Affirmed and Majority Memorandum Opinion filed February 13, 2020

In The

Fourteenth Court of Appeals

NO. 14-19-00666-CV & 

NO. 14-19-00724-CV

IN THE INTEREST OF E.W., R.L., W.W., E.W., CHILDREN

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 2018-04172J

MAJORITY MEMORANDUM OPINION

Appellants E.L.W. (“Father”) and A.F. (“Mother”) separately appeal the trial 

court’s final order terminating their respective parental rights and appointing the 

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

managing conservator of their children E.W. (“Eshan”), W.W. (“Wystan”), and 

E.W. (“Estrid”).1 Mother also challenges the judgment terminating her parental 

rights to, and appointing the Department as sole managing conservator of, R.L. 

1 We use pseudonyms to refer to appellants and the children. See Tex. Fam. Code Ann. § 

109.002(d); Tex. R. App. P. 9.8. 
2

(“Reba”), who has a different father, L.L. (“Linus”). Linus does not challenge the 

judgment terminating his parental rights to Reba. 

On appeal, Mother challenges the legal and factual sufficiency of the 

evidence to support each of the four grounds for termination and the trial court’s 

adverse best-interest-of-the-child finding as to each of the four children. Father 

raises legal and factual sufficiency complaints only to the two endangerment 

grounds for termination, and asserts for the first time on appeal a due process 

challenge. We affirm. 

I. PROCEDURAL AND FACTUAL BACKGROUND

A. Pretrial Removal Affidavit

In June 2018, the Department received a referral from law enforcement 

alleging Mother and Father had been arguing, that Father threw things out of the 

apartment they shared, and that Father “grabbed [Mother] and slammed [her] to the 

ground” (“Referral 1”). The couple’s four children were present in the residence at 

the time. After Father left the apartment, Mother spoke with law enforcement but 

refused to press charges or cooperate in the police investigation. According to the 

referral, the home was a mess and smelled like “old marijuana” smoke. 

The day after this incident, the Department’s investigator, Candice Mouton, 

met with the entire family at their apartment. She created a report that later would 

be admitted into evidence at trial. According to the report, Mother, Father, and the 

two older children, Reba and Eshan, denied any domestic violence between Mother 

and Father. Mother, however, acknowledged an earlier domestic-violence incident. 

During the family interview, another non-family household member (Morrison) 

came home. In response to Mouton’s questioning, Morrison denied being present 

on the date of the incident and denied witnessing any domestic violence between 
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Mother and Father. 

Both Mother and Father denied current drug use and submitted urine for 

analysis. Testing showed negative for Mother. Father’s results were positive for 

cocaine. Morrison, who also submitted a sample for analysis, tested negative. 

The Department continued to stay in contact (either in face-to-face meetings 

and interviews or by telephone) with Mother and Father and the children through 

the remainder of June and July 2018. After giving Mother the urine analysis

results, Mouton explained the Department’s requirements and scheduled the 

required follow-up meeting with the children. Mother agreed they would meet 

with Mouton and told Mouton she had moved to a new apartment in the same 

complex where she was staying with a different, unrelated individual.

After the next meeting, Mouton proposed a safety plan to which both Mother 

and Father agreed. Father admitted that he had used cocaine just three days earlier. 

Father agreed to complete substance-abuse classes and to follow all 

recommendations he was given. Father also agreed not to have any unsupervised 

contact with the children. Mother said she would serve as a monitor to ensure the 

children’s safety and well-being and would report any concerns about drug usage 

and non-compliance to the Department. 

Mother later reported to Mouton that Father would not leave home, and 

Mouton told Mother she would work to find Mother and the children other living 

options. Mother informed Mouton that she “did not want her family split up,” but 

on August 9, 2018, Mother told Mouton that she was willing to leave with the 

children because Father was unwilling to leave the household. Mouton worked 

actively to help Mother get alternate living arrangements and ultimately assisted 

her in obtaining placement for Mother and the children at the Star of Hope. 
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Ten days after Mother and the children moved into the Star of Hope, the

Department received a referral for medical neglect and abuse of Wystan by Mother 

(“Referral 2”). The report stated that Wystan sustained a spiral fracture of his right 

tibia and a bowing fracture of his right fibula on August 17, 2018, and Mother 

delayed in seeking medical treatment until August 20, 2018. In the physician’s 

statement attached to the affidavit, Wystan’s physician noted that “patient’s delay 

in care [was] concerning for medical neglect.”

Mouton arrived at the hospital and served Mother with notice of removal of 

her children. Wystan was taken to Texas Children’s Hospital and Eshan, Reba, 

and Estrid were transported to the Youth Services Center. The Department was 

unable to serve Father with notice of the removal because he was in jail for a

pending assault on a family member. The Department had no contact information 

for Linus, so he was not served either. Mother did not provide any names of other 

possible family members who could take the children. On August 21, 2018, the 

district court signed an emergency order appointing the Department as the 

children’s Temporary Managing Conservator for 14 days. The district court 

appointed the Department the children’s Temporary Managing Conservator on 

September 4, 2018, at the conclusion of the adversary hearing.

B. The Trial

A bench trial commenced on July 25, 2019. At the start of trial, the 

Department offered into evidence and the trial court admitted a number of items, 

including the pretrial removal affidavit, an indictment against Father for Injury to a 

Child containing a probable-cause affidavit, other criminal judgments, and 

Wystan’s medical records. Several witnesses also testified. 

The Department’s Caseworkers

Mouton testified that the Department’s initial contact with the family came 
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as a result of Referral 1 (the altercation between Mother and Father that ended 

when Father “slammed” Mother to the ground in front of the children). Mouton 

said when she arrived at the apartment to begin her investigation, she had concerns 

that one or both parents were abusing drugs. Test results were negative for Mother 

and positive for Father, for cocaine. Mouton testified that both Mother and Father 

denied there had been an altercation between them that day, but both 

acknowledged that Father had assaulted Mother in 2017. 

Mouton said the Department immediately put a safety plan into place to 

ensure there was no unsupervised contact between Father and the children. 

Additionally, Father was told to take substance-abuse classes so he could remain in 

the home with the family. But, while the Department was trying to schedule the 

classes for Father, Mother contacted Mouton and reported that Father was refusing 

to leave the home. Mother and Mouton discussed other possible living 

arrangements for Mother and the children, and Mother reiterated that she had no 

family, so there was nowhere for them to go, and they began talking about possible 

shelters. Mother confided to Mouton she earlier had lived at the Star of Hope and 

that is where Mother and the children found shelter beginning on August 10, 2018. 

Mother and the children were there only about a week when the Department 

received Referral 2. 

Mouton testified the Department sought emergency custody of the children 

because Mother’s explanation of how Wystan had sustained his injuries was

inconsistent with the injuries. The Department believed Wystan had been a victim 

of child abuse and had been denied immediate medical treatment when Mother 

refused to allow Emergency Medical Services (“EMS”) to transport the child to the 

hospital. Mouton confirmed that none of the children stated Mother had injured 

them or made any outcry about physical abuse during her investigation. Yet,
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Mouton testified the incident involving Wystan was not the first one in that family 

the Department had investigated. 

Mouton’s pretrial removal affidavit detailed various incidents. Mother had 

tested positive for marijuana at Reba’s birth in 2009, and at that time the 

Department had received a referral for physical abuse of Reba. Mother 

successfully completed services, and the Department closed the case when Mother 

acted on a referral to the HOPE Center. In 2016, the Department received another 

referral on Mother, this time for neglectful supervision when Mother attempted 

suicide. At that time, Eshan was eight years old, Reba was six years old, and 

Mother was pregnant with Wystan. The investigation showed no signs of abuse or 

neglect of either child. In 2017, the Department received a referral for sexual 

abuse of Reba, who was nine years old at the time, but the Department closed the 

case “when there was no disclosure.”

Derrick Callicut, the Department caseworker, testified about the parents’

progress under the court-ordered service plan put in place after the court placed the 

children into the Department’s care. According to Callicut, neither Mother nor 

Father successfully completed their respective service plans. Mother had not 

provided the Department with proof of stable housing or income, had not attended 

all of the required counseling sessions, and had not updated the Department with 

new contact information. Father had not completed individual counseling or drugabuse treatment, including the Batterer’s Intervention Prevention Program. Nor 

had Father participated in random drug tests, or provided the Department with 

proof of stable housing or income. Callicut conceded that Mother provided him a 

lease on the day of trial, but explained its shortcomings, noting that the lease was 

for a future date, and that it only accounted for Mother as an occupant, (not the 

children).
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Callicut testified about the parents’ scheduled visitation with the children, 

stating he met Mother and Father at various locations throughout the city at the 

beginning of the case instead of at their home. Mother and Father visited the 

children on a supervised basis one or two times a month until January 2019. 

According to Callicut, these visits were “appropriate.” Callicut offered as possible 

explanations of why neither Mother nor Father had visited the children since 

January 2019, that there was a warrant out for Mother’s and Father’s arrest, they 

continued to test positive for drugs, and allegedly there had been “violent activity 

between the foster worker and [Mother and Father].” 

Callicut briefly described the requests for, refusals of, and results of the 

random drug testing ordered for Mother and for Father as part of their service 

plans. He testified both parents tested positive for dangerous narcotics during the 

pendency of the case, but neither parent submitted to ordered drug tests after 

January 2019, in Mother’s case, or after September 2018, in Father’s case. 

Callicut also testified that the Department had concerns about domestic 

violence between Mother and Father, noting that Referral 1 remained an active

case. When asked about Mother’s and Father’s criminal records, Callicut testified 

he did not want to speculate about the details of Father’s record, but knew it was 

“pretty extensive.” Callicut was aware of only the January injury-to-a-child-byomission charge against Mother. 

Callicut confirmed Mother’s testimony that the children had reached out to 

Mother and Father via social media, actions expressly prohibited by the district 

court’s visitation order. Callicut explained the reason for the order was not to

prevent Mother and Father from talking with the children, but rather that the 

communications be proper and in accordance with the visitation order. Callicut 

also confirmed Mother’s testimony about Mother’s sending cards and letters and 
8

bringing supplies, food, clothes, and birthday cakes to the children when she 

visited, but those visits and provisions ended in January 2019. Callicut testified 

that Father, too, had provided books and clothing and sent letters and cards to let 

the children know he cared about them. 

Callicut testified that he never contacted any of the EMS workers who came 

to appellant’s apartment, and that he has not seen any medical records regarding 

whether Wystan should have been transported to the hospital by paramedics on the 

day of the child’s injury. 

Father

Father testified at trial, both acknowledging and denying a history of 

engaging in family violence. In cross examination, after agreeing that he was 

charged with assaulting Mother, Father answered “Yes” to the immediate followup, “And your children were present during the time the assault occurred, correct?” 

Yet, when questioned by his own lawyer, he denied assaulting Mother. Father 

admitted being present when Wystan suffered injuries and said he told EMS 

Wystan’s leg was not broken “because when you hit your shin, it swell up.” Father 

asserted that he stopped visiting his children because the Department said he was

not allowed to do so. Father confirmed he had not completed his service plan, and 

he denied using drugs. Father stated his belief that there was no reason to submit to 

a hair-follicle test as long as he submitted urine for testing. Father stated the 

apartment he and Mother shared had room for the children, although he 

acknowledged the apartment had only two rooms. Finally, Father acknowledged he 

had not provided the Department with proof of stable income because “I don’t get 

checks. I don’t work.” 

Mother

In answering questions about Wystan’s injuries, Mother testified that she 
9

called paramedics “as soon as she heard it” and her son “started crying,” and that 

paramedics came to her apartment. She testified that the paramedics told her that 

her son’s leg was not broken, and that he only needed an ice pack. Mother testified 

that once she realized that her son was not getting better, she took the bus and took 

him to the hospital herself. Mother testified that the injury occurred on Friday, she 

took Wystan to the hospital on “Monday.” Medical records introduced at trial, 

however, indicate that the parents “[a]ttempted to seek care however [the] wait was 

too long.” 

Probable-Cause Affidavit and Medical Records 

Following Wystan’s injury, Father was indicted for injury to a child. The 

affidavit attached to the indictment indicates that Houston Northwest Medical 

Center made an “injury to a child” report. When the responding officer (Neeley)

arrived at the hospital, he spoke with Deputy F. Lopez, who informed him Mother 

had arrived at the hospital with Wystan. Medical professionals were evaluating the 

child for a spiral fracture and a bow fracture of his right leg. According to Deputy 

Lopez, Mother told him she was Wystan’s mother and that Wystan’s injury had 

occurred three days earlier. Mother told Deputy Lopez she had called EMS shortly 

after Wystan got hurt, but claimed EMS said there was no need to transport 

Wystan to the hospital. At trial, Mother said EMS told her all she needed to do for 

Wystan was put ice on his leg, but when the child did not improve over the 

weekend, she brought him to the hospital.

Emergency Room (“ER”) clinical staff told Officer Neeley that Wystan’s 

injuries were consistent with child abuse and “could have led to permanent 

disfigurement.” ER clinical staff said Wystan needed to be transported to Texas 

Children’s Hospital for surgery. Given the discrepancy between Mother’s

statements and those from the ER staff, Officer Neeley reviewed the EMS records. 
10

Neeley’s affidavit indicates that, according to the EMS records, Wystan was 

crying when EMS arrived at the apartment on August 17, 2018, and that EMS

personnel told Mother Wystan needed to go to Texas Children’s Hospital for 

treatment. Neeley further reported that initially Mother gave EMS permission to 

transport Wystan, but after he was loaded into the ambulance, Mother withdrew 

her permission and removed Wystan from the ambulance. Neeley’s affidavit 

states, “EMS records documented that [Mother] told EMS [Wystan] couldn’t be 

transported because an UBER from the hospital would cost too much.” According 

to the records, Mother told EMS she would take Wystan to a local urgent care 

facility instead. 

Medical Records

A “Final Report” from Texas Children’s Hospital filed with the removal 

affidavit stated, “this fracture is plausible in this age group,” and that a delay in 

care is “concerning for medical neglect.” Medical records also demonstrated that 

Mother and Father brought Wystan to Texas Children’s Hospital nine (9) times 

over the past year and half.

Criminal Records

In 2010, when Eshan was three years old and Reba was one year old, Mother

faced charges for possession of marijuana, but the case was dismissed. In 2013,

when Eshan was six years old and Reba was four years old, Mother was charged 

with several misdemeanors and for driving with an invalid license. She received 

probation. 

Between October 2000 and June 2016, Father was convicted of two 

misdemeanors for which he served 200 days and four felonies for which he served 

more than eight years. In October 2012, when Eshan was five years old and Reba

was three years old, Father was convicted of resisting arrest and possession of 
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marijuana, and served 30 days. In 2014, when Eshan was seven years old and 

Reba was five years old, Father was charged with numerous misdemeanors and 

convicted and incarcerated for eight months on cocaine-possession charges. In 

2015, Father was charged with assault but was not incarcerated. In 2016, when 

Eshan was nine years old, Reba was seven years old, and Wystan was two months 

old, Father served ten days in jail for drug-possession. 

The Child Advocate

At trial, the child advocate testified that the parents’ positive drug tests, lack 

of housing stability, failure to complete counseling, and failure to seek timely 

medical attention for Wystan supported the recommendation for termination of 

parental rights. She further testified that the children’s current placements were 

meeting the children’s needs and they would be in danger if they were returned to 

Mother and Father. 

Final Decree of Termination

The trial court found predicate acts for terminating Mother’s parental rights 

to the children under section 161.001(b)(1) (D), (E), (N), and (O). The trial court

found predicate acts for terminating Father’s parental rights to Eshan, Wystan, and 

Estrid based on the same subsections. The trial court also found that termination 

of Mother’s and Father’s parental rights would be in the best interest of each child. 

II.ISSUES AND ANALYSIS

A court may terminate parental rights upon proof by clear and convincing 

evidence that (1) the parent has committed an act prohibited by section 

161.001(b)(1); 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). 

Mother and Father argue the record evidence is insufficient on predicate 

termination grounds and on the issue of best interest. Father also argues that the 
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Department violated his rights to due process and equal protection under the 

Fourteenth Amendment of the United States Constitution.

A. Standard of Review

Due to the severity and permanency of terminating the parental relationship, 

Texas requires clear and convincing evidence to support such an order. 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 

“correspondingly searching standard of appellate review.” In re A.C., 560 S.W.3d 

624, 630 (Tex. 2018); see 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 termination-of-parentalrights case, we must consider all evidence in the light most favorable to each 

challenged finding to determine whether a reasonable factfinder could have formed 

a firm belief or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 

344 (Tex. 2009). The factfinder is the sole arbiter of the credibility and demeanor 

of each witness. Id. at 346. We assume that the factfinder resolved disputed facts 

in favor of its finding if a reasonable factfinder could do so, and we disregard all 

evidence that a reasonable factfinder could have disbelieved. Id.; In re G.M.G., 444 

S.W.3d 46, 52 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Yet, using this 

standard does not mean that we must disregard all evidence that does not support 

the finding. In re D.R.A., 374 S.W.3d at 531. Because of the heightened standard, 

we also must be mindful of any undisputed evidence contrary to the finding and 

consider that evidence in our analysis. Id. The evidence is legally insufficient to 
13

support the challenged finding if, after conducting this review of the record 

evidence, we determine that no reasonable factfinder could form a firm belief or 

conviction that the matter that must be proven is true. Id. at 344–45. 

In reviewing the factual sufficiency of the evidence under the clear-andconvincing standard, we consider and weigh disputed evidence contrary to the 

finding against all the evidence favoring the finding. In re A.C., 560 S.W.3d at 

631; see In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the 

disputed evidence that a reasonable factfinder could not have credited in favor of 

the finding is so significant that a factfinder could not reasonably have formed a 

firm belief or conviction, then the evidence is factually insufficient.” In re J.O.A., 

283 S.W.3d at 345. We give due deference to the factfinder’s findings and we 

cannot substitute our own judgment for that of the factfinder. In re H.R.M., 209 

S.W.3d 105, 108 (Tex. 2006). And, in making this determination, we must 

undertake “an exacting review of the entire record with a healthy regard for the 

constitutional interests at stake.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) 

(quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)) (internal quotations omitted). 

Nonetheless, our review must not be so rigorous that the only fact findings that 

could withstand review are those established beyond a reasonable doubt. In re 

H.R.M., 209 S.W.3d at 108.

B. Termination Based on Endangerment

Mother argues the evidence is legally and factually insufficient to support 

termination under sections 161.001(b)(1)(D), (E), (N), and (O). Tex. Fam. Code 

Ann. §§ 161.001(b)(1)(D), (E), (N), (O). Father argues the evidence is legally and 

factually insufficient to support termination under sections 161.001(b)(1)(D) and 

(E). Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E). Because Father does not 

challenge the trial court’s predicate-act findings under section 161.001(b)(1)(N) or 
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and (O), even if this court were to conclude that the record contains legally or 

factually sufficient evidence to support termination under section 161.001(b)(1)(D) 

or (E), that conclusion would not provide a basis for reversing the trial court’s 

judgment in this case. Nevertheless, the Supreme Court of Texas has held that (1)

allowing (D) and (E) findings to go unreviewed on appeal when the parent has 

presented the issue to the appellate court violates the parent’s due-process and duecourse-of-law rights and (2) due process and due course of law require an appellate 

court to detail its analysis as to why a parent’s challenge to a finding under (D) or 

(E) lacks merit. See In re N.G., 577 S.W.3d 230, 236–37 (Tex. 2019). Mother and 

Father have each presented the issue as to whether the evidence is legally and 

factually insufficient to support the (D) and (E) findings. Therefore, under binding 

precedent from the Supreme Court of Texas, we must address each party’s 

challenges to the (D) and (E) findings, even though Father did not challenge the 

(N) finding or the (O) finding and even if this court could affirm the judgment 

against Mother based on the (N) finding or the (O) finding. See id.

As to each parent, we begin by addressing the trial court’s finding under 

subsection (E), which provides for the termination of parental rights where the

court finds “by clear and convincing evidence that a parent has engaged in conduct 

or knowingly placed the child with persons who engaged in conduct which 

endangers the physical or emotional well-being of the child.” Tex. Fam. Code 

Ann. §§ 161.001(b)(1)(E). 

In reviewing a subsection (E) finding, we are mindful of the requirement that 

we detail our analysis of the sufficiency of the evidence supporting an (E) finding. 

In re P.W., 579 S.W.3d 713, 725 (Tex. App.—Houston [14th Dist.] 2019, no pet.). 

By making the (E) finding as to each parent, the trial court found that Mother and 

Father both engaged in conduct or knowingly placed their respective children with 
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persons who engaged in conduct that endangered the children’s physical or 

emotional well-being. Tex. Fam. Code Ann. § 161.001(b)(1)(E). A finding of 

endangerment under subsection (E) requires evidence that the endangerment 

resulted from the parent’s conduct, including acts, omissions, or failures to act. In 

re S.R., 452 S.W.3d 351, 361 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). 

Termination of the parent-child relationship under subsection (E) must be based on 

more than a single act or omission; the statute requires a voluntary, deliberate, and 

conscious course of conduct by the parent. Id. A court properly may consider 

actions and inactions occurring both before and after a child’s birth to establish a 

course of conduct. In re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th 

Dist.] 2017, pet. denied).

While endangerment often involves physical endangerment, the statute does 

not require that conduct be directed at a child or that the child actually suffer 

injury; rather, the specific danger to the child’s well-being may be inferred from 

the parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 

531, 533 (Tex. 1987). A parent’s conduct that subjects a child to a life of 

uncertainty and instability endangers the child’s physical and emotional wellbeing. In re F.E.N., 542 S.W.3d 752, 764 (Tex. App.—Houston [14th Dist.] 2018, 

no pet.). The evidence germane to this endangerment-termination case relates to a 

combination of medical neglect, drug abuse, and exposure to domestic violence.

Domestic Violence. 

Evidence of domestic violence may be considered as evidence of 

endangerment under subsection (E). Interest of A.R.E., 14-19-00437-CV, 2019 

WL 5704299, at *5–7 (Tex. App.—Houston [14th Dist.] Nov. 5, 2019, no pet. h.); 

In re K-A.B.M., 551 S.W.3d 275, 286 (Tex. App.—El Paso 2018, no pet.). A 

parent’s abusive or violent conduct can produce a home environment that 
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endangers a child’s well-being. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—

Houston [14th Dist.] 2003, no pet.). Domestic violence, want of self-control, and 

propensity for violence may be considered as evidence of endangerment. Id.; see 

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

(considering mother’s having “exposed her children to domestic violence,” as 

evidence of endangerment under subsection (E)); see also Sylvia M. v. Dallas Cty. 

Welfare Unit, 771 S.W.2d 198, 204 (Tex. App.—Dallas 1989, no writ) 

(considering “volatile and chaotic” marriage altercation during pregnancy and 

mother's repeated reconciliation with abusive spouse). Violent conduct by a parent

toward the other parent may produce an environment that endangers the physical 

or emotional well-being of a child. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—

Fort Worth 2003, no pet.).

Referral 1, based on a domestic-violence claim, remained open at the time of 

trial. Mouton testified that both Mother and Father acknowledged that Father 

assaulted Mother in 2017. Some of the medical records contain references to an 

altercation between Father and Mother at the hospital when Wystan was being 

treated. Though Mother took the children and moved out of the home and into the 

Star of Hope, she placed them back into danger when she chose to leave the safety 

of the shelter and to bring the children back under the same roof as Father. At the 

time of trial, Mother testified she intended to stay with Father. The trial court 

reasonably could have found that Mother’s repeated reconciliation with Father and 

her decision to risk the children’s safety by bringing them back to live with Father

following incidents of Father’s domestic violence is endangering conduct 

supporting the predicate ground for termination of Mother’s parental rights. 

Medical Neglect. 

Although the Department initially removed the children based on a concern 
17

that Wystan’s injuries were indicative of child abuse, the Department’s focus at 

trial was the delay in seeking medical treatment for the child. Neglect of a child’s 

medical needs endangers a child. In Interest of S.G.F., 14-16-00716-CV, 2017 WL 

924541, at *6 (Tex. App.—Houston [14th Dist.] Mar. 7, 2017, no pet.); Interest of 

J.D.G., 570 S.W.3d 839, 852 (Tex. App.—Houston [1st Dist.] 2018, pet. 

denied)(noting that failure to provide appropriate medical care for a child may 

constitute endangering conduct under subsection (E) even if the parent did not 

cause the need for medical treatment). Medical neglect can be just as dangerous to 

a child’s well-being as direct physical abuse. See In re M.C., 917 S.W.2d 268, 270 

(Tex. 1996)(finding that even in the absence of proof of direct exposure to danger a 

trial court’s termination based on an endangerment finding is not insufficient when 

based on the parent’s failure to obtain medical care and other neglect for their 

physical needs).

In her trial testimony, Mother acknowledged a three-day lapse between the 

time Wystan broke his leg and the time she ensured he was seen by a doctor. The 

indictment, along with the probable-cause affidavit and the physician’s record 

attached to the Department’s affidavit, show Wystan’s physician noted that 

“patient’s delay in care [was] concerning for medical neglect.” 

Father admitted being present when Wystan was injured and said he told 

EMS personnel Wystan’s leg was not broken “because when you hit your shin, it 

swell up.” Father testified that he heard the paramedic tell Mother that she did not

need to go the hospital. Father was later charged for injury to a child by omission 

for the delay in treatment. The trial court reasonably could have believed the 

statements in the probable-cause affidavit rather than Father’s and Mother’s 

testimony about what the paramedic told them concerning the need to get medical 

treatment for their injured child. 
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The parties dispute facts as to whether Mother should have known the 

severity of Wystan’s leg injury after the EMS left. Mother contends that the 

paramedic stated Wystan’s leg was not broken. The EMS records were not offered 

into evidence, but the content of those records was included in the probable-cause 

affidavit, which was introduced into evidence and is part of the record. The 

affidavit contradicts Mother’s contention that the paramedic told her that Wystan’s 

leg was not broken. The affidavit indicates that Mother was concerned about the 

relative costs associated with transportation to or from the hospital, which suggests 

she was aware of the need to go to the hospital. Other records offered into 

evidence indicate that Mother took Wystan to an emergency room sometime before 

Monday but left without getting treatment because she concluded the wait was too 

long. 

The trial court reasonably could have believed that the evidence established 

a three-day delay in treatment such that Mother’s and Father’s conduct rose to the 

level of medical neglect and endangering conduct. Though other medical records 

in the court’s file show that Mother and Father regularly addressed Wystan’s 

medical needs, under the governing standard, the trial court reasonably could have 

considered that by leaving Wystan’s injured leg medically unattended for such a 

long duration — considered by one doctor to be life-threatening — Mother and 

Father engaged in endangering conduct. 

Drug Abuse 

Mother initially tested negative at the time of Referral 1 in June 2018, but 

after the children were removed, Mother tested positive on September 4, 2018, and 

again on January 16, 2019. Despite the positive drug-test results, Mother denied

using drugs and stated that her urine was “clean.” Father tested positive for 

cocaine while living with the children. Both parents had a criminal record for 
19

drug-related offenses. Father was incarcerated several times for drug-possession 

offenses. 

Under Texas law subsection (E) endangering conduct does not have to occur 

in the child’s presence. See Walker, 312 S.W.3d at 617. Continued illegal drug use 

after a child’s removal jeopardizes parental rights and may be considered as 

establishing an endangering course of conduct. 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). Likewise, drug abuse and its effect on one’s ability 

to parent can present an endangering course of conduct to a child in that parent’s 

care. In re J.O.A., 283 S.W.3d at 345. Drug use can endanger a child “when the 

environment creates a potential for danger that the parent is aware of but 

disregards.” In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.—Houston [14th Dist.] 

2017, no pet.). 

Mother’s and Father’s refusal to submit to drug testing may be treated by the 

trial court as if Mother and Father had tested positive for drugs. See id. (factfinder 

reasonably can infer that parent’s failure to submit to drug tests indicates parent is 

avoiding testing because parent was using drugs). Even without considering their

refusal to submit to drug testing, each actually tested positive for drug use. See In 

re S.R., 452 S.W.3d at 361-62 (continued drug use after child’s removal may be 

considered as establishing endangering course of conduct). Father admitted that 

he refused drug tests because he knew they would show positive results, but 

insisted that the results would be misleading because they would be based on

previous drug use rather than current sobriety. 

In addition to evidence of Mother’s drug use during the course of the 

proceeding, the record contains Mouton’s testimony that the Department’s first 

referral to the family came when Mother tested positive for marijuana at Reba’s 
20

birth. 

Despite the evidence of drug abuse, neither Mother nor Father would admit 

to a substance-abuse problem, a factor that supports the endangerment finding. 

When the record shows the parent’s drug abuse, the parent’s unwillingness to 

admit to having a substance-abuse problem suggests the parent will continue to 

engage in the same behaviors that endangered the child. Interest of L.M., 572 

S.W.3d 823, 835 (Tex. App.—Houston [14th Dist.] 2019, no pet.); See In re 

A.J.E.M.-B., Nos. 14-14-00424-CV, 14-14-00444-CV, 2014 WL 5795484, at *5 

(Tex. App.—Houston [14th Dist.] Nov. 6, 2014, no pet.) (mem. op.) (considering 

evidence that parents “minimized concerns and were in denial of the impact that 

substance use has on their ability to sufficiently be in tune to the needs of their 

child.”); In re E.H., No. 02-09-00134-CV, 2010 WL 520774, at *4–*5 (Tex. 

App.—Fort Worth Feb. 11, 2010, no pet.) (mem. op.) (considering father’s denial 

that his drug use and drug dealing harmed his children as factor in endangerment 

analysis). A parent’s drug abuse exposes the child to the possibility the parent may 

be impaired or imprisoned and, thus, unable to take care of the child. Walker v. 

Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617–18 (Tex. App.—

Houston [1st Dist.] 2009, pet. denied). The factfinder may give great weight to the 

“significant factor” of drug-related conduct. In re L.G.R., 498 S.W.3d at 204. 

Considering all the evidence in the light most favorable to the subsection (E) 

finding, assuming the factfinder resolved disputed facts in favor of its finding if a 

reasonable factfinder could do so, disregarding all evidence that a reasonable 

factfinder could have disbelieved, being mindful of any undisputed evidence 

contrary to the finding, and considering that evidence in our analysis, we conclude 

that a reasonable factfinder could form a firm belief or conviction that Mother 

engaged in conduct that endangered Estrid, Reba, Wystan, and Eshan’s physical or 
21

emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(E). Applying that 

same standard, we likewise conclude that a reasonable factfinder could form a firm 

belief or conviction that Father engaged in conduct that endangered Estrid, 

Wystan, and Eshan’s physical or emotional well-being. See Tex. Fam. Code Ann. § 

161.001(b)(1)(E).

Considering and weighing the disputed evidence contrary to the finding 

against all the evidence favoring the finding, giving due deference to the trial 

court’s findings, and after an exacting review of the entire record with a healthy 

regard for constitutional issues at stake, we conclude that in light of the entire 

record, the disputed evidence that a reasonable factfinder could not have credited 

in favor of the finding is not so significant that a factfinder reasonably could not 

have formed a firm belief or conviction that Mother and Father engaged in conduct 

described in subsection (E). See In re A.B., 437 S.W.3d at 503; In re J.O.A., 283 

S.W.3d at 345. Thus, the trial evidence stands factually sufficient to support the 

trial court’s subsection (E) finding.

Because we conclude the evidence is legally and factually sufficient to 

support the trial court’s finding under section 161.001(b)(1)(E) as to both Mother 

and Father, we do not address Mother’s argument that the evidence is legally and 

factually insufficient to support the trial court’s findings under sections 

161.001(b)(1)(D), (N), and (O). Nor do we address Father’s argument that the 

evidence is legally and factually insufficient to support the trial court's findings 

under section 161.001(b)(1)(D). Thus, we overrule Mother’s second issue, which 

renders her first, third, and fourth issues moot, and we overrule Father’s third issue,

which renders his first issue moot. 

C. Best Interest of the Children

Texas courts presume that keeping a child with the child’s natural parent 
22

serves the child’s best interest. In re U.P., 105 S.W.3d 222, 230 (Tex. App.—

Houston [14th Dist.] 2003, pet. denied). The Department carries the burden of 

rebutting that presumption. Id. Proof of acts or omissions under section 

161.001(b)(1) is probative of the best-interest issue. See In re S.R., 452 S.W.3d at 

366. The considerations the trier of fact may use to determine the best interest of 

the child, known as the Holley factors, include:

(1) the child’s desires; 

(2) the child’s present and future physical and emotional needs; 

(3) the present and future emotional and physical danger to the child; 

(4) the parental abilities of the person(s) 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 parent’s acts or omissions. 

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

230; see also Tex. Fam. Code Ann. § 263.307(b) (listing factors to consider in 

evaluating parents’ willingness and ability to provide the children with a safe 

environment). A finding in support of “best interest” does not require proof of any 

unique set of factors, nor does it limit proof to any specific factors. See Holley, 544 

S.W.2d at 371–72.

Desires of the children

All four children currently reside in foster placements. Eshan and Reba both 

expressed desires not to be returned to their parents but to remain in foster care. 

Wystan and Estrid were under the age of three at the time of trial and so were too 
23

young to express any views on this subject.2 None of the children testified. When 

children are too young to express their desires, the factfinder may consider their 

circumstances, for example that a child has bonded with the foster family, is well 

cared for in the current placement, 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.).

Mother and Father testified that the children told them that Eshan wanted to be 

with them. Several witnesses testified that Eshan and Reba sought out their 

parents through social media. Mother testified that her relationship with her 

children remains strong, and that she feels bonded with her children. But, 

according to the Department, the two older children, Eshan and Reba, reportedly 

do not want to return to living with Mother and Father and had not spoken about 

returning to them in months. Callicut testified that none of the children had asked 

about their parents for several months, and that Mother had not seen or visited the

children for more than six months and all the children were “doing exceptionally 

well” in their current foster homes. The Department contends that the children’s 

failure to ask about their parents suggests that any desire to move in with Mother 

and Father has diminished. Father asserts that the ad litem failed to represent 

Eshan and Reba. Though we do not arrive at the same inference with respect to 

Eshan and Reba, we conclude that the evidence concerning the desires of these two 

children is neutral. Because testimony tends to show the two younger children are 

thriving in their foster home, the trial court reasonably could have weighed this 

evidence in favor of finding that termination of Mother’s and Father’s parental 

rights would be in Wystan’s and Estrid’s best interests. 

Present and future emotional and physical needs of the children

At the time of trial, Mother had not seen or visited her children for more 

2 At the time of trial, Eshan was twelve, Reba was ten, Wystan was three, and Estrid was two. 
24

than six months. Mother claims the record contains no evidence that the “minor” 

children “had any special physical/emotional needs before or after being placed in 

[the Department’s] custody, or that the children would have any such needs in the 

future.” According to Callicut, when Wystan first came into care, he was not 

talking and was diagnosed with “unspecified speech disorder.” Mother believed 

Wystan was autistic. The Department took Wystan to a speech therapist and a 

psychologist, both of whom concluded Wystan is not autistic. After sessions with 

an Early Childhood Intervention worker and therapist, Wystan began to talk “and 

now talks quite well,” according to Callicut.

Callicut further testified all of the children were “doing exceptionally well” 

in their current foster homes and each of their needs, especially Wystan’s special 

needs are being met in their respective foster homes. Callicut testified that Wystan 

and Estrid live on a farm, where both children “actually have a sense of normalcy.” 

Both children go to day care where they receive “the proper education that they 

need.” Wystan’s foster parents also have a specialist who works with Wystan to 

develop his speech. 

The Department set forth general evidence concerning Reba’s and Eshan’s

emotional needs. Both Reba and Eshan had changed foster homes at least once 

during the pendency of the case. Callicut testified Reba was “doing well” in her 

placement and Eshan was “looking forward to doing some extracurricular 

activities” in his placement. 

In sum, the foster parents for all four children were taking care of their 

physical and emotional needs. The record evidence shows that neither Father nor 

Mother were meeting the children’s present needs and based on past performance, 

they were unlikely to be able to meet the children’s future emotional and physical 

needs. Because the need for stability is of paramount importance to a child’s 
25

emotional and physical well-being, and in light of the record showing that Mother 

did not provide a stable home for her children, had no job that would enable her to 

support them financially, had not seen or visited her children for more than six 

months, elected to continue her relationship with Father despite his history of 

family violence, and continued to test positive for illegal drugs, a reasonable trier 

of fact could have found this factor to weigh heavily in favor of a finding that 

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

Quiroz v. Department of Family and Protective Services, No. 01–08–00548– CV, 

2009 WL 961935, at *10 (Tex. App.—Houston [1st Dist.] Apr. 9, 2009, no pet.)

(mem. op.).

Father did not provide a stable home for his children, he had no job that 

would enable him to support them financially, and he had not seen or visited with 

his children for more than six months before trial. Father tested positive for illegal 

drugs and then refused to submit to any additional court-ordered drug tests. In 

light of this record and because the need for stability is of paramount importance to 

a child’s emotional and physical well-being, a reasonable trier of fact would have 

found this factor to weigh heavily in favor of a finding that termination of Father’s 

parental rights is in the children’s best interest. See Quiroz 2009 WL 961935, at 

*10.

Mother maintains her relationship with Father, a convicted felon who has 

been incarcerated for more than nine years out of the twenty years they have been 

together. At least one of Father’s convictions was for family violence. Mother 

tested positive for illegal drugs twice during the pendency of this case, persistently 

denied using drugs, and ultimately refused to provide hair or urine samples when 

asked to comply with her required, court-ordered random drug tests. Father tested 

positive for illegal drugs once before his children were removed and again during 
26

the pendency of this case, and he refused to submit to any court-ordered random 

drug tests after September 2018. This evidence shows Mother and Father lack the 

will and abilities to serve as a viable resource for the children’s basic needs or 

stability. See In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no 

pet.) (“Without stability, income, or a home, [a parent] is unable to provide for the 

child’s emotional and physical needs.”). 

Parental abilities of those seeking custody, the stability of the home or proposed 

placement and plans by the agency seeking custody

Texas courts recognize as a paramount consideration in the best-interest 

determination a child’s need for a “stable, permanent home.” See In re K.C., 219 

S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.). So, factfinders may look to 

evidence about the present and future placement of the child as relevant to the bestinterest determination. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

Both Mother and Father stated that they wanted the trial court to allow them 

to continue to get more services and complete their respective plans, but neither 

explained how they might succeed if given the opportunity. Nor did either offer 

explanations for their failure to complete the plans the trial court ordered.

According to Callicut, the Department contacted relatives and fictive kin 

during the pendency of the case as potential placements for all four children. Only 

one of three relatives contacted responded to the Department’s inquiries. That 

relative said she was not financially able to support the children as she had two of 

her own and also was taking care of her mother. The Department also conducted 

two fictive-kin home studies. The Department denied one due to a concern about 

criminality and another because there was simply not sufficient room for the 

current residents and all four children. The Department ruled out the other 

possible fictive-kin referral because there was a pending child-sexual-assault 
27

charge on the male in the household. 

Eshan, Reba, Wystan, and Estrid have been in the Department’s temporary

managing conservatorship since August 21, 2018. Callicut testified that all four 

children are “doing exceptionally well,” and all of their needs are being met in 

their current foster homes. The Department’s long-range goal for Eshan is 

conservatorship; for Reba, Wystan, and Estrid, it is unrelated adoption.

According to the Department, Eshan says he does not want to be returned to 

his parents nor does he want to be “broadcasted” as an adoptee. He is happy with 

and wants to stay in his current foster home “[b]ecause he wants to stay closer to 

his brother and sisters.” Eshan’s foster parents “are willing to do conservatorship 

up until [Eshan turns] 18.”

Reba also expressed a desire not to be returned to her parents. Her foster 

mother just adopted two other children, but was able to recommend a family who 

says they would be willing to adopt Reba. At the time of trial, the Department had 

just begun getting the information about this family, but Reba’s current foster 

mother is “willing to keep [Reba] as long as need be.” 

Given all of these facts, the fourth, sixth and seventh Holley factors

supported the trial court’s best-interest finding.

The emotional and physical danger to the children, now and in the future, acts or 

omissions of the parent that may indicate the existing parent-child relationship is 

not appropriate, and any excuse for the parents acts or omissions

The evidence that supported the trial court’s findings under subsection (E),

discussed above, also supports the court’s finding that Mother’s pattern of 

inappropriate behaviors during her children’s lives has and will continue to 

jeopardize their well-being. In re M.G.D., 108 S.W.3d 508, 511 (Tex. App.—

Houston [14th Dist.] 2003, pet. denied).
28

Father’s pattern of criminal conduct and inappropriate behaviors during his 

children’s lives, and Mother’s continuing relationship with Father and her own 

criminal activity, shows that each independently pose significant emotional and 

physical danger to their respective children now and in the future. In assessing 

each child’s best interest, the trial court reasonably could have weighed this 

evidence in favor of terminating Mother’s and Father’s parental rights. 

Conclusion of Holley Analysis

Evidence introduced at trial supports a finding that termination of Mother’s 

and Father’s parental rights favored the children’s best interest. Nothing in the 

record would prevent the trial court from reasonably forming a firm belief or 

conviction that termination of Mother’s and Father’s parental rights was in their 

respective children’s best interest. See In re J.F.C., 96 S.W.3d at 266. While the 

Holley factors are not exclusive, and need not all be satisfied to support a bestinterest finding, in this case, virtually all of the individual factors weigh in favor of 

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

support the trial court’s findings that the termination of Mother’s parental rights is 

in the best interest of each of her children, and the finding that the termination of 

Father’s parental rights is in the best interest of each of his children.

We overrule Mother’s fifth issue and Father’s fourth issue. 

D. Father’s Due-Process Challenge

In his first issue, Father argues that the Department violated his due process 

rights and equal protection under the Fourteenth Amendment of the United States

Constitution, premised on his contention that the Department knew he could not 

read. The Department responds that Father did not preserve this issue for appellate 

review.
29

Due process and equal-protection violations must be raised in the trial court 

for them to be preserved on appeal. See In re L.M.I., 119 S.W.3d at 710–11; see 

also In re B.L.D., 113 S.W.3d 340, 349–55 (Tex. 2003) (discussing preservation of 

error in termination cases); In Interest of F.E.N., 542 S.W.3d 752, 768 (Tex. 

App.—Houston [14th Dist.] 2018)(finding complaint not preserved concerning 

improper translation at trial), review denied sub nom. Interest of F.E.N., 579 

S.W.3d 74 (Tex. 2019). Upon review of the record, we conclude that Father failed 

to preserve this issue for appellate review. Father appeared at trial and did not 

raise the issue at any point during trial. And nothing filed on his behalf before trial

raises this complaint or contains citations to any constitutional authority. Nor did 

Father raise the issue in any post-judgment motion. Having failed to preserve 

error, Father waived the complaint. We overrule Father’s first issue. 

III. CONCLUSION

The evidence is legally and factually sufficient to support the predicate 

termination finding under subsection (E) as to both Mother and Father. And, the 

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

(1) the termination of Mother’s parental rights is in the best interest of each of her 

children and (2) the termination of Father’s parental rights is in the best interest of 

each of his children. Father failed to preserve error on his due-process and equalprotection complaint and so forfeited appellate review of that point. Having 

overruled all of the issues presented, we affirm the judgment of the trial court. 

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot. (Justice 

Bourliot concurs without opinion.)