### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00846- CV

E. S., Ap pellant

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 419 TH JUDICI AL DISTRICT NO. D-1 -F M- 12- 0026 43, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

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

This is an appea l from a di s t ri ct co u rt order terminating the pare ntal rig hts of E.S. to two children. I n two issues on appea l, E.S. asser ts that the evidenc e i s l ega l l y and fac tually insufficient to prove that: (1) E.S. had committed one of the alleg ed statutory g rounds for termination with reg ard to one of the children; and (2) termination was in the best interest of either child. We will affirm the ter mination order.

BACK GR OUND The Texas Depa

rtment of Family and Protective Service s (the Depa rtment) broug ht suit to terminate E.S.’s pare ntal rig hts to her two chil d re n, four- y ear -old J .L .H. and one-y ear -old M.Y. The case proce eded to a jury trial. The statutory g rounds for termination that wer e submitt ed
to the jury i n cl u d ed t h at E.S. had: (1) eng ag ed in conduct or knowing ly place d the children with pers ons who eng ag ed in conduct which endang ere d the phy sical or emotional well-be ingof the children; (2) k n o wi n gl y place d or knowing ly allowed the children to rema in in conditions

or surrounding s which endang ere d the phy sical or emotional well-being of the children; and (3) constructively abandone d the chil d re n . The jury was further instructed, consistent with the 1 termination statute, that in order to term i n at e E.S.’s pare ntal rig hts, it also had to find that termination was in the best interest of the children. The jury found that E.S. had committed at least 2

one of t h e gro u n d s for termination with reg ard to eac h child and that termination was in the best interest of e ach c hild.

On appea l, E.S. does n ot challeng e the sufficie ncy of the evidenc e supporting the jury ’s fi n d i n g that she had committed one of the alleg ed statutory g rounds for termination with
reg ard to the y oung est child, M.Y. I nstead, she arg ues that the evidenc e is leg ally and fac tually 3 insufficient to support the j ury ’s findi ng s t h at s h e had commit ted one of t he st atutory g rounds for termination with reg ard to the older child, J .L .H., and that termination was in the best interest of both children. We will revie w the evide nce f urther be low as it relate s to those issues.

STANDARD OF REVIEW I n a te r mi n a ti o n case , we ask whether the Depa rtment proved, by clea

r and convi n c in g evidenc e, that the pare nt eng ag ed in conduct that amounts to statutory g rounds for termination and

See Tex. Fam. Code § 161.001(1) (D), ( E), (N ). 1 See id . § 161.001(2). 2 At trial, the Depa

rtment prese nted u n d isputed evidenc e that E.S. had used 3 methamphetamine while she was preg nant wi t h M.Y. I n fac t, E.S. admitted in her testimony that she had use d methamphetamine w hile preg nant with that child. 2that termination i s in the children’ s best interest. Clear and convincing evidenc e is a heig htened 4 standard of proof that require s “the measure or deg ree of proof that will produce in the mind of the trier of fac t a firm belief or c onviction as to the t ruth of t he allegations soug ht to be established.” 5 On appe al, we a

pply a standa rd of r eview tha t refle cts this burden of pr oof. 6
“I n a leg al sufficie ncy revie w, a court should lo o k at all the evidenc e in the l i gh t most favor able to the finding to deter mine whether a rea sonable trier of fac t coul d h av e formed a firm belief or conviction that its finding was true.” “To g ive appropr iate defe renc e to the 7 fac tfinder’ s conclusions and the role of a court conducting a leg al sufficie ncy revie w, looking at the evidenc e in the light most favor able to the judgme nt means that a revie wing court must assume that the fac tfinder resolved disputed fac ts in favor of its finding if a rea sonable fac tfinder could do so.” 8
“A corollar

y to this require ment is that a court should disrega rd all evidenc e that a rea sonable fac tfinder could have d i sbelieved or found to have been incre dible.” Howeve r, “[t] his does not 9 mean that a court must disreg ard all evidenc e that does not support the findi ng .” The reviewing 1 0
court must consider “undis puted fac ts that do not support the finding .” “I f, afte r conducting its 1 1

See id .; In re C.H. , 89 S.W .3d 17, 23 (Tex. 2002). 4 Tex. Fam. Code § 101.007; see C.H. , 89 S.W .3d at 25. 5 See I n re J.F.C. , 96 S.W .3d 256, 264-66 (Te x . 2002). 6 Id . at 266. 7 Id

. 8 Id

. 9 Id

. 1 0 See id

. 1 1 3leg al sufficie ncy revie w of the rec ord evidenc e, a court deter mines that no rea sonable fa ct finder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidenc e is leg ally insufficient.” 1 2
I n a fac tual sufficie ncy revie w, “the inquiry must be ‘whether the evidenc e is s u ch that a fac tfinder could rea sonably for m a firm belief or conviction about the truth of the State’s alleg ations.’” We “must g ive due consideration to evidence tha t the fac tfinder could rea sonably

1 3 have found to be clea

r and convincing ,” but we also “should consider whether disputed evidenc e is such that a rea sonable fac tfinder could not have resolved that disputed evidenc e in favor of its finding .” “I f, in light of the entire rec ord, the disputed evidenc e that a rea sonable fac tfinder could

1 4
not have cre dited in favor of the finding is so signific ant that a fac tfinder could not rea sonably have formed a firm belief

or convic tion, then the evidenc e is fac tually insufficient.” 1 5

ANALYSIS Statutory te rm ination grounds

I n her first issue, E.S. asser ts that the evidenc e is l egally and fac tually insufficient
to supp o rt the jury ’s finding that E.S. had committed one of the alleg ed statutory g rounds for termination with reg ard to J .L .H. The g rounds submitt ed to the jury with reg ard to J .L .H. wer e eng ag ing in conduct t hat endang ere d the child, placing the child in an endang ering environment,

Id

. 1 2 Id . (quoting C.H. , 89 S.W .3d at 25). 1 3 Id

. 1 4 Id

. 1 5 4and constructive abandonme nt. Although multipl e g rounds wer e submitt ed to the jury in a standard

broad- form question, the jury is re q u i red to find only one statutory g round in order to terminate
pare ntal rig hts. For the rea sons that follow, we conclude that the evidenc e is leg ally and fac tually 1 6 sufficie nt to support the endang ering -conduc t gr ound. 1 7

“Te rmination under subsection 161.001(1)( E) must be based on more than a sing le
act or omission; a voluntary , delibera te, and conscious course of [endang ering ] conduct by the pare nt is r equire d.” “The requisite endang erme nt ma y be found if the evidenc e shows a pare nt’s course 1 8 of conduct that has the eff ect of endang ering the child’s phy sical or emotional well-be ing.” I n this 1 9 context, “enda

ng er” has been broadly define d by Texas courts. Although “‘e ndang er’ means more than a threa t of metaphy sical injury or the possible ill eff ects of a less-than-ide al family environment, it is not nece ssary that the conduct be direc ted at the child or that the child actua lly suffe rs injury .” 2 0 “Rather , ‘enda

ng er’ means to e x pose to loss or injury ; to jeopar dize.” “Enda ng erme nt c an occur 2 1

See In re A.V. , 113 S.W .3d 355, 362 (Tex. 2003); P.W

. v. Departme nt of Family & 1 6 Protective Servs. , 403 S.W .3d 471, 475 (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d w.o.j.).

See Tex. Fam. Code § 161.001(1) (E). 1 7 In re C.A.B. , 289 S.W .3d 874, 883 (Tex. App.—Houston [14t h Dist.] 2009, no pet.) (citing 1 8 In re J .W

. , 152 S.W .3d 200, 205 (Tex. App.—Dallas 2004, pe t. denied))

. Id

. 1 9 Texas Dep’ t of Human Servs. v. Boyd , 727 S.W .2d 531, 533 (Tex. 1987) (citing Allred 2 0 v. Harris Cnty. Child W

elfare Unit , 615 S.W .2d 803, 806 (Tex. Civ. App.—Houston [ 1 s t Dist.] 1980, writ ref

’d n.r.e .)). Id

. (citing Webster’s New Twentieth Century Dictionary of the Eng lish L ang u age 599 2 1 (1976))

. 5throug h both acts and omissions .” “[T] he conduct does not have to cause a concr ete threa t of injury 2 2
to the child.” Nor does the conduct “have to occur in the prese nce of the chi l d

. ” “A n d the

2 3 2 4 conduct may occur . . . both befor e and afte r the child has been remove d by the Depa rtment.” “I f

2 5 the evidenc e s h o ws that the pare nt has eng ag ed in a course of conduct which has the eff ect of endang ering t h e child, then the finding under subsection E may be upheld.” “As a g ener al rule, 2 6 conduct that subjects a child to a life of uncer tainty and instabilit y endang ers the phy sical and emotional well-be ing of a child.” “[A] pare nt’s use of narc otics and its eff ect on his or her ability 2 7 to pare nt may

qualify as an e ndang ering

course of conduc t.” 2 8

In re W .J.H. , 111 S.W .3d 707, 715 (Tex. App.—For t W o rth 2003, pet. denied) (citing 2 2 Phillips v. Texas Dep’ t of Protective & Regulatory Servs. , 25 S.W .3d 348, 354 (Tex. App.—Austin 2000, no pet.)). Id

. at 716 (citing In re D.M. , 58 S.W .3d 801, 811 (Tex. App.—For t Worth 2001, no pet.); 2 3 Director of Dallas Cnty. Child Protective Servs. Unit v. Bowling , 833 S.W .2d 730, 733 (Tex. App.—Dallas 1992, no pe t.)).

W alker v. Texas Dep’ t of Family & Pr o t ec t ive Servs. , 312 S.W .3d 608, 617 2 4 (Tex. App.—Houston [1s t Dist.] 2009, pet. denied) (citing Bowling , 833 S.W .2d at 733). Id

. (citing In re S.M.L.D. , 150 S.W .3d 754, 757-58 (Tex. App.—Amar illo 2004, no pet.); 2 5 Ave ry v. State , 963 S.W .2d 550, 553 (Tex. App.—Houston [1s t Dist.] 1997, no pet.)).

W .J.H ., 111 S.W .3d at 716 (c iting D.M. , 58 S.W .3d at 811). 2 6 In re R.W

. , 129 S.W .3d 732, 739 (Tex. App.

— Fo rt Worth 2004, pet. denied) (citing 2 7 In re S.D. , 980 S.W .2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied) ).

In re J. O. A. , 283 S.W .3d 336, 345 (Tex. 2009) (citing In re S.N. , 272 S.W .3d 45, 52 2 8 (Tex. App.—Waco 2008, no pet.); Toliver v. Texas Dep’ t of Family & Protective Servs. , 217 S.W .3d 85, 98 (Tex. App.—Houston [1st Dist.] 2006, no pet.); R.W

. , 129 S.W .3d at 739); see also W alker , 312 S.W .3d at 618 (“B eca use it exposes the child to the possibili ty that the pare nt may be impaired or imprisoned, illeg al drug use may support termination under se ction 161.001(1)( E).”)

.

6I n this c ase, the Depa rtment prese nted evidenc e tending to showthat E.S. had used methamphetamine on multipl e occa sions. E.S. admitted in her testim o ny to u s in g methamphetamine while preg nant with M.Y., althoug h she denied using it in the prese nce of J .L .H. E.S. claimed that she did not start using methamphetamine until af ter the Depa

rtment’s investiga tion had begun and that she had used it a s a “coping ” mecha nism to deal with the stress of that situation. When a sked how often she had used me thamphetamine, E.S. testified, “I don’t use it any more. B ut when I

did do it, I only did it—I mean, I didn’t smoke every d ay . ” E

. S

. denied that she had a drug problem. Howeve r, at the time E.S. had used methamphetamine, the Depa rtment’s case ag ainst her was ong oing. Thus, E.S. had used methamphetamine despite the fac t that her pare ntal rig hts wer e at risk
at the time. Fr om this evidenc e, the jury could have rationally infer re d t h at E.S. had a pattern of methamphetamine use that endang ere d J .L .H.’s phy sical or e motional well-being

. 2 9

Additionally , althoug h E.S. claimed that she h ad only used methamphetamine “two or three times,” the jury could have rationally conclude d that she had used it more fre quently than she claimed. Dr. Ernest L y kissa, the Depa

rtment’s expert witness on intox ication, testified that

on multipl e occa sions, hair-f ollicle tests wer e perf

ormed on E.S. that reve aled the prese nce of high levels of methamphetamine in her body

. Acc ording to the drug -test results, E.S. first tested positive for methamphetamine on J une 4, 2012. Dr. L y kissa testified that the test results indicated that E.S.

See In re M.E.-M

.N. , 342 S.W .3d 254, 263 (Tex. App.—For t Worth 2011, pet. denied) (“A 2 9 pare nt’s decision to eng ag e in illega l drug use during pendenc y of a termination suit, when the pare nt is at risk of losing a child, supports a finding that the pare nt eng ag ed in conduct that endang ere d the child’s phy sical or emotional well-be ing.” ); In re C.A.B. , 289 S.W .3d at 885 (“ Methampheta mine has potential for

abuse a nd has ‘a ddiction-forming liability ’ as a narc otic.”). 7had used methamphetamine freque ntly during the previous ninety day s. E

. S

. ’s h air ag ain t ested 3 0 positive for methamphetamine on Aug ust 27, 2012, in an amount that indicated, acc ording to L y kissa, “about 12 times highe r than a casua l exposure.” I n L y kissa’s opinion, this meant that E.S. “proba bly did a few fre quent doses” during the previous thirty day s and that such an amount could not, in prac tice, result from one-time use. I n L y kissa’s view, if the amount prese nt in E.S.’s hair had resulted f rom one-time use , E.S. would likely be dea d. Additional drug tests produce d mix ed results. On J anuar y 24, 2 0 1 3 , E.S.’s urine tested positive for methamphetamine and, on Fe bruar y 20, 2013 , her urine tested positive for marihuana

. Howeve r, on J anuar y 29, 2013, both a hair and urine test wer e neg ative. But, in 3 1 Aug ust 2013, hair-te st results ag ain wer e positive for methamphetamine, this time over the previous ninety -day time period. Once ag ain, the amount of methamphetamine in E.S.’s hair was so high that it could not, in L y

kissa’s opinion, have resulted from one-time use. Accor ding to L y kissa, “[S] he

wou l d h av e d i ed fo r sure” i f t he amount had been from a si ng le dos e. He added, “She had to use

Acc ording to L y

kissa, a hair-f

ollicle test measure s drug use over an extended “window” 3 0 of time, beca

use it t ak es l o n ger fo r drug residue to be prese nt in hair g rowth following use. For example, the J une 4 test measure d E.S.’s drug use over the previous ninety day s (other hair tests that wer e performe d on E.S. measure d use over shorter tim e periods , such as thirty day s). I n contra st, blood and urine te sts revea l more re cent use . L y kissa explained: Well, any part of the body y ou test for drug s, it will gi v e y ou a differ ent window, I mean, o r a l ook back, if y ou would like, of som ebody that has used. The hair, as I said, it g ives y ou a l o o k b ac k , and it’s not exact. I mean, if y ou tell me, did this person use—y ou know, I mean, I ’m testing them now. And did this person use [on] Aug ust the 12th, I cannot tell y ou that in the hair. Bu t i f I test him on Aug ust the 12th or Aug ust the 13th in their bloodstream, I would find it beca use it’s still in their bloodstream. I f a wee k later I test them in the ir urine, I would find it. I n the hair, I have to wa it a month, y ou know, to test them, and then I ’ll g et it. E.S.’s urine had a lso tested neg ative on Nove mber 7, 2012 a nd May 21, 2013. 3 1 8multipl e times, and something tells me, with the amount involved here , she had to do it periodica lly

during that 90-day period.” Moreove r, there was also evidenc e prese nted that E.S. had missed drug
tests on numerous occasions during t he past y ear , which, the jury could have rationally inferr ed, 3 2 meant that E.S. knew tha t she would test positive for illeg al drugs on those dates a nd had avoide d taking the tests for that r eason. 3 3

I n her brief, E.S. emphasizes that there was no evidenc e tending to show that she had used methamphetamine while J .L .H. was in he r prese nce, beca use the positive drug tests occur red only afte r the Depa

rtment had remove d J .L .H. from her car e. Howeve r, evidenc e of drug use while the child is in the pare nt’s car e is not require d to support an endanger m ent finding , so long as the evidence shows that the parent had used illega l drug s while the ca se wa s ong oing. Her e, the 3 4 Depa rtment prese nted ample evidenc e of E.S.’s drug use while the case was ong oing, summarized

A summary of the drug -test results wer e admitted into evide n ce. The results show 3 2 31 dates marke d “no show” and two dates marke d “re fused.” Both of the “re fused” dates wer e hairfollicle tests, while the “no shows” included both hair and urine tes t s . I n her testimony , E.S. p ro v ided various excuses and explanations for the missed tests, including problems obtainin g transporta tion to the testing site. Howeve r, the jury was fre e to disbelieve E.S.’s testimony , and we are to defe r to the jury ’s cr edibility deter mination. See, e.g. , C.A.B. , 289 S.W .3d at 885 (“A fac tfinder rea sonably could infer that [parent’s] 3 3 failure to submit to the court-or dere d drug scre ening indicated she was avoiding testing beca use she was using drug s.”); In re W .E.C. , 110 S.W .3d 231, 239 (Tex. App.—For t W o rt h 2003, no pet.) (same)

. See, e.g. , In re C.J.S. , 383 S.W .3d 682, 689 (Tex. App.—Houston [14t h Di s t

. ] 2 0 1 2 ,

3 4 no pet.); M.E.-M

.N. , 342 S.W .3d at 263; W alker , 312 S.W .3d at 617-18; In re S.K.A. , 236 S.W .3d 875, 901 (Tex. App.—Texarkana 2007, pet. denied) ; Cervantes-P eterson v. Texas Dep’ t of Family & Protective Servs. , 221 S.W .3d 244, 253 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also C.A.B. , 289 S.W .3d at 8 85 (mother endang ere d well-be ing of child by , among other things, “continu[ing] to eng ag e in criminal activity ” even t h o u g h she “knew her pare ntal rig hts wer e in jeopar dy ”); Robinson v. Texas Dep’ t of Protective & Regulatory Servs. , 89 S

. W .3d 679, 687 (Tex. App.—Houston [1s t Dist.] 2002, no pet.) (sa me). 9above. Viewing that evidenc e in the light most favor able to the jury ’s finding , we conclude that the

evidenc e is leg ally sufficie nt to prove that E.S. had eng ag ed in a course of conduct that had the eff ect of enda ng ering J .L .H.’s phy sical or e motional well-being

. We rea ch the same conclusion afte r g iving due conside r a ti on to the disputed evidenc e in the case . There was disputed evidenc e as to the extent of E.S.’s drug use: E.S. had tested neg ative for drug s on at least three occa sions; E.S.’s licensed chemica l-depe ndency counselor testified that she believed E

. S

. was no longe r using illega l drug s and that she “would be surprised” if E.S.

curr ently tested positive for drug use; and E.S. claimed in her testimony that she had st o pped using methamphetamine by the time of trial. Neve rtheless, there was evidenc e tending to show that E.S.’s hair had tested positive for methamphetamine as rec ently as Aug ust 2013, approximately
two months prior to trial, and this evidenc e tended to show that E.S. had used methamphetamine on multipl e occa sions during that summer. I n light of the entire rec ord, we cannot say that “the disputed evidenc e that a rea sonable fac tfinder could not have cre dited in favor of the finding is so signific ant that a fac tfinder could not rea sonably have formed a fi rm b elief or conviction” that E.S. had endangere d J

. L .H.’s phy sical or emotional well-be ing by using illega l drug s. Acc ording ly , we conclude that the evidenc e is also fa ct u al l y s u fficient to support the jury ’s finding

. We overr ule E.S.’s first issue.

Best-inter est find ing

I n her second issue, E.S. asser ts that the evidenc e is leg ally and fac tually insufficient
to support the j ury ’s findi ng that termination of her pare ntal rig hts was in the best interest of both children. When deciding the best-intere st issue, we consider the well-e stablished Holley v. Adams

10fac tors, which include the child’s wishes, the child’s emotional and phy sical needs now and in the

future, emotional or phy sical dang er to the child now and in the future, the pare nting abilities of the party seeking custody , prog rams available to help that party , plans for the child by the party seeking custody , the stability of the proposed place ment, the pare nt’s conduct indicating that the pare nt-child rela tionship is improper, and any excuses for the pare nt’s conduct. The Depa rtment need not prove 3 5 all of the Holley fac tors as a “condition prec edent” to termination, and the absenc e of some fac tors does not bar the fac tfinder from finding by clea r and convincing evidenc e that termination is in a child’s best interest. “The need for perma nence is the para

mount consideration for the child’s 3 6
prese nt and future phy sical and emot i o n al n ee ds.” Moreove r, a pare nt’s statutorily offe nsive 3 7 conduct is often inter

twined with the best-inter est deter mination. 3 8
We beg in with E.S.’s statutorily offe nsive conduct. Ag ain, by E.S.’s own admission, she had used methamphetamine while she wa s p re gn ant with M.Y. There was also evidenc e, summarized above, tending to show that she had a pattern of methamphetamine use that endang ere d J .L .H. , as d em o n s t rated by her continuing to use the drug while the case was ong oing and her
pare ntal rig hts were at risk.

See 544 S.W .2d 367, 371-72 (Te x . 1976). 3 5 C.H. , 89 S.W .3d at 27. 3 6 Dupree v. Texas De p ’t o f Protective & Regulatory Servs. , 907 S.W .2d 81, 87 3 7 (Tex. App.—Dallas 1995, no wr it). Horvatich v. Texas Dep’ t of Protective & Regulatory Servs. , 7 8 S

. W

. 3 d 594, 601 3 8 (Tex. App.—Austin 2002, no pet.) (c i t i n g Holley , 544 S.W .2d at 372; Leal v. Texas Dep’ t of Protective & Regulatory Serv s. , 25 S.W .3d 315, 321 (Tex. App.—Austin 2000, no pet.)).

11Moreove r, the Depa rtment prese nted additional evidenc e of statutorily offe nsive conduct other than drug use. E.S. had, on one occ as i o n , p l ac ed J .L .H. in the car e of her uncle, Thomas Scott, who had appea red to be i n t o x i cated at the time. Acc ording to Corporal J err y 3 9 Thy ssen of the Pfluge rville Police Depa rtment, the office r who had investiga ted the incident, by standers had fo u n d S cott in what appea red to be an intox icated condition, walking J .L .H. in a stroller throug h a field or hike-a nd-bike trail near a roadw ay . Thy ssen testified that he had observe d numerous indi cator s of i ntox ication when he encountere d Scott, including diffi cu l t y standing and slurred speec h, and that Scott had admitted to consuming “somewhe re betwee n two to three 24-ounce [hi g h-alc oholic-conte nt] beer s . . . within the 30, 40 minutes prior to [Thy ssen] coming into
contac t with him.” Thy ssen explained tha t in the condition Scott wa s in at the time he wa s found, Scott had prese nted a da

ng er to the c hild’s safety :
[W ]i th Mr. Scott’s level of intox ication, there ’s no way that he could have proper ly car ed for the child.

. . . Mr. Scott could bare ly keep his balanc e, and he had walked i nto the roadw ay . And sever al construction worke rs working on a house nearb y actua lly went over to g et the stroller from Mr. Scott to protec t the child, so he was in no condition to care for a child, espec ially

out in a public place like that.

E.S. claimed that her

uncle wa s merely

suffe ring from ser ious complications relate d to diabetes a t the time of the inci dent, but, even if that was the case , the jury could have rationally inferr ed that E.S. had exercised bad judgme nt in placing her y oung child alone with an individual who was

This was some of the condu ct that formed the basis for the Depa rtment’s endang ering

3 9 place ment alleg ations. See Tex. Fam. Code § 161.001(1) (D). 12seriously impaired and that such judgme nt ref lected poorly on her ability to keep her children safe

. 4 0 On another occa sion, the police had found J

. L

. H. wandering alone on a roadw ay . When police
returne d J .L .H. t o h i s h o m e, E.S. was asleep and had been unaware that J .L .H. had g one mi ssing. Fr om this evidenc e, the jury could have rationally inferr ed that it would be in the best interest of the children not to re side with a woman w ho could be una war e if he r childre n ever

went missing. Additionally , E.S.’s curr ent live-in boy friend (and the fathe r of M.Y.) was also

an admitted m et h am phetamine user, and E.S. had what was char acte rized by one witness as a “ver y close re lationship” with this m an. Thus, the jury could have rationally inferr ed that if E.S. 4 1 maintained her pare ntal rig hts, the children would be raised in a family with two methamphetamine
users, which could b e detrimental to the children’ s well-be ing. As L ouis Rishkofski, a licensed marria g e and family thera pist who had counsele d J .L .H. during t h e case and who testified for the Depa rtment, explained:
[O] ne of the things that happens when substance abuse enter s the family , is that there is a draw by that addictive element of ener g y , of emotions, of just phy sical resour ces out of the family

. . . . [T] he children end up not g etting the ener g y or the resour ces that are g oing to that addictive habit, and so they either hav e to sort of provide for themselves.

E.S. claimed that she did not know her uncle was impaired when she left J .L .H. in his car e. 4 0 The jury was fr ee to disbelieve this testim ony . The fathe r, whose pare ntal rig hts to M.Y. wer e also termi n ated in the same proce eding 4 1 below, had simil arly tested posi tive for methamphetamine on multipl e occasions. He admitted in his testimony that methamphetamine had been a “pre tty serious habit” for him in the past, althoug h he denied curr ently using the drug

. He had also admitted to using coca ine and marihuana in the past. The father ha s not appea led the judg ment terminating his parenta l rig hts. 13Rishkofski added that methamphetamine is a “fa irly po we rf u l addictive drug ” and “hig hly stimul ating ” and that, in his experience , i t wo u l d b e “diffic ult” for a pare nt who is using methamphetamine to c are for a child. He e x plained:
[O] ne of the things that happen s with stimul ants is that they —y ou are sort of ener g ized and y ou’re putting out ener g y , and it sometimes may make noticing things around y ou a littl e more difficult or being able to listen beca use y ou will tend to want t o b e talking all the time.

. . . [I ]f y ou use a stimul ant and if y ou use it fo r s ev er al day s, then there will be a cra sh in which y ou’ll sleep for an inordinate amount of time usually

.
The jury could have rationally inferr ed from this evidenc e that it would be in the best interest of the children to not be r aised in such a n environment. F u r th e r mo r e , E

. S. h a d mi s s ed sever al schedule d visits with her children whi le th e c a s e

was ong oing. There was evidenc e tending to show that, by missing these appointments, E.S. had

4 2

cause d J .L .H. sig nificant e motional dist ress. Ac cording to Rishkofski, J .L .H. fe lt “abandonme nt” and “a sense of loss” following the missed visits. R ishkofski ex plained:

The incons i stency is very difficult beca use he either g ets his hopes up or starts to wonder , and then he sees them, a nd then he g ets excited, and then he doesn’t ag ain see them in a long time. And, y ou know, with kids, predic tability is, y ou know, part of the important structur e of the ir life.

This wa s t h e conduct that formed the basis of the Depa rtment’s constructive- 4 2 abandonme nt alleg ations. See Tex. Fam. Code § 161.001(1)( N). E.S. claimed th at d i ff i cu lties finding transporta tion wer e primarily responsible for the missed appointments, but the Depa rtment prese nted evidenc e that tra nsportation options, such as taking the bus, wer e ava ilable to her.

14The jury could have rationally inferr ed from this and other evidenc e that it would be i n the best

interest of the children to not subject them to t h e emotional distress that would follow if E.S.

rema ined “inconsistent” in her pare nting, either beca use of her own drug problem or her boy friend’ s drug problem, bot h of which, the j ury coul d h ave rationally inferr ed, remained ongoing conce rns.

I n contra st, the jury could have rationally inferr ed that no such conce rns wer e prese nt with t h e De partment’s proposed place ment for the children. At the time of trial, both J .L .H. and M.Y. had been place d in the car e of Be th an d Na t h an Fe g er, both of whom testified that they loved and wanted to a dopt the children. The Fe g ers testified that the children wer e comforta ble in their home, that J .L .H. had develope d an espec ially close bond with Mr. Fe g er and that both children had a positive rela tionship with their own ei gh t -y ear -old son and trea ted him like a sibling. The Fe g ers also descr ibed i n d etail the way s in which they wer e active and involved in the children’ s l i v es . Acc ording to Mrs. Fe g er, J .L .H. calls her “mom or mama or mommy , and he calls Na t h an dad.” Additionally , the Fe g ers testified that the children wer e g etting reg ular medical car e under their supervision and that J .L .H. was attending an d en j o y ing school and continuing to rec eive
t h er ap y . Ba sed on this and other evidenc e, the jury could have rationally inferr ed that the Fe ger s would be a mor e stable a

nd benef icial place ment for the c hildren. The Court Appointed Special Advoca te (C AS A) and g uardia

n ad litem for the children, J ennife r Horton, testified that when she was first assig ned the case , the children had alre ady been place d with the Fe g ers and that she had observe d that the children “we re doing well” with the Fe g ers. She a dded, “The children se emed he althy and pea cef

ul.” Horton fur

ther testified tha t she had observe d sever al visits betwee n E.S. and the child re n and that, during those visits, J .L .H.’s

15behavior “wa s quite sporadic,” while there did not appea r to be much “attac hment” or “eng ag ement” betwee n E.S. and the infant, M.Y. Horton also testified that she believed it was in the best interest of the c hildren to have E.S.’s pare ntal rig hts terminated. She explained:

I have three primary conce rns. I n the 17 months that this case has g one on, there has been established consistent positive drug tests for the pare nts. The pare nts have had an oppo rt u nity to participa te in service s to addre ss drug use, and they have not completed those service s. I also have conce rn that in the time I ’ve been on the case , they ’ve missed ove r 30 opportunities to visit wit h their childre n.

Simi lar testimony reg arding the best interest of the c h il d r e n w a s e li cited from the CPS

case worke r assig ned to the case , Michelle DeHa ven. DeHa

ven conclude d that E.S.’s pare ntal rig hts should be terminated beca use the children “nee d a stable, predic table, loving, safe home that they can stay in

. . . for the rest of their childhood, the rest of their lifetime.

. . . They need to have that—that stability and perma

nency .” DeHa

ven did not believe that E.S. would be able to provide the children with such stability

. Viewing the above evidenc e in the light most favor able to the jury ’s finding , we conclude that the evidenc e is leg ally sufficie nt to prove that termination of E.S.’s pare ntal rig hts was in the best interest of the children.

We rea ch the same conclusion afte r g iving due consideration to the disputed evidenc e in the case . There was disputed evidenc e reg arding the desires of J .L .H. Although there

was evidenc e tending to show that he had bonded with the Fe g ers, there was other evidenc e tending
to show that he still loved his mother and wanted to rema in in her car e. Although J .L .H. did not testify , sever al witnesses, including witnesses for the Depa rtment, testified that J .L .H. clea rly loved his mother, beca

me upset when his visits with her would en d , an d ex presse d a desire to g o home

16and live with her. Additionally , E.S.’s individual thera pist, Melinda Parker , testified that E.S. was making eff

orts to improve h er s elf throug h thera py and become a better pare nt and had, in her opinion, overcome her dr ug problem. F inally , E.S. provided testimony from which the jury

could rationally infer that, despite her drug problem, E.S

. l o v ed her children and car ed about their wellbeing

. Although the testimony of E.S. and her thera pist and the appar ent desire of J

. L

. H. to be reunited with his mother provide some evidenc e that terminati o n o f E.S.’s pare ntal rig hts might
not have been in the best interest of the childre n , we ca nnot say , in light of the other evidenc e summarized above, that “the disputed evidenc e that a rea sonable fac tfinder could not have cre dited in favor of the finding is so signific ant that a fac tfinder could n o t re as o n ab l y have formed a firm belief or conviction” that termination of E.S.’s pare ntal rig hts was in the best interest of the children. Acc ording ly , we conclude that the evidenc e is also fac tually sufficie nt to support the jury ’s finding

. We overrule E.S.’s second issue.

CONCLUSION

We affir m the district court’s orde r terminating the par ental rig hts of E.S.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: May

30, 2014

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