IN THE

TENTH COURT OF APPEALS

No. 10-21-00089-CV

IN THE INTEREST OF L.L.L., A CHILD

From the 77th District Court

Limestone County, Texas

Trial Court No. CPS-351-A

MEMORANDUM OPINION

In three issues, the Father of L.L.L. (“Father”) appeals the trial court’s 

termination of his parental rights. The mother of L.L.L. (“Mother”) voluntarily 

relinquished her parental rights and is not a party to this appeal. The trial court 

determined that Father had violated subsections (D), (E), and (O) under § 161.001 of the 

Family Code and that termination was in the child’s best interest. See TEX. FAM. CODE

ANN. §§ 161.001(b) (1) (D), (E), and (O) and 2. We will affirm.

Issues

Father presents the following issues:

First Issue: The court abused its discretion by denying an 

extension.
In re L.L.L. Page 2

Second Issue: The Department presented no evidence or factually 

insufficient evidence to prove an endangering 

environment.

Third Issue: The Department presented no evidence or factually 

insufficient evidence to prove an endangering course 

of conduct.

Father does not contest the trial court’s findings that he violated subsection (O)

and that termination is in the best interest of the child.1

Background

L.L.L. was born in May 2017 while both parents were incarcerated. Between the 

time of her birth and Father’s release from custody in November 2017, L.L.L. was cared 

for by Mother’s sister and then by a woman who led 12-step and Christian Ministry 

classes at the jail where Father was in custody. Father was reluctant to have L.L.L. 

cared for by Mother’s family. Father took custody of L.L.L. when he was released. 

Mother was subsequently released from incarceration in February 2018. Father, 

Mother, and L.L.L. all lived together; first in Austin and then in Burnet when Father 

went to work with a company out of Marble Falls. In February 2020, Father was 

arrested for DWI. 

L.L.L. came to the attention of the Department in March 2020 after Father made a 

complaint that Mother was using marijuana and methamphetamine and neglecting 

L.L.L. Father and Mother, who married in August 2018, had separated and were 

1 While violation of subsection (O) may alone support the termination of parental rights, a parent’s 

challenge to the sufficiency of the evidence regarding violations of subsections (D) or (E) must also be 

reviewed due to the concerns of collateral consequences in the future. See In re N.G., 577 S.W.3d 230, 235

(Tex. 2019).
In re L.L.L. Page 3

sharing alternate physical custody of L.L.L. at the time of Father’s complaint. Father’s 

complaint was triggered by Mother’s refusal to return L.L.L. to him. When the 

Department investigated, Mother also accused Father of using marijuana and 

methamphetamine as well as alcohol. Mother agreed to return L.L.L. to Father on 

March 27, 2020.

During the Department’s investigation, Mother and Father both tested positive 

for methamphetamine. Father admitted to the Department investigator that he had 

used methamphetamine in January. During a divorce hearing in April, the trial court 

ordered L.L.L. removed from her parent’s custody and placed with the Department. A 

drug test administered to L.L.L. was positive for methamphetamine. L.L.L. was first 

placed with a couple who cared for her prior to Father’s release from incarceration, then 

placed with a couple who were related to Father.

Also in April 2020, Father was directed to complete a number of tasks through a 

Family Service Plan, which he did not complete. Father completed some outpatient 

drug therapy and entered an in-patient drug facility in September. Father completed a 

twenty-day program, then was arrested in October for burglary and fraudulent 

use/possession of another’s identifying information. Father entered pleas of guilty to 

both offenses. The stipulation of facts that Father swore to reflects that the offenses 

were committed on July 31, 2020 (burglary) and September 30, 2020 (identifying 

information). Father again tested positive for methamphetamine after a drug test in 

December 2020, although he denied using methamphetamine after he was released 
In re L.L.L. Page 4

from the in-patient drug facility. Prior to his incarceration in October, Father failed to 

complete two required drug tests.

Mother has a history of drug use and a history with the Department. Mother 

was pregnant with her third child when she and Father began a relationship in 2015. 

The child was removed after testing positive for drugs at birth. Father was present for

at least two of the Department hearings involving this child, asking for the child to be 

placed with him. Mother voluntarily relinquished her parental rights to this child as 

she did with two other children and with L.L.L. Father admitted to the Department 

investigator that he was aware of Mother’s history with the Department and her history 

of drug use.

Father has an extensive criminal history beginning while he was still a juvenile. 

Father has been either in custody or on some form of supervision for the majority of 

L.L.L.’s life.

Discussion

A. Extension. In his first issue, Father argues that the trial court abused its 

discretion in denying his request for a six-month extension of the final termination 

hearing and dismissal date in order to allow him to complete the court-ordered services. 

In his motion and at a hearing before the trial court, Father argued that his incarceration 

and in-patient drug treatment delayed his ability to complete his service plan.

The trial court orally denied the motion at the permanency hearing held on 

March 5, 2021, noting:
In re L.L.L. Page 5

I can’t make - - I cannot make a finding based on this case that 

extraordinary circumstances exist. Indigent - - exigent, I might could; but 

extraordinary, I cannot because I don’t think that extraordinary 

circumstances have existed other than the fact that [the parents] have - -

[the parents]’ve gotten incarcerated. And so I’m denying that extension.

A trial court's ruling on a motion for extension is reviewed for an abuse of 

discretion. In re K.-A.B.M., 551 S.W.3d 275, 283 (Tex. App.—El Paso 2018, no pet.). A 

trial court abuses its discretion when it acts “without reference to any guiding rules or 

principles.” In re M-I L.L.C., 505 S.W.3d 569, 574 (Tex. 2016) (quoting Downer v. 

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 

106 S.Ct. 2279, 90 L.Ed.2d 721 (1986)); see also In re J.S.S., 594 S.W.3d 493, 500 (Tex. 

App.—Waco 2019, pet. denied). The trial court’s judgment will be reversed “when it 

acts arbitrarily, unreasonably, or without reference to legal principles.“ Berkel & Co. 

Contractors, Inc. v. Lee, 612 S.W.3d 280, 287 (Tex. 2020).

The trial court may maintain a suit on the court's docket after the one-year period

mandated by the Family Code if the court makes a finding that “extraordinary 

circumstances necessitate the child remaining in the temporary managing 

conservatorship of the department and that continuing the appointment of the 

department as temporary managing conservator is in the best interest of the child.” 

TEX. FAM. CODE ANN. § 263.401(b). A circumstance such as incarceration is not

necessarily an “extraordinary circumstance” that merits an extension. See In re M.S., 602 

S.W.3d 676, 680 (Tex. App.—Texarkana 2020, no pet.) (parent’s incarceration generally 

viewed as parent’s fault and not extraordinary circumstances); see also In re C.G., No. 02-

20-00087-CV, 2020 WL 4518590 at *3 (Tex. App.—Fort Worth Aug. 6, 2020, pet. denied) 
In re L.L.L. Page 6

(mem. op.) (“[A] parent’s inability to complete services due to confinement is not an 

extraordinary circumstance but is instead the consequence of poor choices. . . . 

[P]arents cannot blunder their way into extraordinary circumstances.”).

Father committed two offenses after the time that L.L.L. was removed from his 

custody. Father’s actions are what led to his incarceration and do not constitute an 

extraordinary circumstance justifying an extension. Nor was Father’s voluntary 

admission into an in-patient drug treatment program an extraordinary circumstance. 

The program was only twenty days out of the approximately 180 days between the 

implementation of the service plan and Father’s incarceration. The trial court did not 

abuse its discretion in denying Father’s request for an extension. Father’s first issue is 

overruled.

B. § 161.001. In a proceeding to terminate the parent-child relationship brought 

under § 161.001, the Department must establish by clear and convincing evidence two 

elements: (1) that one or more acts or omissions enumerated under § 161.001(b)(1), 

termed a predicate violation, were committed; and (2) that termination is in the best 

interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(1), (2); In re S.L., 421 S.W.3d 34, 

37 (Tex. App.—Waco 2013, no pet.). “Clear and convincing evidence” is defined as 

“that measure or degree of proof which 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.” In re 

K.M.L., 443 S.W.3d 101, 112 (Tex. 2014) (quoting TEX. FAM. CODE ANN. § 101.007). As 

previously noted, Father does not challenge the trial court’s finding that termination is 

in the best interest of L.L.L. 
In re L.L.L. Page 7

In his second and third issues, Father argues that there is no evidence and 

factually insufficient evidence to support the trial court’s findings that he violated 

subsections (D) and (E).

In a legal sufficiency review, a court should 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. To give appropriate deference to the factfinder's conclusions and the 

role of a court conducting a legal sufficiency review, looking at the 

evidence in the light most favorable to the judgment means that a 

reviewing court must assume that the factfinder resolved disputed facts in 

favor of its finding if a reasonable factfinder could do so. A corollary to 

this requirement is that a court should disregard all evidence that a 

reasonable factfinder could have disbelieved or found to have been 

incredible.

 In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); see also In re S.L., 421 S.W.3d at 38.

In a factual sufficiency review, a court of appeals must give due consideration to 

evidence that the factfinder could reasonably have found to be clear and convincing. In 

re J.F.C., 96 S.W.3d at 266.

[T]he inquiry must be “whether the evidence is such that a factfinder 

could reasonably form a firm belief or conviction about the truth of the 

State's allegations.” A court of appeals should consider whether disputed 

evidence is such that a reasonable factfinder could not have resolved that 

disputed evidence in favor of its finding. 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 

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 (footnoted citations omitted); see also In re C.H., 89 S.W.3d 

17, 25 (Tex. 2002).

When no findings of fact or conclusions of law are filed following a bench trial, 

the trial court's judgment implies all findings necessary to support it. See Missouri 
In re L.L.L. Page 8

Pacific R. Co. v. Limmer, 299 S.W.3d 78, 84 n.29 (Tex. 2009) (citing Pharo v. Chambers 

County, 922 S.W.2d 945, 948 (Tex. 1996)); see also In re D.Z., 583 S.W.3d 284, 295 (Tex. 

App.—Houston [14th Dist.] 2019, no pet.). “However, where a reporter's record is filed,

as in this case, these implied findings are not conclusive, and an appellant may 

challenge them by raising both legal and factual sufficiency of the evidence issues.” In 

re G.B. II, 357 S.W.3d 382, 385 n.1 (Tex. App.—Waco 2011, no pet.).

We give due deference to the factfinder's findings and must not substitute our 

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

The factfinder is the sole judge “of the credibility of the witnesses and the weight to 

give their testimony.” Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston [1st 

Dist.] 2010, pet. denied). The factfinder may choose to believe one witness and 

disbelieve another. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). 

1. Predicate Finding Under Subsection (E). Termination under § 

161.001(b)(1)(E) requires clear and convincing evidence 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.” TEX. FAM. CODE ANN. § 

161.001(b)(1)(E). “Endanger” means to expose to loss or injury, to jeopardize. In re 

M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam); see also In re J.R., 501 S.W.3d 738, 743 

(Tex. App.—Waco 2016, no pet.). While “endanger” requires “more than a threat of 

metaphysical injury or the possible ill effects of a less-than-ideal family environment, it 

is not necessary that the conduct be directed at the child or that the child actually 

suffers injury.” In re M.C., 917 S.W.2d at 269.
In re L.L.L. Page 9

When termination is based upon 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 or another's conduct, including acts, omissions, or failures to act. In re 

K.A.S., 131 S.W.3d 215, 222 (Tex. App.—Fort Worth 2004, pet. denied); see also In re E.M., 

494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet. denied). A factfinder properly may 

consider actions and inactions occurring both before and after a child's birth and also 

may consider conduct occurring both before and after the Department removed a child 

from the home. In re F.E.N., 542 S.W.3d 752, 763-64 (Tex. App.—Houston [14th Dist.] 

2018), pet. denied, 579 S.W.3d 74 (Tex. 2019) (per curiam). A parent's past endangering 

conduct may create an inference that the parent's past conduct may recur and further 

jeopardize a child's present or future physical or emotional well-being. See In re D.M., 

58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.). A parent's conduct that 

subjects a child to a life of uncertainty and instability endangers the child's physical and 

emotional well-being. F.E.N., 542 S.W.3d at 764. Criminal activity, convictions, and 

incarcerations are among the types of actions or omissions that subject a child to a life of 

uncertainty and instability. See In re V.V., 349 S.W.3d 548, 554 (Tex. App.—Houston [1st 

Dist.] 2010, pet. denied); see also In re S.M., 389 S.W.3d 483, 492 (Tex. App.—El Paso 

2012, no pet.) (“Evidence of criminal conduct, convictions, imprisonment and its effects 

on a parent's life and ability to parent may establish an endangering course of 

conduct.”). 

In this case, Father has been involved in criminal activity from when he was a 

juvenile in 2002 up until his arrest in October 2020—an 18-year history of criminal 
In re L.L.L. Page 10

behavior. Father was placed on deferred adjudication, probation, shock probation, and 

any number of drug programs. However, his criminal behavior continued even after 

L.L.L. had been removed from his custody, committing two more offenses that resulted 

in his incarceration. Father entered pleas to both offenses on the day the final 

termination hearing was held. Father also was arrested for DWI, and the charges 

remained pending after the final termination hearing was concluded.

Father also exhibited continued abuse of illegal drugs, testing positive prior to 

and after L.L.L.’s removal. Substance abuse “can qualify as a voluntary, deliberate, and 

conscious course of conduct endangering the child’s well-being.” In re K.H., No. 10-21-

00073-CV, 2021 WL 4080261, at *4 (Tex. App.—Waco Sept. 8, 2021, no pet. h.) (mem. 

op.). 

A parent's illegal drug use and drug-related criminal activity may . . . 

support a finding that the child's surroundings endanger his or her 

physical or emotional wellbeing. And “[b]ecause it exposes the child to 

the possibility that the parent may be impaired or imprisoned, illegal drug 

use may support termination under section 161.001(1)(E).” . . . A parent's 

continued drug use demonstrates an inability to provide for the child's 

emotional and physical needs and to provide a stable environment for the 

child.

In re M.R.R., No. 10-15-00303-CV, 2016 WL 192583, at *5 (Tex. App.—Waco Jan. 14, 2016, 

no pet.) (mem. op.) (citations omitted); see also In re Z.C., 280 S.W.3d 470, 474 (Tex. 

App.—Fort Worth 2009, pet. denied).

Father exhibited a pattern of continued drug use, testing positive for 

methamphetamine before and after L.L.L.’s removal. Father’s drug use and continued 

criminal activity constitute a danger to L.L.L.’s physical and emotional wellbeing.
In re L.L.L. Page 11

The evidence is legally and factually sufficient to support the trial court’s 

determination that Father violated § 161.001(b)(1)(E). We overrule Father’s third issue. 

Because we affirm the trial court’s finding that Father violated subsection (E), we need 

not address his second issue that challenges the trial court’s finding in relation to 

subsection (D). 

Conclusion

Having overruled Father’s first and third issues, we affirm the trial court’s 

judgment.

MATT JOHNSON

Justice

Before Chief Justice Gray,

Justice Johnson, and

Justice Smith,

Affirmed

Opinion delivered and filed October 6, 2021

[CV06]