Opinion filed January 31, 2019

In The

Eleventh Court of Appeals __________

No. 11-18-00207-CV

__________

IN THE INTEREST OF J.W.M., JR., A CHILD

On Appeal from the 446th District Court

Ector County, Texas

Trial Court Cause No. E-17-065-PC

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

This is an appeal from an order in which the trial court terminated the parental 

rights of the mother and father of J.W.M., Jr. The father filed a notice of appeal. In 

eight issues on appeal, he challenges the legal and factual sufficiency of the 

evidence. We affirm.

The termination of parental rights must be supported by clear and convincing 

evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). 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. 
2

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 against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 

2002). To terminate parental rights, it must be shown by clear and convincing 

evidence that the parent 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. FAM. 

§ 161.001(b). 

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-exhaustive 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 emotional 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. 

In this case, the trial court found that Appellant had committed three of the 

acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), and (O). 

Specifically, the trial court found that Appellant had knowingly placed or knowingly 

allowed the child to remain in conditions or surroundings that endangered the child’s 
3

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 physical or emotional well-being; and that Appellant had failed to comply 

with the provisions of a court order that specifically established the actions necessary 

for him to obtain the return of the child, who had been in the managing 

conservatorship of the Department of Family and Protective Services for not less 

than nine months as a result of the child’s removal from Appellant for abuse or 

neglect. 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.

Appellant contends on appeal that the evidence is legally and factually insufficient 

to support the trial court’s findings with respect to the child’s best interest and 

subsections (D), (E), and (O). 

The record shows that the Department first became involved with J.W.M., Jr.

when he was six months old. The Department had received a report of neglectful 

supervision by the parents and sent an investigator to locate the family. The 

investigator did not locate them until the next day; they were at the mother’s 

grandmother’s residence. Law enforcement were present at that time; they had 

received a call about two individuals “hopping” fences with a baby. According to 

the investigator, Appellant “seemed really anxious”; he “kept looking around and 

kept moving” and appeared to be “under the influence.”

Appellant told the investigator that his probation was going to be revoked 

soon. The Department presented evidence that Appellant was a convicted sex 

offender based on his relationship with the mother when she was fifteen years old 

and he was twenty-eight years old. The child’s mother indicated that Appellant’s 

probation was being revoked because he had tested positive for methamphetamine 

and had not been compliant in several months. Appellant’s probation officer 
4

confirmed that Appellant had “failed a plethora of drug tests.” The record reflects 

that both parents were addicted to methamphetamine.

According to the child’s mother, she, Appellant, and the child were living in 

a van. The investigator testified that the van contained pillows, sheets, and clothes 

but that it did not contain an appropriate place for a baby to sleep or any food or 

formula for a baby, although she did find an empty can of formula. After the child’s 

mother admitted that she had smoked methamphetamine that day, the Department 

attempted to initiate a safety plan; however, Appellant’s actions and his adamance 

about his right to see the child resulted in a removal instead of a safety plan. 

Although the child appeared to be happy and healthy at that time, removal was 

necessitated by the parents’ drug use, the family’s living conditions, and the parents’ 

refusal to cooperate with a safety plan. The child was placed with a foster family,

and the parents were ordered to comply with the terms of their family service plan. 

The child was subsequently placed with a paternal aunt and uncle, but that placement 

failed due to marital issues between the aunt and uncle. When the aunt informed the 

Department that neither she nor the uncle could continue as a placement for the child, 

the child was returned to the foster parents with whom he had originally been placed.

A conservatorship caseworker for the Department testified that she had been 

involved in this case since the adversary hearing. She testified that, at a visitation 

early on in this case, the parents brought chocolate doughnuts and sweet tea for the 

child. The caseworker, on multiple occasions, had to explain to the parents what

type of food was appropriate for a six-month-old child.

About two months after the removal, Appellant was arrested for evading arrest 

and for not complying with the requirements of his sex-offender registration. 

Appellant completed the parenting packets and a psychological evaluation while he 

was in jail. He remained incarcerated at the time of the final hearing on termination. 
5

The testimony at that hearing indicated that Appellant would remain incarcerated for 

the foreseeable future. 

The caseworker testified that the child bonded quickly with the foster parents. 

She also indicated that the foster parents provided the child with an appropriate home 

and tended to all of his medical needs, including taking him to a specialist to obtain 

a corrective helmet that the child had to wear for six to nine months, twenty-three 

hours per day. The foster mother testified that the child had bonded with everyone 

in her family and that she and her husband would like to adopt the child. The 

Department’s plan for the child was termination of the parents’ parental rights and 

adoption by the child’s foster parents.

The month before the final hearing, the child’s mother indicated that she 

wanted to relinquish her parental rights because she could not provide for him and 

because relinquishment would be in the child’s best interest. We note that the mother 

did not follow through with the paperwork to relinquish her parental rights. The 

caseworker testified that termination of both parents’ parental rights would be in the 

child’s best interest. The child’s attorney/guardian ad litem agreed with the 

Department that termination was appropriate.

In his fifth and sixth issues, Appellant challenges the legal and factual

sufficiency of the evidence to support the finding made by the trial court pursuant to 

subsection (E) of Section 161.001(b)(1). 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, including acts, omissions, or failures to act. In 

re D.O., 338 S.W.3d 29, 33 (Tex. App.—Eastland 2011, no pet.). Additionally, 

termination 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 
6

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.

Here, the record contains clear and convincing evidence that both parents had 

engaged in drug use while the child was in their care and had failed to provide a safe 

environment for the child. The trial court could reasonably have formed a firm belief 

or conviction that Appellant’s actions—a continued course of conduct that included 

methamphetamine use, other violations of his probation, and failing to register as a 

sex offender—had endangered the child. The evidence supports the trial court’s 

finding that Appellant endangered the child’s physical or emotional well-being. 

Consequently, we hold that the evidence is legally and factually sufficient to support 

the trial court’s finding under Section 161.001(b)(1)(E). We overrule Appellant’s 

fifth and sixth issues. 

Because a finding that a parent committed one of the acts listed in 

Section 161.001(b)(1)(A)–(U) is all that is required and because we have held that

the evidence is sufficient to support the trial court’s findings under subsection (E), 

we need not address Appellant’s third, fourth, seventh, and eighth issues in which he

challenges the findings made pursuant to subsections (D) and (O). See TEX. R.

APP. P. 47.1. 

In Appellant’s first and second issues, he challenges the legal and factual 

sufficiency of the evidence to support the finding that termination of his parental

rights would be in the best interest of the child. We hold that, based on clear and 

convincing evidence presented at trial and the Holley factors, the trial court could 

reasonably have formed a firm belief or conviction that termination of Appellant’s 

parental rights would be in the best interest of the child. See Holley, 544 S.W.2d at 

371–72. Upon considering the record as it relates to the desires of the child, the 

emotional and physical needs of the child now and in the future, the emotional and 
7

physical danger to the child now and in the future, the parental abilities of Appellant

and the foster parents that wish to adopt the child, the plans for the child by the 

Department, Appellant’s incarceration, Appellant’s inability to provide a safe and 

stable home for the child, the stability of the foster parents’ home, Appellant’s 

criminal history, and Appellant’s drug use, we hold that the evidence is sufficient to 

support the finding that termination of Appellant’s parental rights is in the best 

interest of the child. See id. We overrule Appellant’s first and second issues. 

We affirm the trial court’s order of termination. 

JIM R. WRIGHT

SENIOR CHIEF JUSTICE

January 31, 2019

Panel consists of: Bailey, C.J., 

Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

 1

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

sitting by assignment.