 (Tex. 2003))). Accordingly, we conclude that

the evidence was legally and factually sufficient to support termination under subsection

( D )

. T EX

. F AM

. C ODE A NN . § 161.001(b)(1)( D ). Issue o ne is overruled.

C. Termination Under § 161.001(b)(1)(E)

Under subsection ( E )

, the relevant inquiry is whether evidence exists that the

parent has “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.” I d.

§ 161.001(b)(1)(E). Unlike subsection ( D )

, a finding under subsection ( E ) cannot be

based on a single act or omission. See In re P.W. , 579 S.W.3d 713, 726 (Tex. App.

—

Houston [14th Dist.] 2019, no pet.)

. S ubsection ( E ) “ requires a voluntary, deliberate, and

conscious course of conduct by the parent. ” Id. Like subsection ( D )

, however, i t is not

necessary that the parent ’ s conduct be directed at the child or that the child actually suffer

injury. Tex. Dep ’ t of Human Servs. v. Boyd

, 727 S.W.2d 531, 533 (Tex. 1987); P.W.

,

579 S.W.3d at 726

. A fact finder is also not limited to consideration of the parent ’ s

actions before the child has been removed by the Department; any actions or inactions

occurring before and after a child was born may be considered

, including evidence of a

parent ’ s drug use or propensity for violence

. See In re J.O.A.

, 283 S.W.3d 336, 345

(Tex. 2009) ; see also In re R.S.

- T.

, 522 S.W.3d 92, 109

– 10 (Tex. App.

— San Antonio

2017, no pet .) (“Domestic violence, want of self

- control, and propensity for violence may

be considered as evidence of endangerment.”); Walker v. Tex. Dep ’ t of Family &

Protective Servs.

, 312 S.W.3d 608, 617 (Tex. App

— Houston [1st Dist.] 2009, pet. denied)

(reasoning that a parent ’ s i llegal drug use may support termination under subsection ( E )14

because “it exposes the child to the possibility that the parent may be impaired or

imprisoned”). Drug activity can constitute endangerment even if it transpires outside the

child ’ s presence. See J.O.A.

, 283 S.W.3d at 345.

W hile Mother provided fifteen clean urinary drug tests between September 2018

and July 2019

, Mother presented methamphetamine

- positive hair follicle results between

August 2018 and May 2019

. T he Department explained that hair follicle tests have a

substantially longer window from which drug use may be detected, rendering hair follicle

tests more reliable than ur inary tests. Moreover, the Department considered Mother’s

initial refusal to submit to drug testing, and Father ’ s refus al until June 2019 , as additional

evidence of drug use. See In re E.R.W. , 528 S.W.3d at 264

– 65 (“[A] fact finder

reasonably can infer t hat a parent’s failure to submit to court

- ordered drug tests indicates

the parent is avoiding testing because they were using illegal drugs .”); In re S.C.F.

, 522

S.W.3d 693, 700 (Tex. App.

— Houston [1st Dist.] 2017, pet. denied) ( explaining that a

parent ’ s decision to engage in illegal drug use during the pendency of a termination suit,

when the parent is at risk of losing a child, “ supports a finding that the parent engaged in

a course of conduct that endangered the children ’ s physical or emotional well

- being.” ).

I n April 2019 , a s Mother worked towards compliance with the Department’s service

plan

, Father was threatening to “kill himself” and “to make sure that [Mother] never got

[S.L.L.] back

. ” Additionally, t he Department proffered evidence of Father ’ s June 2019

methamphetamine

- positive hair follicle test the month before the final hearing

commenced in this case

— while he was on felony probation and thereby, risking

revocation and a prison sentence

— which is especially problematic given the extent to

which Mother has chosen to affix her stability to Father ’s

. Evidence indicated that Mother

relies on Father for her housing and daily transportation, and that he acts as her support15

system although he has repeatedly sought to undermine her reunification efforts with her

daughter

.

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

under subsection (E), we conclude that a reasonable fact finder could have formed a firm

belief or conviction that Mother engaged in conduct or knowingly placed S.L.L. with

persons who engaged in conduct which endanger ed the child’s physical or emotional

well

- being

. See T EX

. F AM

. C ODE A NN

. § 161.001(b)(1)(E); In re J.O.A.

, 283 S.W.3d at

344. Further, a lthough Mother denied

, declined to disclose, or attempted to minimize the

domestic violence altercations which transpired and methamphetamine use by either

herself or Father

, it was within the purview of the trial court to determine Mother ’ s

credibility. See In re N.H.N. , 580 S.W.3d 440, 446 (Tex. App.

— Houston [14th Dist.]

2019, no pet.) ( according due deference to the trial court ’ s credibility determinations ).

H aving reviewed the entire record, we conclude the disputed evidence is not so significant

that the trial court, as fact finder, could not have formed a firm belief or conviction that

Mother ’ s conduct endangered S.L.L

. In re J.F.C.

, 96 S.W.3d at 266. We conclude the

evidence is legally and factually sufficient to support the termination finding under

subsection (E). See T EX

. F AM

. C ODE A NN

. § 161.001(b)( 1 ) (E). We overrule Mother ’ s

second issue. 6

III. T HE C HILD ’ S B EST I NTEREST

A

. Applicable Law

As previously established, i n addition to a predicate violation, the Department must

prove by clear and convincing evidence that termination is in the child ’ s best interest.

6 Having already found sufficient evidence to support a finding under subsections (D) and (E), we

need not address whether termination was appropriate under subsection (O). See In re N.G. , 577 S.W.3d

at 234.16

See T EX

. F AM

. C ODE A NN

. § 161.001(b)(2); see also id. § 153.002 (“The best interest of

the child shall always be the primary consideration of the court in determining the issues

of conservatorship and possession of and access to the child.”).

A fact finder may consider a number of factors to determine the child ’ s best

interest, including the child ’ s desires, the child ’ s present and future physical and

emotional needs, the present and future emotional and physical danger to the child, the

parental abilities of the people seeking custody, programs available to assist those people

in promoting the child ’ s best interest, plans for the child by those people or by the agency

seeking custody, the acts or omissions of the parent that may indicate that the existing

parent

- child relationship is not appropriate, and any excuse for the acts or omissions of

the parent. See Holley v. Adams

, 544 S.W.2d 367, 371

– 72 (Tex. 1976) ; see also In re

E.N.C.

, 384 S.W.3d 796, 807

– 08 (Tex. 2012) (reciting the Holley factors)

. Our “best

interest” analysis is not limited to these Holley factors, and t he absence of evidence

regarding some of the factors does not preclude a fact finder from reasonably forming a

strong conviction or belief that termination is in the child ’ s best interest. See In re C.H.

,

89 S.W.3d 17, 27 (Tex. 2002).

B

. Holley Analysis

As to the first factor, S.L.L. did not testify

, see Holley

, 544 S.W.2d at 371

– 72

, but

her caseworker informed the court of her wishes to remain living with her uncle and aunt

and to remain in contact with Mother. See T EX

. F AM

. C ODE A NN

. § 263.307(b)(1)

.

Moreover, although Mother ’ s visitations with S.L.L. w ere limited to every other Thursday, 7

the Department did not dispute that Mother and S.L.L. were bonded and instead rais ed

7 There was no evidence of Mother’s visitation schedule or frequency in the months prior to her

move to Dallas.17

concerns of Mother ’ s repeated prioritization of Father over her daughter and the

dangerous implications as applied to other Holley factors discussed in greater detail

below

.

A review of Mother’s performance under her service plan furthers an analysis of

several of the Holley factors, including the emotional and physical danger to the child now

and in the future, parental abilities, and stability. See Holley , 544 S.W.2d at 371

– 72; In

re J.L.C ., 582 S.W.3d 421, 432

– 33 (Tex. App.

— Amarillo 2018, pet. ref ’ d) (noting failure

to co mply with family service plan supports finding that termination is in best interest of

child) ; see also T EX

. F AM

. C ODE A NN

. § 263.307(b)(10)

– (12) (providing that, in determining

whether parents are willing and able to provide the child with a safe environment , the

court should consider “ the willingness and ability of the child ’ s family to seek out, accept,

and complete counseling services and to cooperate with and facilitate an appropriate

agency ’ s close supervision ”; “ the willingness and ability of the child ’ s family to effect

positive environmental and personal changes within a reasonable period of time ”; and

whether the family “ demonstrates adequate parenting skills ”)

.

As previously noted, the Department prepared a service plan for Mother that

required her, in part, to: (1) obtain and maintain employment; ( 2 ) participate in a mental

health assessment and in individual therapy ; ( 3 ) complete classes on domestic violence

an d substance abuse ; ( 4 ) submit to random drug tests ; (5) attend visitations with her

daughter; and ( 6 ) obtain and maintain safe and stable housing free of domestic violence

.

See T EX

. F AM

. C ODE A NN

. § § 263.307(b)(10)

– (12); Holley , 544 S.W.2d at 371

– 72; In re

S.B. , 207 S.W.3d at 887

– 88. However, m uch of Mother’s compliance with the plan

occurred in the three months preceding trial. See In re J.L.C ., 582 S.W.3d at 432

– 33 ;

see also In re R.L.L. , No. 04

- 18

- 00240

- CV, 2018 WL 6069866, at *14 (Tex. App.

— San18

Antonio Nov. 21, 2018, pet. denied) (mem. op.) (noting Mother’s delay in beginning

services as consideration for best interest determination). Mother obtained fulltime

employment three months before trial. Mother initiated individual therapy one month

before trial. Mother began substance abuse counseling one week before trial. With

respect to her visitation requirements, Mother attended visita tions without issue for three

months before trial but was absent from visitations for a two

- month period prior to that,

and t here was no evidence regarding visitations before Mother moved to Dallas.

Mother alternatively asse r ts that she has satisfied the Department’s requirement

that she obtain and maintain safe and stable housing in a drug and domestic violence

free environment. Yet, t he evidence indicates th at t he reason for the Department ’ s

intervention

— methamphetamine use and domestic violence in the home

— continued one

year after service initiation

. See Holley

, 544 S.W.2d at 371

– 72; In re L.G.R.

, 498 S.W.3d

195, 204 (Tex. App.

— Houston [14th Dist.] 2016, pet. denied) (noting a parent ’ s drug use

supports finding that termination is in best interest of child) ; In re O.N.H.

, 401 S.W.3d 681,

684

– 85 (Tex. App.

— San Antonio 2013, no pet.) (stating that simply exposing a child to

the other parent ’ s violence is a relevant consideration in determining a child ’ s best

interest) ; see also In re R.J

. , 579 S.W.3d 97, 118 (Tex. App.

— Houston [1st Dist.] 2019,

no pet.) (“ While mental illness is not a ground for parental termination, the impact of a

parent’s mental illness on his ability to parent an d the stability of the home are relevant

factors in the best interest of the child analysis.”)

. The trial court may also have infer red

that past endangering conduct may occur again in the future if the child is returned to

Mother

. See In re J.B.

, 436 S.W.3d 105, 118 (Tex. App.

— Houston [14th Dist.] 2014, no

pet.); see also In re C.H.

, 89 S.W.3d at 27 (holding the same evidence supporting19

termination under one of the grounds listed in § 161.001(b)(1) may be probative in a best

interest determination).

Further, Mother’s current residential stability is problematically dependent on

Father abstaining from methamphetamine use

. Given Father’s failure to demonstrate a

sustained period of sobriety, Mother’s housing situation remains as indeterminate as it

was in the year leading up to the termination hearing when Mother frequently moved.

See In re M.R. , 243 S.W.3d 807, 821 (Tex. App.

— Fort Worth 2007, no pet.) (noting

parent’s inability to provide s table home supports finding that termination is in best interest

of child); see also A.S. v. Tex. Dep’t of Family & Protective Servs. , 394 S.W.3d 703, 712

(Tex. App

. — El Paso 2012, no pet.) (providing that conduct that subjects a child to a life

of uncertai nty and instability endangers the physical and emotional well

- being of a child).

T he stability of S.L.L.’s proposed home environment is a similarly significant

consideration in determining whether termination of parental rights is in her best interest.

In re J.G.S.

, 574 S.W.3d 101, 126 (Tex. App.

— Houston [1st Dist.] 2019, no pet.) ; In re

J.D.

, 436 S.W.3d 105, 120 (Tex. App.

— Houston [14th Dist.] 2014, no pet.) (“Stability and

permanence are paramount in the upbringing of children.”). S.L.L. is doing exceedingly

well in her current placement, testing into the school ’ s gifted and talented program and

pursuing community

- based interests. The Department also presented evidence that the

family is open to adoption. T here was no testimony regarding Mother ’ s plans for her

child following reunification

. See Holley

, 544 S.W.2d at 371

– 72; In re W.E.C.

, 110

S.W.3d 231, 245 (Tex. App.

— Fort Worth 2003, no pet.).

With regard to the final Holley factors, although Mother has taken steps to improve

her life, see In re R.J. , 579 S.W.3d at 119, Mother ’ s acts and omission s, as well as her

excuses, at minimum, suggest an undervalued mother

- child relationship. See Holley

,20

544 S.W.2d at 371

– 72 ; I n re N.J.H.

, 575 S.W.3d 822, 832 (Tex. App.

— Houston [1st Dist.]

Dec. 18, 2018, pet. denied) (“[E]vidence of improved conduct, especially of short

- duration,

does not conclusively negate the probative value of a long history of

. . . irresponsible

choices.” (quoting In re J.O.A ., 283 S.W.3d at 346 )) ; see also In re D.W

., 445 S.W.3d 913,

932 (Tex. App.

— Dallas 2014, pet. denied) (providing that evidence considered in other

Holley factors may be relevant in analyzing the final two factors)

. Mother has shown she

lacks “protective capacity over her daughter” by prioritizing a volatile, drug

- addled

relationship with Father to her own detriment and at her daughter’s expense. As

consequence, Mother lacks the parental ability and stability to meet the current and future

needs of her daughter.

Having a nalyz ed the evidence under the applicable law and appropriate standards

of review, we conclude that a reasonable trier of fact could form a firm belief or conviction

that termination was in the best interest of S.L.L. We likewise conclude that any disputed

evidence regarding the Holley factors is not so significant that it would prevent a

reasonable fact finder from forming a firm belief or conviction. See Holley

, 544 S.W.2d

at 371

– 72

. W e overrule Mother ’ s last issue.

IV. C ONCLUSION

We affirm the trial court ’ s judgment

.

GREGORY T. PERKES

J u stice

Delivered and filed the 9th

day of January

, 20 20

.