## In the Court of Appeals Secon d Appellate District of Texas

at Fort Worth

______________

_____________ No. 02

- 21

- 00185

- CV

___________________________

On Appeal from the 367th District Court Denton County, Texas Trial Court No. 17

- 7206

- 367

Before Bassel, Womack, and Walker, JJ. Memorandum Opinion by J ustice Wal ker 

### I N THE 

### I NTEREST OF 

### M.M. AND 

### E.L., C HILDREN2 MEMORANDUM OPINION
A f ter a bench trial, the tria l cou rt termi nated Moth er ’ s 1 parental rig hts to M.M. ( Ann ) and E.L. (

Beth )

. Mother asserts th ree issues: (1) t he trial court erred by

c ons ider ing Mother ’ s testimony ab out violating certai n court orders bec ause there

were no such orders ; (2) the evidence i s legally and factually insufficient to support the five gro unds of termination ; an d (3) the evidence is legally and fac tually insufficient to support the trial court ’ s best

- interest fi ndi ng. We hold that (1) the trial court did not err by considering Mother ’ s testimony, (2) t he evidence is legall y and factually
suffi cient to sup port grounds under Subs ection 16 1.001(b)(1)(E) of the Texas Family
Code and thus that addressing the rem aining grounds is not nece ssary, and (3) the evidence is legally and factually suffic ient to support the trial court ’ s best

- interest finding under Su bsection 161.001(b)(2)

. S ee Tex. F am. Co de Ann. § 161.001(b )(1) (E) , (b)(2). W e affirm the trial court ’ s judgm ent.

I. P ROCEDU RAL BA CKGROUND In August 2017, the Texas De partment of F amily and Protective Services filed
a pe tition to te rminate M other ’ s an d Father ’ s parental rights t o Ann

. I n Au gust 2018 , Matern al Aunt , the person with whom the De partme nt had placed Ann , filed a n interve nt ion petition seeking her appointment as Ann ’ s sole managing conservator

.

1 We use alias es t o iden tify the c hild ren , and we id entify family members by t h eir relat ion t o t h e ch ild ren . See Tex. Fam. C o d e An n. § 109.002(d); Tex. R. Ap p. P. 9.8 (b)(2).3

T his suit ended on January 9, 2019 , with an agr eed o rder invo lv ing Moth er, Father,
P a ternal G randpar ents, and Maternal Aunt

. Maternal Aunt be came Ann ’ s non par ent permanent managin g conservator , while Mother and Father became her posse ssory

conserva tors
. While An n ’ s su

it was pending, in May 2018 , the Depart ment filed a separate
pe titi o n to terminate Mother ’ s and the alleged father ’ s parental rights to Beth

. 2 This

s u it ended in Ma y 2019 with the par ental rights of Beth ’ s all eged f ather being
termin ated and, in a n agreed order, with Maternal Aunt being appoin ted as Beth ’ s

non parent perman ent managing conservator and Mother b eing appoin ted a s Beth ’ s poss e sso ry conservator. There aft er, in Marc h 20 20 , the trial court con s olidated Ann ’ s and Beth ’ s suits
under Ann ’ s c ause nu mber.
A fe w months later, in N ovember 2020, Maternal Aunt filed a pet i ti on to

te rmi nate Mother ’ s pa r ent a l r ights to both Ann and Beth

. Af ter a bench trial in
Marc h 2021, the t ria l court terminated Mother ’ s par ental rights to both Ann and Beth

. Specifically, the trial court found g rounds under Subse ctions 161 .001(b)(1)(C), ( D), ( E ), (F), and (P ) and best interest under Subsection 161.002(b)(2). See Tex. F am. Co de Ann. § 161.001(b )(1)(C), (D), (E), (F), (P), (b)(2).

2 The petition initially a lleged two men as potentially being Beth ’ s father , one of wh ich was Ann ’ s fa ther , but the Department l a ter nonsuited him , leaving only one all e g ed father for Beth

. Beth ’ s alle ged father is not pertinent to th e remainder of the op i nion. All referenc es to Father are to Ann ’ s father.4 II. DISPUTED EVIDENCE
In Mother ’ s first issue, she a rgues t hat “ the Court improperly conside red that [ M o ther] violated court orders , and yet no such in junctions against [Mo t her] were ever ordered by th e Court; accordingly, the evidence is lega lly insufficient to justify the Court’s order termin ating [Mother ’ s] par ental rights and [the trial court ’ s relia n ce on such ev i dence ] amo unts to a vio lati on of Due Process un der the Texas Cons tit u tion. ” At trial, Mother adm itted violating the trial court ’ s orders by allowing Father and Paternal Grandparents to have contact with the children. On appeal, Mother argues
th at there was no order prohibiting her from engaging in such conduct and that the
trial court ’ s r eliance on Mother ’ s mistaken trial testimony e r roneous ly skewed the
factua l analys is a gainst her. Mother ’ s first appellate issue thus seems to contr a di ct her

own testimony . To put Mother ’ s trial testimony a nd her appellate issue i n context requires some expla nation

.

A. T HE J ANUARY 2019 A GREED O RDER According to the January 2019 agre ed o r der involving Ann ,

• F ather was not to have any access or possession until at least 90 days after he w as released from prison and, even t hen, only if he pr oduced two drug

free te s t s 90 days apart ; and

• P ater nal G randpa r ents were to have access “ on days and times as agreed by [ Maternal Aunt

] and [ P at erna l G randpar ents ]

. ” Additionally, P a ternal G randparents were required to “ provide not ice to [ Maternal Aunt

] o f int ent to e x ercise access at least seven (7) days in advance. ”5

Thus, a lthough the trial court did not enjo in Mothe r from giving F a ther or Paternal
Grand parents access to Ann , the a greed o rder forbad e F a ther from ha ving acc ess to Ann whil e h e wa s in pri son , and it contemplated Paternal G ran dpar ents having access

to An n only with Maternal Aunt ’ s agreement and after havin g giv en Maternal Aunt
advance notice

. With that understanding of the court order, Mother ’ s testimony show ed t ha t she allowed (1) F ather to speak wi th Ann over the telepho ne while he was in pri son

a nd ( 2) Paternal G ran d pa r e nts to see Ann without Maternal Aunt ’ s knowledge.
Mother appeared to ackno wledge knowi ng that F at her was not supposed to hav e

access to Ann but denied knowing that Pater nal G randpare nts were n ot supposed to have access to A nn without Maternal Aunt ’ s agreement until after Mother had already
facili tated vis its between Paternal G randparents and Ann

— or as Mother stated i t,

“ until after the fact. ” Technically, Mo ther was not violat ing th e January 2019 a greed

o rd er, bu t she was facilitating F ath er and Paternal G randpar ents to violate it

. On recross examination, Mother ’ s atto rney pr ompted Mother to provide

test imony minimiz ing the exten t to which she allowed Father to have contact with
Ann. Specifically, Mother te stif ied that she limited Father ’ s telephone contact with
Ann to two instances

— once in December 2020 and once in Ju ne or August 202 0.
Maternal Aunt , when tes tifying, also a ddressed Mother ’ s pa rt in helping Fath er and P at ernal Grand parents vi olat e the agreed order . Mother ’ s inability to follow court6

orders c oncerned Maternal Aunt and cause d Maternal Aunt to question wh ether
M o ther had acted in the childr en ’ s best interest

. B
. D IS C USSION Mother ’ s argu ment that the trial court er r ed by c on sidering admitt ed evidence
do es not comp ort w

it h any objection at trial. N eith er Mother nor her counsel argued
at trial that her conduct did n ot violate the agree d order ; just the op pos ite, t he
substance of M other ’ s testimony was that s h e partic i pat ed in help ing F a ther ’ s and
Patern al Grandparents ’ violat ions of the agreed order , an d our review of the agreed
order sho ws that Mother had correctly concluded th at she had done just that. There

wa s no trial objection on this basis because there was no ba s is to raise this objection.
The com plaint on appeal must comport wi th the o bject io n a t trial

. See Banda v . Garcia , 955 S.W.2d 270, 272 (Tex . 1997); In re C.P.V .Y. , 315 S.W.3d 260, 269 (Tex. App.

— Be aumont 2010, no pet.) ; In re W.J.H. , 111 S.W.3d 70 7 , 7 13

– 14 (Tex. App.

— For t Worth 2003, pet. denied) , superseded by statut e o n other groun ds as recognized by In re D.A.R. , 201 S.W.3d 229, 230

– 31 (Tex. App.

— Fort Worth 2 006, no pet.)

. The trial court did n ot err by cons idering the disputed t estimony. We ove r ru l e Mother ’ s f

ir st is sue. 3

3 We do not understand Mother ’s complaint to attack the admission of her te stimony about helping Father’s an d Pat ernal Grandparent s’ violation s of the court orders, but to the extent that is her argument, the er ror, if any, was harmless because the same testimony came in on other occa sions without any objection. Erroneously admi tted evidence is generally harmle s s wh en the same or si milar evidence was7

III. LEGAL AND FAC TUAL SUFFICIENCY OF TH E EVIDENCE
A
. G ENERALLY In a termination case, the State seeks not just to limit parental righ ts but to
erase them permanently

— to di vest the paren t and child of all legal rights, privi l ege s , duties, and pow ers normally existing betw een them, except the c h ild ’ s right to inherit.
T ex. Fam. Code Ann. § 161.206(b); Holick v. Smith , 685 S.W.2d 18, 20 ( Te x. 1985). Consequ ently, “[w]hen the State seeks t o sever permanently the relationship b e twe e n a parent and a child, it must first obser ve fundamentally fair p r ocedures.” In re E.R. , 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer , 455 U.S. 7 45 , 747

– 48, 102
S. C t. 1388, 1391

– 92 ( 1982)).
Termin ation decisions must be supported by c l ear and convincing ev idence.
See Tex. Fam. Code Ann. § § 161.001(b), 1 61.206(a) ; I n re E.N.C. , 384 S.W.3d 796, 802 (Tex. 2012). Due process demands this heightened st andard because “[ a] parental rights termination pr oceeding encumbers a value ‘far more p r ec i ous than any prop erty right.’ ” E.R. , 385 S. W.3d at 5 55 (quoting S a ntosky , 4 55 U .S. at 758

– 59, 102 S. Ct. at 1397). Evidence is clear and convincing if it “will pr oduce in the mind of the trier of
f act a firm beli ef or conviction as to the truth of th e a l legations sought to be established.” Tex. F am. Code An n. § 101.00 7 ; E.N.C. , 384 S .W.3d at 802.

admitted elsewhere. See Reliance Steel & Aluminum Co. v. Sevc ik , 267 S.W.3d 867, 873 (Tex. 2008); In re C.C. , 476 S.W.3d 632, 637 (Tex. App.

— Amarillo 2015, no pet.).8

For a trial court to terminate a parent

– child relationship, the p art y seeking
termina tion must establis h, by clear and convincing evidence, that (1) the par e nt ’ s actions satisfy just one of the many predi cate groun ds that are listed in S ub s ection 161.001(b)(1) of the Texas Family Code and (2) termination is in the ch ild ’ s best
interest

. T ex. Fam. Code Ann. § 161.001(b)(1), (2); E.N.C. , 384 S.W.3d at 803; In r e J .L. , 163 S .W.3d 7 9, 8 4 (Tex. 2005 ). Regarding the S ub sect

ion 161.001(b)(1) g rounds, the supreme court articulated an important qualifi cation: if the trial court finds grounds under S ub section (b)(1)( D) or (E)

— both of which involve endangering a child ’ s ph y sical or emoti o na l well

being

— an appe llate c ourt must rev iew either the (D) or (E) grounds on appeal (or
both i f neither withstands appellate review) because the y have potential col lateral

c onsequenc es for other children the parent may have

. See Tex. F a m. Code Ann. § 161. 001(b)(1)(M) (providing that a prior termination under (D) or (E) is a ground
for te rminating par ental rights to a different child); In re N.G. , 577 S.W.3d 230 , 23 7 (Tex. 201 9) (“[I] f a court of appeals affirms the terminati on on eithe r [ ( D) or (E) ] ground s, it must p rovide the details of its ana lysis.”) ; In re D. D.E. , No. 11

- 21

- 00069

- CV, 2021 WL 4598596, at *2

– 3 (Tex. App.

— Eastland Oct. 7, 2021, no pet. h.) (mem.
op .) ; In re A.B.

- G. , No. 02

- 19

- 00066

- CV, 2019 WL 3755770, at *7 n.5 (Tex. A pp . — Fort Worth Aug. 8, 2019, pet. denied) (mem. op.) ; A.C. v. Tex. Dep’t of Fa m. &
Protective Servs. , 577 S.W.3d 689, 698

– 99 & n. 2 (Tex. App.

— Austin 2019, pet. den ied).
Termination m ay not be based so lely on the ch ild ’ s best inter es t as determined by th e9

fa ctfinder under S e ction 161.001(b )(2). Tex. Dep ’ t of Human Servs. v. Boyd

, 7 27 S.W .2d 531, 533 (Tex. 1987); In re C.D.E. , 391 S.W .3d 287, 295 (Tex. App.

— Fort Wor th
2012 , no pet .).
B
. L EGAL S UFFICIEN CY In evaluat ing the evidence for legal sufficiency i n p arental

- right s

- terminati on cases, we de termine whether the evidence is such that a factfi nder could reasonably
form a firm belief or conviction that the Department prov ed both the particul ar ground for term ination and th at termination wa s in the child ’ s be st int erest. In re J.F.C

. , 96 S.W.3d 25 6, 266 (Tex. 2002); see In re J.P.B. , 180 S .W.3d 5 70, 573 (Tex. 2005). We review all the eviden ce in the light most favorable to the fi nding and jud gment, and we reso lve any disput ed facts in favo r of the findin g if a rea sonable
factfinder could have done so. J.F.C. , 96 S.W.3d at 266. We also mu st disr egard all
evidence contrary to the finding that a reasonable factfinder could have disbelieved, in
addi tion to considering undisputed evidenc e even if it i s contr a ry to th e finding. Id. That is, we consider eviden ce favorable to termination if a r easonable factfinder could, and we disregard contrary evidence unless a reasonabl e factfinder could not.
See id. In doing our jo b, we cann ot weigh witness

- credi bility i ssu es th at depend on the
witness ’ s appearance and de meanor; that is the factfinder ’ s p rovince. J.P.B. , 180 S.W.3d at 573. And even when credibility issues appear in the appellate record,
we defe r to t h e factfinder ’ s determin ations a s long as they are no t un reaso nable. Id.10 C. F ACTUAL S U FFICIENCY
We must perform “an exa cting review of the entire record” in determining whether the evidence is factually sufficient to suppor t terminating a parent

– ch ild
rel a tionship. I

n re A.B. , 437 S.W .3d 498, 500 ( Tex. 20 14). I n a factual

- sufficiency

rev iew, we give due de ference to the factfinder ’ s findin gs and do not supplant the judg ment with our own. In re H.R.M. , 209 S.W.3d 105, 108 (Te x. 2006). We
determin e wheth er, o n the en tire recor d, a fac tfinder could reasona bly form a firm
b elief or conviction that the parent violated an all eged grou nd and that termination

wa s in the child ’ s best interest. Tex. Fam. Code Ann. § 161.001(b); see In r e C.H. , 89 S.W.3d 17 , 25 (T ex. 20 02). I f, in ligh t of the entire record , the disp uted e vidence
that a reasonable factfinder could n ot have credite d in favo r of the finding is so significant that a factfinder could not reasonably have formed a firm belief o r conviction in the truth of its findin g, then th e eviden ce is factuall y insu ffic ient.
H.R.M. , 209 S.W.3d at 10 8.

D. G ROUNDS U NDE R S UBSECTION (E)
T he t rial court found grounds under Subsections 161.001(b)(1)(C), (D), (E), (F), and (P)

. See Tex. Fam. Code Ann. § 161.001(b)(1)(C), (D), (E), (F), (P)

. We address grounds under Su b s ection (E) first.
1. Law “Endanger” means to expose to loss or inj ury, or to jeopardize a child ’ s emotional or physical health. Boy d , 727 S.W.2d at 533 ; In re J.T.G. , 121 S .W .3d 117,11

125 (Te x. App.

— Fort W orth 2003, no pe t.). The parent ’ s conduc t doe s no t need to be dire cted at the child nor must the child suff er actual inju ry in order to be endangered within the statute ’ s meaning. J.T.G. , 1 21 S.W.3d a t 125. Moreover, a
ch ild can be endan gered simply b y violence that is directed toward anothe r child i n the home

. In r

e J.O.A. , 283 S.W.3d 336, 346 (Tex. 2009).
Under Subsecti on (E), we ask whether ev idence ex ists that the parent ’ s conduct

— including acts, omissions , or fai lures to act

— endangered the chi ld ’ s physical or emotional wel l

- being. J.T.G. , 121 S .W .3d at 125. Additi onally, Subsection (E) requires not just a single act or omission but rather a volunt ary, deliberate, and
consci ous course of conduct. Id.
2 . Discussion
a. Evidence
Mothe r admitted being p laced on proba tion in April 20 16 for dri vi ng while
into xicated and being o rdered to submit to drug testing. S he pleaded true to f ailing a drug test i n M arch 2017

. Two months l ater, in May 2017, Ann tested pos i tive for cocain e, and Mo ther

ac knowledged tell ing a Depart ment investigator that she h ad us ed metham phetamine
and cocaine with Father. In July 20 17 , Mother tested positive for methamphetamine and was ordered to par ticipate in and w ent through an outpa tient substance

- ab use drug treatme nt progr am . B u t i n A ugust 2017, M other aga in tested pos itive for methamph etamine and was agai n ordered to part icipate in a drug treatment pro g ram.12

Although Mother c omplet ed the course, she continued to a bus e drugs. That same month, the Depar tment filed its firs t petition to term inate Mother ’ s parental rights t o An n. Ann ’ s c ase went on for 18 months, during which time neither Ann nor Be th

w a s ret urned to Mother

. Mother sta ted tha t A nn was 14 mo nths old wh e n s he was pla ced with Maternal Aunt an d that , e ven b efore Ann was 14 mont hs old , Maternal
Aunt had care d for Ann off and on as p art of Mother ’ s f amily

- based services plan. In

contrast , Maternal A unt stated that An n had been in her care sin ce b efore Ma y 201 7 4
and that Beth had been in her care since bi rth because Maternal Aunt had picked up Beth at the hosp ital. After Beth ’ s birth in 2018 , Mother continued to abu se drugs. A s noted earlier, Ann ’ s case en de d wi th the January 2019 agreed order in whic h Mo ther was given possessory conservatorship and Beth ’ s case ende d in May 2019 with the
same result.
Therea fter, i n September 2020, Mot her test ed positi v e for methamphe tam ine

. And in Nove mber 2020, Ma ternal Au nt filed a petition to termina te Mother ’ s parental

r ights to bot h Ann and Beth

.

4 T he Department filed its original termination p e titi on in August 201 7 , when Ann was appr oximately 14 mont h s old

. The affidavit supporting the Department ’ s original Augus t 2017 terminati on petition prov ided that Ann tested positive for
c oca ine in May 2017 and thereafter resid ed with Maternal A unt
. Thu s, Maternal A unt had c ared for Ann since Ann w as about 10 months old

.13

A t trial, Mother admitte d being a drug addict. On th e other hand, Mo th er had

e vidence showing that she had te sted clea n on seven o f the eight t ests admi nistered
between Jan ua ry 2019 and March 2021 , when trial began

. 5
And financiall y, Mother estimated that s ince November 2 017, sh e had paid
cl ose to $3,000 in c hild support. A nd s ince January 2019 , she estimat ed that s he had paid over $8,000 on visit supervisors and close to $1,500 on drug tests.
b. Application The Department filed its original pe tition to te rminate in August 2017 aft er Mother had tested positive f or m etha mphe tamine

. In S eptember 2020, nearly three years later, Mother again te st ed positive for met ha mphetamine. Since 2017 , Mother showed a pat tern of relapsin g and acknow ledged b eing a drug addict

. Nar cot ics and their effect o n a person ’ s ability to parent may qualify as an endangering course of conduct. J.O.A. , 283 S .W.3d at 345

. Further, e vidence that a parent continued to use illegal drugs e ven though the p arent knew tha t hi s or he r parental rights were in jeopardy is cond uct showing a volunta ry, delibe rate, and

co nscious course of conduc t that, by its nature, enda ngers a child ’ s well

- bein g. See In
re M.E.

- M.N. , 342 S.W.3d 254, 263 (Tex. App

. — Fort Worth 2 01 1, pet. denied );
C erva nte s
- Peterson v. Tex. Dep ’

t of Fam

. & Protect

ive Servs. , 221 S.W.3 d 244, 253

- 54 (Tex.

5 Mother tested clea n on May 6 and August 10, 2 019 ; January 6, May 7, June 19, and N o vember 23, 20 20 ; an d Febr uary 23, 2 021. T he only test tha t she test ed p o si tive on was September 14, 20 2 0.14

Ap p.

— Houston [ 1st Dist.] 2006, no pet.) (en banc)

. B ecause using narcotics ex poses the child to the possibility that the parent may be impaire d o r imprisoned, their use

m ay suppo rt te rmination under S ubsection (E). Wa lker v. Tex. Dep ’ t of Fam

. &
Protective Servs. , 312 S.W.3d 608, 617

- 18 (Tex. App.

— Hou ston [1 st D ist.] 2009, pet.
de nied)

. Alt hough a parent ’ s imprisonment is insuff icient, standing al one, to const itute

“ eng aging in co nduc t which endangers the emotional or physical well

- be ing of the child,” impr

isonment is nevertheless a fa ctor to consider on the en danger ment issue

. See Boyd , 727 S.W.2d at 533

– 34 ; In re M.D.S. , 1 S.W.3d 190 , 199 (Tex . App.

— Amarillo
1999 , no pet.)

. Th is is so because evidence showing a cour se of conduct that
routinel y s ubjects a child to the probability of an absent parent end angers both the physical and emotional well

- b e ing of a c hild. In re S.D. , 980 S.W.2d 758, 76 3 (Tex. App.

— San Ant onio 1998, pet. de nied). Once a parent ’ s drug usag e be comes

entan gle d in criminal proceedin gs , the parent risks being a bsent if (1) the parent

c ontinues to violate pro bationary conditions , (2) the parent has committed a new offens e gro wing out of a contin ued use o f illegal drugs, or (3) the parent is once aga in
committed t o a rehabilit ation prog ram . I d. ; see In re R.S. , No. 12

- 21

- 00 029

- CV,
2021 WL 2816403, at *4 (Tex. App.

— Tyler June 30, 2 021, no pet.) (m em. op.).
O u r focus is not on w hether M other had made p rogress, because t he evidence suggests that aft er t he January and May 20 19 agr eed ord er s , Mo th er had made
prog ress . Rather, our focus is on w hether she contin ued to use illega l drugs , and the15

evide nce was that she had. During the in it ial suits, Mot her use d illegal dru gs even though s he knew that her pare ntal right s we re in jeopard y , and a fter the January and
M ay 2019 agreed o rders , she used again . T hroughout her children ’ s lives, she sh o wed
a voluntar y, delib erate, and conscious course of conduct t hat, by its nature, endanger ed her chi ld ren ’ s w ell

- be ing. See M.E.

- M.N

. , 342 S.W.3d at 263

. Narcotics

c an impa i r or incapa citate the user ’ s ability to p arent
. See J.O.A. , 283 S.W.3d at 345

. M ethamphetamine addiction can work havoc not only on the addic t but on the
addict’ s family , and smal l children , suc h as Ann and Beth, are particul arly vu lnerable

. The danger here is more than “ metaphysical , ” and more is at stake than a less

- than

ideal family enviro nment
. See In re D.R. , N o. 06

- 21

- 00019

- CV, 2021 WL 3411562, at

* 3 (Tex. App.

—

Texarkana Au g. 5, 20 21, no p et
. ) ( “Although ‘ end anger’ mea ns more than a threat of met aphysical injury or the possible ill effects of a less

- than

- ideal family environment, it is not necessary that the co nduct be directed at the ch ild or tha t the chil d actually suffers inju ry.” ) (q uo ting In re M .C. , 9 17 S.W.2d 268 , 269 (Tex. 1996) )

. Since A nn ’ s removal in 2017 and Beth ’ s remov al in 2018 , Moth er ’ s ability to directly t hreat en her ch ildren h as been limited because her visits w ere sup ervised , but
he r abi lity to indirectly h arm her child ren has not b een limited

. See J.O.A. , 283 S.W.3d at 345 ( “ [E]ndangering conduct is not limited to actions directed towards the child. ” ).
But see In re L.C.L. , 599 S.W .3d 79, 85 (Tex. App.

— Houston [14th D ist.] 2020 ) (en
ban c) (“Somewhere along the way, ou r co ur t confl ated drug use with child16

endangerment such that mere drug use alone became conclusive evidence that a child was endangered. ”) , pet

. denied , 626 S.W.3d 909 (Tex. 2021)

. In addition to Mother ’ s drug issu e , the testimony also showed issues of family
vi olence. Maternal Aunt’ s co unsel described Father as a seven

- time convicted felon
who committed assaults against Mother, and Mother neither denied this assertion nor sought to clar

ify this description

. Mother adm itted that Father was incarcerated for

assa ult family violence

. A lthough Father was ordered not to have contact with Ann, Mother allowed Father to have telephone contact with her. Mother a lso admitte d
h aving sporadic contact wit h Father and putting money on Father’s books. Mother
herself had bee n arrested for assault family violence, was out on bond, and was awaiting trial. Exposing a child to fami ly violen ce endanger s a child’s physic al or

emot iona l well

- being and is sufficient to support an endangerment fi nding. See In re
D.M. , 452 S.W.3d 462 , 470 (Tex. App.

– San An tonio 2014, no pet.); In re C.J.O. , 325 S.W.3d 261, 265 (Tex. App.

– Eastland 2010, p et. denie d); J.T.G. , 12 1 S.W.3d

at 125

– 26.
We hold that the evidence is legally and factually sufficient to sh ow that Mother
engage d in a course of conduct that endange red her children ’ s physical or emotional
well

- being. Se e J.F.C. , 96 S.W.3d at 265

– 66 ( stating that to be leg all y sufficient , the
evid ence must be such that a factfind er could reasonably form a firm belief or
conviction about the truth of the Department ’ s all egations); C. H. , 89 S.W.3d at 25 (stating that to be factuall y sufficient, on the e n tire record, a fact fi nder must be abl e to17

reaso nabl y form a firm belief or conviction that the parent violated an alleged ground).
Because only one ground is necessary , a nd because we hav e held that the
evidence is legally and factual ly sufficient under Subsection ( E ) g rounds

— one o f th e
gro und s that must be addressed when there are multiple grounds

— we do not need to
addre ss the other four grounds. S ee Tex. R. App. P. 47.1 ; N.G. , 577 S.W.3d at 237 ; D.D.E. , 2021 WL 4598596, at *2

– 3 ; A.B.

- G. , 2019 WL 3755770, at *7 n.5 ; A.C. , 577
S.W. 3d at 698

– 99 & n. 2

. E. Best Interest
1. Law
There is a stro ng presumption that keeping a child with a parent is in th e child ’ s best in terest
. In re R.R. , 209 S.W.3d 11 2, 116 (Tex. 2 006).
We review the entire record to determine the ch ild ’ s be st intere st. In re E.C.R. , 402 S.W.3d 239, 250 (Tex. 2013)

. The same e vidence may be probative both of grounds under S ection 161 .001(b)(1) and of best interest under S ection 1 61.001(b)(2)

. Id. at 249; C.H

. , 89 S.W.3d at 28. Nonexclusi ve fac t ors tha t the factfin der in a
terminati o n ca se may also use in determi ning the c hild ’ s best interest include:

• the child ’ s desires;

• the child ’ s emotional and physica l needs now and in the future;

• the em otion al and phys ical danger to the child now an d in t h e futur e;18

• the paren tal abilities of t h e in dividuals seeking cus tody;

• the pro grams available to assist these in dividuals to promote the chil d ’ s be st interest;

• the plans for the child by these indiv idu als o r by the ag ency seeking custody;

• the stab ility o f the h ome or propos ed placement;

• the pare nt ’ s acts or omis sions that may ind icate that the existing parent

– chi ld relationship is not a prop er one; and

• the parent ’ s excuse, if any, for the acts or omi ssion s. Holley v. Adams , 544 S.W.2d 367, 371

– 7 2 (Tex

. 1976); see E.C.R. , 402 S.W.3d at 249 ( stat ing that in revie wing a best

- intere st finding, “we consider, among ot her evidence,
the Holley fa ct ors”); E.N.C. , 384 S.W. 3d at 807. These facto rs do not fo rm an

ex haustive li st, and some factors may not ap ply to some ca ses. C.H. , 8 9 S.W.3d at 27.
F u rthe rmore, undisputed ev idence of just one factor may suffice in a partic ular case to support a findin g that termination is i n the child ’ s best inte rest. Id. On the o ther hand, the presence of paltry evidence relev a nt to e ach factor wi ll not support suc h a f inding. Id. ; In re J.B

. , No. 02

- 18

- 00034

- CV, 2018 WL 3289612, at *4 (Tex. App.

— Fort Worth July 5, 201 8, no pet.) (mem. o p.).
2. Discussion

a. Children ’ s de sir es At the ti me of trial in March 2021, An n was fo u r years old but woul d soon be five, and Beth was two years old but would soon be three

. Both lacked sufficient19

maturity to express an opinio n regar ding a parental prefere nce, a nd neithe r testif ied at trial

. See M.S. , No. 02

- 21

- 00007

- CV, 2021 WL 2 6541 43, at *18 (Tex. App.

— Fort Worth June 28, 2021, pet. denied) ; In re M.H. , 319 S.W.3d 137, 150 (Tex. App.

— Waco 2010, no pet.); see also Tex. Fam . Code. Ann. § 153.134(a )(6) (providing that a
child must be at l east 12 years old before the chi ld ’ s p reference , if any, regarding the person to have the excl usive right to designate the child ’ s primary residence beco mes

a factor) , § 1 56.101(a)(2) (sam e). This factor is neu tral

. b. C h ild ren ’s emotional and physical need s now and in the future
An n ’ s and B eth ’ s emo tional and physical needs now and in t he futu re will be
the same regardl ess of who r aises them, but Maternal Aun t is in a better po sition to

meet t hose needs now an d in the future. Unlike Mother, Maternal Aunt does not face the p ossib ili ty of rel apsing , g etting caught posses si ng illegal drugs , b eing incarcerated for assault, or r euniting with a physically abusive b oyfr iend

. This factor weighs in
favor of terminat

ion.
c. E motional and p hysical danger to t he ch ild ren now and in the future
A home with Moth er would likely incl ude drugs and fami ly viol ence. This
facto r f avor s termination.
d. P arental abilities of th e individuals seeking custody
Maternal Aunt was alre ady par entin g Ann and Beth. Photographs of Mother
with Ann and Beth s ho w happ y children, but a world of diff e r enc e separates ca rin g fo r children fo r a few hours and parentin g children day in and day ou t . Because20

Mother did not have a monitored r etur n , ho w well she could parent Ann an d Beth on
a da ily ba s i s was unk nown. Th is factor favors ter mination.

e. P ro gram s available to assis t th ese individuals to promote the child ren ’s best interest
The p ar ties did not de velop evidence addressing any p rogra ms t hat mig ht be
available to h elp Mother or Mat er nal Aunt to raise Ann a nd Beth. Mother w as activ ely particip atin g in programs to hel p he r deal with her addiction. Overall, though, this factor is neut ral.

f. P lans for the child ren by thes e indivi duals or by the agency seeking custody
Maternal Aunt ha d already been raisi ng Be th since Beth ’ s birth and had been
rais ing Ann since Ann wa s ab out 10 mo nths old. In contrast, Mother was living w ith
her fath er and mother, and the Department had not approved a hom e study of
Mother ’ s fa ther

. R egardless, if Mother took possession of Ann and Beth, the record suggests that Mother would have to make diff ere nt livin g arrangements , which would add another element of potential uncert ain ty. 6 This factor weighs in favor of

t ermination.

6 Although Mate rn al Aunt and the children had moved while the cases were pending, Maternal Aunt showed the ability to do s o wi thout jeopardizi ng the children’s st ability.21 g. S t abilit y of the home or propose d placement “[C]hildren ne ed permanency a nd stability.” In re G.V

. , III , 543 S.W.3d 342, 350 (Tex. App.

— Fort Worth 2017, pet. denied). A child ’ s need for permanence

t hrough the establis hment o f a stab le , p ermanent home is a param ount con s ideration
in th e best

- interest determinati on. In re E.R.W. , 528 S.W.3d 251, 267 (Tex. App.

— Houston [14th Dist.] 2017, no pet.). Mother ha s had more than three y ears to get clean an d stay clean, and yet she relapsed i n Sep tember 2020. This facto r su ppor ts th e trial cou rt ’ s finding that terminat ion was i n Ann ’ s a nd Beth ’ s best in terest. h. P arent ’ s acts or omis sions that may indicate that the existing

parent – child relationshi p is n ot a prop e r one

and
i. P arent ’ s e xc use, if any, for the acts o r om issions
We a ddress these las t two factors togethe r. Focusing on Mo ther a t trial , her testimony was relative ly straight forw ard. Despite a court order, s he let the childr en talk to Fath er on the phon e. And desp ite a cour t order, s he went out of her way to let
P atern al Grandparent s see the children with out Maternal Aunt ’ s knowle dge

. Creating safety boundaries for the children is pointless if Mother a ffirmatively ignores them

. Reg ardin g M other ’ s drug addiction, M other ’ s te sti mo ny was relatively

s tr a ight for ward t here too. She was a drug ad dict , she was making efforts to address it , and she had made some pro gress . Because Mother relapsed in September 2020,
thou gh, her addiction remained a n ongoing concern.22

This factor wei gh s in fav or of te rmination.

j. Analysis and h olding
Altho ugh Mother had made progress, she still had not arrived at the point that placing Ann and Beth with her would result in a reasonable expectation of
perman ence , sta bility, or safety. Drug use rema ine d a prob lem. Mother main t a ined contact with Father, who used drugs with M o ther and who was incarcer ated for

as sault family violence. And Mother had her own legal difficult ies w ith a pendi ng crimi nal char ge of as sault family viol ence. Ann h a d been i n leg al lim bo for the majori t y of her short life , and Beth ha d been in legal limbo all of her life

. Te rminat ion
was Ann ’ s and Beth ’ s path to perman ence, stability, and safety. We hold that th e evidence is legally a nd fact ually sufficient to show that ter minat ing Mo ther ’ s parental

r i g hts was in the best interest of Ann and Beth. See J. F.C. , 96 S.W.3d at 2 65

– 66 (stating that to be legally sufficient, the e vidence must be such th at a factfinder could reasonably form a firm b elief or conviction abou t the tru th of the D epartment ’ s alleg a t ions ); C.H. , 89 S.W.3d at 25 (stating th at to be fact ually sufficient, on the entire record, a factfinder must be able to re asonably form a firm belief or co nviction that supports the finding

).
W e o verrule M other ’ s sec ond and thi rd iss u e s.23 I V
. CONCLUSION Having overruled Moth er ’ s issues, we affirm the tr ial court ’ s judgment. /s/ Brian Walker
Brian Walker J ustice

Delivered: November 10, 2021