Opinion filed November 7 , 201 9



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 9

- 00 186

- C V

__________ IN THE INTEREST OF N.S

. , A CHILD

On Appeal from the 326 th District Court Taylor County, Texas Trial Court Cause No. 9055

- CX

M E M O R A N D U M O P I N I O N This is an appe al from an order in which the trial court terminat ed the parent al rights of N

. S

. ’ s mother and father

. 1 The mother filed an appeal

. On appeal, s he challenges the sufficiency of the evidence in each of her five issue s

. We affirm

. Termination Findings and Standards The termination of parental rights must be supported by clear and convincing
evidence. T EX

. F AM

. C ODE A NN

. § 161.001 (b) (West Supp. 201 8 ). To terminate parental rights, it must be shown by clear and convincing evidence that the parent

1 We note that the father voluntarily relinquished his parental rights.2 has committed one of the acts listed in Section 161.001 (b) (1)(A)

– ( U ) and that
termination is in the best interest of the child. Id. In this case, the trial court found that Appellant had committed f our of the acts listed in Section 161.001(b)(1)

— those found in subsections (D), (E), (O), and ( P ). Specifically, the trial court found that Appellant had knowingly placed or knowingl y allowed the child to remain in conditions or surroundings that endangered the child ’ s physical or emotional well

- being; that Appellant had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered
the child ’ s ph ysical or emotional well

- being; that Appellant had failed to comply with the provisions of a court order that specifically established the actions necessary
for he r to obtain the return of the child , who had been in the managing conservatorship of the Depa rtment of Family and Protective Services for not less
than nine months as a result of the child ’ s removal from Appellant for abuse or neglec t; and that Appellant had used a controlled substance in a manner that endangered the child and either failed to com plete a substance abuse treatment program or abused a controlled substance after completing such a program

. The trial court also found, pursuant to Section 161.001(b)(2), that termination of Appellant ’ s parental rights would be in the best interest of the child. To determine if the evidence is legally sufficient in a parental termination case, we review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its finding was true. In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is factually sufficient, we give due deference to the finding and determine whether, on the entire record, a factfinder could reasonably form a firm belief or conviction about the truth of the allegations aga inst the parent. In re C.H. , 89 S.W.3d 17, 25

– 26 (Tex. 2002).3 With respect to the best interest of a child, no unique set of factors need be proved. In re C.J.O. , 325 S.W.3d 261, 266 (Tex. App.

— Eastland 2010, pet. denied). But courts may use the non

- e xhaustive Holley factors to shape their analysis. Holley v. Adams , 544 S.W.2d 367, 371

– 72 (Tex. 1976). These include, but are not limited to, (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the e motional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent

– child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id. Additionally, evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child ’ s best
interest. C.J.O. , 325 S.W.3d at 266. Background
The record shows that N.S . was four years old at the time of removal and five years old at the time of the final hearing. In January 2018, the Department received an intake regarding domestic violence and an intake regarding Appellant ’ s use of methamphetamine

. N.S. ’ s father was incarcerated at that time, and N.S. lived with Appellant, Appellant ’ s boyfriend, and their three

- month

- old baby. Appellant and her boyfriend had engaged in domestic violence while N.S. and the baby were present
at the home. The polic e were summoned based on the occurrence of domestic violence, and Appellant, her boyfriend, and N.S. confirmed that domestic violence had taken place in the home. Although Appellant told the Department ’ s investigator that she had not used methamphetamine since 2013, both Appellant and her three

- month

- old baby tested4 positive for methamphetamine during the Department ’ s January 2018 investigation

. T he baby ’ s test results showed methamphetamine at the level of 10,987, a “ very high
level

. ” Appellant ’ s level of methamphetamine was 1,619

. N.S. ’ s drug screen was negative at that time

. The Department removed N.S. and the baby f rom Appellant ’ s

care . We note that Appellant ’ s parental rights with respect to the baby are not at issue in this app eal and that the case involving the baby was severed from the case involving N.S

. Appellant initially did well and fully engaged in h er court

- ordered services
, and N.S. and the baby were briefly returned to Appellant ’ s care. Approximately
three weeks i nto the monitored return, Appellant tested positive for methamphetamine

— this time at the level of 3,978. The children were again removed from Appellant ’ s care. Three months later, Appellant test ed positive for methamphetamine at an even higher level

— 4,348. Appellant failed to complete inpatient or outpatient drug treatment as ordered. We note that, at the time of the final hearing, Appellant was again attempting inpatient treatment

. Appellant ultimately failed to maintain contact with the Department and, as a result, did not submit to any drug tests during the six months prior to the final hearing. Appellant also failed to abstain from criminal activity w hile the parental termination case was pending in the trial court . During th is time period , Appellant was arrested for burglary of a habitation
, criminal mischief, third

- degree felony possession of methamphetamine, and class A misdemeanor assault

. The Department called three police officer s to testify about these offenses . An of ficer with the Abilene Police Department testified that Appellant was arrested in December 2018 for possession of methamphetamine; three small bags of methamphetamine were located in Appellant ’ s bra area

. An officer with the Clyde Police Department
testif ied that A ppellant broke into a house and assaulted a female, whose hand was

“ bleeding profusely ” as a result of the assault. An officer with the Abilene Police5 Department testified that, just a few weeks prior to the termination hearing, Appellant assaul t ed an “ older ” man. At the time of the assault, Appellant was acting aggressively and appeared to be under the influence. Appellant was arrested and taken to jail; at the jail, an empty bag with white residue was f ound inside Appellant ’ s bra

. The record reflects that, in addition to the offenses that she committed while this case was pending, Appellant had other criminal history. She was convicted in 2013 of the offenses of possession of methamphetamine and endangerin g a child. The child that Appellant was convicted of endangering was her son

— N.S. ’ s older
brother

— who, at the time of the proceedings involving N.S., had been adopted by paternal relatives.
The caseworker testified that N.S. had been removed from Appellan t three
times and that N.S. needed a more stable life. The caseworker believed that
termination of Appellant ’ s parental rights would be in N.S

. ’ s best interest. N.S. had been placed in a stable and loving home with paternal relatives , and N.S. was doing well in their care. N.S. was happy and had adjusted well in the home of her aunt and
uncle , and the aunt and uncle wanted to adopt N.S

. Analysis
In her first
, second , third, and fourth issue s , Appellant challenges the legal and
f

actual sufficien cy of the evidence to prove grounds (D) , (E) , (O), and (P), respectively

. We first address Appellant ’ s second issue

—her challenge to the trial

court ’ s finding under Section 161.001(b)(1)(E). See In re N.G. , 577 S.W.3d 230,
234

– 35 (Tex. 2019) ( addressing due pr ocess and due course of law with respect to appellate review of grounds (D) and (E) and holding that a n appellate court must provide a detailed analysis if affirming the termination on either of these grounds ). Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child ’ s well

- being was the direct result of the parent ’ s conduct,6 including acts, omissions, or failures to act. In re D.O. , 338 S.W.3d 29, 33 (Tex. App.

— Eastland 2011, no pet.). Additionally, termi nation under subsection (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required. In re D.T. , 34 S.W.3d 625, 634 (Tex. App.

— Fort Worth 2000, pet. denied) ; In re K.M.M. , 993 S.W.2d 225, 228 (Tex. App.

— Eastland 1999, no pet.). The offending conduct does not need to be directed at the child, nor does the child actually have to suffer an injury. In re J.O.A. , 283
S.W. 3d 336, 345 (Tex. 2009). Drug use may constitute evidence of endangerment.
Id. Domestic violence and a propensity for violence may also constitute evidence of endangerment. C.J.O. , 325 S.W.3d at 265; In re C.E.K. , 214 S.W.3d 492, 497 (Tex. App.

— Dallas 2006, no pet.); In re J.I.T.P. , 99 S.W.3d 841, 845 (Tex. App.

— Houston [14th Dist.] 2003, no pet.) . If a parent abused or neglected other children, that conduct can be used to support a finding of endangerment. C.E.K. , 214 S.W.3d
at 497. Based upon the e vidence that Appellant and her boyfriend engaged in
domestic violence in N.S. ’ s presence, that Appellant had a propensity for violence, that Appellant used methamphetamine while her children were in her care, and that Appellant exposed her baby to a high l evel of methamphetamine, t he trial court could
have found by clear and convincing evidence that Appellant engaged in a course of
conduct that endangered N.S. Accordingly, we hold that the evidence is legally and factually sufficient to uphold the trial court ’ s finding under subsection (E). We overrule Appellant ’ s second issue . Because only one statutory ground is necessary to support termination and because we have upheld the trial court ’ s finding under subsection (E), we need not reach her first, third, or fourth issues. See F AM

. § 161.001(b)(1); N.G. , 577 S.W.3d at 234

– 35.
In her fifth issue , Appellant challenge s the sufficiency of the evidence to support the trial court ’ s finding th at termination of Appellant ’ s parental rights was7 in the best interest of N.S. T he record reflects that Appellant used methamphetamine
while N.S . was in her care and continued to use methamphetamine while this case was pending
, that Appellant failed to complete treatment for her methamphetamine addiction (an addiction, according to Appellant, that she had struggled with since she was twelve years old) , that Appellant endangered her children by exposing them to methamphetamine, that Appellant had been convicted of endangering N.S. ’ s older
brother , and that Appellant continued to engage in various criminal activity while this case was pending.
T he record also reflects th at N.S. had been placed with a paternal aunt and
uncle in an appropriate home and that N.S . had improved and had done very well
there. The conservatorship case worker believed that termination of Appellant ’ s parental rights w ould be in N.S

. ’ s best interest

. Based upon the evidence presented in this case, we defer to the trial court ’ s finding. See C.H. , 89 S.W.3d at 2 7

. We hold that, b ased on the evidence presented at trial and the Holley factors
, the tri al court could reasonably have formed a firm belief or conviction that
termination of Appellant ’ s parental rights would be in N.S

. ’ s best interest. See Holley
, 5 44 S.W.2d at 371

– 72

. Upon considering the record as it relates to N.S

. ’ s desires (which were not expressly mentioned at the hearing)
, the emotional and physical needs of N.S

. now and in the future, the emotional and physical danger to
N.S

. now and in the future, the parental abilities of th ose involved
, the plans for the
child by the Department, Appellant ’ s use of methamphetamine
, Appellant ’ s other criminal activity, and the s tability of N.S

. ’ s placement with her aunt and uncle
, we hold that the evidence is sufficient to support the finding that termination of Appellant ’ s parental rights is in the best interest of N.S

. See id. We cannot hold that the finding as to best intere st is not supported by clear and convincing evidence. We
overrule Appellant ’ s fifth issue on appeal

.8 This Court ’ s Ruling
T he order of the trial court is affirmed.

KEITH STRETCHER
JUSTICE

November 7 , 201 9 Panel consists of: Bailey, C. J., Stretcher, J., and Wright, S.C.J. 2
Willson, J., not participating.

2 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.