1 

## NO. 12

- 20

- 00282

- CV
IN THE COUR T OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN THE INTEREST OF E. S.,
A CHILD § § § APPEAL FROM THE 3RD
JUDICIAL DISTR ICT COURT
HENDERSON COUNTY, TEXAS

MEMORAN DUM OPINION J.S. appeals the termination of his parental rights. In s ix issues, he argues that the evidence i s legally and factually in sufficient to support the termination order

. Further, the
pa ternal grandparen ts of the child, T.S. and M.S., argue in two issues that the trial court erred in appointing the Department of F amily and Protective Services (the Department) as permanent managing conservator of the child and denying the grandparents any conserv ator ship s tatus. We affirm.

B ACKGROUND J.S. is the father and K.B. is the mother of E.S

. 1 T.S. and M.S. are the patern a l grandparents of E.S. On August 5 , 2019 , the Department filed an original petition for protection of E.S., for conservatorship, and for termin ation of K.B.’s and J.S.’s parental rights. The Department was appointed temporary managing conservator of the c hild , the parents were appointed temporary possessory conservators with limited rights and duties , and K.B . was allowed limited access to an d p ossession of the child.

1 At the conclusion of the trial on the meri ts, the trial court f ound by clear and convincing evidence that K .B

. engaged in one or more of the acts or omissions necessary to support the termination of h er parental rights under subsections (D), (E), and (O) of Texas Family Code , Section 161.001(b)(1) . The trial court al so found that termination of the parent

- chil d re lationship between K.B . and E.S. is in the chil d’s best interest. Based on these findings, the trial court ordered that the parent

- child relationship between K.B . and E.S. be terminated

. K.B. is not a party t o this appeal.2 On April 29 , 2020, T.S. and M.S. filed their first amended petition in intervention in the suit affecting the parent

- child relationship, in which they request ed that they be appointed joint

mana ging conservators of the child or , i n the alternative, be considered as placement for the child during the time that the Department has temporary conservatorship of the child. The intervenors also requested that the child be place d with them immediately

. A t the conclusion of the trial o n t he merits, the trial court found by clear and convincing evidence that J.S. engaged in one or more of the ac t s or omissions necessary to support termination of h is parental rights under subsections (D), (E), and (O) of T exas Family Code , Section 161.001 (b) (1). The trial court also found that termination of the parent

- child relationship between J.S. and E.S. is i n the chil d ’s best interest. Based on these findings, the trial court ordered that the parent

- child relationship between J.S. and E.S. be termi nat ed. The trial court also appointed the Department as permanent managing conservator of E.S. and ordered th a t the interve nors, T.S. and M.S., not be “awarded any status as a conservator, but shall continue to have visitation at two hours weekly, superv ise d by the Department, as previously ordered

. ” This appeal followed.

T ERMINATION OF P ARE NTAL R IGHTS Invo lun tary termination of parental rights embodies fundamental constitutional rights. Vela v. Marywood , 17 S.W.3d 750, 759 (Tex. App.

–Austin 2000), pe t. denied , 53 S.W.3d 684 (Tex. 2001) (per curiam) ; In re J.J. , 911 S.W.2d 437, 439 (Tex. App

. – Texarkana 1995, wr it denied). Because a termination action “permanently sunders” the bonds between parent and child, the proceedings must be strictly scrutinized

. Wiley v. Spratlan , 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw , 966 S.W.2d 174, 179 (Tex. App.

– El Paso 1998 , no pet.). Section 161.001 permits a court to order termination of parental rights if two elements are established. T EX

. F AM

. C ODE A NN

. § 161.0 01 (West Supp. 20 20 ); In re J.M.T. , 39 S.W.3d 234, 237 (Tex. App.

– Waco 1999, no pet.). Firs t, the parent must h ave engaged in any one of the acts or omissions itemized in the second subsection of the statute. T EX

. F AM

. C ODE A NN

. § 161.001(b)(1); Green v. Te x. Dep’t of Protective & Regulatory Servs. , 25 S.W.3d 213, 219 (Tex. App.

– El Paso 2000, n o pet.); In re J.M. T
. , 39 S.W.3d at 237. Second, termination must be in the best interest of the child. T EX

. F AM

. C ODE A NN

. § 161.001(b)(2); In re J.M.T. , 39 S.W. 3d at 237. Both elements must be established by clear and convincing evidence, and proof of one3 element does n o t alleviate the petitioner’s burden of proving the other. T EX

. F AM

. C ODE A NN

. § 161.001; Wiley , 543 S.W.2d at 351; In re J.M.T. , 39 S.W.3d at 2 37. The clear and convincing standard for termination of parental rights is both constitut ionally and statutor ily mandated. T EX

. F AM

. C ODE A NN

. § 161.001; In re J.J. , 911 S.W.2d at 439. Clear and convincing evidence means “the measure or degree of proo f t hat will produce in the mind of the trier of fact a firm belief or conviction as to the t ruth of the allegati ons sought to be established.” T EX

. F AM

. C ODE A NN

. § 10 1.007 (West 201 9 ). The burden of proof is upon the party seeking the deprivation of par ent al rights. In re J.M.T. , 39 S.W.3d at 240.

S TANDARD OF R EVIEW When confronted with bo th a legal and factu al sufficiency challenge, an appellate court first must re view the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co. , 619 S.W.2 d 4 00, 401 (Tex. 1981); In re M.D.S. , 1 S.W.3d 190, 197 (Tex. App.

–Amarillo 1999, no pet.). In conducting a leg al sufficiency review, we must look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fa ct could have formed a firm belief or conviction that its findings were true. In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact finder could do so and dis reg ard all evidence that a reasonable fact finder could have disbelieved or found incredible

. Id

. The approp riate standard for reviewing a factual sufficiency challeng e to the termination findings is whether the evidence is such that a fact finder reas ona bly could form a firm belief or conviction about the truth of the petitioner’s allegation s. In re C.H. , 89 S .W.3d 17, 25 (Tex. 2002). In determining whether the fact finder has met this standard, an appellate court considers all the evidence in the re cor d, both that in support of and contrary to the trial court’s findings. Id

. at 27

– 2 9. Fu rther, an appellate court should consider whether disputed evidence is such tha t a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C. , 96 S.W.3d at 266. The trier of fact is the exclusive judge o f the credibility of the witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom , 965 S.W.2d 575, 580 (Tex. App.

– Houston [1st Dist.] 1997, pet . d enied).4 T ERMINATION UNDER S ECTION S 16.001( b)( D) and (E) In his first , second, third, a n d fourth issues, J.S

. argues the evidence is legally and factually insufficient to terminate h is parental rights pursuant to subsection s (D) and (E) of Texas Famil y C ode , S ecti on 161.001(b)(1)

. 2 Applicable Law The court may order termination of the paren t

- child relationship if it finds by clear and convincing evidence that the parent knowingly has placed or knowingly has allowed the child to remain in conditions o r s urroundings which endanger the physical or emo tional well being of the child. T EX

. F AM

. C O DE A NN . § 161.001 (b ) (1)(D) (West Supp. 20 20 ). Subsection (D) addresses the child’s surroundings and environment. In re N.R. , 101 S.W.3d 771, 775

– 76 (Tex. App.

– T e xa rkana 2003, no pet.). The child’s “environment” refers to the suitability of the child’s l iving conditions as well as the conduct of parents or others in the home. In re S.R. , 452 S.W.3d 351, 360 (Tex. App.

– Houston [14th Dist.] 2014, pet. denied). Th e r elevant time frame to determine whether there is cl ear and convincing evidence of endanger m ent is the time bef o re the child was removed. Ybarra v. Tex. Dep’t of Human Servs. , 869 S.W.2d 574, 577 (Tex. App.

– Corpus Christi 1993, no pet.). Further, subse cti on (D) permits termination based upon only a single act or omi ssion. In re R.D. , 955 S.W.2d 364, 3 6 7 (Tex. Ap p
. – San Antonio 1997, pet. denied). The court may order termination of the parent

- child relationship if it finds by clear and convincing eviden ce that the parent has engaged in conduct, or knowingly placed the child with

2 We note that J.S. does not challenge every ground upon which the fact finder could have based its decision to terminate his parental rights, specifically subsection (O). We previously have required a parent to challen ge all grounds of ter mination before we addressed any of the grounds. See In re A.V. , 113 S.W.3d 355, 361

– 62 (Tex. 2 003); Fletcher v. Dep ’ t of Family & Protective Servs. , 277 S.W.3d 58, 64 (Tex. App.

– Houston [1st Dist.] 2009, no pet.). However, the Texas S upreme Court held tha t allowing Section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to the court violates the parent’s due process and due course of law rights. In re N.G. , 577 S.W .3d 230, 237 (Tex. 2 019). In making its h olding, the Court relied on subsection (M), which provides that parental rights may be terminat ed if clear and convincing evidence supports that the parent “had his or her parent

- child relationship terminated with r espect to another ch ild based on a findin g that the parent’s conduct was in violation of Paragraph (D) or (E).” Id. at 234; Tex. Fam. Code Ann . § 161.001(b)(1)(M) (West Supp. 2020). As a result, the “collateral consequences of terminating parental rights under [ S ] ection 161.0 01(b)(1)(D) or (E) ar e significant.” In re N.G. , 577 S.W.3d at 234. “When a parent has presented the issue on appeal , an appellate court that denies review of a [S]ection 161.001(b)(1)(D) or (E) finding deprives the parent of a meaningf ul appeal and elimin ates the parent’s onl y chance for review of a finding that will be binding as to parental rights to other children.” Id. at 235. Therefore, due process and due course of law requirements mandate that an appellate court detail its analys is in an appeal of t ermination of parenta l rights under Section 161.001(b)(1)(D) or (E) of the Family Code if a parent raises such issue s. Id. at 237. Accordingly, in light of the Supreme Court’s decision in In re N.G. , we will consider J.S.’s sufficiency argument as to subse ctions (D) and (E), e ven though he does not challenge termination under subsection (O).5 persons who engaged in c o nduct, tha t endangers the physical or emotional well being of the child. T EX

. F AM

. C ODE A NN

. § 161.001(b)(1)(E). Scienter is not required for an appell ant ’s own acts under Section 161.001(b)(1)(E), although it is requir ed when a parent places h is child w ith others who engage in endangering acts. In re U.P. , 105 S.W.3d 222, 236 (Tex. App.

– Houston [14th Dist.] 2003, pet. denied). Finally, the need for pe rma nence is a paramount consideration for the child’s present and fut ure physical and emotional needs. In re N.K
. , 99 S.W.3d 295, 301 n.9 (Tex. App.

– Texarkana 2003, no pet.); In re M.D.S. , 1 S.W.3d at 200. “Endanger” means to expose to loss or injury or to jeopardize. Tex. Dep’t of Human S

ervs . v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987); In re D.M. , 58 S. W .3d 801, 8 1 1 (Tex. App.

– Fort Worth 2001, no pet.). It is not necessary that the conduct be directed at the child or that the child actually suffers inju ry. Boyd , 727 S.W.2d at 533; In re J.J. , 911 S.W.2d at 440. When seeking termination under subsectio n (D), the D epartment must show that the child’s living conditions pose a real threat of injury or harm. In r e N.R. , 101 S.W.3d at 776; Ybarra , 869 S.W.2 d a t 577. Further, there must be a connection between the conditions and the resulting danger to the c hild’s emo t ional or physical well being. Ybarra , 869 S.W.2d at 577

– 78. It is sufficient that the parent was aw are of the potential for danger to the ch ild in such environment and disregarded that risk. In re N.R. , 101 S.W.3d at 776. In other words, co n duct that d emonstrates awareness of an endangering environment is sufficient to show endangerment. In re S.M.L. , 1 71 S.W.3d 472, 477 (Tex. App.

– Houston [14 th Dist.] 2005, no pet.). We previously have concluded that it is illogical to reason that inappro p riate, deb a uching, unlawful, or unnatural conduct of persons who live in the home of a child, or with whom a child i s compelled to associate on a regular ba sis in his home, is not inherently part of the “conditions and surroundings” of that place or hom e

. In re B.R
. , 822 S.W.2d 103, 106 (Tex. App.

– Tyler 1991, writ denied). Subsection (D) is designed to protect a child from precisely such an environment. I

d

. Subsection (E) requires us to look at the parent’s conduct alone, including actions, omissions, or the paren t ’s failure to act. In re D.J. , 100 S.W.3d 658, 662 (Tex. App.

– Dallas 2003, pet. denied); In re D.M. , 58 S.W.3d at 811. Termination under subs ect ion (E) must be based on more than a single act or omission. In re D.M. , 58 S.W.3d at 812; In re D.T. , 34 S.W

. 3d 625, 634 (Tex. App.

– Fort Worth 2000, pet. denied). A voluntary, deliberate, and conscious “course of conduct” by the parent that endangers th e child’s physical and emotional6 well being is required. In re D.M. , 58 S.W.3d at 812; In re D.T
. , 34 S.W.3d a t 634. As a general rule , conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well b ein g of a child. In re M.R.J.M. , 280 S.W.3d 494, 503 (Tex. App.

– Fort Worth 2009, no pet.); In re R. W
. , 129 S.W.3 d 732, 739 (Tex. App.

– Fort W orth 2004, pet. denied). E ndangering conduct is not limited to actions direc ted toward the child. Boyd , 727 S.W.2d at 533

. Thus, the endangering conduct may include the parent’ s actions before the child’s birth a n d while the p a ren t had custody of older c hildren

. See id. ( a lthough endanger means more than threat of metaphysical injury or possible ill effects of less

- tha n - ideal family environment, it i s not necessary that parent’ s conduct be directed at child or th a t child
actua l ly suffers injury); see als o In re M.N.G. , 147 S.W.3d 521, 536 (Tex. App.

– F ort Worth 2004, pet. denied) (holding that courts may look to paren tal conduct both before and after child’ s birth to determine whether termination is appropriate). F urther, t he c o n duct may occur after the chi ld has been removed by the Department

. Walker v. Tex. Dep’t of Family & Protective S

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

– Houston [1st Dist.] 2009, pet. denied). A parent ’ s use of narcotics and its effect on h i s ability to p a rent may qualify as an endanger ing course of conduct. In re J.O.A. , 283 S.W.3d 336, 345 (Tex. 2009); see also In re R.W. , 129 S.W.3d at 739. Fu rther, evidence that the parent continued to use illegal drugs , even though the parent knew h is p arental right s were in jeopardy , is conduct showing a voluntary, deliberate, and conscious course of conduct, which , by its nature, endangers a child ’ s well be ing. See In re M.E.

- M.N. , 342 S.W.3d 254, 263 (Tex. App.

– F ort Worth 2011, pet. denied); Cervantes

- Peterson v. T ex. Dep ’ t of Family & Protective Servs. , 221 S.W.3d 244, 253

– 54 (Tex. App.

– Houston [1st Dist.] 2006, no pet.). Because it exposes the child t o t he possibility that the parent may be impaired or imprisoned, illegal drug use may support termin a tion under

s ubs ection (E)

. Walker , 312 S.W.3d at 617

– 18. A fact finder reasonably may infer from a parent’s refusal to take a drug test that the parent w as using drugs. In re C.A.B. , 289 S.W.3d 874, 885 (Tex. App.

– Houston [ 14th Dist.] 2009, no pet.) ; In re C.R. , 26 3 S.W.3d 368, 374 (Tex. App.

– Dallas 2008, no pet.)

. Domestic violence, want of self

- control, and propensity for violence may be considered

as evi dence of endangerment. In re T.R.L. , No. 10

- 14

- 00290

- CV, 2015 WL 1020865, at * 5 (Tex. App.

– Waco M ar. 5, 2015, no pet.) (mem . op.); In re C.J.O. , 325 S.W.3d 261, 265 (Tex. App.

– Eastland 2010, pet. denied) (holding domestic violence may be considered evi den ce of7 endangerment supporting findings under (D) and (E)). Criminal acts that also constitute do m estic violen c e need not lea d to indictment or conviction in order to be considered under the f amily c ode. In re R.S. , No. 01

- 18

- 00058

- CV, 2020 WL 339 3069, at *8 (Tex. App.

– Houston [1st Dist.] June 18, 2020 , no pet. ) (mem. op.). A court may consider a pa r ent’s failur e to complete a s ervice plan as part of the endangering conduct analysis. In re M.B. , N o. 02

- 1 5

- 0 0128

- CV, 2015 WL 4380868, at *12 (Tex. App.

– Fo rt Worth July 16, 2015, no pet.) (mem. op.); In re T.H. , No. 07

- 07

- 00391

- CV, 2008 WL 335 1948, at *7

– 8 (Tex. App.

–A marillo Aug. 12, 2008, no pet.) (mem. op.). Analysis This case began when the Department received a report on Ju ly 29, 2019, which alleged

co nce rns abou t K.B.’s boyfriend and his household and J.S.’s and K.B.’s mental health diagnoses and pr ev ious substa n ce abuse. The repo rt also stated that the child looked “bad ” when he arrived at T.S.’s and M.S.’s home a few days prior to the date of the re por t. According to the Department investigator, J.S. and E.S. lived with T.S. and M.S. The investig at or said tha t J.S. denied any Department history but admitted to domestic violence between h im and K.B. J.S. also stated that he and K.B. used methamphetam ine together and that he last used methamphetami ne three weeks prior to her visit. The investigato r stated that K.B. appeared to be under the influence of drugs during their interview. The investigator further noted that K.B. alleged domestic violence o ccu rred between T.S. and J.S., that she and J.S. u sed methamphetamine together, that he had injected h er with
met h amphetamine, and that J.S. had raped her multiple times

. K.B. also alleged that T.S. and M.S. were alcoholics and “pill poppers.” According to the investigator, all parties were requested to s ubmit to drug testing and a ll but K.B. did so. E .S. also tes t ed positive for methamphetamine , but b efore the results of hi s drug test were received, the Department remove d E.S. from T.S.’s and M.S.’s hom e b ecause of a previous temporary restraining order ag ainst the grandparents. Thereafter, E.S. was p la ced in fos ter care. The Department investigator’s final disposition was that there was “reason to believe” the existence of neglectful supervision and phy sical abuse of E.S. by K.B. and J.S. because both parents engaged in the use of illegal, mind alte ri ng substan ces while acting as E.S.’s primary caretakers. The investigator also found that there was “reason to believe” the existence of8 physical abuse of E.S. because he tested positive for methamphetamine. The allegation of physical neglect of E.S. wa s “ruled out .” Criminal History

. J.S. stated that he was arrested four times

. These arrests related to allegations of assa ult, failing to pay a fine, c rim inal trespass, and assault causing bodily injury. The Department investigator stated that J.S. had t wo assaul t charges, the most recent of which was in April 2019. Drug Use

. J.S. stated that he began using methamphetamine when he was approximately twe nty

- one years old. According to K.B. and J.S., they used methamphetamine while in T.S.’s and M.S.’s h ome and while E.S. was present. J.S. said that he used methamphetamine and marijuana about

one month before trial. He admitted that he would not test ne gative if the trial court asked him to submit to drug testing on the date of the trial. The Departm en t’s cons ervatorship worker was concerned that no one, including J.S., expressed any concern that E.S. tested positive for methamp hetamine. Domestic V iol ence

. At one point, E.S. lived at T.S.’s and M.S.’s house because K.B. and J.S. were engaged in phy si cal alt ercations and drug u se

. According to K.B., J.S. started a lot of fights and had an “anger” issue. She also accused J.S. of raping her when th ey were living in the trailer house and were “heavily” using drugs. However, she stated that she never contacted l aw enforcement. J.S. admitted that he and T.S. had some physic al altercations , which he blamed on his own “stupidity.” He also described inc ide nts in which T.S. was arrested for simple assault against him and other incidents in which he assaulted T.S. Fu rt her, J.S. invoked his Fifth Amendment right to remain silent wh en asked about the
rape. I n a civil case, including a termination of parent al rights case, a fact finder may draw an adverse inference against a party who pleads the Fifth Amendment. Se e I n r e Z.C.J.L. , Nos. 14

- 1 3

- 00115

- CV, 14

- 13

- 00147

- CV, 2013 WL 3477569, at *10 (Tex. App.

– Houston [14th Dist.] July 9, 2013, no pet.) (mem. op.); Te x. Cap. Sec., Inc. v. Sandefer , 58 S.W.3d 760, 779 (Tex. App.

– Houston [1st Dist.] 2001, pet. denied); see also I n re S.A.P. , 459 S.W.3d 134, 146 (Tex. App.

– El Paso 2015, n o pet.) (“This rule has been applied in suits for parental termination ”). Servic e P lan

. According to Iantha Coleman , a Department conservatorship worker, J.S.’s family plan9 of service request ed t hat he obtain and maintain stable housing and income, assi st the Department in finding permanency for E.S., maintain contact with the casew ork er, attend substance abuse counseling, complete an assessment through East Texas Co uncil on Alcoholism and Dru g Abuse ( ETCADA ) , attend a batterer’s intervention program, complete a mental health assessment and a psychological evaluation, attend anger ma nag ement, participate in individual counseling and parenting classes, attend a parent collaboration group, and su bmit to ra nd om drug
test ing

. Coleman stated that J.S. completed a psy chological evaluation, the E TCADA assessment, assisted the Department in fi nding permanency for E.S., and completed the care resource form. The psychological evaluation recommended that J.S. rema in under the care of a skilled psychiatrist, adhere to all re commended treatment regimens, complete a substance abuse treatment progr am and all maintenance sobriety regiments, and abstain from using all illicit substances and alcohol

. The recor d reflects t hat J.S. did not complete anger management counseling , substance abuse counseling, a batterer’s intervention program, parenting cla sse s , or attend a parent collaboration group. According to Coleman, J.S. submitted to drug test ing in August 201 9, October 2 019, November 2019, December 2019, January 2 020, February 2020, and March 2020. But h e did not submit to drug testing each time tha t C oleman requested that he do so, particularly in November 2019 , and March 2020. Coleman stated that J.S. admitt ed to usin g methamphetamine at the beginning of her invo lvement in the case

. According to Coleman, J.S. did not complete his family plan of se rvi ce and he admitted at trial that he did not do so. Coleman was concerned because J.S. still was using drugs. Delayne Th orn, J.S.’s more recent conservatorship worker , testified that J.S. had not complete d or initiated any services since he began as hi s c onservatorship worker in May 2020. Although J.S. submitted to drug testing in May 2020, with negative results , he refused t o submit to drug testing the week before trial. In June 2020, Thorn had a face

- to

- face meeting with J.S. in which J.S. stated tha t h e was not working on his service plan

. Conclusion Based on our review of the record , including the aforement ioned evidenc e, we conclude that a reasonable fact finder could have formed a firm belief or conviction tha t J.S. has a criminal history, has u sed drugs, i.e., methamphetamine and marijuana, for most of his life, continues to10 use drugs, and allegedly is vi olen t with hi s family and the mother of his child

. See T EX

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. C ODE A NN

. § 161.001(b)(1)(D), (E). Moreover, t he trial court could also have de termined that J.S. did not complete his service plan, refused to submit to drug testing the week before trial, and
was not wo rking his required services

. See id. Therefor e, we hold that the evidence, when viewed in the light most favorable to the find ing , was sufficiently clear and convincing so that a reasonable trier of fact could have formed a firm belief or conviction th at J.S. knowingly placed or knowingly allowed E.S

. to remain in conditions or surroundings that endangered the physical or emotion al well being of the child and engaged in conduct or knowingly placed E.S. with persons who engaged in conduct th at endangered t he physical or emotional well being of the chil d

. See In re J.F.C. , 96 S.W.3d at 266. Although the record indicates that J.S. c omp leted some of his service plan tasks , such evidence is not so significant that a reasonable trier of fact coul d not have re co nciled it in favor of the aforementioned finding s
. See In re C.H
. , 89 S.W.3d at 25. Therefore, we hold that the evidence is le gal ly and factually sufficient to support termination of J.S. ’s parental rights under subsections (D) and (E) of Texas Family Code , Section 16 1. 001(b). Accordingly, we overrule J.S. ’s first, second, third, and fourth issue s as to subsections (D) and (E) o f T exas Family Code , Section 161.001(b)

. See T EX

. R. A PP

. P. 47.1.

B EST I NTEREST OF THE C HILD In his fifth and sixth issue s , J.S. argue s the evidence is legally and factually insufficient to support a finding that termination of his parental rights is i n t he child’s best interest. In determining the best interest of the child, we consider a number of factors, inc luding (1) the d esires of the c hild , (2) the emotional and physical needs of the child now and in the future , (3) the emotional and physical da nge r to the child now and in the future , (4) the parental abilities of the individuals seeking custody , (5) the p rograms availabl e to assist th e se individuals , (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or om issions of the parent that may indicate the existing parent

- child relationship is not a proper one , and (9) an y excuse for the acts or omiss i ons of the parent. Holley v. Adams , 544 S.W.2d 367, 371

– 72 (Tex. 1976). The family code also provides a list o f f actors that we consider in conjunction with the

a f

o r e mentioned Holley factors. See T EX

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. C ODE A NN

. § 263. 307(b) (West 2019 ). These11 fa c tors include (1) the child’s age and physical and mental vulnerabilities , (2) the magnitude, frequency, and circu mst ances of the harm to the child , (3) the results of psychiatric, psychological, or developmental evaluati ons of the child, the child’s paren t s, other family members, or others who have access to the child ’ s home , (4) whether there is a history of substan ce abuse by the child’s family or others who have access to the child ’ s home , (5) the willingness and abili ty of the child’s family to seek ou t , accept, and complete counseling services and to cooperate with and facilitate an appropriate agency ’ s close sup erv ision , (6) the willingness and ability of the child’s family to effect positive environmental and person al cha nges within a reasonable peri o d of time , (7) whether the child’s family demonstrates adequate parenting skills , and (8) whether an adequate soc ial support system consisting of an extended family and friends is available to the child. See id. § 263.30 7(b)( 1), (3), (6), (8), (10), (11) , (12), (13). The evidence need not prove all statutory or Holley factors in order to show that termination of pa ren tal rights is in a child ’ s best interest. See Holley , 544 S.W.2d at 372; In re J.I.T.P. , 99 S.W.3d 841, 84 8 ( Tex. App.

– Houston [14th Dist. ] 2003, no pet.). In other words, the best interest of the child does not require proof of any unique set of fact ors nor limit proof to any specific factors. In re D.M. , 58 S.W.3d at 814. Undisputed evidence of just one fact or may be sufficient in a par t icular case to support a finding that termination is in the child ’ s best interest. In re M.R.J.M. , 280 S.W.3d at 50 7. But the presence of scant evidence relevant to each factor will not support such a finding. Id. Evidence sup porting termination of pa r ental rights also is probative in determining whether termination is in the best interest of the child. See In r e C .H. , 89 S.W.3d at 28

– 29. Analysis We again note that the evidence supports that J.S. continues to abuse drugs , did not complete his servic e plan, ha s a criminal history, and was alleged to have a history of domestic violence against his family and the mot her of his child

. Regarding E.S., Coleman reported that he is doing very well in his foster home and has made improvements in his speech ; h e is very sociable and bonded to his foster parents. The Court Appointed Special Advocates ( CASA ) volunteer state d t hat E.S. is happy and comfortable in his foster home and adores his older foster b rother. E.S.’s foster mother stated that he is a “sweeth e art ” and a morning child. Mental Health

. According to J.S., he has been diagnosed with schizo

- affective bipolar di sorder. He ha s12 been under the care of the Andrews Behavioral Health Center since 2015

. Although he described his childhood as “shitty” in an in itial evaluation by the Andrews Center and stated that he was selling methamphetamine at age sixteen , he deni ed his statements in the evaluation , stating that it was “full of shit” and that he would have said anything when he was using drugs. J.S. ad m itted that he was under the influence of drugs when he completed the evaluation and that he was “ dazed ” most days. He also denied st ating that he used to physically fight with his father. According to J.S., he last saw his co unselor at the Andrews Cente r two days before trial. He d eclined to tak e all of his prescribed medications because he could not refill them. H e a lso admitted using alcohol a week before trial. J.S. stated that in October 2019, he was “kind of sort of” ha ving hallucinations or mental health problems. He denied telling his counselor in January 2020, about his having violent thoughts toward peopl e w ho hurt his feelings. J.S.’s counselor at the Andrews Center testified that J.S. had delusions about his limb s getting longer and shorter during the day, that he feels like a woman is trapped in his body, and that people are controlling his movements. Fu rther, records from the Andrews Center show that J.S. was diagnosed with schizoaffective disorder ( bipolar typ e ) , cannabis use disorder ( m i ld ) , other nonspecified stimulant use disorder ( severe ) , major depressive disorder ( recurrent episodes ) ( severe ) , and unspecified anxiety disorder. Employment and Housing

. J.S. testified that he had two jobs in the year th is ca s e was pending

. His last emp l oy er was Sanderson Farms , but his truck broke down two weeks before trial , which caused him to lose that employm e nt

. He stated that he was homeless and living in his truck. Coleman stated that J.S. never provided her a pay s t ub and that he had lived in three or four places during the pendency of the case. She further stated that h e ne ver provided her with a home a ddress

. Visitation. Coleman testified that J.S. had visitation with E.S. for two hour period s , twice a week,

a nd the reafter, for one hour each week. But J.S. missed a few visitatio n s with E.S. Coleman stated that during his vi sitations, J.S. initiall y would pace the room, talk to E.S. every now and then, and look at his watch or the clock. She said that at almo st every visitation, J.S. would ask if someone else could visit with E

. S. for the last fifteen minutes of the visitation. She opi ned that J.S

. got tired of the visitation s
. According to Coleman, J.S. did not interact with E.S., did not maintain visual co nt act13 with E.S., and did not understand age appropriate behavior with E

. S. The CASA volunteer stated that J.S. was fixated on the time he had left in the visitation and requested that his parents come to the remainder of the visitation s
. J.S. admitted th at he may have asked to shorten his visitation time with E.S. once or twice. Recom mendation

. Coleman and the attorney ad litem stated that it was in E.S.’s best interest for J.S.’s parental rights be terminated. Thorn believed it was in E.S.’s best in te rest for J.S.’s parental right s be terminated because he could not provide fo r E.S.’s needs , including a safe environment, and that he faile d to make any lifestyle or behavioral changes. The CASA volunteer stated that it was in E.S.’s best interest for J. S.’s parental rights be terminated because of his inability to provide a stab le home. Although some evidence might weigh against the trial court’s finding s , this evidence is not so significant that a reasonable fact finder could not have reconciled it in favor of its finding and formed a firm belief or conviction that terminating J.S

. ’ s parental rights is in the child’s best interest. See T E X

. F AM

. C ODE A NN

. § 161.001 (b) (2); In re J.F.C. , 96 S.W.3d at 266. Accordingly, we overrule J.S.’s fifth and sixt h issue s
.

G RANDPARENT S In t wo issue s , E.S.’s paternal grandparents , T.S. and M.S., argue that the trial court erred by appointing the Depart m ent as permanent managing conservator of the child and by denying them any conservatorship status. Standard of Re vi ew and Applicable Law “The best interest of the child shall always be the prima ry consideration of the court in determining the issues of c o nservatorship and possession of and access to the child. ” T EX

. F AM

. C ODE A NN

. § 153.002 (West 20 14 ). If the cou rt terminate s the parent

- child relationship with
resp ect to both parents, the cour t shall appoint a suitable, competent adult, the Department , or a licensed child

- placing agency as managing conservator of the child. See T EX

. F AM

. C ODE A NN

. § 161.207 (West Supp. 2 0 20 ). The trial court is given wide latitude in dete rmining the best interests of a minor child. Gillespie v. Gillespie , 644 S.W.2d 449, 45 1 (Tex. 1982). The judgment of the trial court will be reversed only when it appears from the record as a whole th at the court has abused its discretion. Id. ; see Worford v. Stamper , 801 S.W.2d 108, 109 (Tex.14 1990); In re J.D.D. , 242 S.W.3d 916, 9 19 (Tex

. App.

– D allas 2008, pet. denied) (trial court has broad discretion on child support issues) ; see also In re J.A.J
. , 243 S.W.3d 611, 616 (Tex. 2007) (conservatorship determinations subject to review for abuse of discretion)

. A trial court abuses it s discr etion when it acts in an arbitrary and un reasonable manner or when it acts without reference to any guiding rules o r principles. In re J.D.D ., 242 S.W.3d at 920 (citing Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

– 42 (Tex. 1985)). “A trial c ourt does not abuse its discretion if the re is some evidence of a substantive and probative character to support [i ts] decision.” Garza v. Garza , 217 S.W.3d 538, 549 (Tex. App.

– San Antonio 2006, no pet.). The conservatorship decision is not subjec t to th e clear and con vincing evidence requireme nt to which terminations of parental rights are subject. J.A.J. , 243 S. W. 3d at 616. Instead, the quantum of proof needed in the trial court is simply a preponderance of the evidence. Id. Also, there is no statut ory presumption tha t a grandparent should be preferred as managing conservator over the Department or other nonpa re nts. In re A.C. , 394 S.W.3d 633, 644 (Tex. App.

— Houston [1 st Dist.] 2013, no pet .). Analysis W e review the co nservatorship decision of the trial court under the statutory factors in Texas Family Code , S ection 263.307(b) an d the Holley factors noted above. See In re J.A.J. , 243 S.W.3d at 616; D.J. v. Tex
. Dep’t of Fam. & Protective Servs. , No. 03

- 19

- 004 48

- CV, 201 9 WL 5793118, at *2

– 3 ( Tex. App.

–Austin Nov. 7, 2019, pet. denied) (mem. op.). The record shows that E.S. was ap pr oximately fourteen months old when he was removed by the Department and placed in foster care. For the majority of th ose fourteen mo nths, E. S. lived with K.B. or w ith T.S. and M.S. The evidence reflects that T.S. and M.S. loved E.S. and that J.S. and K .B

. wanted E.S. to be placed with T.S. and M.S. if his or her parental rights were terminated. However, we are mindful that E.S.’s best intere st is paramount. Drug Use. According to T. S., he had a prescription for Tylenol 3 for arthritis pain. However, d uring the investigation, T.S. submitted to drug testing in August 2019, and his test was positive for codeine and hydrocodone. T.S. was unab le to provide a current list of prescriptions to match the results of his drug test. M.S. was able to prov ide pr es criptions to verify her results of the August 2019 drug test in which she tested positive for hydrocodone. According to M.S., an alcohol te st in January 2019 , sho wed that she tested p ositive at15 almost twice the “cut off ” and T.S. tested positiv e at alm os t seven time s the “cut off.” They both tested positive for ethyl glucuronide. M.S. admitted that these results were concerning. And while n either admitted that th ey had an alcohol pr oblem to their substance abuse counselor , T.S. and M.S. stated t hat th ey stopped drinking alcohol around October 2019. T.S. also admitted that he knew J.S. used methamphetamine in his home and was unsupervised ar ound E.S. Criminal Hi story. T.S. plea de d guilty to driving while intoxicated in March 2014, and was sente nced to thirty days confinement in the Smith County jail. M.S. also was arrested that night for public intoxication. She said that they were cele brating their twenty

- fi fth wedding annive rs ary. Domestic Violence

. According to K.B., she reported to M.S. th at J.S. raped her. T.S. stated that such an incident did not occur in their house

. Service Plan

. After a January 2020 hearing, T.S. and M.S . were ordered to compl ete a psychological evaluation and c ounseling. According to T.S. , they completed th is ser vice plan. He took two psychological evaluations but has not completed any parenting classes. He denied needing alcohol treatment , although h e ha s been seeing a sub stance abuse counselor. M.S. stat ed that she participated in indivi dual counseling with a substance abuse counselor. The attorney ad litem did not see any indication from T.S. and M.S. that they were willing to work “ services ” to p rovide a safe and suita ble home for E.S. Department His to ry. According to a Department investigator, there we re allegations of domestic violence between T.S. and J.S. in April 2019 , and concerns that E.S. was in the home at that time

. T.S. stated that J.S. came to his house and appeared to be under the infl ue nce of drugs , which re sult ed in a physical altercation between them

. At that point, l aw enforcement was called. The previous investigation determined that K.B. and E.S. were residing with T.S. an d M.S. and that T.S. an d M.S. did not allow unsupervised c on tact between K.B. and E .S. The se allegations were “r uled out.” E.S. tested positive for methamphetamine at the beginning of this case. Coleman stated that T.S. and M.S. never addressed or expr essed concern about thi s ma tter

.16 Law Enforcement Calls. Beth Mohan, the Department’s conservatorship program director, testified that there were close to one hundred 911 law enforcement calls made in response to T.S.’s and M.S.’s home , which includ ed d isturbances, family di sagreements, alcohol use, y elling complaints, loud music, and report s of a missing person. According to T.S., there might have been twelve 911 call responses to his house over the years, not one hundred. According to T.S., those occa sions

usua lly involved arguments between h im and J.S. Howe ver, during trial, T.S. was questioned regarding sixt een 911 calls to law enforcement that occurred between 2004 and February 2019. He either denied having made these calls, could not recall havi ng made them , or state d that they were mischaracteriz ed

. Th ose calls involved hi s being intoxicated and not allo wing J.S. or M.S. to leave the house, arguments between J.S. and T.S. when they were drunk, numerous calls to determine where M.S. was located, calls and al tercation s when M.S. was drunk, drinking and fi ghting between T.S. and M.S., his dragging M.S. out o f a house, and a physical altercation between T.S., M.S., and J.S. with a B ible

. There also was a 911 call to law enforcement on February 27, 2019, regarding an alt ercation between T.S. and J.S. , dur ing whi ch T.S. was accused of assaulting J.S. A s a resu lt , T.S. went to jail for thirty days but denied it occurred. T.S. stated that he has been falsely arrested for assaulting J .S. on two occasio ns
. M.S . blamed most of the 911 calls on J.S. ’s being re belliou s, their arguing over J.S. and her trying to prot ect her son , and marriage problems wherein she called law enforcement to attempt to solve their arguments. She stated that she called 911 eith er bec ause she wanted to leave her house and could not becaus e J.S. and T.S. were “getting into it , ” or because s he was intoxicated and did not want t o go home and J.S. and T.S. were intoxicated as well

. M.S. stated that J.S. called 911 “all the time” if she locked the door to the house. Coleman stated that T.S. and M.S. , at the time of trial, still were de nying t h at law enforcement calls were made to their house and the alcohol issues that prompted the cal ls. Thorn stated that his reluctance to pla ce E .S. with T.S. and M.S. stemmed from their lack of protective capaci ties in the past and the lack of responsibilit y or admission to the numerous 911 law enforcement calls made to their home. According to their substance abuse counselor, T.S. and M.S. denie d responsibility for t he 911 law enforcement calls, instead , blaming it all o n J.S. and K.B.17 The CASA volunteer recommended permanent managing conservatorship to be with the Department, not T.S. and M.S., because of the seventeen

- year history of violence due to alcohol abuse and potential overuse of prescription medications. She testif ied that she reviewed each of the myriad 911 law enforcement call s to T.S.’s and M.S.’s hom e

. She conclud ed that there was a history of altercations between family a nd nei ghbors that was not an appropriate enviro nment for a young child. According to the CASA volunteer, no child shou ld be allowed to be placed under T.S.’s supervision or placed in T.S.’s and M.S.’s custody. The attorney ad litem also was concerned about the “vast” number of 911 law enforcem ent cal ls made to T.S.’s and M.S.’s home

. Home Study. Mohan denied the home study due to the criminal history and home environment , the amount of alcohol being used in the home or 911 calls involving alcohol, and T.S. ’ s being convicted of d riving while intoxi cated. She de scribed the home environment as “const ant chaos.” Coleman stated that the home study on T.S.’s and M.S.’s home was denied because of numerous arrests, convictions, and T.S. ’s not taking responsibility for the actions causi ng him to be arrest ed. She stated that there also were concerns about al cohol abuse, polic e records, and the positive alcohol test s
. According to Coleman, neither T.S. nor M.S. accepted responsibility for their past actions. Howeve r, she admitted that T .S. and M.S. have m ade some lifestyle changes. Conclusion Based on our review of the reco rd, a trier of fact reasonably could have found that T.S. and M.S. had alcohol problem s and that they refused to admit to problems with alcohol even though they bo th were arrested for actions involv ing their abuse of alcohol

. Moreover, the trier of fact r easonably could have found that T.S.’s and M.S.’s alcohol abuse caused or contributed to approximately one hundred 911 law enforcement calls ma de to their hous e and that neither T.S. nor M.S. accepted respons ibil ity for their past actions

. Accordingly, we conclude the trial court did not abuse its discretion by finding that the appointment of the Department as permanent managing conservator was in the child’s best in terest

. We ove rrule T.S.’s and M.S.’s firs t an d second issues.

D ISPOSITION Having overru led all of J.S.’s issue s , we affirm the trial court ’s judgment by which it18 terminated his parental rights. Having also overruled T.S.’s and M. S.’s two issues, we af firm the trial court ’s judgment by which it app oint ed the Department as permanent managing conservator of the child. B RIAN H OYLE Justice

Opinion delivered June 1 7 , 2021. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.19 

## COURT OF APPEALS

TWELFTH COU RT O F APPEALS DISTRICT OF TEXAS
JUDGMENT

JUNE 1 7 , 2021

NO. 12

- 20

- 00282

- CV

IN THE INTEREST OF E. S., A CHILD

Appeal from the 3rd Distri ct Court of Henderson County, Texas (Tr.Ct.No. F AM19

- 0564

- 3 )
THIS CAU SE came to be heard on the appellate record an d br iefs filed herein, and the same being conside red, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgme nt of the cou rt below be in all things affirmed , and that this deci sion be certified to the court below for observan ce. Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.