### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00255
- CV

D. H. , Appellant

v. Texas Department of Family and Protective Services , Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 312,572
- B , THE HONORABLE JACK WELDON JONES , JUDG E PRESIDING

O P I N I O N

Appellant D.H. (Mother) appeals from the trial court ’ s decree terminating her
pare ntal rights to her four children

— son J.H. , bor n in 2008; son N.H. , bor n in 2009 ; daughter A.H., born in 2011; and daug hte r D. A. H., bo rn in 2 01 3. 1 In a single issue , Mother challenges
the legal and factual sufficiency of the evidence supporting the district court ’ s finding that she engaged in conduct or knowingly placed the children with s omeone wh o engaged in conduct th at

en dangered the chil d re n ’ s well

- being

. See Tex. Fam. Code § 161.001(b)( 1) (E)

. For the reasons that follow, we affirm the trial court ’ s decree of t ermination

.

1 T he dis tr ict court ’ s decre e also te rm inate d the parenta l rig hts o f the c h i ldre n ’ s father , J.H., but he d i d not fil e a n otice a p peal and t he ref ore is not a party to th ese appella te proc eedings.2 BACKGROUND
On S eptember 19, 2019, the Department received a report from staff at a l ocal hospital of suspected m ed i ca l n eg lect

. D.A.H, who was six y ears old and has spina bi fida , had
been taken to the hospital b y J.H. (Father) for a n inf ection on her foot related t o her paralysis , and t he inf

ection was so severe that bone was visible in mul ti ple p l ace s
. In a dditio n, hospital
staff reported that D.A .H. had been hospitalized for the same foot infection in June 2019 and that since being rele ased, she ha d missed six doctor ’ s appointm ents

.

On September 23, 2019 , t he Depart men t filed an or ig inal peti ti o n seeking

c onserv atorship of the children and termination of Mother ’ s and Father ’ s parental rights

. In
the removal affida vit accompanying the petiti on , Department investiga tor Mar nita Bla nks
summarized the f

amily ’ s pre v i ou s i nvo lvement wi th the Department

. I n part, Blan k s s tated in
the removal affidavit that in Ju l y 2016 , the Department had sought and o btai n ed a court order in Coryell County for removal of the children from Mother ’ s and Father ’ s c are and th at t he Dep a rt me nt ini ti ated those procee dings after re ceivin g a r e p ort that Mother had threatened
suici de “ while being under t h e influence of [ met hamphetamine ] in the presence of the children

. ” On August 16, 2017, the district cour t in Coryell C ount y sign ed a final order g ran ti ng primary

man ag i ng conservato rs hi p o f the children to Father ’ s parents a nd , after finding that appointment
of Mother and Father as possessory conservators would not be in the children ’ s best interest and that possession or access would end anger the child re n ’ s p hysical or emotion al welfare , deny ing
Mother and Father possession and access to the children

. 2 Se e Tex. F a m. Code § 153. 191 ( requiring court to appoint parent as possessory conservator when not appointed man aging

2 On Octob er 16, 2 019, the distr i c t c ourt signed an order t ra ns f errin g the c a se from Coryell County to Be ll Coun ty and consoli datin g the c as e wi t h th is case
.3

conservato r, “ unless it fi nds tha t t he appo intm e n t is not in the b est interest of the c hild an d that
paren t al p ossession or access would endanger the ph ysic al or em o tional welfare of the child ” )

. Des pite the 2017 final order, Blanks disc overed that when Father took D.A.H. to th e hospi tal , the
ch ildren wer e li ving with him

. Al thoug h Mother wa s not residing with Father and the chil dren , she had r ecently begun vis iting th e children on week e nds.

A final hea ring before a n associate judge wa s co nducted on No vember 12, 2020

. See id. § 201.201

. At t he con clu s i on of th e hearin g , the asso c i ate jud ge sign ed an or der recommending termination of Mother ’ s and Father ’ s parental rights. Upon M o ther ’ s request, the
district court conducted a de novo hea r ing

. See i d. § 201.2042

. A fter t he de novo hea rin g, the
dis trict court s i g ned a de n ovo decr e e of ter mi natio n
. As to Mother, the d i str ict court f ound by clear a nd convincing evidence that Mother engaged in conduct or knowi ngly placed the
children with s omeone wh o engaged in co nd uct t hat en dangered the chil dren ’ s w e ll

- b ein g and t h a t termination o f h er par ental r ig hts was in the children ’ s bes t int e res t. 3 Se e id. § 161.001(b)( 1) (E) , (2) . The district court also appo inted the Department as the children ’ s

man aging conse rv at or. See id. § 161.207

.

On ap peal, Mother does not chal le nge the dis tr i ct c o urt ’ s de cisio n a s to

con servatorship or the court ’ s finding that te rmination of her p arent al right s i s in the children ’ s best inter est. See In re J.A .J. , 243 S.W.3d 611, 617 (Tex. 2007) (concluding that conservatorship
and ter mination o f p arental rights a re disti nct iss ues and that each must be separately ch allenged

3 The a ssoc i ate judge found that term i natio n of Mother ’ s parental right s was also w arranted under subsection s (D) and (O)

. S ee T e x. Fam. Code § 161.0 0 1(b) (1) ( D) , ( O)

. A t the co nclusion of the d e novo hearing , howeve r, the attorney f or the Depar tme nt affirmativel y s tated on the rec or d that the Dep artme nt was abandonin g those alternativ e statutory grounds and that it was proceed ing s o lely based on sub secti on ( E)

. Acc or d ingl y, the d istrict cour t did not adopt the asso c iate judge ’ s find ings w ith re spect to subsec tions (D) an d (O )

.4

on appeal). Instead, in one issue on app eal, Mot her ch al le nges the s ufficienc y of the evidence supportin g the dis trict court ’ s dete r mination that she eng aged in ac ts or om i s sio ns warrant ing

t e rmin atio n under the Family Code, Secti on 161.00 1(b)(1), subsection ( E)

.

S T ANDARD OF RE VIEW

“ W hile parental ri ghts a re o f co n st it ut i o na l ma gnitu de, they are not ab solute. ”
In re C .H

. , 89 S.W.3d 17, 2 6 (Te x. 2 0 02)

. To termi nate a parent

- chi ld relat io n s h i p, the Depart ment m ust prov e by cl e ar and con vi ncing e v i d ence tha t ( 1 ) the p ar ent’s a cts o r o mi ssions
constitut e at l east one of t he e nu mer a ted stat uto ry grounds for termination and ( 2) it is in the

c hild’s bes t interest to t ermi nate the pare nt’s rig ht s
. Tex. F am . Cod e § 1 6 1.00 1(b ) ( 1) , ( 2) . Clear

a nd convin c i ng eviden ce i s “the me asure or deg r ee of proof that wil l pro duce in t he m in d of the
trier o f fa ct a firm belief or conviction a s to the truth of the alle g at ions so ught t o b e established. ”
Id. § 1 0 1. 007 ; In re A.C

. , 56 0 S.W .3d 624 , 6 30 (Tex. 2018)

. “ Due p rocess compel s this
hei ghten ed standa r d because terminating the paren t

- ch il d re lationship i mposes permanen t, irrevocable consequences. ” In re J.A. J. , 24 3 S.W.3d at 61 6

. On appeal , w e apply a st an da rd
of revi ew that reflects this heig h te ned standard of proof

. S ee In re J .F.C. , 96 S.W.3d 256 , 264 (Tex. 2 002)

. W e are also m indful , however , that we must “ provide due deference to the
decisi ons o f the fac t finder , who, h aving fu ll op portunity to o b se rv e wi t nes s test imony f ir st

- hand,
is the sole arb it er when assessing the credibility a nd demeanor of the wit n ess es
. ” In r e A.B

. , 4 37 S .W.3d 498, 503 (Tex. 2014)

.

When e v aluating the legal suf fici en c y of the evidence , we c annot “ i gn ore undisputed evide nce c o ntr ar y to the fin din g , ” but must otherwise l oo k at the evidenc e in the light

most favo rable to the judg ment, w hi ch m eans w e m ust “ a ssume the fact finder resol ved disputed5

facts in favo r of the fi nding , ” In re A .C. , 560 S.W. 3d at 630

- 31 , and “ dis r egar d all e vidence tha t

a r easonable factfinder c ou ld have di sbel ie ved or fo und to hav e be en i ncredi ble , ” I n re J.F.C. , 96 S.W.3d a t 2 6 6

. “ Evi dence is le g ally suf fi cient if, vie wi ng all the evid e nc e in the l ight

mo st favorable to the fact

- fi nding a nd c on sideri ng und is p u ted contrary evid enc e, a reasonable
factfinder could have fo rmed a f i r m be lief or c on vic tion tha t the finding was true

. ” In re A

. C. , 560 S .W. 3d at 63 1 ; In re J.F.C. , 96 S .W.3d at 2 6 6

.

A fac t ual

- suf

fici ency rev iew , in contr a st, re q ui re s “weigh in g d is p u t ed evidence

contr ary to the finding against all the evidence fav o rin g the finding.” In re A .C. , 560 S.W.3d

at 631

. Th e re viewi n g court must co nsider “ whether disputed e vidence is such that a reasonable
f actfinder could not h a ve res o lv ed i t in f av or of the finding. ” Id. “Evid ence is f a ctually
insufficient i f, i n lig h t of the entire re cord , the di sp ute d ev idence a fact fi nder coul d not ha ve

cr e di ted in f

a vor of a findin g i s so si gnific a nt that the factfind er could not h ave for m ed a f i rm b e l ie f or c onv ic tion t hat the f i nding was true.” Id.

STATUT ORY GR O UNDS
A tria l court ma y order t er m ination o f th e paren t

- child re la tions h ip under

s ubse cti o n ( E) if clear and convi nc i n g evidence esta b lis hes that t he par e nt “engaged in conduc t

o r kno wingl y placed the c hi l d wi th p e rs ons who en ga ged i n conduct w hich end a ngers t he physi c al or e mo tional w e ll

- being of t he child.” Tex. Fam

. Code § 1 6 1.001 ( b )(1) (E)

. The f ocu s under subsect ion (E ) is on the p arent’s condu ct

— inc luding acts , om i ssio n s , o r failures to act

— and , m or e s pecifi c ally, whether evidence exists t hat t he ch ild ’s phys ica l or em o ti on a l wel l

- be ing

was en dan gered a s a d i re ct r es ult of the paren t ’s c ond uct. A.S. v. Texas Dep’t of Fa m
. &
P rot e c ti ve Se rvs. , 394 S .W.3d 70 3 , 711 ( Tex. App.

— E l P aso 2012 , no pet .)

. T ermina t io n6

under subsection (E) requires mo re th an a single a c t or omi ssio n ; ins tead , the ev idenc e
must d emo nst rat e a “v olun t ary, deliberate, a n d consci o us cours e of condu ct” by the pare n t.
In re M.L .L

. , 573 S

. W.3 d 353, 36 4 (T e x
. App.

— El P aso 20 19, no pe t.) ; In re M.E.

- M.N. , 342 S.W .3d 254 , 2 62 (T ex. A p p
. — Fort Wort h 2011, p et. de n ied )

. Further, in e valuating whether

t he evide n ce supports a finding of e ndangerment under subsectio n ( E ) , the factfinder may
consider conduct that occurred both be f ore and a fte r the child was born, including conduct that
occurred after the child w as removed from he r parent ’ s custody

. M .D. v. Texas D e

p ’t of Fam. &
Protective Servs

. , No. 03

- 20

- 00531

- CV, 2 021 Tex. App. LEXIS 3310, at *16 (Tex. App.

— Austin Apr. 30, 202 1, no pet. ) ( mem. op.) ( citin g In re J.O

. A ., 283 S.W.3d 336, 345 (Tex. 2 009) ;
In re S.R ., 45 2 S

. W. 3d 35 1, 3 60 ( T ex. A pp
. — Hou ston [ 14t h D i s t .] 2014 , pet

. den ied ) )

.

I n this context, a c hi ld is “en da n ge red ” if the child is e xposed to l oss or injury

or if her emotio nal or physical healt h is jeop ardiz ed. A.S. , 394 S .W.3d at 711

. Although

e nd ang e r m ent mea ns “mor e t h a n a thr eat of m et aphysica l inju ry or the poss i b le ill effects of a
less

- than

- id eal f

a mi ly e nvi ro nment , ” Te xas D ep ’ t of Hum an S erv s . v. Boyd , 727 S.W

. 2d 5 31, 533 (Tex. 1 987) , it is not necessary to show t ha t the conduct was dire cted at the chi ld or that the chil d

a c t ually s uf

fe r ed i njury , In re S.R ., 45 2 S

. W. 3d at 360

. M oreover, t h e specif ic dan ger to the
child ’ s well

- being may be i nferred from parental m i scon duct alone

. Boyd , 7 27 S .W.2d at 533 ;
A .C. v. Texas Dep ’ t of Fam. & Pr otective Servs

. , 577 S.W.3d 689, 6 9 9 (Tex. A pp
. — Austin 2019, pet. denied)

. As a gene ral ru le, conduct that sub jec t s a child to a life of uncertainty and
instabil i ty enda n gers t he ph ysic al and em otional well

- being of a chil d. In re J

. O.A. , 2 83 S.W.3d

at 336

. Th e failure to provide or obtain appropri ate m edi c al care for a child can constitute endangering conduct un der subsection (E)

. In re J.D.G. , 570 S.W.3d 839, 85 2 (Tex. App.

— Hous ton [ 1st Dist. ] 2018, pet. denied )

. In addition , a p a r ent ’ s drug use m ay suppo r t termi n a tion7

un der s ubsecti on (E) b ec au se it e x p oses the chi ld to t he possibi li ty that the parent may be impaired or i m prisoned

. In re J

. O.A. , 2 83 S.W.3d at 34 5 ; M.D

. , 2021 T ex. App. LEXIS 3310 ,
at * 25 ; W alke r v. T exas Dep ’ t of F

am. & Pro t ective S ervs. , 3 12 S.W.3 d 608, 617 (Tex. A p p.

— Houst o n [ 1st D ist

. ] 2 009, pet. denie d ).

DIS CUSSION

On app eal, Mothe r asserts that the d i st ri ct cou rt ’ s finding of endangering c onduct
must b e reve rsed b ecause sub s ection (E) require s proof of en dangermen t a nd that the Dep a rtment failed to present any ev idence that the children were enda nger e d as a direct result of her conduct

. S ee A.S

. , 394 S.W.3d at 71 1

. Mothe r points out that the Departmen t ’ s evi dence primarily

con ce r ned co nduct that occurred a fter the chi ldren w ere re mo ved from her c ustody and care in Augu st 20 17

. Consequently, i n Mother ’ s view , th e evidence is legally and factually i nsufficient to support the trial c ourt ’ s findi ng becaus e “ the Department did not even at tempt to s how any
causal con nection ” be tween her conduct and any “ actual har m to the ch ildre n
. ”

In support of her argum ent , Mothe r relies on a n opinion from the F our t eenth
C ourt of A ppeals , In re L.C. L. , 599 S. W

. 3 d 79 (Te x. App.

— Houston [1 4th Dist.] 20 20, p et

. denied) (en banc)

. In th at case, one of the issues befor e our sister court was w heth er i t could uphold the trial court ’ s en dangerment findings under subsection s (D) an d (E) based solely on

e vide nce that the p arent h ad “ tes t ed positive for drugs both init ially and through out the
proc eedings , ” des pite the absence of any evidence “ conne cting [t h e parent ’ s ] positive drug test

to a ny activity that end angered her chil d ren. ” Id. at 84

. In conclud ing t hat it c ould not , the cour t of appeals noted its ear lier case s holding that a parent ’ s enda ngering condu ct need not be
direct ed at the child or caus e ac tual injury or th reat of injury and that subse ction (E) “ does not8

require a causal connection be tween th e pa rent ’ s mis cond uct and ac tual harm to the c hild

res ulting f

rom that mi sconduct. ” Id. at 85

. However , t h e cou rt of appeals went on to sta te , “ a
p lai n r eading of the statute i tself does not support this interpre t ation, ” a nd the “ Famil y Code

e xpre ssly contemp lates use of a c o ntroll ed substance by a parent ‘ in a manner that end angered
the health and safety of the child. ’ ” Id. (qu oting Tex. Fa m. Code § 1 61.001(b)(1)(P) ). The co urt of appeals then rejected what it characteri z ed as the dissent’s “absurd conclu sion”

— that “ a
pare nt ’s dr ug use alone, without proof of any causal connection to endangering their c hildren’s welfare, is enough to justif y term in ati ng a parent

- child relation ship.” Id . at 86

. The court of appeals deter m ined that , instead, a “ plain langu age reading of the statut e requ i re s a causal

conne ction b e tween [ a parent ’ s] drug use and the allege d endangerment. ” 4 Id. at 84

. B ecause the D ep art ment had faile d to “ prove a causal l in k be tween Mo t her ’ s dru g use and th e alleged endang erment , ” our sister court held that t he evid ence was legally insuffic i ent to support

ter mination of the mot her ’ s parental rights under subsections (D) and ( E )

. Id. at 8 6

.

Although we ag ree that “ a finding of endangerment based on d r ug use alon e is not

aut omatic, ” se e In re C.V

. L , 591 S.W.3 d 734, 75 1 (Tex. App.

— Dall a s 2019, pet. denie d) , t o the

exten t the court in L.C.L

. held , as Mother c ontends, that direct ev id enc e i s required to show a
causal l ink between drug use and enda ngerment , we disagree

. See M.D. , 2021 WL 1 70 4258,

at *8 (hold ing t hat dru g use and drug

- related criminal activity may support termination under

4 Several other c ourts of ap peals have since cited L .C .L. for the proposition that a fin ding of end ange r me nt requires evidence of a causal connecti on betwe e n the parent ’ s dr ug use and some other enda ngering conduct

. In re C.L.E. E.G ., No. 13

- 20

- 00387

- C V, 20 21 Tex. App. LEX IS 917 , at * 20 (Tex. App.

— Corpus Christi

- Edinburg Feb. 4, 2021, no pet. ) (mem. op.) ( co ncluding tha t evidence w as le gally ins uffi cient “ w h en the re is no ev idence of a causal connection between the parent ’ s drug use and enda ngering condu ct ” ) ; see also In re C.R. , No s. 0 7

- 20

- 003 14

- CV , 07

- 20

- 003 16

- CV, 2021 Tex. App . LEXIS 1286, at *7

- 8 (Tex. Ap p.

— Amarillo F eb. 23, 2021, pet. denied ) (me m . op. ) ( “ Ev i dence of drug use on its own is not suff icient t o show end angermen t unle ss it is ca usally connected to con duct endangering a c hild. ” )

.9

subsection (E) “b ecause it exposes the chi ld to th e p ossibili ty that the parent may be impai red or
i m p r isoned,” and citing L.C.L. u nder “b u t see” signal); see also S.B. v. T exas Dep’t o

f Fam. &
Protective Servs. , No. 03

- 21

- 00191

- CV, 2021 Tex. App. LEXIS 7002 , at * 19 (Tex. App.

— Austin Aug. 2 5, 202 1, no pet .) (mem. op.) (noting that M. D. had cited L.C.L. under “but see” sig n a l and had not followed it); S .R. v. T exas Dep’t of Fam. & Protect ive Se rvs. , No. 03

- 21

- 00142

- CV, 2021 Tex. App. LEXIS 6392 , at * 12 n.3 (Tex. App.

— Austin Aug. 6, 2021, no pet.) (mem. op.) ( same).

Enda ngerment do e s not have t o be established as an i ndepend ent propos i tion
bu t ma y instea d be inferred from pare ntal m i scond u c t

. Bo y d , 727 S.W .2d 531 , 533 ; A.C

. , 577 S. W .3d at 699

. As a result, a court ’s consid er ation of allegations of en d ange rment is a fac t

intensive process and depends on the specific cir cumstances of the ca s e
. I n so me cir cums tances , a p aren t ’ s drug use mig ht be so pervasive or serious that t h e factfinder could reasonably infer
tha t th e drug us e is end angering , despi te a lac k of evidence sh owing that the drug use c a used
some other enda ngeri ng ac tivit y or even tha t the drug use occurred while the c hil dren wer e in the parent ’s direct ca re
. S ee , e.g. , S.G. v. Tex as Dep ’ t of Fam . & Protecti ve S ervs. , No. 03

- 21

- 00085

- CV, 2021 T ex . App. LEXIS 638 4, at * 38 ( Tex. Ap p.

— Austi n A u g . 6, 20 21 , no pet. ) (mem. op.) (n ot in g that “ Father ’ s continuing to test posit ive for i ll e gal drugs duri ng t he first year of the cas e supported a finding by t he distri ct court that Father ’ s illegal drug use ha d been an

on goin g habit tha t creat ed an en dang e ring en v ironment for the c hildren e ve n befo r e Child 3
had been in

jured ” ) ; In r e M

. A .J. , 6 1 2 S. W.3d 398 , 407

- 408 (T e x. App.

— Houst on [ 1st Dist. ] 2020, pet. deni ed ) (concluding that evidence of pos itive drugs t es ts after D epartm ent recei ve d
referral that p arent used narco ti cs was sufficient t o support findi n g of endangerment under

su bsect ion (E) )

. In a ddition , t his and num erous other courts of appeals have reco gnized that a10

parent ’ s dec i s ion to use il legal dru g s whil e th e termin ation suit is pending , and th e p aren t is a t
ris k of lo sin g her child, ma y suppor t a fin di ng of endangering cond u ct under subse c tion (E)

. 5
See , e.g. , S.R. , 2021 Tex. App. LEXIS 6392, at *3

- 4 ; In re C .V

. L , 591 S.W.3d at 751 ; In re J.S ., 584 S.W. 3d 622 , 636 (Tex. App.

— H ouston [ 1st Dist.] 2 01 9, no pet. ) ; In re S.R ., 452 S.W.3d

at 361

- 62 ; In re M.E.

- M. N

. , 342 S. W .3d at 263 ; see al so In re L.C .L

. , 599 S.W.3d at 96

- 97 (Wise, J., disse nting) ( c ollecting au th or i t ies and notin g that majority had “ ove rr ul e [d] almost a decade of au thorit y from [t hat] cou r t ” and created co n fli ct with other courts of appeals )

. This is
because a par en t ’ s ongoing drug use j eo pardizes the pa rent

- child rel a tionship and subjects th e ch ild to a life of unce rtainty and instabil i ty

. See I n re M.T. , No s. 0 5

- 20

- 0 0450

- CV , 05

- 20

- 00 4 51

- CV, 2020 Tex. App. LEXIS 7956 , at *1 6 (Tex. App

. — Dallas Oct. 5, 2020, no pet. ) (me m. op.) ( “ Mo ther ’ s c ontinued drug use during the p endency of t his case end ange red the
children ’ s well

- being by prolo ngi ng and exa cer bat ing the chi ldr e n ’ s instabil ity. ” ).
At t he de novo heari ng , th e D epartment off ered and the distr ict cou r t ad mitt ed
i nto e vidence the removal affidavi t from Blanks , photos of D. A.H. ’ s infected foot , Mother ’ s fami ly

- s ervice plan , t he r esul ts o f drug t est s s u bmitted by Mothe r during the pen d e n cy of the
suit , and the res ults from a home stud y condu ct ed on Mother ’ s m othe r. In ad dition, the court
heard testim on y from Depart ment caseworker Jocelyn Holdbur g and f rom Mother.

5 In an opinion concurring with the Texas Supreme Court ’ s de cisi on to deny t h e Department ’ s petition for rev iew in L.C.L

. , Justice Leh rman n noted th a t there is “ an ap parent confl ict amo ng the courts of appeals regarding the conne ction between dr ug use a n d end a ngerment

. ” In re L.C.L ., __ S.W. 3d __, N o. 20

- 0432, 20 21 W L 2603699, a t *2 (Tex. June 25, 2021) (Leh r mann, J., con curring). She also n oted tha t the Fou rteenth C ourt of A pp eals ’ s positi on that “ mere d rug use ” cannot support a n end angerment f ind ing w a s akin to a position recentl y taken by a parent who argued th at h is parental r ights had been impermiss ibly terminated due to “ mere imprisonment

. ” Id. (citing In re J. F.

- G

. , 627 S.W. 3d 304, 316 (Tex. 2021) )

. As Justi c e Leh r ma nn explained , the Tex as Supreme Court rejected the pa rent ’ s appellate argument in that case , a nd “

just as imprisonment cannot be viewed in a vac uum, ne ither can a paren t ’ s drug use. ” Id . at *5

.11 H oldburg testified that a t the time the Department soug ht remova l , it was

conce r ned about Mother ’ s “ ongoing drug use and m ental health ” based on the fa ct that “ drug use [was] something that had caused the children to not be reunified du ring the 20 17 C or ye l l cas e
. ”
Accor ding to H oldburg ’ s testi mony , Mothe r ’ s f amily

- ser vi c e plan requi r ed her to submit to drug

tes ts ; the Department informed Mother that a m issed test w ould be con sidered a positive test;
Moth er fai led to s ubmit to approxima t ely f ifty d r ug test s ; and Mother test ed pos i tive for
metham phetamine o n fiv e te sts, the only dr ug tes t s t ha t she su b mitted to dur ing the eight e en
month case
. In addition, shor t ly b efore th e final hearing, Mot her reque sted t hat she be allowed

t o take a hai r
- foll ic le test to d emonstrate that she had no t being usi ng drugs . Al thoug h the
reque st was ap proved , Mo th er failed to app ear for the hair

- fo llicle test. Holdburg also t esti f i ed

t hat Moth e r was required under her family

- serv i ce plan to at tend therapy but w a s

“ unsuccessfully ” di scharged from ther a py a fte r six mon th s , due to a repor te d lack of progress , and that Mot her f

ail ed to r e cei ve outpatient treatment services for her drug u s e , as re comm e nded by her O utr each Screeni ng Ass e ssment Referral (O SAR)

.

In ad dition, caseworker Ho ldburg testified t h at th e Dep artmen t was conce r ned
th at Mother had f

ailed to seek me dical c a re for D.A.H. Holdburg testified that when the Departm ent rec ei v ed the hos pi tal ’ s report of suspe cted medical neglect , Mother had been visiting
the c hildren on weekend s and that she would have seen the severit y and worse ning of D.A.H. ’ s f oot during those visit s but did not take D.A.H. to the ho spital

. Holdbu rg admitte d that she was not sure of the specific dates that Mother had visite d with D.A.H . but explained that D.A.H. was
initia lly seen by the hospital fo r the in fection in May 2019 and that the infection had gotten much worse by th a t Septe mber. Holdburg testified that the Department investigator questio ned Mother
about her failure to seek me dical ca re for D.A.H. a nd that Mother ’ s response w as t hat the peo ple12

who w ere ca ring for D.A.H. “ were doing what they needed to do to care for her ” and that “ t hey
had given her instruc tio ns on how to care fo r the foot, and she felt like she was d oing what she

n eeded to do. ”
I n her testimon y, Mother ack nowle dged that s he mis sed a “ wh ole bunch ” of dr u g
tests but exp l ained that s h e did not hav e tr a nspor tatio n and that i f she had to walk to the testi ng sit e, it would take longer than an hour round trip

. Mother al so admitted t ha t she t est ed pos it ive
several time s during th e pend ency of t he c ase , includi n g on her la st d r ug test i n J u ne 2020 , when

s he teste d p os itive at a l evel 350 t imes the th reshold n ec essa ry for a p ositive methamphet amine
result

. Neve rtheless , ac cor ding to Mo th er ’ s te stimony, sh e had stopp ed us i ng drugs f our months
bef o re t he h ear ing a n d believed she c oul d re main sober a nd care f or her c hildren despi te n ot
havin g received any in

- pat ie nt or o ut

- patient rehabilitation treatment

. When as ked why she did not complete o ut patient r eh ab ili tation s ervic es , M other explain ed that Holdburg had sug gested
th a t she co mplete in p atie nt r ehabil ita t ion services instead an d tha t she was currentl y on a waiting
list for in patient reh abilita ti on and was still willing to go
. When asked why she did not show up for th e re cent hair

- follic l e t est tha t she had req ue sted, Mother expla i n ed th at she di d not kno w
t hat she o nly had a thr ee
- day tim efr ame to take the t est.

F inally, when questioned about D.A.H. ’ s infection , Mother ackn owledged that
she had see n D .A.H

. ’ s inj ur ies a few week s before she wa s hospitalized but did not report the inj uries because s he “ didn ’ t know that [she] had to , because they were ge tting care for it. ”
Mother explained that she found out about the inj uries when Father gave D.A.H. ’ s m edication t o her with direc tion s o n “ h ow t o apply the me dication and wrap the wound. ” According t o Mother, she was u nder th e im pressio n that D.A .H. was being taken to her appointments and that

“ she was getting t he proper m edication that sh e needed. ”13 Base d on this r ecord , we co n clu de th at t he un d isputed ev ide nce in t hi s case establishes that (1) durin g the pe ndency of this case , M ot her te st ed po sit ive for methamphetamin e five times and fail ed to submit to appr o ximately fift y drug test s ; (2) one drug test r evealed a le vel
of metha m ph etamine t hat th e Depa rtment consid ered “ ve ry concern ing ” ; ( 3 ) the c hildr en were initi ally r emoved fro m M other ’ s ca r e in 201 6 , after she threatened suici de ; (4 ) she ult imately l ost

c on servatorsh ip o f and access to her children in 201 7 ; an d (5 ) sh e had seen the infection on
D.A. H. ’ s foot just a few weeks before the Depart ment received the report from hospi t al staff. In addition, as sum i ng th at the distr ict co urt resolved disputed facts in favor of the finding of
enda ngerment and tha t it dis r ega rd ed all evide n ce that a reason abl e factfinder could have
disbeli eved , w e conclude that evidence al so shows that (1 ) the children w er e removed fr o m Mother ’ s care i n 2016 due, in part , to susp ected drug use; (2) d uring the p endency of this case , Moth er fail ed t o show for drug te sts because tho se results w ould ha ve be en positive ; ( 3 ) she
failed , without sufficie nt justifi cation, t o co mplete o u t p a tien t reh abil ita tion treat me nt ; ( 4 ) s he

was un succe ssfully discharged f rom the rapy due to lack of progr e ss ; and (5) she faile d, wi th out sufficient justification, to obtain medical treatment for D.A.H. ’ s injuries

. From this , the di strict

cou rt could hav e reasonabl y inferr ed th at Mother ha s a serious and on
- g oing problem with
meth amphetamine , which beg an bef ore t he chi ldren were re mov ed from her custody and
continued afterwards , an d th a t t his drug use je opardized her chil dren ’ s e moti onal or phy si cal
well

- b ein g
. In addition, the district court c ould have reasona bly determined that Mother neglected D.A.H. ’ s me dical needs.

Af te r conside ring all the evid ence in the light most favorable t o th e district cou rt ’ s finding , al o ng with any und isp uted evide nce contrary to the finding under su bsect ion (E) , we conclude that a r eason able f actfind er cou ld have formed a f irm belief or convi ction that M other14

en gaged in a cour se of conduct that endangered her children ’ s p hysic al or emotio nal well

- being

. S ee Tex. Fa m. Code § 161.001 (b)( 1 ) (E) ; In re A. C ., 5 60 S.W.3d at 631

. In additio n , in view
of the entire r ecord, we concl ude t hat the di sput ed evi dence is not so s igni fican t t hat t he
dis t rict court, as factf

inder, could n ot ha ve formed a firm belief or con vict ion that Mother
enga g ed in conduct endange ring to her children. See In re A.C ., 560 S.W.3d at 631

. Conseq uently , the e v idence is le gal ly and fac t ually sufficient to suppo rt the district court ’ s finding that termination of Mothe r ’ s parental right s was warran te d under subsection (E)

. We

over rule Mother ’ s iss ue on appeal.

CONCLUSION

W e affirm the district court ’ s de novo decree termina t ing Mother ’ s p are ntal ri ghts.

__________ ___________________________ _____ Char i L. Kelly , Justice
Befo re Chief Justice B yrne, Ju s tices Triana a n d Kelly Concurr ing Op inion by Justice Triana
Aff irmed
F i led : Nove mber 3, 2021