1

In The

Court of Appeals

Ninth District of Texas at Beaumont

_________________

NO. 09-15-00025-CV

_________________

IN THE INTEREST OF Z.J.J. AND Z.J.

________________________________________________________________________

On Appeal from the 317th District Court

Jefferson County, Texas

Trial Cause No. C-207,449-D

________________________________________________________________________

MEMORANDUM OPINION

In this accelerated appeal, S.D. (the Mother) appeals the trial court’s order of 

termination, terminating her parental rights to her children Z.J.J. and Z.J.

1 The 

Mother raises two issues on appeal.

2 We affirm the trial court’s judgment.

Procedural and Factual Background

In December of 2011, the Department of Family and Protective Services (the 

Department) filed a suit affecting the parent-child relationship, wherein the 

 1 To protect the identity of the minors, we have not used the names of the 

children, parents, or other family members. See Tex. R. App. P. 9.8.

2 Z.J.S. (the Father) is not a party to this appeal. 
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Department sought to terminate the Mother and Z.J.S.’s (the Father) parental rights 

to Z.J.J. and Z.J. The trial court awarded the Department temporary, primary 

conservatorship of the children. On June 9, 2012, the Department placed Z.J.J. and 

Z.J. with S.A.C. and A.L.C. (the Foster Parents). On October 28, 2014, the Foster 

Parents filed their petition in intervention seeking primary conservatorship,

termination of the Mother and the Father’s rights, and adoption of the children. The 

trial court granted the Foster Parent’s intervention. The Department dismissed its 

case and is no longer a party to the suit. 

The trial court appointed the children an attorney ad litem. Based on his 

investigation, the attorney ad litem recommended that the trial court terminate the 

Mother’s parental rights and indicated his belief that termination was in the 

children’s best interest. After a bench trial, the trial court terminated the parental 

rights of the Mother and the Father to the children and appointed the Foster Parents 

sole managing conservators of Z.J.J. and Z.J. At the time of trial, Z.J.J. was five

years old, and Z.J. was three years old. 

Legal and Factual Sufficiency

In her first issue, the Mother challenges the legal and factual sufficiency of 

the evidence supporting the trial court’s judgment. In our review of the legal 

sufficiency of the evidence in a parental rights termination case, we “look at all the 
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evidence in the light most favorable to the finding to determine whether a 

reasonable trier of fact could have formed a firm belief or conviction that its 

finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that 

the finder of fact resolved the disputed facts in favor of its finding if a reasonable 

factfinder could do so, and we disregard all evidence that a reasonable factfinder 

could have disbelieved or found to have been incredible. Id. We are not required to 

disregard all evidence that does not support the finding. Id. If no reasonable finder 

of fact could form a firm belief or conviction that the matter that must be proven is 

true, then we must conclude that the evidence is legally insufficient. Id.

In our review of the factual sufficiency of the evidence in a parental rights 

termination case, we “must give due consideration to evidence that the factfinder 

could reasonably have found to be clear and convincing.” Id. (citing In re C.H., 89 

S.W.3d 17, 25 (Tex. 2002)). As the reviewing court, we must answer “‘whether the 

evidence is such that a factfinder could reasonably form a firm belief or conviction 

about the truth of the . . . allegations.’” Id. (quoting C.H., 89 S.W.3d at 25). We 

consider whether a reasonable factfinder could not have resolved the disputed 

evidence in favor of its finding. Id. “If, in light of the entire record, the disputed 

evidence that a reasonable factfinder could not have credited in favor of the finding 

is so significant that a factfinder could not reasonably have formed a firm belief or 
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conviction, then the evidence is factually insufficient.” Id. We give due deference 

to the factfinder’s findings and we cannot substitute our own judgment for that of 

the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is 

the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 

109.

Predicate Grounds for Termination

The trial court found that the Mother (1) knowingly placed or knowingly 

allowed Z.J.J. and Z.J. to remain in conditions or surroundings that endangered

their physical or emotional well-being, (2) engaged in conduct or knowingly 

placed Z.J.J. and Z.J. with persons who engaged in conduct that endangered their 

physical or emotional well-being, and (3) failed to support Z.J.J. and Z.J. in 

accordance with her ability during a period of one year ending within six months 

of the date of the filing of the petition. For the reasons discussed below, we 

conclude that the record contains clear and convincing evidence to support the trial 

court’s findings that the Mother engaged in conduct or knowingly placed Z.J.J. and 

Z.J. with persons who engaged in conduct that endangered their physical or 

emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(E) (West 2014).

To terminate a parent-child relationship, it must be shown by clear and 

convincing evidence that the parent has committed at least one of the predicate acts 
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listed in section 161.001(1) of the Texas Family Code and that termination is in the 

best interest of the child. Id. § 161.001(1), (2). Clear and convincing evidence is 

defined as “the measure or degree of proof that will produce in the mind of the trier 

of fact a firm belief or conviction as to the truth of the allegations sought to be 

established.” Id. § 101.007.

Subsection 161.001(1)(E) permits termination when clear and convincing 

evidence shows that the parent “engaged in conduct or knowingly placed the child 

with persons who engaged in conduct which endangers the physical or emotional 

well-being of the child.” Id. § 161.001(1)(E). “‘[E]ndanger’” means “to expose to 

loss or injury; to jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 

531, 533 (Tex. 1987). Termination under subsection 161.001(1)(E) must be based 

on more than a single act or omission; there must be a voluntary, deliberate, and 

conscious course of conduct by the parent. In re A.D., No. 09-14-00280-CV, 2014 

WL 6984269, at *6 (Tex. App.—Beaumont Dec. 11, 2014, no pet.) (mem. op.); see 

also In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no 

pet.). In our evaluation of this predicate ground for termination, we consider 

evidence of conduct that occurred both before and after a child’s birth. A.D., 2014 

WL 6984269, at *6. It is not necessary that the parent’s conduct be directed at the 

child or that the child actually suffers an injury. Boyd, 727 S.W.2d at 533. Because 
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illegal drug use exposes a child to the possibility that the parent may be impaired 

or imprisoned, such use may support termination under subsection 161.001(1)(E). 

Walker v. Tex. Dep’t Family & Protective Servs., 312 S.W.3d 608, 617-18 (Tex. 

App.—Houston [1st Dist.] 2009, pet. denied); see also In re J.O.A., 283 S.W.3d 

336, 345 (Tex. 2009); In re Z.C., 280 S.W.3d 470, 474 (Tex. App.—Fort Worth 

2009, pet. denied). Continued illegal drug use after a child’s removal is conduct 

that jeopardizes parental rights and may be considered as establishing an 

endangering course of conduct. Cervantes-Peterson v. Tex. Dep’t of Family & 

Protective Servs., 221 S.W.3d 244, 253-54 (Tex. App.—Houston [1st Dist.] 2006, 

no pet.). Domestic violence may also support an endangerment finding, even if the 

violence is not directed at the child. J.O.A., 283 S.W.3d at 346; see also In re 

C.J.O., 325 S.W.3d 261, 265 (Tex. App.—Eastland 2010, pet. denied) (“Domestic 

violence may be considered evidence of endangerment. If a parent abuses or 

neglects the other parent or other children, that conduct can be used to support a 

finding of endangerment even against a child who was not yet born at the time of 

the conduct.”) (citations omitted). To determine whether subsection (E) supports 

termination, we look to the Mother’s conduct both before and after the children’s 

removal from her care. See In re O.R.F., 417 S.W.3d 24, 37 & n.11 (Tex. App.—

Texarkana 2013, pet. denied).
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Child Protective Services (CPS) first removed Z.J.J. from the Mother’s care 

in May of 2011 when Z.J.J., nearly two years old, had been found outside of the 

residence alone and unsupervised. The Mother testified that she left Z.J.J. in her

cousin’s care while the Mother went to work. She explained that her cousin was 

thirty-three years old at the time and had moved in with the Mother temporarily to 

get away from an abusive boyfriend. According to the Mother, the boyfriend found 

out that the cousin was staying with the Mother. The boyfriend came over to the

Mother’s apartment and the cousin left with him, leaving Z.J.J. without adult 

supervision. The Mother agreed that she made a poor choice to leave Z.J.J. with 

her cousin. 

Between May and November of 2011, the Mother, while pregnant with Z.J., 

tested positive for PCP on three separate occasions, and tested positive for Xanax

once. Z.J.J. was in the Mother’s care during this time. When the Mother gave birth 

to Z.J. in December of 2011, the Mother tested positive for PCP. 

The Mother testified she first used marijuana when she was seventeen years 

old and first used PCP when she was twenty-five years old. She admitted that she 

used marijuana and PCP during her pregnancy with Z.J. She testified that she 

regrets daily that she ingested PCP while she was pregnant with Z.J. The Mother 

admitted that she engaged in drug use while the children were in her care. 
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After the birth of Z.J., because of the Mother’s continued drug use, unstable 

employment, and unstable housing history, CPS removed Z.J.J. and Z.J. from the 

Mother’s care in January of 2012 and placed the children in a foster home. At first, 

the Mother participated in and completed items identified in her service plan. The 

Mother completed a drug treatment program, a parenting class, an anger 

management class, and a psychological examination. As a result of the Mother’s 

progress, in June of 2012, CPS returned Z.J.J. and Z.J. to the Mother. The children 

remained in the Mother’s care for about three days before CPS had to remove them 

when the Mother was arrested after a traffic stop for outstanding warrants. The 

children were in the vehicle with the Mother when she was arrested. At the time of 

her arrest, marijuana was found inside the vehicle the Mother was driving. The 

Mother denied knowing the marijuana was in the vehicle and denied that it 

belonged to her. The Mother admitted that her brother, who has a criminal history 

related to drugs, and her cousin, who also has a criminal history, were in the 

vehicle with her and her children when she was pulled over. She denied knowing

that her brother and cousin had drugs in their possession. According to the Mother, 

she was not arrested for possession of drugs at that time. 

After the second removal, the Mother received a new service plan, but failed 

to comply with its terms. Sometime after June of 2012, while CPS was monitoring 
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the Mother, the Mother tested positive for narcotic drugs— specifically,

hydrocodone—during a visitation. The CPS worker assigned to the children 

testified that in her opinion, the Mother lacks the ability or capacity to make 

appropriate decisions to keep her children safe. 

The Mother testified that she no longer uses illegal drugs and indicated that 

she was willing to have a drug test. She testified that she has maintained sobriety 

since 2012. The Mother explained she had legitimately taken hydrocodone for a 

toothache. According to the Mother, she had received a prescription for 

hydrocodone, but because she did not have insurance, she did not fill her 

prescription and instead took a hydrocodone pill from a friend. However, the 

Mother did not offer a written prescription into evidence to support her contention.

The Mother presented other witnesses to corroborate her testimony 

regarding her current sobriety. The Mother’s sister testified that the Mother was no 

longer abusing drugs and had been clean for two years. At the time of trial, the 

judge heard testimony that the Mother’s sister was under CPS investigation herself 

due to the death of her own child. One of the Mother’s friends also testified that 

she believed the Mother lived a life of sobriety. The Mother’s friend indicated that 

she also believed the Mother to be a very charitable person and explained that the 

Mother has given her money, gifts, food, and clothing for the friend’s child. The 
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Mother’s uncle testified that the Mother leads a drug-free life. The uncle had been

incarcerated for sixteen years for a murder conviction and was released in 2012. 

The Mother testified that the Father accompanied her to some of the visits

she had with the children. When asked if the Father was an appropriate person for 

the children to be around, the Mother responded that he is their father, but later 

admitted that he was not appropriate. She testified that her attorney accidentally 

sent the visitation information to the Father’s address instead of hers, so it was not 

her fault that the children were exposed to the Father. 

A CPS employee assigned to the Mother’s case testified that the Mother 

continues to find herself entangled in criminal activities. The Mother was arrested 

in March of 2011 for a DWI. The Mother received probation for the DWI, but 

because she had failed to comply with the terms of her probation, she was arrested 

on a revocation warrant in June 2012. The Mother was arrested and convicted in 

2012 for domestic violence. 

The record also reflects that the Mother has anger issues. There is evidence 

in the record that at least one witness observed the Mother’s angry outbursts after a 

visitation with the children. This outburst occurred after the Mother had 

participated in anger management classes. The Mother denied being angry during 

or after her visits with the children. The Mother attempted to explain her language 
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by stating to the court that everyone uses curse words and that her circumstances 

justified the use of such words. Other witnesses testified that the Mother’s 

interaction with the children during the visits was appropriate, and they did not 

report observing any outbursts. The children’s foster mother testified that the 

children seem antsy, nervous, and afraid after their visits with the Mother. She 

testified that the Mother’s parenting is very different than hers, and she explained 

that the Mother is rough, loud, and aggressive with the children. She testified that 

after the visits, Z.J.J. is afraid that the Mother will come and try to get him. The 

foster mother testified that she is personally afraid of the Mother. The Mother 

admitted to making bad choices in the past, but claimed that she has changed and 

that she loves her children and wants them to be with her. 

From our review of the record, we conclude the evidence supports the trial 

court’s endangerment finding under subsection (E). The record shows that the 

Mother has a history of using illegal drugs. The Mother used illegal drugs before 

the children’s removal, when Z.J.J. was in her possession, and while she was 

pregnant with Z.J. The Mother admitted that she was under the influence of drugs

while Z.J.J. was in her care. Even after the children had been removed from her 

and her parental relationship with the children was in jeopardy, the Mother tested 

positive for narcotic drug use. The trial court could have credited the evidence of 
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the Mother’s illegal drug use and other criminal activity, as well as her continued 

contact with others that had drug-related and criminal offenses, to find that the 

Mother engaged in a conscious course of conduct that endangered her children.

Viewing the evidence in the light most favorable to the endangerment 

finding under subsection (E), we conclude the trial court could have formed a firm 

belief or conviction that the Mother “engaged in conduct . . . which endanger[ed] 

the physical or emotional well-being of the child[ren].” See Tex. Fam. Code Ann. § 

161.001(1)(E); J.F.C., 96 S.W.3d at 266. Furthermore, based on our review of the 

record, we conclude that the evidence is such that the trial court reasonably could 

have formed a firm belief or conviction about the truth of the allegations against 

the Mother. We conclude that the evidence is legally and factually sufficient to 

support the trial court’s finding under section 161.001(1)(E).3

Best Interest of the Children

The trial court found that termination was in the children’s best interest. The 

Mother contends the evidence is legally and factually insufficient to support this 

finding. Regarding the children’s best interest, we consider a non-exhaustive list of 

 3 We need not address the sufficiency of the evidence to support a violation 

of subsections (1)(D) or (F). See In re D.S., 333 S.W.3d 379, 388 (Tex. App.—

Amarillo 2011, no pet.) (“If multiple predicate grounds are found by the trial court, 

we will affirm based on any one ground because only one is necessary for 

termination of parental rights.”).
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factors: (1) desires of the children; (2) emotional and physical needs of the children 

now and in the future; (3) emotional and physical danger to the children now and 

in the future; (4) parental abilities of the individual seeking custody; (5) programs 

available to assist this individual to promote the best interest of the children; (6) 

plans for the children by this individual or by the agency seeking custody; (7) 

stability of the home or proposed placement; (8) acts or omissions of the parent 

which may indicate that the existing parent-child relationship is not proper; and (9) 

any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 

367, 371-72 (Tex. 1976); see also Tex. Fam. Code Ann. § 263.307(b) (West 2014). 

In reviewing the trial court’s decision to terminate a parent’s relationship with a 

child, we consider that “there is a strong presumption that the best interest of a 

child is served by keeping the child with a parent.” In re R.R., 209 S.W.3d 112, 

116 (Tex. 2006). The party seeking termination need not prove that each Holley

factor favors termination. C.H., 89 S.W.3d at 27. A trial court’s best interest 

finding “is not dependent upon, or equivalent to, a finding that the child has been 

harmed by abuse or neglect or is in danger of such harm[,]” but rather it “is a term 

of art encompassing a much broader, facts-and-circumstances based evaluation that 

is accorded significant discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013).
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As explained above, the Mother has a history of using illegal drugs; there is 

evidence that she did so while she had custody of Z.J.J., while she was pregnant 

with Z.J., and after the children’s removal. A parent’s drug use also supports a 

finding that termination is in the best interest of the children. See In re M.R., 243 

S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.). Because drug-related 

conduct is a significant factor, the factfinder can give great weight to such 

evidence when it is present. In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 

2007, no pet.). 

The evidence also supports that the Mother lacked stable living 

arrangements for the children both before and throughout the pendency of this 

case. There is evidence in the record that the Mother had a number of different 

residences and, at least on one occasion, did not have independent housing. At the 

time of trial, however, the Mother testified that she had obtained government 

housing of a three-bedroom apartment, which would allow the children to have 

their own furnished bedrooms. 

Additionally, the Mother had not demonstrated that she had the financial 

ability to provide for the children. At the time of trial, the Mother was unemployed. 

The Mother has a history of unstable employment. The Mother testified that she 

was starting school in January to become a process operator. She testified that she 
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would look for part-time work that did not conflict with her school schedule. The 

Mother qualified for a Pell Grant and had plans to use those funds to pay for her 

education. 

As a consequence of the children’s removal, the Mother had little 

opportunity to bond with Z.J.J. and Z.J. However, the record demonstrated that 

both Z.J.J. and Z.J. have bonded with the Foster Parents with whom they had been 

living for nearly three years at the time of trial. The foster mother testified that the 

children were placed in her home June 9, 2012, and at that time, Z.J.J. was almost

three years old and Z.J. was five months old. She testified that the children are 

attached to them. The foster father also testified that he has bonded with the 

children. A number of witnesses testified that the Foster Parents have provided a 

safe, appropriate, stable home for the children. Other witnesses corroborated the 

foster mother’s testimony that the children have bonded with them. The Mother 

even agreed that Z.J. has spent most of her life with the Foster Parents and has 

bonded with them. The Mother testified that the Foster Parents have been good 

caregivers to her children. 

The Mother countered with testimony that she has also bonded with the 

children. The Mother testified that Z.J.J. has told her that he wants to come home. 

The Mother presented other witnesses to corroborate her testimony. However, the 
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foster mother testified that after visiting with the Mother, Z.J.J. becomes fearful 

that the Mother will come and try to take him from the Foster Parents. 

The Foster Parents want to adopt the children if the parental rights of the 

Mother and the Father are terminated. The testimony at trial supports that the 

Foster Parents demonstrate the appropriate love, care, and affection the children 

need. According to the foster mother, the children are doing well in their home. 

After considering the relevant Holley factors under the appropriate standards 

of review, we conclude the evidence supports the trial court’s best-interest finding. 

Specifically, when we view the evidence in the light most favorable to the best 

interest finding, we conclude the trial court reasonably could have formed a firm 

belief or conviction that termination was in the best interest of Z.J.J. and Z.J. Based 

on our review of the entire record, we further conclude that the trial court could 

reasonably have formed a firm belief or conviction that it would be in the best 

interest of both children for the Mother’s parental rights to be terminated. The 

evidence is both legally and factually sufficient to support the best interest finding. 

We overrule the Mother’s first issue.

In her second issue, the Mother argues that the trial court’s judgment

erroneously indicates that the children’s father was present and appeared in person 

at the proceedings. The Mother does not contend that the Father did not receive 
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proper notice. In fact, in her brief she states, “All parties were properly served with 

notice and citation.” The Father is not a party to this appeal. Therefore, we 

overrule this issue.

Having overruled all of the Mother’s issues on appeal, we affirm the trial 

court’s judgment.

AFFIRMED.

 

 

______________________________

 CHARLES KREGER

 Justice

Submitted on June 26, 2015

Opinion Delivered July 30, 2015

Before McKeithen, C.J., Kreger and Johnson, JJ.