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 respec tive parental rights and appointing the Texas Department of Fami ly 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 m anaging 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 challenge s the legal and factual sufficiency of the evidence to support e ach 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 complaint s only to the two endangerment grounds for termination, and a sse rts for the first time on appeal a due process challenge. W e affirm.

I. P ROCEDURAL AND F ACTUAL B ACKGROUND A. Pretrial Removal Affidavit
In June 2018, the Department received a referral from law enforcement alleging Mother and Father had been arguing, tha t Fa ther 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 t he referral , the home was a mess and smelled like “old marijuana” smoke. The day aft er this incident, the Department’s investigator, Candice Mouto n,
m et 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 t he two older children, Reba and Eshan , denied any domestic violence between Mother

an d Fa ther. Mother , however, acknowledged an earlier domestic

- violence incident. D uring the family interview , another non
- family household member (Morrison) came home. In response to Mouton’s qu estioning, Morrison denied being present on the date of the inc iden t and denied witnessing any domestic violence between3

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

. Testing showed negative for Mothe r
. Father’s results were positive for cocaine. Morrison , who al so s ubmitted 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 t he children through the remainder of June and July 2018. After g ivin g Mother the urine analysis results, Mouton explain ed the Department’s requirements and schedule d the required follow

- up meeting with the children. Mother agreed they would meet with Mou ton and told Mouton she had moved to a new apartment in the same comp lex 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 ha d used cocaine just three days earlier

. Father agreed to complete sub stance

- 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 a ny 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 an d the c hildren other living options. Mother informed Mouton that she “did not want her family split up , ” b ut on August 9, 2018 , Mother told Mouton that she was willing to leave with the children because F ather was un willing 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.4

Te n 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 state d that Wystan sustained a spiral fracture of his right tibia and a bowin g 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 m edical 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 t o 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 fo r 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 s igned an emergency order appointing the Department as the children’s Temporary Ma naging Conservator for 14 days. The district court appointed the Department the children’s Temporary Mana ging Conservator on September 4, 2018 , at the conclusion of the a dvers ary h earing. B. The Trial
A bench trial commenced on July 25, 2019. At the sta rt of trial, the Department offered into evidence and the trial court admitted a number of items, includi ng the pretrial removal affidavit , an indictment against Father for Injur y 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 tes tified that the Department’s initial contact with the family came5

as a res ult of Referral 1 (the altercation between Mother and Father that ended when F ather “slammed” Mother to the ground in front of the children). Mouton said when she arrived at the apa rtment to begin her investigation, she had concerns that one or both paren ts 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 betw een them that day, but both acknowledged that Father had assaulted Mother in 2017. Mouton said the Department immediately put a safety plan in to p lace to ensure there was no unsupervised contact between Father and the children. Additionally, Father was t old to take substance

- abuse classes so he could remain in the home with th e family. But, while the Department was trying to schedule the classes f or Father, Mother contacted Mouton and reported that Father was refusing to leave the home. Mother and Mout on 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 shelte r 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 cus tody of the children because Mother’s explanation of how Wystan had sustain ed his injuries w as inconsistent with the injuries

. The Department belie ved Wystan had been a victim of child abuse and had been denied immediate medical treatment when Mother

r efused to allow Emergency Medical Services ( “ EMS ” ) to transport the child to th e hospital

. Mouton confirmed that none of the children stated Mother had injured them or made any outcry about physical abuse during her investigation. Yet,6

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 , a nd at that time the Department had received a referral for physical abuse of Reba. Mother successfu lly completed services , and the Department closed the case when Mother act ed on a referral to the HOPE Center. In 2016, the Department received anothe r referral on Mother, this time for neglectful supervision when Mother attempted suicide. At that tim e, Eshan was eight years old, Reba was six years old, and Mother was pregna nt with Wystan

. The investigation showed no signs of abuse or neglect of eith er 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 disclos ure.” 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 t he Department’s care. According to Callicut, n either Mother nor Father suc cessfully completed their respective service plan s
. Mother had not provided t he Department with proof of stable housing or income, had not attended all of the required counseling s essions, and had not updated the Department with new contact information. Father had not completed individual counseling or drug

abuse treatment, includ ing 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. Callicu t 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 a s an occupant, (not the children).7

Callicut testified about the parents’ sc heduled visitation with the children, stating he met Mother and Father at vari ous locations throughout the city at the beginning of the case instead of at their home. Mother and Fa ther visited the children on a supervised basis one or two times a month un til January 2019. A ccording to Callicut, these visits were “appropriate.” Cal licut 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 “vio lent activity between the foster worker and [Mother and Father].” Callicut briefly described the reque sts for, refusals of, and results of the random drug testing ordered for Mo ther 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 t o ordered drug tests after January 2019 , in Mother’s case , or after Septemb er 2018 , in Father’s case
. Callicut also testified that the Department had co ncerns about domestic violence between Mother and Father , noting that Referral 1 remained an active

cas e . When asked about Mother ’s and Father ’s criminal records, Callicut testif ied he did not want to speculate about the details of Father ’s record , but kne w it was “pretty extensive.” Callicut was aware of only the January injury

- to

- a
- child

- by

omission charg e against Mother

. Callicut confirmed Mother ’s testimony that the children had reached out to Mother and Father via social media , actions expressly prohi bited 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. Call icut also confirmed Mother ’s testimony about Mother ’s sending cards and letters and8

bringing supplies, food, clothes, and birthday cakes to the children when she visited, but tho se 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 abo ut 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 reco rds regarding whether Wystan should have been transported to the hospital by paramedics on the day of th e child’s injury. Father Father testified at trial, both acknowledging and denying a history of engaging in family violence. In cross examination, afte r agreeing that he was charged with assaulting Mother, Father answered “Yes” to the immediate follow

up, “And your children were present during the time the assault occurred, corr ect?” Yet, w hen 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 b roken “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 s tated 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

a partment 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 o f stable income because “I don’t get checks. I don’t work.”
Mother In ans wering questions about Wystan’s injuries, Mother testified that she9

called paramedics “ as soon as she heard it ” and her son “ started crying, ” and that paramedics came to her apartmen t. 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. Mot her testified that the injury occurred on Friday, she took Wystan to t he 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 Medi c al Center made an “i njury to a child” report. When the responding o fficer ( Neeley ) arri ved at the hospital, he spoke with Deputy F. Lopez , who informed him M other had arrived at the hospital with Wystan . Medical professionals were evaluating the child for a spiral fracture an d a bow fracture of his right leg. According to Deputy Lopez, Moth er told him she was Wystan ’s mother and that Wystan ’s injury had

occur red three days earlier. Mother told Deputy Lopez she had called EMS shortly after Wystan got hurt, but claimed EMS sai d 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 con sistent with child abuse and “could have led to permanent disfiguremen t.” ER clinical staff said Wystan needed to be transported to Texas Children’s Hospital for surgery. Given the discre pancy between Mother’s statements and those from the ER staff, Offi cer Neeley reviewed the EMS records.10

Neeley’s affidavit indicates tha t, according to the EMS records, Wystan was crying when EMS arrived at the apartment on August 17, 2018, and that EMS p ersonnel told Mother Wystan needed to go to Texas Children’s Hospit al for treatment. Neeley further report ed that initially Mother gave EMS permission to transport Wystan , but after he was loaded in to the ambulance, Mother withdrew her permission and remove d Wystan from the ambulance. Neeley’s affidavit
states , “EMS rec ords 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 Wysta n to a local urgent care facility instead. Medical Records A “Fi nal Report” from Texas Children ’ s Hospital filed with the removal affid avit 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 brou ght Wystan to Texas Children ’ s Hospital nine (9) times over the past y ear and half

. Criminal Records In 2010 , when Eshan was three years old and Reba was one year old , Mother faced charges fo r possession of marijuana , but the case was dismissed. In 2013 , w hen Eshan was six years old and Reba was four years old , Mother was ch arged with several misdemeanors and for driving with an invalid license . Sh e received probation. Between October 2000 an d June 20 1 6 , Father was convicted of two misdemeanors for which h e served 200 days and four felonies for which he served more than eigh t years. In October 2012 , when Eshan was five years old and Reba

was three years old , Father was convicted of resisting a rrest and possession of11

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 201 5, Father was charged with assault but was not incarcerated. In 2016 , when Eshan was nine years old , Reba was seven years old , and Wy stan was two months old, Father served ten days in jail for drug

- possession. The Child Advocate At trial, the child advo cate testified that the parents ’ positive drug tests, lack of hou sing stability, failure to complete counseling , and failure to seek ti mely 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 a nd Father. Final Decree of Termination T he trial court found predicate acts for terminating Mother’s parental rights to the ch ildren under s ection 161.001(b)(1) (D), (E), (N), and (O)

. The trial court found predicate acts for terminat ing Father’s parental rights to E shan , 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. I SSUES AND A NALYSIS 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) t ermination 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 3 36, 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 the12

Departme nt violated his rights to due process and equal protection under the F ourteenth 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 convinc ing evidence to support such an order. See Tex. Fam. Code Ann. § 161.0 01; 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 produc e in the mind of the trier of fact a firm belie f or conviction as to the truth of the allegations sought to be establ ished.” 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 search ing 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

- parental

rights case, w e 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). T he fac tfinder is the sole arbiter of the credibility and demeanor of each witness. Id . at 346. We assume that the factfi nder 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 pe t.). 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 findi ng and consider that evidence in our analysis. Id. The evidence is legally insufficient to13

support the challenged finding if, after conduct ing this review of the record evidence, we dete rmine that no reasonable factfinder could form a firm belief or convi ction that the matter that must be proven is true. Id . at 344

– 45. In reviewing the factual sufficiency of the evidence under the clear

- an d

convincing standard , we consider and weigh di sputed evidence contrary to the finding against all the evidence favo ring 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 evide nce 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 fin dings and we cannot substitute our own judgment for that of the factf inder. 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 entir e record with a healthy regard for the constitu tional interests at stake.” In re A.B. , 437 S.W.3d 498, 503 (Tex. 20 14) (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 rev iew are those established beyond a reasonable doubt. In re H.R.M ., 20 9 S.W.3d at 108. B. Termination Based on Endangerment
Mother argue s the evidence is legally and factually insufficient to support terminatio n under sections 161.001(b)(1)(D) , (E) , (N), a nd (O) . Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E) , (N), (O)

. Fathe r argues the evidence is legally and factually insufficient to support termination under sections 161.001(b)(1)(D ) and (E) . Tex. Fam. Code A nn. §§ 161.001(b)(1)(D), (E)

. Because Father does not challenge the trial court’s predicate

- act findings under sect ion 161.001(b)(1) (N) or14

and (O), even if this court were to conclude that the record contains legally or factually sufficient evidence to su pport 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 unrevie wed on appeal when the parent has presented th e issue to the appellate court violates the parent’s due

- process and due

course
- 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 cha lleng e to a finding under (D) or (E) lacks mer it

. 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 a nd factually insufficient to support the (D) and (E) findings. Th erefore, under binding precedent from the Supr eme 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 terminat ion of parental rights where the court finds “ by clear and convinc ing evidence that a parent has engaged in cond uct 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 t hat 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 [14t h Dist.] 2019, no pet.). By making the (E) finding as to each pare nt , the trial court found that Mother and Fath er both engaged in conduct or knowingly placed their respective children with15

persons who engaged in conduct that endangered the children’s phys ical 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 o f 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 en dangerment often involves physical endangerment, the statute does

no t 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 chil d to a life of uncertainty and instability endangers the child ’ s physical and emotional well

being. In re F.E.N. , 542 S.W.3d 752, 764 (Tex . App.

— Houston [14th Dist.] 2018, no pet.). The evidence germane to thi s endangerment

- termination case relates to a

c ombination of medical neglect, drug ab use, and exposure to domestic violence. Domestic Violence

. Evidence of domestic violence may be c onsidered 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 pa rent ’ s abusive or violent conduct can produce a home environment that16

en dangers 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 p et.) (considering mother ’ s having “exposed her children to domestic violence,” as evidence of endangerment under subsection (E)); see a lso Sylvia M. v. Dallas Cty. Welfare Unit , 771 S.W.2d 198, 204 (Tex. App.

— D allas 1989, no writ) (considering “volatile an d 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 phys ical 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 t he time of trial. Mouton testified that both Mother and Father acknowledged that Father assaulted Mother in 2017. Some of the medical records contain reference s to an altercation between Father and Mother at the hospital when Wystan was being treated. T hough Mother took the children and moved out of the home and in to the Star of Hope , she placed them back into danger when s he 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, Mot her testified she intended to stay with Father. The trial court reasonably c ould have found that Mother’s repeated reconcil iation with Father and her decision to risk the children’s safety by bringing them back to live with Father following incidents of F ather’s domestic violence is endangering conduct supporting the predicate gro und for termination of Mother ’s parental rights

. Medical Neglect

. Although the Department initially removed the children based on a concern17

that Wystan’s injuries were ind icative of child abuse, the D epartment’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 t hat 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 insu fficient 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 do ctor. The indictment, along with the probable

- cause affidavit and the physician’s record attached to the Department’s a ffidavit, show Wystan’s physician noted that “patient ’s delay in care [was] concerning for medical neglect.”
Father admitted bein g present when Wystan was injured and said he t old EMS personnel Wystan’s leg was not broken “because when you hit your shin, it swell up.” Father testified that he heard t he 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 rath er than Father’s and Mother’s testimony about what the paramedic told them concerning the need to get medical treatment for their in

jured child

.18

The parties dispute facts as to whether Mother should have known the severity of Wystan’s leg injury after t he EMS left. Mother contends that the paramedic stated Wystan’s leg was not broken. The E MS records were not offered into evidence , but the content of those records was included in th e probable

- cause affidavit, which was introduced into evidence and is p art of the record. The affidavit contradicts Mother’s contention that the paramedic told he r 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 hos pital, which suggests she was aware of the need to go to the hospital . Other records offered i nto evidence indicate that Mother took Wy stan to an emergency room sometime before Monday but left without getting treatment because she concluded the wait was too long.
T he trial court reasonably could have believed that the evidence established a thre e
- day delay in treatment such that Mother ’ s and Father’s conduct rose to the level of medical neglect and endangering conduct. Though o ther 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 re asonably could have consider ed that by leaving Wystan’s injured leg medically unattended for such a long duration

— co nsidered by one doctor to be life

- threatening

— Mother and Father engaged in endangering conduct

. Drug Abuse
Mother initial ly tested n egative at the time of Referral 1 in June 2018, but after the children were removed , Mother tested positive on Septem ber 4, 2018 , and again on January 16, 2019 . Despite the positive drug

- test results, Mother denied using drugs and state d that her urine was “ clean. ” Father tested positive for cocaine while living with the children. Both parents had a criminal record fo r19

drug

- related offenses

. Father was incarcerated several times for drug

- possession offenses.
Un der Texas law subsection (E) endangering c onduct does not have to occur in the child ’ s presence. See Walker , 312 S.W.3d at 617. Continued illegal drug use afte r a child ’ s removal jeopardizes parental rights and may be considered as establishing an endanger ing 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.) (e n banc )

. Likewise , d rug abuse and its effect on one ’ s ability to parent can present an endangering course o f conduct to a child in that par ent’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 dang er that the parent is aware of but disregards.” In re E.R.W. , 528 S.W.3d 251, 264 (Tex. App.

— Houst on [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 dr ug tests indicates parent is

avo iding testing because parent was using drugs). Even without considering their refusal to submit to drug testing, each actually t ested 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 posi tive results , but insisted that the results would be misleading because they would be based on previous drug use rather tha n curr ent sobriety. In addition to evidence of Mother’s drug use during the course of the proceeding, the record contains Mouton’s testimony that the Depa rtment’s first referral to the family came when Mother tested positive for marijuana at Reba’s20

birth.
Des pite 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 subs tance

- 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 (T ex. App.

— Houston [14th Dist.] 2019, no pet.); See In re A.J.E.M.

- B. , Nos. 14

- 14

- 00424

- CV, 14

- 14

- 00444

- C V, 201 4 WL 5795484, at *5 (Tex. App.

— Houston [14th Dist.] Nov. 6, 2014, no pet.) (mem. op.) (considering evidence that parents “minimized concerns and we re in denial of the impact that substance use has on their ability to sufficiently be in tune to the ne eds 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 fa ther’s denial that his drug use and drug dealing harmed his children as factor in endangerment analysis)

. A pa rent ’ s drug ab use exposes the child to the possibility the parent may be impaired or imprisoned and, thus, unable to take care of the child. Walk er v. Tex. Dep ’ t of Family & Protective Servs ., 312 S.W.3d 608, 617

– 18 (Tex. App.

— Houston [1st Dist.] 200 9, 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. Consider ing all the evidence in the light most favorable to the subsection (E) finding, assuming the factfinder resolved disp uted facts in favor of its finding if a reasonable factfinder could do so, disregarding all evidence that a reasonable factfinder could have disbeliev ed, being mindful of any undisputed evidence contrary to the finding, and considering that evidence i n 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 or21

emotional well

- being. See Tex. Fam. Code Ann. § 161.001(b)(1)(E). A pplyi ng that same standard, we likewise conclude that a reasonable factfinder could form a firm belief or conviction that Father engaged in conduct that en dangered 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 c onstitutional issues at stake, we conclude that in light of the entire record, the disputed evidence that a reasonable factfinder could not have cred ited in favor of the finding is not so significant that a factfinder reasonably could not have formed a fir m 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 subsect ion (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 fac tually insuffici ent 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 l egally and factually insufficient to support the trial court's findings under section 161.001 (b)(1)(D). Thus , we overrule Mother’s s econd i ssue , which renders her first , third , and f ourth issues moot, and we overrule Father’s t hird i ssue , which renders h is first issue moot. C. Best Interest of the Children Texas courts presume that keeping a chi ld with the chil d’s natural parent22

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 Depar tment carries the burden of rebutting that presumption. Id. Proof of acts or omissions under s ection 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 bes t interest of the child, known as the Holley factors, include: (1) the child’s desires; (2) t he child’s prese nt 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 cu stody in promoti ng 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 pr oposed placement; (8) acts or omissions of the parent that may indicate the existing parent

- c hild relationshi p 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. , 10 5 S.W.3d at 230; see also Tex. Fam. Code Ann. § 263.307(b) (listing factors to consider in

eva luating 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

.
D esires of the c hildren All four children currently reside in foster placement s
. Eshan and Reba both expressed desires not to be returned to thei r parents but to remain in foster care. Wystan and Estrid were under the age of three at the time o f trial and so were too23

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 foste r 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 D epa rtme nt , the two olde r 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 mont hs , and tha t Mother had not seen or visited th e 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 t hat any desire to move i n 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 t he evidence concerning the desires o f these tw o children is ne utr al . 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 Fath er’s parental rights woul d 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 ha d not seen or visited her children for more

2 At the time of trial, Eshan was t welve , Reba was ten , Wystan was three , and Estrid was two

.24

than six months. Mother claims the record co ntains no evidence that t he “minor” child ren “ 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.” A ccording to Callicut, when Wystan first came into care, he was not ta lking and was di agnosed 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 w ith an Early Childhood I ntervention work er 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 Wysta n’s special need s 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.” B oth children go to day care where they receive “t he proper education that they need.” Wy stan’s foster parents also have a specialist who work s with Wystan to develop his speech.
The D epartment set forth general evidence concerning Reba’s and Eshan ’ s emotional needs. Both Reba and Eshan had changed fos ter 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 child ren were taking care of their physic al 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 emotio nal and physical

nee ds. Because the need for stability is of paramount importance to a child’s25

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 he r to support them fi nancially, had n ot 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 f act c ould have f

ound 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 * 1 0 (Tex. App.

— Hou ston [1st Dist.] Apr . 9, 2009, no pet.) (mem. op.). Father did not provide a stable home for his children, he ha d no job that would enable him to support them financially, and he had not seen or visited with his children for more than six m onths before tria l. Father tested po sitive 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 w ell

- being , a reason able trier of fact w ould 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 200 9 WL 961935, at

* 10

. Mother maintains her relationshi p with Father, a convicted felon who h as been incarcer ated for more than nine years out of the twenty years they have been together. A t least one of Father’s convictions was for family violence

. Mother tested positive for illegal drugs twice during the pe ndency of this case, persistently denied u sing 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 re moved and again during26

the pendency of thi s 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 basi c needs or stability. See In re C.A.J., 12 2 S.W.3d 88 8, 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 c ustody, the stability of the home or propo sed

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.3 d 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 best

interest determination. See In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002). Both Mother and Father state d that they wanted the trial court to allo w t hem 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 t h e plan s the trial court order e d. 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 i nquiries . That relative said she was not financially abl e 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 ab o ut criminality and another because there was simply no t 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

- assault27

charge on the male i n the household. Eshan, Reba, Wystan, and Estrid have been in the Department’s temporary

m anaging c onservatorship since August 21, 2018. Callicut testified that all four children are “doing exceptionally well,” and all of their needs are being met in the i r current foster homes. The Department’s long

- range g o al 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 “ b roadcasted” as an adoptee. He is happy with and wants t o 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 expres s ed a desire not to be returned to her parents. Her fos t er 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 a bout 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 child ren , 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 un d er subsection (E) , discussed above, also supports the cou r t’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 [ 1 4th Dist.] 2003, pet. denied)

.28

Father’s pattern of crimin al 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 emo t ional an d physical danger to the ir respective children no w 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 o

f Holley Analysis
E vidence introduced at trial support s 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

c o nviction that termination of Mother’s and Father’s parent al rights was in the ir 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 best

interest f inding, in this case, virtually all of the individual fac tors weigh in favor of the trial court’s determination

. The evidence is legally and factually sufficient to support the trial court’s finding s that the termination of Mother’s parental rights is in t he 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 f

ifth i ssue and Father’s f

ourth i ssue. D. Father’s Due
- Process Challenge
In h is first issue, Father argues that the Department violate d 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 r esponds that Father did not preserve this issue for appel late 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

. 3 d 340, 349

– 55 (Tex. 2003) (discussing preservation of

err or 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 s u b 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 fil e d on his behalf before trial raises this complaint or cont ains 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 f irs t i ssue. III. C ONCLUSION T he evidence is legally and factu ally sufficient to support the predicate termination finding under subsection ( E ) as to both Mother and Father

. And, t he evidence is legally and factually sufficie nt to support the trial court’s fin d ing s that (1) the terminatio n 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 hi s due

- proc e ss and equal

protection complaint and so forfeited appellate review of that point. Having overruled all of the issues presented , w e affirm the judgment of the trial c ourt.

/s/ Kem Thompson Fr ost Chief Justice
Panel consists of Chief Justice Fr ost and Justices Christopher and Bourliot . (Justice Bourliot con curs without op inion.)