Affirmed and Memorandum Opinion filed December 4, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-18-00526-CV

IN THE INTEREST OF D.I.L.-M. AKA D.M., S.K.D.-M., A.M.Q.-M. AKA 

A.M.B. AND A.J.B.-M., CHILDREN 

On Appeal from the 314th District Court 

Harris County, Texas 

Trial Court Cause No. 2017-03375J 

M E M O R A N D U M O P I N I O N 

Appellant, E.M. (Mother), appeals the trial court’s final decree terminating her 

parental rights as to S.M. (Samantha), A.M. (Avery), and A.B.M. (Andrew).1

 Mother 

contends the evidence is legally and factually insufficient to support the trial court’s 

findings as to the predicate grounds on which her parental rights were terminated and 

that termination is in the children’s best interest. We affirm. 

 

1 We use pseudonyms to refer to appellant, the children, and other family members. See Tex. 

Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8. 
2

BACKGROUND 

A. The Department’s Investigation 

In April 2016, the Department of Family and Protective Services (the 

Department) received a referral alleging sexual abuse of D.M. (Danielle),2 a fourteenyear old girl, by her step-father (Father). Father is the natural parent of Danielle’s 

younger half-siblings Avery and Andrew.3 Samantha and Danielle each have a different 

father from their siblings.4

 The Department initiated an investigation, which resulted 

in Father moving out of the home. During the investigation, Danielle recanted the 

allegations of sexual abuse, but informed the Department that Mother struck Danielle 

with a cord. The Department’s investigator observed marks on Danielle’s body from 

the incident. Mother admitted to the Department investigator that she struck Danielle 

with the cord. The Department assigned Mother’s case to Family Based Safety Services 

wherein Danielle and Mother received therapy. The Department also became aware 

that Andrew, who was five months old at the time, was born with congenital mitral 

heart atresia and that Mother had missed important doctor’s appointments. Family 

Based Safety Services assisted Mother in establishing medical care for Andrew’s heart 

condition. Mother also began engaging in family services but was delinquent and 

inconsistent in completing and attending the required programs. 

Prior to the 2016 referral, the Department received two referrals in 2014 for 

neglectful supervision alleging that Mother left the children home alone, hit one child 

in the face, was in possession of cocaine, and that she would get “high” on marijuana 

 

2

 Danielle has been missing since October 31, 2017. The trial court granted a partial non-suit 

with regard to Danielle, excluding her from the trial court’s final decree and this appeal. 

3 Father’s parental rights were terminated pursuant to an irrevocable affidavit of voluntary 

relinquishment of parental rights, which he signed prior to trial. Father has not appealed.

4 Mother stated that both Samantha’s and Danielle’s fathers were living in Honduras. The 

Department was unable to locate either one. 
3

and physically abuse the children. After investigating, the Department determined there 

was not enough evidence to support these referrals. There was also a referral alleging 

sexual abuse of Danielle in 2015, which the Department found to be unsubstantiated. 

In May 2017, the Department received a referral alleging Mother was using 

crystal meth, cocaine, and marijuana while caring for her children. The referral further 

alleged that Mother did not use proper child safety seats while driving the children in 

her vehicle. Mother took a drug test as a result of this allegation and tested positive for 

cocaine in both a urine and a hair follicle test. Mother admitted to the Department’s 

investigator that she had used cocaine. The Department referred Mother to a substance 

abuse program and determined the children needed to be removed from her care. The 

Department placed Avery and Andrew with their paternal aunt (Aunt). The Department 

was unable to find familial custody for Samantha and Danielle and placed the girls in 

an emergency shelter. 

B. Trial Proceedings 

On June 16, 2017, the Department filed a petition for conservatorship and 

termination in a suit affecting the parent-child relationship. The Department sought to 

be appointed temporary sole managing conservator and termination of Mother’s 

parental rights if reunification could not be achieved. 

During the pendency of the trial court proceedings, the Department was 

appointed temporary managing conservator of the children. Avery and Andrew 

remained in the care of Aunt, while Danielle and Samantha were eventually moved 

from the emergency shelter to a non-adoptive foster home. 

The Department prepared a family service plan for Mother. Mother’s service 

plan required that she: complete a substance abuse assessment, complete a 

psychosocial assessment, begin and regularly attend a therapy program, and participate 

in an inpatient substance abuse treatment program. 
4

At trial, before any witness testimony, the trial court admitted the following into 

evidence: Mother’s Family Service Plan; Mother’s drug test results; Father’s July 28, 

2017 charge of assault against Mother; Father’s July 28, 2017 possession of cocaine 

charge; a certificate of completion of Mother’s individual counseling program; 

Mother’s lease agreement; and Mother’s counseling treatment plan. 

Evidence about Mother 

The Department caseworker testified about Mother’s drug tests results. Mother’s 

hair follicle and urinalysis tests both came back positive for cocaine in May 2017, June 

2017, and August 2017. After the first permanency hearing in November 2017, and in 

subsequent tests up to the date of trial, Mother’s urinalysis tests came back negative 

for illegal substances while her hair follicle tests came back positive for cocaine, but in 

decreasing amounts on each test. Mother’s last drug test, in May of 2018, came back 

negative for illegal substances in both her hair follicle test and her urinalysis test. 

The Department caseworker further testified that Mother’s substance abuse 

assessment recommended an inpatient substance abuse program, but Mother did not 

comply. Mother has not received substance abuse treatment of any kind, despite 

admitting to having used cocaine around her children. At the time of trial, Mother was 

leasing a bedroom from a friend of a friend. The caseworker visited Mother’s residence 

and explained to the court that the room consisted of a mattress on the floor where 

Mother slept. Mother informed the caseworker that she is employed providing cleaning 

services, but Mother has been unable to provide evidence of this employment. 

The Department caseworker testified that visits between Mother and the children 

went well and that Mother attended all her visits. The caseworker further testified that 

the children love Mother. Nevertheless, the caseworker believed it would be in the 

children’s best interest to have Mother’s parental rights terminated. The witness for 

Child Advocates also testified that it would be in the children’s best interest to have 
5

Mother’s parental rights terminated. 

Mother testified that she wants to fight for her children and explained that she is 

now “clean” from drugs and healthy enough to take care of her children. According to 

Mother, she would rent an apartment if she is able to get her children back. Mother 

testified that the referrals of neglectful supervision and sexual abuse were all from a 

neighbor who had a problem with the children. Mother admitted to having made 

mistakes by using drugs but pleaded for another chance.

Evidence about the Children 

Danielle ran away from her foster care placement eight months prior to trial and 

was still missing at the time of trial. The Department filed a police report and opened 

an investigation with the National Center for Missing and Exploited Children to locate 

Danielle. 

Samantha, who was thirteen years old at the time of trial, was present at trial. 

Samantha was staying at a non-adoptive foster home at the time of trial. The 

Department caseworker testified that the Department was investigating two potential 

out-of-state familial placements for Samantha. The Department conceded, however, 

that Samantha indicated she would like to stay with Mother. According to the witness 

for Child Advocates, Samantha asked to be present at trial in order to hear for herself 

the case against Mother. 

Avery and Andrew were living with their paternal aunt whom they loved and 

had been living with since June 2017. The Department caseworker testified that their 

aunt takes very good care of the children and loves them. 

 After arguments by counsel and the guardian ad litem’s recommendation that 

Mother’s parental rights be terminated, the trial court signed a final decree terminating 

Mother’s parental rights under section 161.001(b)(1)(D), (E), and (O). The trial court 

also found that termination of Mother’s parental rights was in the best interest of the 
6

children. This appeal followed. 

ANALYSIS 

Parental rights can be terminated upon proof by clear and convincing evidence 

that (1) the parent has committed an act prohibited by section 161.001(b)(1) of the 

Family Code; and (2) termination is in the best interest of the child. Tex. Fam. Code 

Ann. § 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). 

A. Standard of Review 

Involuntary termination of parental rights is a serious matter implicating 

fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In 

re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). 

Although parental rights are of constitutional magnitude, they are not absolute. In re 

C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“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.”). 

Due to the severity and permanency of the termination of parental rights, the 

burden of proof is heightened to the clear and convincing evidence standard. See Tex. 

Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002). “Clear 

and convincing evidence” means “the measure or degree of proof that will produce in 

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

sought to be established.” Tex. Fam. Code Ann. § 101.007; In re J.F.C., 96 S.W.3d at 

264. This heightened burden of proof results in a heightened standard of review. In re 

C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.). 

In reviewing the legal sufficiency of the evidence in a parental termination case, 

we must consider all the evidence in the light most favorable to the finding to determine 

whether a reasonable fact finder could have formed a firm belief or conviction that its 
7

finding was true. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266. We 

assume that the fact finder resolved disputed facts in favor of its finding if a reasonable 

fact finder could do so, and we disregard all evidence that a reasonable fact finder could 

have disbelieved. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266. 

In reviewing the factual sufficiency of the evidence, we consider and weigh all 

of the evidence, including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d 

at 345. “If, in light of the entire record, the disputed evidence that a reasonable fact 

finder could not have credited in favor of the finding is so significant that a fact finder 

could not reasonably have formed a firm belief or conviction, then the evidence is 

factually insufficient.” Id. We give due deference to the fact finder's findings and we 

cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 

105, 108 (Tex. 2006). The fact finder is the sole arbiter when assessing the credibility 

and demeanor of witnesses. Id. at 109. 

B. Predicate Termination Grounds 

Mother challenges the legal and factual sufficiency of the evidence supporting 

the trial court’s judgment terminating her parental rights under sections 

161.001(b)(1)(D), (E), and (O) of the Texas Family Code. Only one predicate finding 

under section 161.001(b)(1) is necessary to support a judgment of termination when 

there is also a finding that termination is in the child’s best interest See In re A.V., 113 

S.W.3d 355, 362 (Tex. 2003). We first evaluate whether termination was proper under 

section 161.001(b)(1)(E). 

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

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

the parent’s conduct, including acts, omissions, or failures to act. In re J.T.G., 121 

S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see also In re S.M.L., 171 

S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). In this context, 
8

endanger means “to expose to loss or injury; to jeopardize.” In re T.N., 180 S.W.3d 

376, 383 (Tex. App.—Amarillo 2005, no pet.) (quoting In re M.C., 917 S.W.2d 268, 

269 (Tex. 1996) (per curiam)). A child is endangered when the environment creates a 

potential for danger that the parent is aware of but disregards. In re S.M.L., 171 S.W.3d 

at 477. 

Termination under subsection 161.001(b)(1)(E) must be based on more than a 

single act or omission—the evidence must demonstrate a voluntary, deliberate, and 

conscious course of conduct by the parent. In re C.A.B., 289 S.W.3d 874, 883 (Tex. 

App.—Houston [14th Dist.] 2009, no pet.). “Although ‘endanger’ means more than a 

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

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

suffers injury.” In re T.N., 180 S.W.3d at 383; see also In re J.O.A., 283 S.W.3d at 336 

(holding that endangering conduct is not limited to actions directed toward the child). 

Danger to the child’s well-being may be inferred from parental misconduct alone, and 

courts may look at parental conduct both before and after the child’s birth. Id. (“[T]he 

endangering conduct may include the parent’s actions before the child's birth, while the 

parent had custody of older children, including evidence of drug usage.”). The conduct 

need not occur in the child’s presence, and it may occur “both before and after the child 

has been removed by the Department.” Walker v. Tex. Dep’t of Family & Protective 

Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). 

Mother contends the Department failed to prove termination was permissible 

under subsection (E) because she has tested negative for illegal substances in her 

urinalysis tests since the first permanency hearing. The Department argues the evidence 

supports the trial court’s finding because it shows Mother had an on-going drug 

problem. 

As a general rule, subjecting a child to a life of uncertainty and instability 
9

endangers the child’s physical and emotional well-being. See In re J.O.A., 283 S.W.3d 

at 345. Although incarceration alone will not support termination, evidence of criminal 

conduct, convictions, and imprisonment may support a finding of endangerment under 

subsection (E). See In re A.R.M., No. 14-13-01039-CV, 2014 WL 1390285, at *8 (Tex. 

App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.); In re C.A.B., 289 S.W.3d 

at 886. Likewise, illegal drug use may support termination under subsection (E) 

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

imprisoned.” Walker, 312 S.W.3d at 617. This court has also held that a parent’s 

decision to engage in illegal drug use during the pendency of a termination suit, when 

the parent is at risk of losing a child, may support a finding that the parent engaged in 

conduct that endangered the child’s physical or emotional well-being. In re A.H.A., No. 

14-12-00022-CV, 2012 WL 1474414 (Tex. App.—Houston [14th Dist.] Apr. 26, 2012, 

no pet.) (mem. op.). 

The children were removed from Mother’s care in June 2017, after Mother’s 

urinalysis test came back positive for cocaine and Mother admitted to using cocaine. 

Mother’s urinalysis test came back positive again for cocaine in August 2017, after the 

children had been removed and Mother was aware her continued use of cocaine could 

result in the termination of her parental rights. Mother’s November 2017 psychosocial 

evaluation indicated that Mother had been diagnosed with cocaine use disorder. There 

is also evidence that Mother was using cocaine as far back as 2014 while caring for the 

children. A parent’s drug use may qualify as a voluntary, deliberate, and conscious 

course of conduct endangering the child’s well-being. In re S.R., 425 S.W.3d 351, 361–

62 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); see also In re C.A.B., 289 

S.W.3d at 885. In addition, Mother admitted to physically abusing Danielle and 

referrals to the Department allege physical abuse as well. There is also evidence Mother 

missed doctor’s appointments for Andrew’s heart condition. 
10

Based on the record before us, we conclude a reasonable fact finder could have 

formed a firm belief or conviction that Mother engaged in conduct that endangered the 

physical or emotional well-being of the children through her acts or omissions. See, 

e.g., In re A.R.M, 2014 WL 1390285, at *7–9; In re C.A.B., 289 S.W.3d at 886–87. 

Considered in the light most favorable to the trial court’s finding, the evidence is 

sufficient to support the trial court’s determination that termination of Mother’s 

parental rights was justified under section 161.001(b)(1)(E) of the Family Code. 

Accordingly, we conclude the evidence is legally and factually sufficient to support the 

section 161.001(b)(1)(E) finding. We overrule Mother’s first issue. 

Having concluded that the evidence is legally and factually sufficient to support 

the trial court’s finding of endangerment under section 161.001(b)(1)(E) of the Texas 

Family Code, we need not address Mother’s contentions challenging the court’s 

findings under section 161.001(b)(1)(D) and (O). See In re A.V., 113 S.W.3d at 362. 

Mother’s first and second issues are overruled. 

C. Best Interest of the Children 

In her third issue, the Mother asserts that the evidence is legally and factually 

insufficient to support the trial court’s best-interest finding. We review the entire record 

in deciding a challenge to the court’s best-interest finding. In re E.C.R., 402 S.W.3d 

239, 250 (Tex. 2013). We apply a strong presumption that the best interest of a child is 

served by keeping the child with the natural parent. In re R.R., 209 S.W.3d 112, 116 

(Tex. 2006); In re D.R.A., 374 S.W.3d at 533. 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). 

Courts may consider the following non-exclusive factors in reviewing the 

sufficiency of the evidence to support the best-interest finding: the desires of the child; 

the present and future physical and emotional needs of the child; the present and future 
11

emotional and physical danger to the child; the parental abilities of the persons seeking 

custody; the programs available to assist those persons seeking custody in promoting 

the best interest of the child; the plans for the child by the individuals or agency seeking 

custody; the stability of the home or proposed placement; acts or omissions of the 

parent which may indicate the existing parent-child relationship is not appropriate; and 

any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 

(Tex. 1976); see also Tex. Fam. Code Ann. § 263.307(b) (West Supp. 2016) (listing 

factors to consider in evaluating parents’ willingness and ability to provide the child 

with a safe environment). This list is not exhaustive, and evidence is not required on 

all of the factors to support a finding terminating parental rights. Id.; In re D.R.A., 374 

S.W.3d at 533.

1. Present and future physical and emotional danger to the children 

The Texas Supreme Court has recognized that a parent’s use of narcotics and its 

effect on her ability to parent may qualify as an endangering course of conduct. In re 

J.O.A., 283 S.W.3d at 345; see also Edwards v. Tex. Dep’t of Protective Servs., 946 

S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ) (stating a parent’s drug use is a 

condition that can endanger a child’s physical or emotional well-being and indicate 

instability in home environment). A parent’s drug use also supports a finding that 

termination of parental rights is in the best interest of the children. See In re M.R., 243 

S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.); see also In re M.S.L., No. 

14–14–00382–CV, 2014 WL 5148157, at *6 (Tex. App.—Houston [14th Dist.] Oct. 

14, 2014, no. pet.) (mem. op.). The factfinder can give “great weight” to the “significant 

factor” of drug-related conduct. In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 

2007, no pet.); see also In re J.N.H., No. 02–11–00075–CV, 2011 WL 5607614, at *8 

(Tex. App.—Fort Worth Nov. 17, 2011, no pet.) (mem. op.) (considering a parent’s 

criminal and drug histories in affirming a trial court’s decision that termination was in 
12

the best interest of the child). 

The record reflects Mother continued to use cocaine after the children were 

removed from her care, despite knowing this continued behavior could result in the 

termination of her parental rights. Continued illegal drug use after a child’s removal is 

conduct that jeopardizes parental rights and may be considered as establishing an 

endangering course of conduct and that termination is in the best interest of the 

children. Cervantes–Peterson v. Tex. Dep’t of Family & Protective Servs., 221 S.W.3d 

244, 253–54 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (en banc). 

2. Children’s desires 

When a child is too young to express the child’s desires, the factfinder may 

consider that the child has bonded with the foster family, is well cared for by them, and 

has spent minimal time with a parent. In re J.D., 436 S.W.3d at 118. Although a child’s 

love of a parent is a very important consideration in determining the child’s best 

interest, it can neither override or outweigh evidence of danger to the child nor 

compensate for the lack of an opportunity to grow up in a normal and safe way 

equipped to live a normal, productive, and satisfying life. In re D.S., No. 02-15-00350-

CV, 2016 WL 1267808, at *8 (Tex. App.—Fort Worth Mar. 31, 2016, no pet.) (mem. 

op.). 

At the time of trial, Avery was three and half years old and Andrew was two and 

half years old. Both children had been in Aunt’s care for almost a year. The witness for 

Child Advocates testified that Avery and Andrew were well-bonded with Aunt and that 

they loved her very much and she loved them very much. Further, while Mother proved 

to have difficulties in ensuring Andrew’s proper medical care, Aunt has had no 

problems. 

Samantha, who was thirteen years old at the time of trial, informed the witness 
13

for Child Advocates that she would like to stay with Mother. Despite Samantha’s 

statement that she desired to be returned to Mother, the Department was conducting 

home studies on familial placements in California and Kansas. A relative who was one 

of the potential kinship placements was in attendance and recognized at trial. 

Samantha’s desire to stay with Mother weighs in Mother’s favor with regard to 

Samantha but may not outweigh the other factors. See, e.g. In re J.N.S., 13-17-00356-

CV, 2018 WL 286090, at *7 (Tex. App.—Corpus Christi Jan. 4, no pet.) (mem. op.) 

(holding that a mother’s continued instability and use of illegal drugs presented a risk 

to the children’s welfare which outweighed their desire to remain with her). 

3. Stability of the home or proposed placement 

The stability of the proposed home environment is an important consideration in 

determining whether termination of parental rights is in the child’s best interest. See In 

re D.M., 452 S.W.3d 462, 472 (Tex. App.–San Antonio 2014, no pet.). A child’s need 

for permanence through the establishment of a “stable, permanent home” has been 

recognized as the paramount consideration in the best-interest determination. See K.C., 

219 S.W.3d at 931. Therefore, evidence about the present and future placement of the 

child is relevant to the best-interest determination. See C.H., 89 S.W.3d at 28. 

Mother provided a copy of her lease of a bedroom and states that she will rent 

an apartment if her children are returned. The caseworker testified the rented space was 

a room with a mattress on the floor. Further, Mother testified that she provides cleaning 

services, but has not demonstrated any evidence of stable income to support the three 

children. Moreover, Mother was inconsistent in ensuring Andrew received his 

necessary medical care. The trial court reasonably could have concluded that Mother’s 

proposed home environment was not stable or reliable enough for this factor to weigh 

in her favor. 
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4. Summary 

In sum, the record contains sufficient evidence to support the best-interest 

finding based on Mother’s drug use in addition to the physical abuse within the 

household. It was within the trial court’s discretion to determine the weight and 

credibility of the Mother’s testimony. In re K.A.S., 131 S.W.3d 215, 229–30 (Tex. 

App.—Fort Worth 2004, pet. denied). The factfinder resolved all credibility issues and 

we may not disturb that determination. See In re H.R.M., 209 S.W.3d at 108; In re 

L.M.I., 119 S.W.3d 707, 712 (Tex. 2003). 

Viewing all the evidence in the light most favorable to the judgment, we 

conclude that a factfinder reasonably could have formed a firm belief or conviction that 

termination of Mother’s parental rights is in each of the children’s best interest. See 

J.F.C., 96 S.W.3d at 265–66. After considering the relevant factors under the 

appropriate standards of review, we hold the evidence is legally and factually sufficient 

to support the trial court’s finding that termination of the parent-child relationship is in 

the children’s best interest. We therefore overrule Mother’s third issue. 

CONCLUSION 

 The trial court’s judgment is affirmed. 

 

 /s/ John Donovan

 Justice 

Panel consists of Chief Justice Frost, and Justices Jamison and Donovan.