COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00226-CV

In the Interest of I.C.W. and 

S.R.R.W., Children

§

§

§

§

From the 323rd District Court

of Tarrant County (323-94808J-11)

January 17, 2013

Opinion by Justice Gabriel

JUDGMENT

This court has considered the record on appeal in this case and holds that 

there was no error in the trial court’s judgment. It is ordered that the judgment of 

the trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS 

By_________________________________

 Justice Lee Gabriel
2

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00226-CV

IN THE INTEREST OF I.C.W. AND 

S.R.R.W., CHILDREN

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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K.W. (Mother) and J.S.W. (Father) appeal the trial court’s order terminating 

their rights to their children, I.C.W. (Iliana) and S.R.R.W. (Sally).

2

 We affirm.

 

1See Tex. R. App. P. 47.4.

2We use aliases for the children and their relatives throughout this opinion. 

See Tex. R. App. P. 9.8(b)(2).
3

Background Facts

Father and Mother met while they were using drugs. At the time, Mother 

had four biological children, all of whom had been adopted by others. Mother 

eventually became pregnant with Iliana.

The Department of Family and Protective Services (DFPS) first got 

involved in 2008, when it was notified that Iliana tested positive for drugs at birth. 

Mother went through the Family Drug Court Program. At some point, Father was 

added to the Family Drug Court Program.3 Through their case in Family Drug 

Court, they were provided services such as parenting classes and counseling. 

Iliana was placed in foster care for the first twenty-eight days. After that, Mother 

was placed in a supportive rehabilitation program, and Iliana was allowed to go 

back to live with Mother.

The parents received housing through the Community Enrichment Center 

Family Program. At some point in the program, Mother relapsed and asked 

another Drug Court participant to help her fix a drug test. That person told the 

Drug Court about Mother’s request. In January 2009, Mother relapsed again, 

this time with Father. The parents continued in the program, completed it, and 

their case was closed in June 2009.

 

3Father testified that at the time Mother went through the program, no men 

were involved. Father explained, ―I was there at every opportunity, so I was 

welcome to be at the meetings, and I asked them, what about fathers’ services?

As far as I remember, I was the first man to go through the program.‖
4

Mother and Father eventually married. Mother and Father’s second child, 

Sally, was born in July 2010. In January 2011, Father’s mother (Grandmother) 

became concerned that Mother and Father had again relapsed. In March 2011, 

both parents were arrested for traffic warrants. Mother and Father called 

Grandmother to ask her to bail them out of jail. Grandmother refused, but she 

went and picked up the children from a neighbor who was watching them and 

called DFPS.

DFPS took custody of the children when Grandmother could not care for 

them and placed them with Father’s sister (Aunt). Aunt eventually decided that 

she could not care for the children and returned them to DFPS. Since neither 

Grandmother nor Aunt could care for the children and because neither parent 

offered another possible placement, the children were then put in foster care.

DFPS moved for termination. In February 2012, Mother violated probation

for a forgery by possession of a check with intent to pass offense and was still 

incarcerated at the time of trial. After a bench trial in May 2012, the trial court 

found that Mother and Father 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 and that Mother and Father had knowingly 

placed or knowingly allowed the children to remain in conditions or surroundings 

that endangered their physical or emotional well-being. The trial court also found 

that Mother had been the cause of the children being born addicted to a 
5

controlled substance.4 The trial court found that termination of both parents’ 

rights to the children was in the children’s best interest. Mother and Father then 

filed this appeal.

Proceedings to Terminate the Parent-Child Relationship

A parent’s rights to ―the companionship, care, custody, and management‖ 

of his or her children are constitutional interests ―far more precious than any 

property right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 

1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). ―While parental rights 

are of constitutional magnitude, they are not absolute. Just as it is imperative for 

courts to recognize the constitutional underpinnings of the parent-child 

relationship, it is also essential that emotional and physical interests of the child 

not be sacrificed merely to preserve that right.‖ In re C.H., 89 S.W.3d 17, 26 

(Tex. 2002). In a termination case, the State seeks not just to limit parental rights 

but to erase them permanently—to divest the parent and child of all legal rights, 

privileges, duties, and powers normally existing between them, except for the 

child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v. 

Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination 

proceedings and strictly construe involuntary termination statutes in favor of the 

 

4DFPS acknowledges in its brief that although there was evidence that 

Iliana tested positive for drugs at birth, there was no evidence that Sally was born 

addicted to a controlled substance.
6

parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex. 

App.—Fort Worth 2009, no pet.).

In proceedings to terminate the parent-child relationship brought under 

section 161.001 of the family code, the petitioner must establish one ground 

listed under subsection (1) of the statute and must also prove that termination is 

in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp. 

2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be 

established; termination may not be based solely on the best interest of the child 

as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 

S.W.2d 531, 533 (Tex. 1987); In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort 

Worth 2000, pet. denied). Termination decisions must be supported by clear and 

convincing evidence. Tex. Fam. Code Ann. § 161.001; see also § 161.206(a) 

(West 2008). Evidence is clear and convincing if it ―will produce in the mind of 

the trier of fact a firm belief or conviction as to the truth of the allegations sought 

to be established.‖ Id. § 101.007 (West 2008). Due process demands this 

heightened standard because termination results in permanent, irrevocable 

changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); 

see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for 

termination and modification).
7

Discussion

I. Grounds for termination

A. Endangerment

In Mother’s second and third issues, she challenges the factual sufficiency 

of the evidence supporting the trial court’s findings that she endangered the 

children under subsections (D) and (E) of section 161.001(1) of the family code. 

See Tex. Fam. Code Ann. § 161.001(1)(D), (E). In Father’s first and second 

issues, he challenges the legal and factually sufficiency of the evidence to 

support the trial court’s findings that he endangered the children under 

subsections (D) and (E).

―Endanger‖ means to expose to loss or injury, to jeopardize. Boyd, 727 

S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, 

no pet.). Under section 161.001(1)(D), it is necessary to examine evidence 

related to the environment of the children to determine if the environment was the 

source of endangerment to the children’s physical or emotional well-being. 

J.T.G., 121 S.W.3d at 125. Conduct of a parent in the home can create an 

environment that endangers the physical and emotional well-being of a child. In 

re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ). For 

example, 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. See id. at 776–77; Ziegler v. Tarrant Cnty. Child Welfare 

Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.). 
8

Parental and caregiver illegal drug use and drug-related criminal activity likewise 

supports the conclusion that the children’s surroundings endanger their physical 

or emotional well-being. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San 

Antonio 1998, pet. denied).

Under subsection (E), the relevant inquiry is whether evidence exists that 

the endangerment of the children’s physical well-being was the direct result of 

the parents’ conduct, including acts, omissions, or failures to act. See J.T.G., 

121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). Additionally, 

termination under subsection (E) must be based on more than a single act or 

omission; the statute requires a voluntary, deliberate, and conscious course of 

conduct by the parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann. 

§ 161.001(1)(E). It is not necessary, however, that the parents’ conduct be 

directed at the children or that the children actually suffer injury. Boyd, 727 

S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the children’s 

well-being may be inferred from parental misconduct standing alone. Boyd, 727 

S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, 

pet. denied). To determine whether termination is necessary, courts may look to 

parental conduct occurring both before and after the children’s birth. In re D.M., 

58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.). Because the 

evidence pertaining to subsections 161.001(1)(D) and (E) is so interrelated, we 

will consolidate our review. In re S.D., 980 S.W.2d 758, 762 (Tex. App.—San 

Antonio 1998, pet. denied); In re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 
9

1991, writ denied) (recognizing the link between a parent’s conduct and a child’s 

conditions and surroundings).

In evaluating the evidence for legal sufficiency in parental termination 

cases, we determine whether the evidence is such that a factfinder could 

reasonably form a firm belief or conviction that the grounds for termination were 

proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the 

evidence in the light most favorable to the finding and judgment. Id. We resolve 

any disputed facts in favor of the finding if a reasonable factfinder could have 

done so. Id. We disregard all evidence that a reasonable factfinder could have 

disbelieved. Id. We consider undisputed evidence even if it is contrary to the 

finding. Id. That is, we consider evidence favorable to termination if a 

reasonable factfinder could, and we disregard contrary evidence unless a 

reasonable factfinder could not. Id.

We cannot weigh witness credibility issues that depend on the appearance 

and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573. 

And even when credibility issues appear in the appellate record, we defer to the 

factfinder’s determinations as long as they are not unreasonable. Id. at 573.

In reviewing the evidence for factual sufficiency, we give due deference to 

the factfinder’s findings and do not supplant the verdict with our own. In re 

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire 

record, a factfinder could reasonably form a firm conviction or belief that the 

termination of the parent-child relationship would be in the best interest of the 
10

children. Tex. Fam. Code Ann. § 161.001(2); C.H., 89 S.W.3d at 28. 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 in the truth of its finding, then 

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

B. Analysis

Both parents have had long battles with drug addiction. Drug addiction 

and its effect on a parent’s life and ability to parent may establish an endangering 

course of conduct. See In re Z.C., 280 S.W.3d 470, 474 (Tex. App.—Fort Worth 

2009, pet. denied). Iliana tested positive at birth for amphetamine and 

methamphetamine. A mother’s use of drugs during pregnancy may also amount 

to conduct that endangers the physical and emotional well-being of the child. 

See In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.).

Father testified that when he found out Mother was pregnant with Iliana, he 

convinced Mother to stop using drugs. He moved Mother from the apartment 

they were living in to move in with friends in an effort to remove bad influences 

from their lives. However, while in the Family Drug Court program, Mother used 

drugs soon after Iliana was returned to her care. Although Father did take 

Mother out of a drug-filled environment when she was pregnant with Iliana, he 

admitted in counseling that he and Mother relapsed while in Family Drug Court 

because he let someone into his home that he knew might persuade them to use 

drugs. He said he ―knew not to invite a newcomer . . . into his home and was 
11

advised not to do so by his mentor but [he] did so anyway.‖ See In re A.O., No. 

02-09-00005-CV, 2009 WL 1815780, at *5 (Tex. App.—Fort Worth June 25, 

2009, no pet.) (mem. op.) (holding evidence sufficient to support endangerment 

findings when father knew mother was using drugs but did not take steps to 

protect daughter from endangering environment). Even after successfully 

completing the services provided through Family Drug Court, both parents 

relapsed yet again, only months after the birth of their second child.

Father has gone through drug use treatment programs four to six times. 

He was discharged from programs in 2006 and 2009 for noncompliance. 

Father’s file from his treatment programs notes that he ―has continued use of 

methamphetamines, [despite] negative consequences‖ and that Father ―lacks the 

skills for maintaining recovery.‖ Father testified that he used methamphetamine 

―[not] more than eight times‖ in the year prior to trial. See In re C.L.C., 119 

S.W.3d 382, 392 (Tex. App.—Tyler 2003, no pet.) (holding that it is sufficient that 

the parent was aware of the potential for danger to the child and disregarded that 

risk). File notes from 2009 state that Father ―has not been willing to incorporate

the [addiction and recovery] information into his daily life.‖ In a counseling 

session in April 2012, Father described his need for treatment for his substance 

abuse as only ―moderately important.‖ The counselor noted that Father still had 

difficulty in understanding his substance abuse problems. Father testified that 

the last time he used methamphetamine was February 2012. He said that he 

bought it from a neighbor who was living in the same hotel in which he was living.
12

Father testified that he is a member of four NA groups, and he attends twohour supportive outpatient counseling sessions once a week. Father has a 

sponsor through NA, and he testified that he has completed all twelve steps and 

is working through them again. Father said he does the first three steps every 

day.

Both parents also have a history of criminal behavior. Evidence of criminal 

conduct, convictions, and imprisonment prior to the birth of a child will support a 

finding that a parent engaged in a course of conduct that endangered the child’s 

well-being. J.T.G., 121 S.W.3d at 133. While imprisonment alone does not 

constitute a continuing course of conduct that endangers the physical or 

emotional well-being of a child, it is a fact properly considered on the issue of 

endangerment. Boyd, 727 S.W.2d at 533–34. The State need not show 

incarceration was a result of a course of conduct endangering the child; it need 

only show incarceration was part of a course of conduct endangering the child. 

Id. Thus, if the evidence, including imprisonment, proves a course of conduct 

that has the effect of endangering the child, the requirement of showing that the 

endangerment of the child’s physical or emotional well-being was the direct result 

of the parent’s conduct is met. Id.

Father testified that he was arrested for possession of a controlled 

substance in January 2005. He was arrested again in November 2005 for 

possession of a controlled substance. He pleaded guilty and received probation. 

In August 2006, a petition to revoke his probation was filed. Father successfully 
13

participated in drug treatment and in September 2009, his case was dismissed. 

Father has four convictions and has spent a total of eleven months incarcerated.

Mother was arrested for forgery in June 2010 and received community 

supervision. Mother violated her probation in February 2012 and was sentenced 

to six months in state jail. Both parents had also been arrested in 2011 for traffic 

violations. When they were incarcerated in 2011, a neighbor had to take the 

children. ―An environment which routinely subjects a child to the probability that 

she will be left alone because her parents are once again jailed, whether 

because of the continued violation of probationary conditions or because of a 

new offense growing out of a continued use of illegal drugs, or because the 

parents are once again committed to a rehabilitation program, endangers both 

the physical and emotional well-being of a child.‖ In re S.D., 980 S.W.2d 758, 

763 (Tex. App.—San Antonio 1998, pet. denied).

Mother and Father’s incarceration had affected their ability to ensure that 

their children were properly taken care of and indicated a course of conduct that 

was endangering to the children. Moreover, both parents’ incarcerations 

prevented them from finding better living conditions and financially supporting the 

children. See In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no 

pet.) (observing that father’s incarceration affected his ability to ensure that his 

child was properly taken care of, prevented him from finding better living 

conditions or providing financial support for the child, and indicated a course of 

conduct that was endangering to his child). Each time these parents were jailed, 
14

they were absent from their children’s lives and unable to provide a home or 

support, which negatively impacted the children’s living environment and wellbeing. Id.; see D.M., 58 S.W.3d at 812–13 (noting that mother’s frequent 

incarcerations affected her ability to properly care for her children); M.R., 243

S.W.3d at 819; C.L.C., 119 S.W.3d at 393 (holding that it is sufficient that the 

parent was aware of the potential for danger to the child and disregarded that 

risk); In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.] 2003, 

pet. denied) (holding that the creation of an ―emotional vacuum‖ in the child’s life 

by being absent for more than twelve months due to incarceration was evidence 

of endangering the child’s emotional well-being). Had Mother not violated 

probation and been incarcerated, she could have worked her services. See In re 

J.N.R., 982 S.W.2d 137, 143 (Tex. App.—Houston [1st Dist.] 1998, no pet.) 

(affirming the termination of father’s parental rights based in part on evidence 

that father continued to engage in the criminal activity that resulted in his 

incarceration even after knowing his parental rights were in jeopardy).

Father suffered from depression so severe that he did not get out of bed 

for a month. This inhibited his ability to work services and seek employment. 

See In re M.E.-M.N., 342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet. 

denied) (―[A] parent’s mental state may be considered in determining whether a 

child is endangered if that mental state allows the parent to engage in conduct 

that jeopardizes the physical or emotional well-being of the child.‖). Father did 

not start taking antidepressants until two months before trial.
15

The evidence showed that Father worked only sporadically and the longest 

Father has ever held a job has been one year. He did not have a full-time job at 

the time of trial and was satisfied with his part-time work as a dog trainer. He told 

a counselor in April 2012 that he was not at all troubled by employment 

problems. In his intensive inpatient treatment program, Father said that he does 

not have a stable place to live and ―float[s] around here and there.‖ He admitted 

at trial that he was currently incapable of providing sufficient income to support 

his children.

The evidence also reflects that Father worked at acquiring parenting skills 

and overcoming his drug problem; however, clear and convincing evidence was 

presented that Father had engaged in endangering conduct, including evidence 

of continued drug use both before and after DFPS became involved the last time. 

The evidence also reflects that Mother engaged in criminal conduct that includes 

repeated relapses of drug abuse. Despite the second chance afforded them 

when DFPS returned Iliana, the parents put their own needs and desires first, 

thereby engaging in endangering conduct and placed their children in an 

environment that endangered their welfare. The evidence is legally and factually 

sufficient to support the trial court’s findings that Mother and Father engaged in 

conduct proscribed by subsections (D) and (E) of section 161.001(1). See Tex. 

Fam. Code Ann. § 161.001(1)(D), (E). We overrule Father’s first and second 

issues and Mother’s second and third issues. Because, along with a best 

interest finding, a finding of only one ground alleged under section 161.001(1) is 
16

necessary to support a judgment of termination, we need not address Mother’s 

first issue. See Tex. R. App. P. 47.1.

II. Best interest

In Father’s third issue and in Mother’s fourth issue, they challenge the 

factual sufficiency of the evidence supporting the trial court’s finding that 

termination of their parental rights was in the children’s best interest.

There is a strong presumption that keeping a child with a parent is in the 

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and 

permanent placement of the child in a safe environment is also presumed to be 

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). The 

following factors should be considered in evaluating the parent’s willingness and 

ability to provide the child with a safe environment:

(1) the child’s age and physical and mental vulnerabilities;

(2) the frequency and nature of out-of-home placements;

(3) the magnitude, frequency, and circumstances of the harm to the 

child;

(4) whether the child has been the victim of repeated harm after the 

initial report and intervention by the department or other agency;

(5) whether the child is fearful of living in or returning to the child’s 

home;

(6) the results of psychiatric, psychological, or developmental 

evaluations of the child, the child’s parents, other family members, or 

others who have access to the child’s home;

(7) 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;
17

(8) whether there is a history of substance abuse by the child’s 

family or others who have access to the child’s home;

(9) whether the perpetrator of the harm to the child is identified;

(10) 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;

(11) the willingness and ability of the child’s family to effect positive 

environmental and personal changes within a reasonable period of 

time;

(12) whether the child’s family demonstrates adequate parenting 

skills, including providing the child and other children under the 

family’s care with:

(A) minimally adequate health and nutritional care;

(B) care, nurturance, and appropriate discipline consistent with 

the child’s physical and psychological development;

(C) guidance and supervision consistent with the child’s 

safety;

(D) a safe physical home environment;

(E) protection from repeated exposure to violence even 

though the violence may not be directed at the child; and

(F) an understanding of the child’s needs and capabilities; 

and

(13) whether an adequate social support system consisting of an 

extended family and friends is available to the child.

Id. § 263.307(b); R.R., 209 S.W.3d at 116.

Other, nonexclusive factors that the trier of fact in a termination case may 

use in determining the best interest of the child include:

(A) the desires of the child;
18

(B) the emotional and physical needs of the child now and in the 

future;

(C) the emotional and physical danger to the child now and in the 

future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote 

the best interest of the child;

(F) the plans for the child by these individuals or by the agency 

seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the 

existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).

These factors are not exhaustive; some listed factors may be inapplicable 

to some cases; other factors not on the list may also be considered when 

appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just 

one factor may be sufficient in a particular case to support a finding that 

termination is in the best interest of the child. Id. On the other hand, the 

presence of scant evidence relevant to each factor will not support such a 

finding. Id.
19

A. The evidence

At the time of trial, Iliana was four years old and Sally was almost two 

years old. See Tex. Fam. Code Ann. § 263.307(b)(1). This was at least the 

second time DFPS had been involved with the parents. Previously, both parents 

successfully completed the Family Drug Court program and had obtained the 

return of Iliana. See id. § 263.307(b)(2), (4).

Father was forty years old at the time of trial. He testified that he has 

suffered from depression for thirty-three years and that he has post-traumatic 

stress disorder from sexual abuse as a child. See id. § 263.307(b)(6). Father 

obtained a prescription for Celexa for his depression in March 2012. He took 

Celexa every day until his prescription ran out. He testified that he had 

requested a refill from his doctor and had scheduled an appointment for a checkup with the clinic. Father also testified that he has started doing yoga, which has 

helped with his depression.

There was no evidence of abusive behavior by either parent. See id. 

§ 263.307(b)(7). However, as discussed above, both parents had extensive 

histories of substance abuse. See id. § 263.307(b)(8). Father testified that he 

first used marijuana at the age of seventeen, but he did not use other drugs until 

he was thirty-one years old. At that time, he used ―cocaine a couple of times.‖ In 

2004, Father started using methamphetamine. He testified that he did not ―really 

get into drugs until 2004. 2004 was the first time [that he] had something [that 

he] had a problem with.‖ Father said it took eleven weeks of using 
20

methamphetamine for him to become addicted. Father testified that he was not 

using cocaine at that time, and his last use of marijuana was 2007 or 2008.

Father testified that he did not use methamphetamine continuously from 

2004 to 2007. For about nine months, he was working an active recovery 

program and managed to stay drug-free. He said, ―I got in trouble in January of 

2005, January 5th of 2005. January 7th, I walked into an NA meeting and asked 

for help.‖ During drug court, he used with Mother after Iliana had been returned 

to their care. He said that they used twice, and both times Iliana was not in the 

house. Father testified that when he checked in to the inpatient treatment center, 

he told the worker that he had used Robitussin DM at 4:30 that morning. He 

could not say why he had used the Robitussin DM.

Jeannette Leong, the DFPS caseworker for the parents’ Family Drug Court 

case, testified that she was concerned about Father’s ability to stay off drugs. 

She said,

From the testimony I’ve heard these past couple of days, he has a 

little over two months clean. At the time that we returned the 

children from the Family Drug Court case, he had four months clean, 

and with that four months clean, he was able to sustain sobriety for 

some point in time, but we’re back in the case again and now there 

is less sobriety time.

She said, ―I don’t see from this track record[,] . . . if the rights aren’t terminated, I 

don’t see how going forward things will be different.‖

Tashani Fernandes, the DFPS conservatorship worker, also testified that 

before Father submitted to a drug test in January 2012, he had denied using 
21

drugs. The drug test, however, was positive for amphetamines and 

methamphetamines. Father testified that in order to maintain sobriety, he has to 

―continue to work the program.‖ He explained, ―Over the last few years, the last 

eight years, the only time I’ve been able to maintain clean time is when I go to 

meetings on a regular basis, when I fellowship, when I stay a part of the alumni 

groups, when I stay at meetings back in the treatment facilities. I have to stay 

involved in my 12-step program. When I did that, I stayed clean for over two 

years before.‖

Fernandes testified that she tried two or three times to meet with Mother,

but Mother failed to show up at the appointments. See id. § 263.307(b)(10). 

Fernandes requested that Mother participate in individual counseling, parenting 

classes, and a drug and alcohol assessment. Mother failed to initiate any of 

those services, even before she was incarcerated. Mother also failed to provide 

documentation of stable housing or employment. Fernandes also testified that 

Mother has not made efforts to keep in contact with her or to send letters or 

pictures to Iliana and Sally.

Fernandes testified that she requested that Father also participate in 

individual counseling, parenting classes, and a drug and alcohol assessment. 

She noted that Father did not initiate his individual counseling, but he did attend 

three parenting classes and completed his drug and alcohol assessment. 

However, Father waited six months to complete his assessment.
22

Father testified that he was assessed through CATS on April 5, 2012. 

CATS required Father to participate in twenty-four group sessions and three 

individual sessions. Father attended a group session on April 11, 2012, May 14, 

2012, and May 21, 2012. Father explained that the reason he waited a month in 

between group sessions was that he ―was getting [his] daily maintenance at NA 

and AA.‖ He said,

The majority of the clients [at CATS] are homeless people that are 

trying to retain their homeless shelters, their homeless housing, and 

they’re there because they have to be. They’re very open about still 

using. It’s not a conducive environment to remaining clean and 

sober. What we’re talking about is drinking last weekend and getting 

high and lighting crack pipes for their girlfriends. I’ve never attended 

one of the sessions where I didn’t leave with an immediate need to 

go to NA and go to a real meeting.

Father testified that he planned on going back to CATS and completing the 

remaining sessions.

Father testified that he believed that he was compliant with his service 

plan. He said he went to NA or AA meetings every day and sometimes twice a 

day. Father had completed three of his six parenting classes. He testified that 

he has attended three of the four recommended mental health counseling 

sessions. Father said that he had only attended one counseling session 

because he had been so depressed that he had stayed in bed for a month.

Father testified that he did not think Mother’s rights should be terminated 

because he believed ―she should be given an opportunity to work services.‖ See

id. § 263.307(b)(11). He did acknowledge that both he and Mother had already 
23

had two opportunities to demonstrate their parenting abilities to DFPS. Father 

testified that his rights should not be terminated either. He said,

I may have come to the table late, but I’m here, and I want my kids 

and I’m clean and I’m staying clean, and one of the biggest things 

that—well, the biggest battle I’ve had in my whole life hasn’t been 

addiction, it’s been depression, and I’ve got treatment in place for at 

least the next six months for that.

Father admitted that he squandered the opportunities that the Family Drug Court 

gave him, and he acknowledged that the children were in foster care because of 

his conduct and the decisions that he made. Father believed that his rights to his 

children should not be terminated because he was a ―great father‖ who made 

some mistakes. He said, ―It’s bad, but I’m still a wonderful parent. My parenting 

skills and my interaction with my children didn’t diminish.‖

Father was still married to Mother at the time of trial, but he testified that he 

intended to divorce her. Father testified that he had visited Mother almost every 

weekend since she has been in jail. Father said that he lied to DFPS about how 

frequently he visited Mother because he ―felt like it was something to be able to 

be used against me. [He] still [had] intentions of divorcing [Mother]. [He was] 

afraid of how it would look.‖ He said that he continued to visit Mother because 

―she deserve[d] to know what’s going on with her kids.‖ Father said that he 

wanted to divorce Mother because he has ―a better chance of staying clean if 

[his] constant companion isn’t another drug addict.‖

Father testified that he was not asking the court to grant Mother any 

visitation. He said, ―I wouldn’t be comfortable with her having visitation unless 
24

there was some accountability, some kind of supervision, because I don’t know 

where she’s going to go when she gets out. I don’t know where she’s going to be 

living. I would imagine she’s going to go home.‖ Father testified that he would 

not let Mother live with him when she gets out of jail.

Grandmother testified that when the children were in Mother and Father’s 

possession, she paid for the children’s doctors’ visits. See id. 

§ 263.307(b)(12)(A). Grandmother testified that Father is ―very involved‖ with the 

children. See id. § 263.307(b)(12)(B). She said, ―He interacts well with the 

children and, you know, they have a good relationship.‖ She said his actions with 

the children were appropriate and that Father has always been very loving with 

the children. She said that even while Father was under the influence, he would 

still cook and do laundry for the children. Grandmother testified that Father ―was 

the more nurturing parent and more involved‖ parent.

Grandmother testified that if the children had been returned to Father at 

the time of trial, they would have had to live with Father in his hotel room for 

about a week until he could move into an apartment. See id. 

§ 263.307(b)(12)(D). Father had been living in the hotel for the eight weeks 

before trial. Father testified that he is borrowing against the $5,000 tax refund 

check that Grandmother is holding for him. He testified that he had no other 

money. Father said that if the children were returned to him after trial, they would 

live with him in the hotel, which is ―not where [he] would want to be.‖
25

Father testified that he moved to the hotel to stay clean and stay away 

from drug users. He said that he does not know if there are drug users in the 

hotel ―because [he] go[es] where [he] need[s] to go and [he] come[s] back to [his] 

room.‖ Father also testified that he changed his phone number and email 

address because he did not ―want anyone that knew how to get hold of [him] 

before to know how to get hold of [him].‖

Grandmother testified that at the time of trial, she did not believe that 

Mother could provide a stable and loving environment for the children. She 

believed that Father would be ―more capable‖ of providing such an environment. 

When pressed, she said that because Father did not have a stable job at the time 

of trial, he was not able to care for the children. Grandmother testified that she 

was concerned that Mother and Father could be drug-free for a period of time 

and then relapse.

There was no evidence of Mother’s social support system. See id. 

§ 263.307(b)(13). Father’s mother, Grandmother, has been supportive of the 

parents. Grandmother has been aware of Father’s drug use for seven or eight 

years. Grandmother testified that she did not see the parents using drugs but 

―[w]hen they began to avoid me, I was pretty sure they were using again.‖ 

Grandmother testified, ―It was years that I didn’t feel like [the children] were in a 

safe environment.‖ Grandmother testified that although she had cared for the 

children for two months before, she and her husband were unable to take the 
26

children anymore. She said that her pension and Social Security were not 

enough to support the children.

Father testified that at the time of trial, he did not have the ability to take 

his children back and support them. See Holley, 544 S.W.2d at 371–72. Father 

testified that he owned a car, but at the beginning of trial, his license was 

suspended. He had paid the outstanding charges by the end of trial.

Father testified that he had a job as a professional dog trainer. He said 

that the last time he had a job that was verifiable was December 2011, when he 

worked at a cell phone refurbishing plant. He only worked at the plant for two 

weeks. Prior to that, he worked at Big Lots from October 2008 until January 

2010, when he was discharged. Father then worked as a dog trainer. He 

testified at trial that the last time he made money training dogs was three weeks 

before trial. Father made $750 in the fourteen weeks preceding trial. He 

admitted that he could not raise two children on the money he had made by 

training dogs. Father did not see his job as a problem, but he said he would get 

another job if the trial court told him to.

Father testified that he was arrested for possession of a controlled 

substance in January 2005. He was arrested again in November 2005 for 

possession of a controlled substance. He pleaded guilty and received probation. 

In August 2006, a petition to revoke his probation was filed. Father successfully 

participated in drug treatment and in September 2009, his case was dismissed. 
27

Father also testified that Mother had a forgery by possession of check with intent 

to pass conviction.

Fernandes testified that the foster home where the children were placed 

was interested in adopting both children. She said that Iliana and Sally were 

thriving in their foster home. She said that the children were healthy and 

developmentally on-target. Grandmother described Iliana as ―real[ly] bubbly and 

she’s very sensitive, too, though, but she tries to hide it, but she’s just, you know, 

active and busy all the time. Very bright child.‖ Grandmother believed that Iliana 

was doing well in her foster placement and that the children seem to be well 

taken care of. Father believed that the children have formed a bond with their 

foster family, but when asked if he would want to break that bond and move 

them, he said, ―If it meant that I got another chance with my kids, you bet I 

would.‖ Father was asked what he wanted to happen to Iliana. He said, ―I want 

her to come home.‖ He was then asked if he thought that should happen. He 

answered, ―No, ma’am.‖ Father said that the difference between the time of trial 

and the beginning of the case was that he realized that he could potentially lose 

his children.

Father said that he did not think that his children would be returned to him 

after trial. He said, ―I never thought my kids were coming home today because I 

thought our case was closing sometime in July. I was hoping I would still be 

given the opportunity to work services. I never thought they were coming home 

today.‖ He said he had been hoping that he would be granted a continuance, 
28

which he called ―[an] extension of my second chance,‖ so that he could complete 

his parenting classes. The trial court denied his continuance before the start of 

the trial, so Father said he was only hoping that the court would reconsider.

Grandmother testified that she did not think Mother or Father’s rights 

should be terminated ―at this time.‖ She testified that she believed that Father 

would be able to stay off drugs this time. She said, ―I see differences I’ve never 

seen before and I see him accepting responsibility that, you know, I’m where I 

am, my consequences are a result of my behavior; that it’s my fault, they’re not 

yours, they’re not dad’s, they’re not anybody else’s, which I think is the first step.‖ 

Grandmother noted that Father was behaving responsibly, and pointed to the fact 

that he gave Grandmother his tax refund check to keep safe. She said that she 

had witnessed him budgeting and trying to find good housing. Grandmother 

testified that she would not co-sign a lease with Father unless he was off drugs, 

so she has been drug testing him.

Fernandes testified that she believes termination was in the children’s best 

interest ―[b]ecause the children need some stability in their lives. There has been 

more than one CPS case with the mom, and this is the second CPS case with 

the dad. They deserve to be in a drug-free and safe environment and they need 

a forever family.‖
29

B. Analysis

Father’s job as a dog trainer was not full-time employment nor did it 

provide enough income to support him and his children. His testimony indicated 

that he was not concerned with seeking more consistent employment. There 

was no evidence of Mother being employed in any capacity prior to her 

incarceration.

The evidence showed that at the time of trial, Mother and Father had been 

drug-free for about six months. However, both parents have maintained periods 

of sobriety in the past, only to relapse again. See In re J.L.B., 349 S.W.3d 836, 

849 (Tex. App.—Texarkana 2011, no pet.) (noting that the parents’ ―poor 

judgment [and] the constancy of their drug use‖ weighed in favor of terminating 

their parental rights). A factfinder may infer from past conduct endangering the 

well-being of the child that similar conduct will recur if the child is returned to the 

parent. In re M.M., No. 02-08-00029-CV, 2008 WL 5195353, at *6 (Tex. App.—

Fort Worth Dec. 11, 2008, no pet.) (mem. op.); see also Smith v. Tex. Dep’t of 

Protective & Regulatory Servs., 160 S.W.3d 673, 681 (Tex. App.—Austin 2005, 

no pet.) (―[I]n considering the best interest of the child, evidence of a recent turnaround in behavior by the parent does not totally offset evidence of a pattern of 

instability and harmful behavior in the past.‖). Further, ―evidence of improved 

conduct, especially of short-duration, does not conclusively negate the probative 

value of a long history of drug use and irresponsible choices.‖ In re J.O.A., 283 

S.W.3d 336, 346 (Tex. 2009).
30

Father’s testimony that his ―parenting skills and [his] interaction with [his] 

children didn’t diminish‖ while he was abusing drugs indicates that Father has not 

internalized the lessons taught in his rehabilitation programs. See In re C.C., No. 

13-07-00541-CV, 2009 WL 866822, at *11 (Tex. App.—Corpus Christi Apr. 2, 

2009, no pet.) (mem. op.) (holding that record did not support mother’s 

characterization of a recent turnaround when ―the undisputed evidence showed 

that she had failed to alleviate the main concern underlying the children’s 

removal‖). This indication is supported by his counselor’s concerns that Father 

―is possibly manipulative in knowing the right things to say regarding recovery but 

having no intention of following through with actions.‖ The trial court was free to 

disbelieve Father’s testimony that he would stay off of drugs as he had promised 

and failed to do before.

Father only partially completed his service plan, and the evidence showed 

that he had started some services only a few months before trial. Mother wholly 

failed to complete her service plan. See In re S.B., 207 S.W.3d 877, 887–88 

(Tex. App.—Fort Worth 2006, no pet.) (holding that evidence of a parent’s failure 

to comply with her family service plan supports a finding that termination is in the 

best interest of the child). Mother failed to attend meetings with the DFPS 

caseworker prior to her incarceration and since that time, she has made no 

attempts to contact DFPS or her children. See In re V.V., 349 S.W.3d 548, 558 

(Tex. App.—Houston [1st Dist.] 2010, pet. denied) (upholding best interest 

finding when father had not attempted to seek information about his daughter’s 
31

well being and had not sought services that might assist him in improving his 

parenting skills); In re J.L.R., No. 11-05-00094-CV, 2006 WL 728069, at *2 (Tex. 

App.—Eastland Mar. 23, 2006, no pet.) (holding evidence legally and factually 

sufficient to support best interest finding when father had limited contact with 

child and was incarcerated at the time of trial).

Considering the relevant statutory and Holley factors, we hold that, in light 

of the entire record, and giving due consideration to evidence that the trial court 

could have reasonably found to be clear and convincing, the trial court could 

reasonably have formed a firm belief or conviction that termination of Mother and 

Father’s parental rights to the children is in the children’s best interests. 

Accordingly, the evidence is factually sufficient to support the trial court’s best 

interest findings. We overrule Father’s third issue and Mother’s fourth issue.

Conclusion

Having overruled Mother and Father’s dispositive issues, we affirm the trial 

court’s judgment.

LEE GABRIEL

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DELIVERED: January 17, 2013