IN THE

TENTH COURT OF APPEALS

No. 10-23-00374-CV

IN THE INTEREST OF D.L. AND D.L., CHILDREN

From the 77th District Court

Limestone County, Texas

Trial Court No. CPS-401-A

MEMORANDUM OPINION

Following a bench trial, Mother appeals the order terminating her parental rights 

to D.L.-1 and D.L.-2, and Father appeals the order terminating his parental rights to D.L.-

2.1 Mother and Father both challenge the legal and factual sufficiency of the evidence to 

support their respective predicate grounds for termination and that termination was in 

the best interest of the children.

1 The alleged biological father of D.L.-1 was dismissed in the trial court’s final order because he was not 

served with citation and notice of the suit. His parental rights to D.L.-1, if any, were not terminated in 

this case.
In the Interest of D.L. and D.L., Children Page 2

Background

Mother has three biological children – D.J., D.L.-1, and D.L.-2. Mother’s rights to 

D.J. were terminated in a separate proceeding. Regarding D.L.-1 and D.L.-2, based on 

another prior case with the Department of Family and Protective Services (“the 

Department”), W.M. was named the permanent managing conservator of the children 

and Mother was named their possessory conservator with supervised visitation. Less 

than a year after Mother was restricted to supervised visits, the Department learned that 

Mother was having extensive unsupervised contact with both children, including that the 

children were living with Mother and her boyfriend, “David,” in an apartment where 

marijuana and drug paraphernalia were found by the Mexia Police Department. The 

Department filed its petition for conservatorship and termination of parental rights of 

Mother as to D.L.-1 and D.L.-2, and Father as to D.L.-2.

STANDARDS OF REVIEW

The standards of review for legal and factual sufficiency in cases involving the 

termination of parental rights are well established and will not be repeated here. See In 

re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009); In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002); 

see also In re J.F.-G., 612 S.W.3d 373, 381-82 (Tex. App.—Waco 2020), aff’d, 627 S.W.3d 304 

(Tex. 2021). If multiple predicate violations are found by the factfinder, we will affirm 

based on any one finding because only one finding is necessary for termination of 

parental rights when there is also a finding that termination is in the child’s best interest. 
In the Interest of D.L. and D.L., Children Page 3

In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); see In re J.S.S., 594 S.W.3d 493, 503 (Tex. App.—

Waco 2019, pet. denied). But if one of the predicate grounds is based on endangerment 

under Subsection D or E, we are required to fully address that ground, if presented on 

appeal, based on future collateral consequences of such a finding. See In re N.G., 577 

S.W.3d 230, 234-37 (Tex. 2019). We give due deference to the factfinder’s findings and 

must not substitute our judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 

108 (Tex. 2006). The factfinder is the sole judge of the credibility of the witness and the 

weight to give their testimony. Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston 

[1st Dist.] 2010, pet. denied).

Predicate Grounds

Mother contends that her predicate findings under Texas Family Code Sections 

161.001(b)(1)(D), 161.001(b)(1)(E), and 161.001(b)(1)(M) are not supported by legally and 

factually sufficient evidence. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (b)(1)(E), 

(b)(1)(M). Father asserts that his predicate findings under Texas Family Code Sections 

161.001(b)(1)(E) and 161.001(b)(1)(Q) are not supported by legally and factually sufficient 

evidence. Id. at §§ 161.001(b)(1)(E), (b)(1)(Q).

APPLICABLE LAW

Termination under both Subsections D and E require proof of endangerment, 

which means to expose the child to loss or injury, to jeopardize. Tex. Dep't. of Human 

Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The endangerment analysis under 
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Subsection D focuses on evidence relating to the child’s environment to determine if the 

environment was a source of endangerment to the child’s physical or emotional wellbeing. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.). The 

relevant inquiry under Subsection E is whether sufficient 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 E.M., 494 S.W.3d 209, 222 (Tex. App.—

Waco 2015, pet. denied). The factfinder may consider conduct that occurred before and 

after the child's birth, in the child's presence and outside the child's presence, and before 

and after removal by the Department. See J.O.A., 283 S.W.3d at 345. Additionally, a 

parent's past endangering conduct may create an inference that the parent's past conduct 

may recur and further jeopardize the child’s present or future physical or emotional wellbeing. J.S.S., 594 S.W.3d at 505.

MOTHER’S PREDICATE FINDINGS

Subsection D

A child is endangered when the environment creates a potential for danger which 

the parent is aware of but consciously disregards. See Interest of S.R., 452 S.W.3d 351, 360

(Tex. App.—Houston [14th Dist.] 2014, pet. denied). The trial court noted the harmful 

environment created by Mother and David’s drug use in the home. Mother’s chronic 

marijuana use is a primary reason for the Department’s involvement in her life for the 

last several years. Mother admitted at trial that she kept her marijuana in the home and 
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would smoke it on the porch, though she stored it in a cabinet so the children were less 

likely to access it. Mother also admitted that she knew David would often use 

methamphetamine in their apartment, even while the children were home. She testified 

that David would be “cooped up” in the children’s room smoking methamphetamine 

“mostly all night,” though he would not use the drug directly in front of her or the 

children. Mother described how she learned to tell when David had been smoking 

methamphetamine in the apartment based on the presence of a towel under the children’s 

bedroom door, open windows, and the “different smell” in the apartment. She explained 

that she would argue with David about finding his drug paraphernalia in the apartment 

and in her car. Based on Mother’s testimony, she knowingly allowed her children to be 

exposed to methamphetamine for approximately two months before she moved them out 

of the apartment. Shortly after removal, D.L.-1 tested positive for methamphetamine, 

and Mother tested positive for methamphetamine and marijuana.

The trial court also expressed concern over persistent domestic violence in the 

home. Abusive conduct by a person who lives in the child’s home or with whom the 

child is compelled to associate on a regular basis in the home is part of the “conditions 

and surroundings” of the child’s home. Jordan, 325 S.W.3d at 721. A parent’s failure to 

remove herself and her children from a physically violent or abusive relationship may 

support a finding of endangerment. In re G.M., 649 S.W.3d 801, 809 (Tex. App.—El Paso 

2022, no pet.). Evidence developed at trial established a cycle of abuse and reconciliation 
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between David and Mother. David received a four-year prison sentence for assaulting 

Mother in 2020, which she testified was based on David dragging her by her hair. After 

this assault, Mother reconciled with David. Mother testified that David was “very, very 

abusive” to her and would become “real violent” when he smoked methamphetamine. 

While Mother testified that David would not assault her in front of the children, she 

described a recent assault when the children were in her care, during which David kicked 

in a door and shoved her into a wall. The force of this contact caused Mother’s body to 

create a sizeable hole in the wall, a photo of which was entered into evidence at the 

hearing. Even after Mother was awarded a monitored return from the trial court, with 

the stipulation that the children not be permitted to have contact with David, Mother 

violated the court order by taking the children to the jail to visit him. Mother testified 

that she had no plans to rekindle her relationship with David when he was released from 

custody. However, the trial court could reasonably disbelieve her testimony based on 

her past relationship pattern with David, as well as her testimony that she considered 

David to be the father of D.L.-1 and D.L.-2.

We find the evidence was legally and factually sufficient to support the trial court’s 

finding that Mother placed or knowingly allowed the children to remain in conditions or 

surroundings that endangered the children’s physical or emotional well-being. Because 

we find the evidence sufficient under Subsection D, we do not need to address 
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Subsections E and M. See Interest of R.A., No. 10-21-00022-CV, 2021 Tex. App. LEXIS 4211,

at *5 (Tex. App.—Waco May 27, 2021, no pet.) (mem. op.).

FATHER’S PREDICATE FINDINGS

Subsection E

Domestic violence, want of self-control, and propensity for violence may be 

considered as evidence of endangerment. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—

Houston [14th Dist.] 2003, no pet.). Evidence of domestic violence is relevant even if it is 

not directed at the child. Interest of P.W., 579 S.W.3d 713, 727 (Tex. App.—Houston [14th 

Dist.] 2019, no pet.). At the final hearing, Father admitted to multiple arrests and 

convictions for assaultive conduct, including domestic violence. Father’s most recent 

judgment of conviction for aggravated assault with a deadly weapon, for which he was 

still in prison at the time of trial, was admitted into evidence. He also discussed a separate 

aggravated assault with a deadly weapon conviction, which was based on a domestic 

violence incident against the mother of one of his other children. Father additionally 

admitted to having an assault on a public servant charge and two misdemeanor family 

violence charges in his criminal history.

While neither a conviction nor imprisonment, standing alone, will constitute 

engaging in conduct that endangers the emotional or physical well-being of a child, both 

are appropriate factors to weigh when considering endangerment. Interest of J.F.-G., 627

S.W.3d at 312-13. A parent’s criminal history—considering the nature of the crimes, the 
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duration of incarceration, and whether a pattern of escalating, repeated convictions 

exist—is relevant and can support a finding of endangerment. Id. at 312–315. Father, 

who was 35 years old at the time of the hearing, listed his criminal history as including 

theft, two misdemeanor assault family violence charges, criminal mischief, assault on a 

public servant, and two aggravated assault with a deadly weapon convictions. His 

aggravated assault with a deadly weapon convictions resulted in a ten-year prison 

sentence and a five-year prison sentence. Though the record was not developed as to the 

timing, status, and any related sentences associated with the other criminal charges, they 

show a pattern of repeated criminal behavior that endangers D.L.-2’s emotional wellbeing by exposing him to a life of uncertainty and instability. See Interest of M.T.R., 579 

S.W.3d 548, 568 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Further, when a parent 

is incarcerated, he is absent from the child’s daily life and unable to provide support to 

the child, negatively impacting the child’s living environment and emotional well-being. 

M.R.J.M., 280 S.W.3d at 503. D.L.-2 was three years old at the time of the final hearing, 

but Father had never met the child. Father was incarcerated when D.L.-2 was born and 

had only seen him in pictures, and he was unable to provide financial support for D.L.-2 

due to his incarceration.

Moreover, a parent endangers his child by accepting the endangering conduct of 

other people. See Interest of L.W., No. 01-18-01025-CV, 2019 WL 1523124, at *20 (Tex. 

App.—Houston [1st Dist.] Apr. 9, 2019, pet. denied) (mem. op.). One parent’s drug-
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related endangerment may be imputed to the other parent who knowingly fails to protect 

the child from the drug-abusing parent’s habits and behaviors. See In re F.E.N., 542 

S.W.3d 752, 764 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Father told the 

Department that he knew Mother used methamphetamine, including while she was 

pregnant. Though Father denied making these statements to the Department at the final 

hearing, the trial court was free to disbelieve his testimony.

We find the evidence is legally and factually sufficient to support Father’s 

termination of parental rights under Subsection E. It is therefore unnecessary to address 

Subsection Q. See Interest of A.S., No. 02-19-004220-CV, 2020 Tex. App. LEXIS 1796, at *15

(Tex. App.—Fort Worth Mar. 2, 2020, no pet.) (mem. op.).

Best Interest Findings

Both Mother and Father assert that the evidence is legally and factually insufficient 

to support the trial court’s finding that termination of their parental rights was in the 

children’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2). We disagree.

APPLICABLE LAW

The non-exhaustive list of factors that have been consistently considered in 

determining the best interest of the child were set out in the Texas Supreme Court’s 

opinion, Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are: (1) the 

child's wishes; (2) the child’s emotional or physical needs now and in the future; (3) the 

emotional or physical danger to the child now and in the future; (4) the parenting abilities 
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of the parties seeking custody; (5) programs available to help those parties; (6) plans for 

the child by the parties seeking custody; (7) the stability of the proposed placement; (8) 

the acts or omissions of the parent that indicate that the existing parent-child relationship 

is not proper; and (9) any excuses for the acts or omissions of the parent. See Id. The 

Holley factors focus on the best interest of the child, not the best interest of the parent. In 

re S.L., 421 S.W.3d 34, 38 (Tex. App.—Waco 2013, no pet.). There is no requirement that 

every factor must be proved as a condition precedent to parental termination, and the 

absence of evidence about some factors does not preclude a factfinder from reasonably 

forming a strong conviction that termination is in the child's best interest. See In re C.H., 

89 S.W.3d 17, 27 (Tex. 2002).

DISCUSSION

In explaining the reasoning behind its best-interest finding, the trial court noted 

Mother’s lack of protection from the illicit drug use and domestic violence in her home

for a prolonged period of time. C.H., 89 S.W.3d at 27-28 (considering evidence related to 

the predicate grounds under Texas Family Code Section 161.001(b)(1) as relevant to a 

best-interest determination); See Interest of O.J.P., No. 01-21-00163-CV, 2021 Tex. App. 

LEXIS 7732, at *51-52 (Tex. App.—Houston [1st Dist.] Sept. 21, 2021, no pet.) (mem. op)

(explaining that a child’s exposure to violence in the home undermines the safety of the 

home environment and is relevant when considering the child’s best interest); See In re 

D.M., 452 S.W.3d 462, 471-74 (Tex. App.—San Antonio 2014, no pet.) (considering 
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children’s exposure to narcotics in a best-interest analysis). The court recognized 

Mother’s lack of improvement in areas of concern over the three-year period that her 

family had been involved with this trial court. Regarding Father, the trial court pointed 

to Father’s lack of effort in fostering a parent-child relationship with D.L.-2, remarking 

specifically that Father did not take the opportunity to meet D.L.-2 when he was out of 

custody for a few months between periods of incarceration. The trial court could have 

reasonably concluded that the parent-child relationship between Father and D.L.-2 

would continue to be non-existent once Father was released from custody. Further, 

Father’s criminal activity shows a habit of engaging in violent behavior, and there is 

nothing in the record indicating Father has taken any steps to address this area of concern. 

Moreover, permanence is of paramount importance in considering a child’s 

present and future needs, and prompt and permanent placement of the child in a safe 

environment is presumed to be in the child's best interest. See In re M.C.T., 250 S.W.3d 

161, 170 (Tex. App.—Fort Worth 2008, no pet.); See Interest of B.C.S., 479 S.W.3d 918, 927 

(Tex. App. – El Paso 2015, no pet.). The record reflects that the Department has been 

involved with Mother and these two young children for several years, resulting in 

removals and multiple different placements. In spite of the many efforts made to safely 

return the children to Mother’s care, including a failed monitored return in this case, the 

underlying concerns that precipitated the Department’s involvement have not been 

resolved. Meanwhile, Father has spent a significant portion of D.L.-2’s life in custody
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and has never provided a stable home for the child. He testified that he is up for parole 

consideration in July of 2024, but as the trial court stated, there is no guarantee that parole 

will be granted. See Interest of J.M.G., 608 S.W.3d 51, 56 (Tex. App.—San Antonio 2020, 

pet. denied). The children are now with an adoption-motivated foster family who has 

demonstrated a willingness to offer consistency and stability as well as proactively 

address the children’s physical and emotional needs. We find the evidence is legally and 

factually sufficient to support the trial court’s finding that termination of Mother’s 

parental rights to D.L.-1 and D.L.-2 is in the children’s best interest, and that termination 

of Father’s parental rights was in D.L.-2’s best interest.

We overrule Mother and Father’s issues on appeal.

Conclusion

Having overruled Mother and Father’s issues on appeal, we affirm the judgment 

of the trial court.

STEVE SMITH

Justice

Before Chief Justice Gray,

Justice Johnson, and

Justice Smith

Affirmed

Opinion delivered and filed April 25, 2024

[CV06]