Affirmed and Memorandum Opinion filed January 5, 2017. 

In The 

Fourteenth Court of Appeals 

NO. 14-16-00664-CV

IN THE INTEREST OF D.M.M., CHILD 

On Appeal from the 314th District Court 

Harris County, Texas 

Trial Court Cause No. 2015-06964J 

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

Appellants M.V.V. (“Mother”) and H.R.M. (“Father”) appeal the trial 

court’s final decree terminating their parental rights and appointing the Department 

of Family and Protective Services (the “Department”) as sole managing 

conservator of D.M.M. (“the Child”). In two issues both parents challenge the legal 

and factual sufficiency of the evidence to support the trial court’s finding that 

termination is in the best interest of the Child. We affirm.
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I. FACTUAL AND PROCEDURAL BACKGROUND

A. Pretrial Proceedings 

On the day of the Child’s birth, November 26, 2015, the Department 

received a referral regarding risk of neglectful supervision by Mother and Father. 

Both parents had a history of illegal drug use and three children in foster care. 

Mother allegedly used Father’s morphine prescription while pregnant. Father was 

believed to be a gang member, and was on probation for aggravated assault with a 

deadly weapon. Mother tested positive for opiates in the three months prior to the 

Child’s birth, including a positive test three days before birth. 

The Department sought to be named temporary managing conservator 

because (1) Mother tested positive for high levels of controlled substances; and (2) 

both parents have a history of drug use. In addition, both parents had three children 

in the Department’s custody at the time of the Child’s birth. Neither parent 

complied with required drug testing during the pendency of the previous three 

children’s termination proceedings. 

Four days after the Child’s birth, a Department investigator made face-toface contact with Mother. Mother denied using morphine during pregnancy, 

admitted using synthetic marijuana, but denied currently using any drugs. Mother 

tested positive for morphine three times between September and November, and 

positive for “K2/Spice” once in March. Mother had a prior misdemeanor 

conviction for theft of property. 

Another investigator made face-to-face contact with Father on the same day. 

Father denied being in a gang, and said Mother did not use his prescription 

morphine. Father could not submit to some of the court-ordered drug tests because 

he had a crisis with his medical condition involving sickle cell anemia. Father 
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admitted that he currently is serving ten years’ probation for assault with a deadly 

weapon. Father submitted to drug tests in March, July, and October. Most revealed 

positive results for prescribed medications. The Department described these results 

as negative because Father had a prescription. In July, Father had a positive hair 

follicle test for cocaine. Father had prior convictions for assault-bodily injury, 

possession of marijuana, indecent exposure, and theft of property. 

The removal affidavit lists the parents’ history with the Department. Three 

other children were removed from the parents’ care due to serious neglectful 

supervision. The referrals for those children stated that the youngest children, ages 

two and three, lost five to ten pounds in one month but did not appear to be 

malnourished. After the third child was born, the Department noted that both 

parents were using drugs in the presence of the children. Mother had passed out for 

an undetermined amount of time due to being under the influence of drugs. In 

April 2015, the Department was granted temporary managing conservatorship of 

the three other children. 

The Child was placed with the paternal aunt and uncle in January 2016, 

which is where her siblings were placed. Family service plans were created and 

approved by the trial court. The trial court found that both parents reviewed the 

service plans, understood them, and were advised that unless they were willing and 

able to provide the child with a safe environment within the reasonable period of 

time specified in the service plan, their parental and custodial rights were subject to 

restriction or termination. 

The Department filed an amended petition for termination of the parents’ 

rights in which it alleged Mother’s rights should be terminated under Texas Family 

Code section 161.001(b)(1)(D), (E) (endangerment); (M) (relationship terminated 

with respect to another child based on finding of endangerment); (N) (constructive 
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abandonment); (O) (failure to comply with service plan); and (P) (use of controlled 

substance in a manner that endangered health or safety of the child). The amended 

petition alleged Father’s rights should be terminated under section 

161.001(b)(1)(D), (E), (M), (N), and (P). 

B. Trial Testimony

Father moved for a continuance before the introduction of evidence on 

grounds that ill health prevented him from performing services under his plan. The 

trial court reviewed Father’s health records, which reflected that Father could 

“exercise and do whatever he wants as long as he takes his medication.” The trial 

court denied the motion for continuance. The trial court admitted into evidence 

without objection the citations for both parents, a DNA report showing paternity, 

and the prior decree of termination on endangerment grounds. 

Jessica Leal, the Department caseworker, testified that the Child came into 

the Department’s custody because the parents have a history of illegal drug use and 

three prior “CPS cases.” The parents’ rights were terminated to three older children 

on grounds of endangerment and failure to comply with the family service plan. 

Both parents continued to test positive for illegal drugs during the pendency of the 

prior termination suit. The parents did not complete any services while the current 

termination case was pending. 

At the time of trial the Child was placed with her paternal aunt and uncle 

where she lived with her three older siblings. According to Leal, the aunt and uncle 

meet all of the Child’s physical and emotional needs, and want to adopt the Child 

and her three siblings. The Child has bonded with the aunt and uncle. The parents 

have not demonstrated that they can provide a safe and stable environment for the 

Child. 
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Leal testified that Father told her he wanted to work the service plan. Leal 

provided Father with referrals to help with the tasks on the plan. Leal reviewed 

each service with Father and explained where to go to complete the services. 

However, Father did not perform the services under the plan. 

Peggy Simon, a Child Advocates volunteer, testified that she wished the 

parents had three more months to try to work their services. She further testified 

that termination and continued placement with the aunt and uncle were in the best 

interest of the Child. Simon agreed that the Child bonded with the aunt and uncle 

and was doing well in her current placement. 

Father testified that he has been diagnosed with sickle cell anemia, which 

caused him to be hospitalized seven times in the past year. Father admitted the 

hospitalizations had not prevented him from working his services. Father asked the 

trial court for more time to work his services, and to stay off drugs. Father receives 

monthly income of $625 from Social Security, which he admitted is not enough to 

support the Child, but testified he would find employment if his parental rights 

were not terminated. 

Mother also asked for more time to complete her services. Mother testified 

that if given more time she would work her services and stay off drugs. She 

acknowledged that her rights to the three older children were terminated, but said 

she wanted to raise her daughter. Mother testified that a leukemia diagnosis six 

months before trial prevented her from working her family service plan. Mother 

testified that she “stepped away from CPS for a little bit” due to her illness. On 

cross-examination, Mother admitted to testing positive for opiates three times 

while the termination was pending. No further evidence was developed about 

Mother’s illness and its effect on this termination case. 

At the conclusion of the bench trial, the trial court found clear and 
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convincing evidence that the parents’ parental rights should be terminated under 

Family Code section 161.001(b)(1)(M).

II. ANALYSIS

In a single issue, each parent challenges the legal and factual sufficiency of 

the evidence to support the trial court’s finding that termination is in the best 

interest of the Child. 

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 legal sufficiency of the evidence in a parental termination case, 

we must consider all evidence in the light most favorable to the finding to 
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determine whether a reasonable fact finder could have formed a firm belief or 

conviction that its finding was true. In re J.O.A., 283 S.W.3d at 336. 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. Id.; In re G.M.G., 444 S.W.3d 46, 52 (Tex. App.—

Houston [14th Dist.] 2014, no pet.). 

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). 

A. Predicate Termination Grounds 

Termination under section 161.001(b)(1)(M) requires a finding that the

parent “had his or her parent-child relationship terminated with respect to another 

child based on a finding that the parent’s conduct was in violation of Paragraph (D) 

or (E) or substantially equivalent provisions of the law of another state.” Tex. Fam.

Code Ann. § 161.001(b)(1)(M).

On April 28, 2016, the parents’ parental rights were terminated with respect 

to three older children based on section 161.001(b)(1)(E) of the Texas Family 

Code. A copy of the 2016 termination decree was admitted into evidence and is 

included in the appellate record. The parents concede the subsection M finding is 

supported on appeal. Accordingly, the first requirement for termination—a 

predicate statutory ground—is satisfied. See Tex. Fam. Code Ann. § 161.001(b)(1).
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B. Best Interest of the Child

Both parents challenge the legal and factual sufficiency of the evidence to 

support the trial court’s finding that termination is in the Child’s best interest. 

The factors the trier of fact may use to determine the best interest of the 

child include: (1) the desires of the child; (2) the present and future physical and 

emotional needs of the child; (3) the present and future emotional and physical 

danger to the child; (4) the parental abilities of the persons seeking custody; (5) the 

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

interest of the child; (6) the plans for the child by the individuals or agency seeking 

custody; (7) the stability of the home or proposed placement; (8) acts or omissions 

of the parent that may indicate the existing parent-child relationship is not 

appropriate; and (9) any excuse for the parents’ acts or omissions. Holley v. 

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re U.P., 105 S.W.3d 222, 230

(Tex. App.—Houston [14th Dist.] 2003, pet. denied); see also Tex. Fam. Code 

Ann. § 263.307(b) (listing factors to consider in evaluating parents’ willingness 

and ability to provide the child with a safe environment).

A strong presumption exists that the best interest of the child is served by 

keeping the child with his natural parent, and the burden is on the Department to 

rebut that presumption. In re U.P., 105 S.W.3d at 230. Prompt and permanent 

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

best interest. Tex. Fam. Code Ann. § 263.307(a). Mother contends that the 

presumption in her favor is not rebutted because she cared for the Child, and the 

Child Advocates’ volunteer wanted the parents to have more time before their 

rights were terminated. Father contends that the presumption in his favor is not 

rebutted because there was no evidence that he was a danger to the Child.
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1. Present and Future Physical and Emotional Danger to the 

Child 

Evidence supporting termination under the grounds listed in section 

161.001(b)(1) also can be considered in support of a finding that termination is in 

the best interest of the child. See In re C.H., 89 S.W.3d at 27 (holding the same 

evidence may be probative of both section 161.001(b)(1) grounds and best 

interest). 

A reviewing court may examine a parent’s history with other children in 

considering the risks or threats of a parent’s environment. In re E.C.R., 402 S.W.3d 

239, 248 (Tex. 2013). “Part of [the] calculus includes the harm suffered or the 

danger faced by other children under the parent’s care.” Id. Courts consider 

whether a parent demonstrates adequate parenting skills, including providing the 

child with “protection from repeated exposure to violence even though the violence 

may not be directed at the child.” Tex. Fam. Code Ann. § 263.307(b)(12)(E). The 

unchallenged predicate finding that rights to three other children were terminated 

on endangerment grounds is binding. See In re E.A.F., 424 S.W.3d 742, 750 (Tex. 

App.—Houston [14th Dist.] 2014, pet. denied). 

At seven months old, the Child was very young and dependent on her 

caregivers to meet her needs. Father asserts that he did not pose a danger to the 

Child; however, the record reflects that Mother and Father lacked the ability to 

meet the Child’s needs, and that they represented a danger to the Child if the Child 

were returned to their care. Both parents had a history of using illegal drugs, and 

their three older children were removed from their care based on a finding that the 

parents engaged in conduct endangering to the children. See generally In re 

J.W.O., 02-10-00065-CV, 2010 WL 4924975, at *2 (Tex. App.—Fort Worth Dec. 

2, 2010, no pet.) (mem. op.) (finding evidence of a prior termination in support of 
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subsection M relevant to the fact-finder’s best interest determination.). 

The Texas Supreme Court has recognized that parents’ use of narcotics and 

its effect on their 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 child. 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 fact 

finder 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 

Interest of M.L.G.J., 14-14-00800-CV, 2015 WL 1402652, at *4 (Tex. App.—

Houston [14th Dist.] Mar. 24, 2015, no pet.) (mem. op.) (considering a parent’s 

drug history in affirming a trial court’s decision that termination was in the best 

interest of the child). 

In addition to Mother’s admitted use of opiates and Father’s admitted use of 

cocaine, Leal testified that both parents failed to submit to required drug testing. 

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 child. 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.). The parents’ behavior evinces a 

course of conduct that a fact finder reasonably could conclude endangers the 

Child’s well-being. 
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2. Stability and Compliance with Services 

In determining the best interest of the child in proceedings for termination of 

parental rights, the trial court may properly consider that the parent did not comply 

with the court-ordered service plan for reunification with the child. See In re 

E.C.R., 402 S.W.3d at 249. The record reflects that both parents were provided 

with family service plans in this case and in the previous termination case with 

their three older children. Department caseworkers explained the plans to the 

parents and explained that their participation in services was necessary for 

reunification with their children. 

Both parents acknowledged that Leal provided family service plans. Mother 

testified that Leal reviewed the plan with her and that one of the requirements of 

her plan was to abstain from using illegal drugs. The record reflects, however, that 

Mother did not complete the services in her plan and did not remain drug-free 

knowing it was necessary to obtain the return of her children. Father testified that 

Leal reviewed his service plan with him and made referrals necessary for Father to 

participate in those services, including parenting classes and a psychosocial 

evaluation, but Father failed to work his services. The parents’ failure to comply 

with court-ordered tasks and drug use during the termination proceedings supports 

the trial court’s finding that termination is in the best interest of the Child. 

3. Child’s Desires and Proposed Placement 

The Child was very young at the time of trial and there is no evidence of her 

desires. When a child is too young to express her desires, the fact finder 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 105, 118 (Tex. 

App.—Houston [14th Dist.] 2014, no pet.). 
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Because the Child was removed at birth, Mother spent minimal time with 

her. 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 id. at 119–20. A child’s need for permanence through the establishment of a 

“stable, permanent home” has been recognized as the paramount consideration in a 

best-interest determination. Id. (“Stability and permanence are paramount in the 

upbringing of children.”). Therefore, evidence about the present and future 

placement of the Child is relevant to the fact finder’s best-interest determination. 

See In re C.H., 89 S.W.3d at 28. 

Leal testified that the parents have not demonstrated the ability to provide a 

safe and stable environment for the Child. She further testified that the Child is 

currently living with her paternal aunt and uncle and her three older siblings. The 

aunt and uncle want to adopt all four children. Leal concluded that the Child has 

bonded with the aunt and uncle, and it is in her best interest to remain with her 

current caregivers and her siblings. 

4. Parenting Abilities and Family Support 

The evidence showed that neither parent demonstrated the ability to safely 

parent the Child. The Child’s three older siblings were removed from the home on 

endangerment grounds. Other than Father’s sister and husband, the children’s 

caregivers, there is no evidence of family support to help with parenting. 

Moreover, both parents continued to test positive for illegal drugs despite service 

plans requiring them to remain drug free in order for their Child to be returned to 

them. 

5. Excuses for Acts or Omissions of Parents

Lastly, Mother argues her illness hindered her ability to work her services. 
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Mother testified that she had been diagnosed with leukemia six months before trial. 

After the diagnosis, she “stepped away from CPS for a little bit.” Mother did not 

present evidence that her use of opiates was connected with her diagnosis, nor did 

she explain how the diagnosis prevented her from contacting the Department. The 

trial court as fact finder was in the best position to assess the credibility of 

Mother’s excuses. See generally In re G.M.G., 444 S.W.3d 46, 52 (Tex. App.—

Houston [14th Dist.] 2014, no pet.). 

CONCLUSION

The record contains evidence supporting the best interest finding based on 

the parents’ drug use, failure to comply with court-ordered services, and previous 

termination on endangerment grounds. Based on the evidence presented, the trial 

court could have reasonably formed a firm belief or conviction that terminating 

both parents’ parental rights was in the Child’s best interest so that she could 

promptly achieve permanency through adoption. See In re T.G.R.-M., 404 S.W.3d 

7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.); In re M.G.D., 108 S.W.3d 

508, 513–14 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). 

Applying the applicable Holley factors to the evidence, we conclude that 

there was legally and factually sufficient evidence to reasonably establish a firm 

belief or conviction that termination of both parents’ parental rights is in the 

Child’s best interest. See Tex. Fam. Code Ann. § 106.001(2). We overrule 

Mother’s and Father’s sole issues on appeal.

We affirm the decree terminating appellants’ rights. 

 

 /s/ William J. Boyce 

 Justice 

Panel consists of Justices Boyce, Busby, and Wise.