## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00089

- CV

IN THE INTEREST OF P.D.H., K.R.H., AND T.H., CHILDREN

On Appeal from the County Court at Law Lamar County, Texas Trial Court No. 91337

Before S tevens , C .J., van Cleef and Rambin , JJ. Memorandum Opinion by Chief Justice Stevens2 

### ME MORANDUM OPINION T he Department of Family and Protective Services filed a petition to terminate Mother’s parental rights to her children, Parker, Katie, and Ty
. 1 F ollowing a bench trial, the trial court terminated Mother’s parental rights after finding that (1) s he knowingly placed or allowed the children to remain in conditions or surroundings that endangered their physical or emotional well

- being, (2) she engaged in condu ct or knowingly placed the children with persons who engaged in conduct that endangered thei r physical or emotional well

- being, (3) she used a controlled substance and failed to either complete a substance abuse treatment program or used d rugs afte r comple ting the program , as described in Section 161.001(b)(1)( P ) of the Texas Family Code, (4) she was the cause of a child being born addicted to alcohol or drugs, as described in Section 161.001(b)(1)(R), and ( 5 ) termination of her parental rights was in t he
c hild ren’s best interests. See T EX . F AM . C ODE A NN . § 161.001 (b)(1)(D), (E), ( P ), (R), (b)(2) (Supp.). On appeal, Mother argues that the evidence is legally and factually insufficient to support the trial court’s findings that ther e were s t atutory grounds t o terminate her parental rights. Bec ause we find the evidence legally and factually sufficient to support the trial court’s fi nding of statutory grounds, we affirm the trial court’s judgment terminating Mother’s parental rights t o Parker , Katie, and Ty.

1 We use pseudonyms to protect the identi t ies of the children. See T EX . R
. A P P . P. 9.8.3

I. A Statutory Ground for Terminat ion of Mother’s Parental Rights is Supported by Legally and Factually Sufficient Evidence A. Standard of Review “The natural right existing between parents and their children is of constitution al dimen s ions.” In re E .J

.Z
. , 547 S.W.3d 339, 343 (Tex. App.

— Texarkana 2018, no pet.) (quoting Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a funda mental right to make decisions concerning ‘the care, custody, and control of thei r childr e n.’” I d. (quot in g Troxel v. Granville , 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates fundamental interests, a higher standard of p roof

— clear and convincing evidence

— is required at trial.” Id. (quoting In re A.B
. , 437 S
. W.3d 49 8, 502 ( Te x. 2014)). “ This Court is
. . . required to

‘ engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights. ’ ” Id. (quoting In re A.B. , 437 S.W.3d at 500 )
. “[I] nv oluntar y te rmination statutes are strictly construed in favor of the parent.” Id. (alteration in original) (quoting In re S.K.A. , 236 S.W.3d 875, 900 (Tex. App.

— Texarkana 2007, pet. denied) (quoting Holick , 685 S.W.2d at 20)). “In order to termi nate par ental rig ht s, the trial cou rt must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child[ren] ’s best interest.” Id. (citing T EX . F AM . C ODE A NN . § 1 61.001; In re E.N .C
. , 384 S.W.3d 79 6, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that ‘degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to t he truth of the allegations sought to be established.’” Id. (q uoting T E X . F AM . C ODE A NN .4

§ 1 01.007 (citing In re J.O.A. , 283 S.W.3d 336, 344 (Tex. 2009))). “This standard of proof necessarily affects our review of the evidence.” Id. “In our legal sufficiency review, we consider all the evidence in the ligh t most f avorable to t he fi ndings to determine whether the fact

- finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven.” In re L .E.S. , 471 S.W.3d 915, 920 (Tex. App.

— Texarkana 2015, no pet.) (citing In re J.P.B
. , 180 S
. W. 3 d 570, 573 (Tex . 2005) (per curiam); In re J.L.B. , 349 S.W.3d 836, 846 (Tex. App.

— Texarkana 2011, no pet.)). “We assume the trial court, acting as fact

- finder, r esolved disputed facts in favor of the finding, if a reasonable fact

- finde r could do so, a n d d i srega rded evid ence that the fact

- finder could have reasonably disbelieved or the credibility of which reasonably could be doubted.” Id . (citing In re J.P.B. , 18 0 S.W.3d at 573). “In our review of factual sufficiency, we give due con siderati on to ev i de n c e the trial
co urt could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006) (per curiam)). “We conside r only that evidence the fact

- finder reasonably could have found to be cle ar and c onvincin g a n d dete rmine ‘wh ether the evidence is such that a fact[

- ]finder could reasonably form a firm belief or conviction about the truth of the

. . . allegations.’” Id. ( alteration in original) (quoting In re H.R.M. , 209 S.W.3d at 108 (quoting In re C .H. , 89 S .W
. 3 d 17 , 25 (Tex. 2002 ))); see In re J.F.C
. , 9 6 S.W.3d 256, 264, 266 (Tex. 2002). “If, in light of the entire record, the disputed evidence that a reasonable fact [

- ] finder could not have credited in favor of the finding is so significant that a fac t [

- ] f i nde r co uld n ot reasonably have formed a firm belief o r conviction, then the evidence is factually insufficient.”5

Id. (quoting In re J.F.C. , 96 S.W.3d at 266). “‘[ I ]n making this determination,’ we m ust undertake ‘an exacting review of the entire r ecord w ith a h ealt hy regard for the constitutional interests at stake.’” Id. ( alteration in original) (quoting In re A.B. , 437 S.W.3d 498, 503 (Tex. 2014) (quoting In re C.H. , 89 S.W.3d at 26)). “We also recognize that the trial court, as the fact

finder , is t h e s o le arbi ter of a witness’ demeanor and credibility, and it may bel ieve all, part, or none of a witness’ testimony.” In re A.M. , No. 06

- 18

- 00012

- CV, 2018 WL 3077784, at *3 (Tex. App.

— Texarkana June 22, 2018, pet. denied) (mem. op.) (citing In re H.R.M. , 20 9 S. W.3d at 109). “Despite the profound constitutional interests a t stake i n a proceeding to terminate parental rights, ‘the rights of natural parents are not absolu te; protection of the child is paramount.’” In re L.E.S. , 471 S.W.3d at 920 (quo ting I n re A.V
. , 1 13 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T. , 872 S.W.2d 18 9, 195 (Tex. 1994))) (citing In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003)). “A child’s emo tional and physical interests must not be sacrificed merely to preserve parental rights
. ” I d. (quo ting In re C.A.J. , 459 S.W.3d 175, 179 (Tex. App.

— Texarkan a 2015, n o pet.) (citing In re C.H. , 89 S.W.3d at 26)). B. The Evidence at Trial Scottie Rhodes, a c onservatorship supervisor for the Department, testified that Mother had a “past CP S hist o ry ” wit h “p rior removals of her children.” In an affidavit submitted to and considered by the trial court, Mother admitted that she had lost her parental rig hts to other children.6

Rhodes said the Department became involved again after Ty was born prema t ur e ly and tested positive for amphetamine s and cocaine. Accord ing to Rhodes, Ty weighed 1.8 pounds at birth , experienced symptoms of drug withdrawal, and required much medical intervention. Rhodes testified that Mother “admitted to knowing th at she was p regna n t a nd making the choi ce to use illegal substances knowing that it would harm [Ty] ” and that she also “used illegal substances around . . . her older children.” Rhodes said that criminal charges were filed against Mother after Parker and Katie test ed pos i tiv e for “sign ificant levels” of drugs. Rhodes said that the Department provided Mother with a family service plan but that she was unable to complete individual counseling , maintain stable housing , or remain drug

- free
. According to Rhodes, Mo t her co n tin ued to test po sitive for drugs during the pendency of the
cas e , was jailed in March 2023 , 2 and received a sentence of twenty

- four months’ confinement for child endangerment
. She also said Mother failed to demonstrate that she co uld prov ide for th e ch ild ren. As a result , Rhodes believed that return ing the children to Mother would endanger the ir physical and emotional well

- being
. Rochelle Bass, the children’s Court Appointed Special Advo cate (CASA), testified that the c hildren were all doin g well w it h t heir foster placements and that terminating Mother’s parental rights was in the children’s best interests
. C. Sufficient Evidence Supports the Ground E Finding By her sole issu e, Mother assert s that the eviden ce is legally and factually in suff icient t o support the trial court’s findings under g rounds D, E, P, and R . “Only one predicate finding

2 Rhodes cla rif

i ed t hat Mother had over six months to work on her family service plan before being incarcerated.7

under Section 161.001[b](1) is necessary to support a judgment of termination when th ere is also a finding that termin ation is in the child[ren]’s b est inter es t .” Id. at 923 (quoting In re O.R.F. , 417 S.W.3d 24, 37 (Tex. App.

— Texarkana 2013, pet. denied) (quoting In re A.V. , 113 S.W.3d at 362) (citing In re K.W. , 335 S.W. 3d 767, 769 (Tex. App.

— Texarkana 2011, no pet.))). Even so, when the trial cour t’s findi ng s u nder g rounds D or E are challenged on appeal, due process demands that we review the evidence supporting the findings under at least one of those ground s. See In re N.G. , 577 S.W .3d 230, 237 (Tex. 2019) (per cur iam) (“We hold that due proces s an d du e c o ur se of law requirements mandate that an appellate court detail its analysis for an appeal of termination of parental rights under [S]ection 161.001(b)(1) (D) or (E) of the Family Co de.”). This is because terminati on of parental rights under th es e grou nds ma y implicate the parent’s parental rights to other children. Id. at 234; see T EX . F AM . C ODE A NN . § 161.001(b)(1)(M) (Supp.) (providing as a ground for t ermination of parental righ ts that the parent “had his or he r parent
- child relationship te rm in ated wi t h respect to another child based on a finding that the parent’s conduct was in violation of Paragraph (D) or (E)”). Ground E permits the termination of a parent’s parental rights “i f the court finds by clear and co nvincing evidence . . . that t he p aren t h a s . . . engaged in conduct . . . which endangers the physical or emotional well

- being of the child[ren].” T EX . F AM . C ODE A NN . § 161.001(b)(1)(E). Endang er “means more than a threa t of metaphysical injury or poten tial ill effects of a less

- tha n id eal fam i ly environment.” In re E.N.C. , 384 S.W.3d at 803. “‘ [ E ] ndanger’ means to expose to loss or injury; to jeopardize.” Tex. Dep’t of Hum
. Servs. v. Boyd , 72 7 S.W.2d 531, 533 (Tex. 1 987) ; In re N.S.G. , 235 S.W.3d 358, 367 (Tex. App.

— Texarkana 2007 , no p et. ) ; see In re8

L.E.S. , 471 S.W.3d at 9 23
. “It is not necessary that the conduct be directed at the child[ren] or that the child[ren] actually suffer injury.” In re L.E.S. , 471 S.W.3d at 923. Under g round “ (E) , it is suff icient that the chi ld[ren]’s wel l

- b e i ng is jeopardized or exposed to loss or injury.” Id. (citing Boyd , 727 S.W.2d at 533; In re N.S.G. , 235 S.W.3d at 367). “Further, termination under [ g round] (E) must be based on mor e than a single act or omission. I nstead, a ‘voluntar y, deliberate , an d co nscious course of conduct by the parent is required.’” Id. (quoting Perez v. Tex. Dep’t of Protective & Regul
. Servs. , 148 S.W.3d 427, 436 (Tex. App.

— E l Paso 2004, no pet.) (ci ting In re K.M.M. , 993 S.W.2d 225, 228 (Tex. App.

— Eas tland 1999, no p et .))) ; see Boyd , 727 S.W.2d at 533; In re N.S.G. , 235 S.W.3d at 366

– 67. Ground E “ refers only to the parent’s conduct, as evidenced not only by the parent’s acts , but also by the parent’ s omissions or failures to act. ’ ” I n re S.K. , 198 S. W.3d 899, 902 ( Te x . Ap p . — Dallas 2006, pet. denied); In re N.S.G. , 235 S.W.3d at 366

– 67. The endangering conduct may also occur “either before or after the child[ren]’s remova l by the Department.” I n re Z.J. , No. 02

- 19

- 00 118

- CV, 2019 WL 6205252, at *11 (T ex. App.

— Fort W ort h No v . 21, 2019, pet. denied) (mem. op.) (citing Walker v. Tex. Dep’t of Fam
. & Protective Servs. , 312 S.W.3d 608, 6 17 (Tex. App.

— Houston [1st Dist.] 20 09, pet. denied)).

“ ‘Because it exposes the child [ren] to the p ossibility that the p arent may be i mpaire d o r im prisoned, illegal drug use may support termination under’ Ground E.” In re H.M.J. , No. 06

- 18

- 00009

- CV, 2018 WL 3028980, at *5 (Tex. App.

— Texarkana June 19, 2018, no pet. ) (mem. op.) (quoting I

n re A.L. , No. 06

- 14

- 00050

- CV, 2014 WL 5204888, a t *7 (T ex. App
. — Texarkana Oct. 8, 2014, no pet.) (mem. op.) (quoting Walker , 312 S.W.3d at 617)). “Drug use and its effect9

on a parent’s life and [ her] ab ility to parent may es tablish an endangering course of condu ct.” Id. (quoting In re J.L.B. , 3 4 9 S.W. 3d at 8 48 ( quoting In re N.S.G
. , 235 S.W.3d at 368)); In re J.O.A. , 283 S.W.3d 336, 345 n.4 (Tex. 2009); In re S .N. , 272 S.W.3d 45, 52 (Tex. App.

— Waco 2008 , no pet.) (“Evid ence of illegal drug use or alcohol abuse by a parent is often c ited as conduc t whic h w ill sup p ort an affirmative finding that the parent has engaged in a course of conduct which has the effect of endangering the child .”). In our analysis under g round E, we may also consider a parent’s fai lure to complete relevant re quirement s of a fami ly s erv ice p lan. In re Z.J. , 2019 WL 6205252, at *11; In re U.H.R. , No. 07

- 18

- 00318

- CV, 2019 WL 81874, at *5 (Te x. App.

— Amarillo Jan. 2, 2019, no pet.) (me m. op.). Here, c lear and convincing evidence suppor ted the trial court’s conclu sion that Mother eng aged in an e ndangering course of conduct. The evidence showed that Mother had previously lost her parental right s to her other children, ex posed Parker and Kati e to drugs, and u sed amphetamine and cocaine while p regnant with Ty in spite of the phys ical risks to hi m. Ev e n while faced with termination of her parental rights, Mother continued to use drugs during the pendency of the case. “A p arent’s failure to re main drug

- free wh ile under the Department’s supervis ion will support a finding o f endang ering condu ct un der [ g r o und ] (E)
. . . .” In re H.M.J. , 2018 WL 3028980, at *5 (quoting In re J.A.W. , No. 02

- 08

- 215

- CV, 2009 WL 579287, at *4 (Tex . App.

— Fort Worth Mar
. 5, 2009, no pet .) ( per curiam) (mem. op.) (citing Vasquez v. Tex. Dep’t of Protective & Regul
. Ser vs. , 19 0 S. W .3d 189, 196 (Tex. App.

— Houston [1st Dist.] 2005, pet. denied)). Mother also failed to complete her family service pla n and was jailed for child endangerme nt, which exposed the children to t he loss of a parent f or twenty
- four months.10

F rom t he above

- rec i ted evidence, we conclude that the record firmly established that Mother engaged in a course of conduct that endangere d the children’s phys ical and emotiona l
we ll

- being. As a result, we find that legally and fac tually sufficie nt evidence supp ort ed th e tr i al court’s finding under g round E. Since there was sufficient evidence supporting the trial court’s finding under g r ound E, we need not r eview its finding s un der g rounds D, P, and R
. See J .T. v. Tex. Dep’t of Fam
. & Prote ctive Servs. , No. 0 3

- 2 1

- 000 7 0

- C V , 2021 WL 2672055, at *9 (Tex. App.

— Austin June 30, 2021, no pet.) (mem. op.); In re M.F. , No. 14

- 19

- 00964

- CV, 2020 WL 2832166, at *8 (T ex. App.

— Houston [ 14th Dist.] May 28, 2020, pet. deni ed) (mem. op.). We overrule Mother ’s sole poin t of er

ror . I I . C o nclusion We affirm the trial court’s judgment.

Scott E. Stevens Chief Justice Date Submitted: February 2 , 202 4 Date Decided: Febr uary 5 , 2024