TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00846-CV

E. S., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT

NO. D-1-FM-12-002643, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

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

This is an appeal from a district court order terminating the parental rights of

E.S. to two children. In two issues on appeal, E.S. asserts that the evidence is legally and

factually insufficient to prove that: (1) E.S. had committed one of the alleged statutory grounds for

termination with regard to one of the children; and (2) termination was in the best interest of either

child. We will affirm the termination order.

BACKGROUND

The Texas Department of Family and Protective Services (the Department) brought

suit to terminate E.S.’s parental rights to her two children, four-year-old J.L.H. and one-year-old

M.Y. The case proceeded to a jury trial. The statutory grounds for termination that were submitted

to the jury included that E.S. had: (1) engaged in conduct or knowingly placed the children

with persons who engaged in conduct which endangered the physical or emotional well-being
of the children; (2) knowingly placed or knowingly allowed the children to remain in conditions

or surroundings which endangered the physical or emotional well-being of the children; and

(3) constructively abandoned the children. The jury was further instructed, consistent with the 1

termination statute, that in order to terminate E.S.’s parental rights, 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 the grounds for termination with regard to each child and that termination was in the best

interest of each child.

On appeal, E.S. does not challenge the sufficiency of the evidence supporting the

jury’s finding that she had committed one of the alleged statutory grounds for termination with

regard to the youngest child, M.Y. Instead, she argues that the evidence is legally and factually 3

insufficient to support the jury’s findings that she had committed one of the statutory grounds for

termination with regard to the older child, J.L.H., and that termination was in the best interest of both

children. We will review the evidence further below as it relates to those issues.

STANDARD OF REVIEW

In a termination case, we ask whetherthe Department proved, byclear and convincing

evidence, that the parent engaged in conduct that amounts to statutory grounds for termination and

 See Tex. Fam. Code § 161.001(1)(D), (E), (N). 1

 See id. § 161.001(2). 2

At trial, the Department presented undisputed evidence that E.S. had used 3

methamphetamine while she was pregnant with M.Y. In fact, E.S. admitted in her testimony that

she had used methamphetamine while pregnant with that child.

2
that termination is in the children’s best interest. Clear and convincing evidence is a heightened 4

standard of proof that requires “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.”5

On appeal, we apply a standard of review that reflects this burden of proof.6

“In a legal sufficiency review, a court should look at all the 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.” “To give appropriate deference to the 7

factfinder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the

evidence in the light most favorable to the judgment means that a reviewing court must assume that

the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.”8

“A corollary to this requirement is that a court should disregard all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible.” However, “[t]his does not 9

mean that a court must disregard all evidence that does not support the finding.” The reviewing 10

court must consider “undisputed facts that do not support the finding.” “If, after conducting its 11

 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 In re J.F.C., 96 S.W.3d 256, 264-66 (Tex. 2002). 6

 Id. at 266. 7

 Id.

8

 Id.

9

 Id. 

10

 See id.

11

3
legal sufficiency review of the record evidence, a court determines that no reasonable factfinder

could form a firm belief or conviction that the matter that must be proven is true, then that court must

conclude that the evidence is legally insufficient.”12

In a factual sufficiency review, “the inquiry must be ‘whether the evidence is such

that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s

allegations.’” We “must give due consideration to evidence that the factfinder could reasonably 13

have found to be clear and convincing,” but we also “should consider whether disputed evidence is

such that a reasonable factfinder could not have resolved that disputed evidence in favor of its

finding.” “If, in light of the entire record, the disputed evidence that a reasonable factfinder could 14

not have credited in favor of the finding is so significant that a factfinder could not reasonably have

formed a firm belief or conviction, then the evidence is factually insufficient.”15

ANALYSIS

Statutory termination grounds

In her first issue, E.S. asserts that the evidence is legally and factually insufficient

to support the jury’s finding that E.S. had committed one of the alleged statutory grounds

for termination with regard to J.L.H. The grounds submitted to the jury with regard to J.L.H. were

engaging in conduct that endangered the child, placing the child in an endangering environment,

 Id.

12

 Id. (quoting C.H., 89 S.W.3d at 25). 13

 Id.

14

 Id.

15

4
and constructive abandonment. Although multiple grounds were submitted to the jury in a standard

broad-form question, the jury is required to find only one statutory ground in order to terminate

parental rights. For the reasons that follow, we conclude that the evidence is legally and factually 16

sufficient to support the endangering-conduct ground.17

“Termination under subsection 161.001(1)(E) must be based on more than a single

act or omission; a voluntary, deliberate, and conscious course of [endangering] conduct by the parent

is required.” “The requisite endangerment may be found if the evidence shows a parent’s course 18

of conduct that has the effect of endangering the child’s physical or emotional well-being.” In this 19

context, “endanger” has been broadly defined by Texas courts. Although “‘endanger’ means more

than a threat of metaphysical injury or the possible ill effects of a less-than-ideal familyenvironment,

it is not necessary that the conduct be directed at the child or that the child actually suffers injury.”20

“Rather, ‘endanger’ means to expose to loss or injury; to jeopardize.” “Endangerment can occur 21

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

16

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). 17

In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing 18

In re J.W., 152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied)). 

 Id.

19

Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (citing Allred 20

v. Harris Cnty. Child Welfare Unit, 615 S.W.2d 803, 806 (Tex. Civ. App.—Houston [1st Dist.]

1980, writ ref’d n.r.e.)).

Id. (citing Webster’s New Twentieth Century Dictionary of the English Language 599 21

(1976)).

5
through both acts and omissions.” “[T]he conduct does not have to cause a concrete threat of injury 22

to the child.” Nor does the conduct “have to occur in the presence of the child.” “And the 23 24

conduct may occur . . . both before and after the child has been removed by the Department.” “If

25

the evidence shows that the parent has engaged in a course of conduct which has the effect of

endangering the child, then the finding under subsection E may be upheld.” “As a general rule, 26

conduct that subjects a child to a life of uncertainty and instability endangers the physical and

emotional well-being of a child.” “[A] parent’s use of narcotics and its effect on his or her ability 27

to parent may qualify as an endangering course of conduct.”28

In re W.J.H., 111 S.W.3d 707, 715 (Tex. App.—Fort Worth 2003, pet. denied) (citing 22

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.—Fort Worth 2001, no pet.); 23

Director of Dallas Cnty. Child Protective Servs. Unit v. Bowling, 833 S.W.2d 730, 733

(Tex. App.—Dallas 1992, no pet.)).

Walker v. Texas Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 24

(Tex. App.—Houston [1st 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.—Amarillo 2004, no pet.); 25

Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no pet.)).

 W.J.H., 111 S.W.3d at 716 (citing D.M., 58 S.W.3d at 811). 26

In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied) (citing 27

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 28

(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 Walker,

312 S.W.3d at 618 (“Because it exposes the child to the possibility that the parent may be impaired

or imprisoned, illegal drug use may support termination under section 161.001(1)(E).”).

6
In this case, the Department presented evidence tending to show that E.S. had used

methamphetamine on multiple occasions. E.S. admitted in her testimonyto usingmethamphetamine

while pregnant with M.Y., although she denied using it in the presence of J.L.H. E.S. claimed that

she did not start using methamphetamine until after the Department’s investigation had begun and

that she had used it as a “coping” mechanism to deal with the stress of that situation. When asked

how often she had used methamphetamine, E.S. testified, “I don’t use it anymore. But when I did

do it, I only did it—I mean, I didn’t smoke every day.” E.S. denied that she had a drug problem.

However, at the time E.S. had used methamphetamine, the Department’s case against her was

ongoing. Thus, E.S. had used methamphetamine despite the fact that her parental rights were at risk

at the time. From this evidence, the jury could have rationally inferred that E.S. had a pattern of

methamphetamine use that endangered J.L.H.’s physical or emotional well-being.

29

Additionally, although E.S. claimed that she had only used methamphetamine

“two or three times,” the jury could have rationally concluded that she had used it more frequently

than she claimed. Dr. Ernest Lykissa, the Department’s expert witness on intoxication, testified that

on multiple occasions, hair-follicle tests were performed on E.S. that revealed the presence of high

levels of methamphetamine in her body. According to the drug-test results, E.S. first tested positive

for methamphetamine on June 4, 2012. Dr. Lykissa testified that the test results indicated that E.S.

See In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied)(“A 29

parent’s decision to engage in illegal drug use during pendency of a termination suit, when the parent

is at risk of losing a child, supports a finding that the parent engaged in conduct that endangered the

child’s physical or emotional well-being.”); In re C.A.B., 289 S.W.3d at 885 (“Methamphetamine

has potential for abuse and has ‘addiction-forming liability’ as a narcotic.”).

7
had used methamphetamine frequently during the previous ninety days. E.S.’s hair again tested 30

positive for methamphetamine on August 27, 2012, in an amount that indicated, according to

Lykissa, “about 12 times higher than a casual exposure.” In Lykissa’s opinion, this meant that E.S.

“probably did a few frequent doses” during the previous thirty days and that such an amount could

not, in practice, result from one-time use. In Lykissa’s view, if the amount present in E.S.’s hair had

resulted from one-time use, E.S. would likely be dead.

Additional drug tests produced mixed results. On January 24, 2013, E.S.’s urine

tested positive for methamphetamine and, on February 20, 2013, her urine tested positive for

marihuana. However, on January 29, 2013, both a hair and urine test were negative. But, in 31

August 2013, hair-test results again were positive for methamphetamine, this time over the previous

ninety-day time period. Once again, the amount of methamphetamine in E.S.’s hair was so high that

it could not, in Lykissa’s opinion, have resulted from one-time use. According to Lykissa, “[S]he

would have died for sure” if the amount had been from a single dose. He added, “She had to use

According to Lykissa, a hair-follicle test measures drug use over an extended “window” 30

of time, because it takes longer for drug residue to be present in hair growth following use. For

example, the June 4 test measured E.S.’s drug use over the previous ninety days (other hair tests that

were performed on E.S. measured use over shorter time periods, such as thirty days). In contrast,

blood and urine tests reveal more recent use. Lykissa explained:

Well, any part of the body you test for drugs, it will give you a different window,

I mean, or a look back, if you would like, of somebody that has used. The hair, as

I said, it gives you a look back, and it’s not exact. I mean, if you tell me, did this

person use—you know, I mean, I’m testing them now. And did this person use [on]

August the 12th, I cannot tell you that in the hair. But if I test him on August the

12th or August the 13th in their bloodstream, I would find it because it’s still in their

bloodstream. If a week later I test them in their urine, I would find it. In the hair, I

have to wait a month, you know, to test them, and then I’ll get it. 

 E.S.’s urine had also tested negative on November 7, 2012 and May 21, 2013. 31

8
multiple times, and something tells me, with the amount involved here, she had to do it periodically

during that 90-day period.” Moreover, there was also evidence presented that E.S. had missed drug

tests on numerous occasions during the past year, which, the jury could have rationally inferred, 32

meant that E.S. knew that she would test positive for illegal drugs on those dates and had avoided

taking the tests for that reason.33

In her brief, E.S. emphasizes that there was no evidence tending to show that she had

used methamphetamine while J.L.H. was in her presence, because the positive drug tests occurred

only after the Department had removed J.L.H. from her care. However, evidence of drug use while

the child is in the parent’s care is not required to support an endangerment finding, so long as

the evidence shows that the parent had used illegal drugs while the case was ongoing. Here, the 34

Department presented ample evidence of E.S.’s drug use while the case was ongoing, summarized

A summary of the drug-test results were admitted into evidence. The results show 32

31 dates marked “no show” and two dates marked “refused.” Both of the “refused” dates were hairfollicle tests, while the “no shows” included both hair and urine tests. In her testimony, E.S.

provided various excuses and explanations for the missed tests, including problems obtaining

transportation to the testing site. However, the jury was free to disbelieve E.S.’s testimony, and we

are to defer to the jury’s credibility determination.

See, e.g., C.A.B., 289 S.W.3d at 885 (“A factfinder reasonably could infer that [parent’s] 33

failure to submit to the court-ordered drug screening indicated she was avoiding testing because she

was using drugs.”); In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.)

(same).

See, e.g., In re C.J.S., 383 S.W.3d 682, 689 (Tex. App.—Houston [14th Dist.] 2012,

34

no pet.); M.E.-M.N., 342 S.W.3d at 263; Walker, 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-Peterson 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 885 (mother endangered well-being of child by, among other things,

“continu[ing] to engage in criminal activity” even though she “knew her parental rights were

in jeopardy”); Robinson v. Texas Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 687

(Tex. App.—Houston [1st Dist.] 2002, no pet.) (same).

9
above. Viewing that evidence in the light most favorable to the jury’s finding, we conclude that the

evidence is legally sufficient to prove that E.S. had engaged in a course of conduct that had the effect

of endangering J.L.H.’s physical or emotional well-being.

We reach the same conclusion after giving due consideration to the disputed evidence

in the case. There was disputed evidence as to the extent of E.S.’s drug use: E.S. had tested negative

for drugs on at least three occasions; E.S.’s licensed chemical-dependency counselor testified

that she believed E.S. was no longer using illegal drugs and that she “would be surprised” if E.S.

currently tested positive for drug use; and E.S. claimed in her testimony that she had stopped

using methamphetamine by the time of trial. Nevertheless, there was evidence tending to show that

E.S.’s hair had tested positive for methamphetamine as recently as August 2013, approximately

two months prior to trial, and this evidence tended to show that E.S. had used methamphetamine on

multiple occasions during that summer. In light of the entire record, we cannot saythat “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 conviction” that E.S. had

endangered J.L.H.’s physical or emotional well-being by using illegal drugs. Accordingly, we

conclude that the evidence is also factually sufficient to support the jury’s finding. We overrule

E.S.’s first issue.

Best-interest finding

In her second issue, E.S. asserts that the evidence is legally and factually insufficient

to support the jury’s finding that termination of her parental rights was in the best interest of both

children. When deciding the best-interest issue, we consider the well-established Holley v. Adams

10
factors, which include the child’s wishes, the child’s emotional and physical needs now and in the

future, emotional or physical danger to the child now and in the future, the parenting abilities of the

party seeking custody, programs available to help that party, plans for the child by the party seeking

custody, the stability of the proposed placement, the parent’s conduct indicating that the parent-child

relationship is improper, and any excuses for the parent’s conduct. The Department need not prove 35

all of the Holley factors as a “condition precedent” to termination, and the absence of some factors

does not bar the factfinder from finding by clear and convincing evidence that termination is

in a child’s best interest. “The need for permanence is the paramount consideration for the child’s 36

present and future physical and emotional needs.” Moreover, a parent’s statutorily offensive 37

conduct is often intertwined with the best-interest determination.38

We begin with E.S.’s statutorily offensive conduct. Again, byE.S.’s own admission,

she had used methamphetamine while she was pregnant with M.Y. There was also evidence,

summarized above, tending to show that she had a pattern of methamphetamine use that endangered

J.L.H., as demonstrated by her continuing to use the drug while the case was ongoing and her

parental rights were at risk.

 See 544 S.W.2d 367, 371-72 (Tex. 1976). 35

 C.H., 89 S.W.3d at 27. 36

Dupree v. Texas Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 87 37

(Tex. App.—Dallas 1995, no writ).

Horvatich v. Texas Dep’t of Protective & Regulatory Servs., 78 S.W.3d 594, 601 38

(Tex. App.—Austin 2002, no pet.) (citing Holley, 544 S.W.2d at 372; Leal v. Texas Dep’t of

Protective & Regulatory Servs., 25 S.W.3d 315, 321 (Tex. App.—Austin 2000, no pet.)).

11
Moreover, the Department presented additional evidence of statutorily offensive

conduct other than drug use. E.S. had, on one occasion, placed J.L.H. in the care of her uncle,

Thomas Scott, who had appeared to be intoxicated at the time. According to Corporal Jerry

39

Thyssen of the Pflugerville Police Department, the officer who had investigated the incident,

bystanders had found Scott in what appeared to be an intoxicated condition, walking J.L.H. in a

stroller through a field or hike-and-bike trail near a roadway. Thyssen testified that he had observed

numerous indicators of intoxication when he encountered Scott, including difficulty standing and

slurred speech, and that Scott had admitted to consuming “somewhere between two to three

24-ounce [high-alcoholic-content] beers . . . within the 30, 40 minutes prior to [Thyssen] coming into

contact with him.” Thyssen explained that in the condition Scott was in at the time he was found,

Scott had presented a danger to the child’s safety:

[W]ith Mr. Scott’s level of intoxication, there’s no way that he could have properly

cared for the child. . . . Mr. Scott could barely keep his balance, and he had walked

into the roadway. And several construction workers working on a house nearby

actually went over to get the stroller from Mr. Scott to protect the child, so he was in

no condition to care for a child, especially out in a public place like that.

E.S. claimed that her uncle was merely suffering from serious complications related to diabetes at

the time of the incident, but, even if that was the case, the jury could have rationally inferred that

E.S. had exercised bad judgment in placing her young child alone with an individual who was

This was some of the conduct that formed the basis for the Department’s endangering39

placement allegations. See Tex. Fam. Code § 161.001(1)(D). 

12
seriously impaired and that such judgment reflected poorly on her ability to keep her children safe.

40

On another occasion, the police had found J.L.H. wandering alone on a roadway. When police

returned J.L.H. to his home, E.S. was asleep and had been unaware that J.L.H. had gone missing.

From this evidence, the jury could have rationally inferred that it would be in the best interest of the

children not to reside with a woman who could be unaware if her children ever went missing.

Additionally, E.S.’s current live-in boyfriend (and the father of M.Y.) was also

an admitted methamphetamine user, and E.S. had what was characterized by one witness as a

“very close relationship” with this man. Thus, the jury could have rationally inferred that if E.S. 41

maintained her parental rights, the children would be raised in a family with two methamphetamine

users, which could be detrimental to the children’s well-being. As Louis Rishkofski, a licensed

marriage and family therapist who had counseled J.L.H. during the case and who testified for the

Department, explained:

[O]ne of the things that happens when substance abuse enters the family, is that there

is a draw by that addictive element of energy, of emotions, of just physical resources

out of the family . . . . [T]he children end up not getting the energy or the resources

that are going to that addictive habit, and so they either have 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 care. 40

The jury was free to disbelieve this testimony.

The father, whose parental rights to M.Y. were also terminated in the same proceeding 41

below, had similarly tested positive for methamphetamine on multiple occasions. He admitted in

his testimony that methamphetamine had been a “pretty serious habit” for him in the past, although

he denied currently using the drug. He had also admitted to using cocaine and marihuana in the past.

The father has not appealed the judgment terminating his parental rights.

13
Rishkofski added that methamphetamine is a “fairly powerful addictive drug” and “highly

stimulating” and that, in his experience, it would be “difficult” for a parent who is using

methamphetamine to care for a child. He explained:

[O]ne of the things that happens with stimulants is that they—you are sort of

energized and you’re putting out energy, and it sometimes may make noticing things

around you a little more difficult or being able to listen because you will tend to want

to be talking all the time. . . . [I]f you use a stimulant and if you use it for several

days, then there will be a crash in which you’ll sleep for an inordinate amount of time

usually.

The jury could have rationally inferred from this evidence that it would be in the best interest of the

children to not be raised in such an environment.

Furthermore,E.S. hadmissed several scheduled visits with her children while the case

was ongoing. There was evidence tending to show that, by missing these appointments, E.S. had 42

caused J.L.H. significant emotional distress. According to Rishkofski, J.L.H. felt “abandonment”

and “a sense of loss” following the missed visits. Rishkofski explained:

The inconsistency is very difficult because he either gets his hopes up or starts to

wonder, and then he sees them, and then he gets excited, and then he doesn’t again

see them in a long time. And, you know, with kids, predictability is, you know, part

of the important structure of their life.

This was the conduct that formed the basis of the Department’s constructive- 42

abandonment allegations. See Tex. Fam. Code § 161.001(1)(N). E.S. claimed that difficulties

finding transportation were primarily responsible for the missed appointments, but the Department

presented evidence that transportation options, such as taking the bus, were available to her.

14
The jury could have rationally inferred from this and other evidence that it would be in the best

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

remained “inconsistent” in her parenting, either because of her own drug problem or her boyfriend’s

drug problem, both of which, the jury could have rationally inferred, remained ongoing concerns. 

In contrast, the jury could have rationally inferred that no such concerns were present

with the Department’s proposed placement for the children. At the time of trial, both J.L.H. and

M.Y. had been placed in the care of Beth and Nathan Feger, both of whom testified that they

loved and wanted to adopt the children. The Fegers testified that the children were comfortable in

their home, that J.L.H. had developed an especially close bond with Mr. Feger and that both children

had a positive relationship with their own eight-year-old son and treated him like a sibling. The

Fegers also described in detail the ways in which they were active and involved in the children’s

lives. According to Mrs. Feger, J.L.H. calls her “mom or mama or mommy, and he calls Nathan

dad.” Additionally, the Fegers testified that the children were getting regular medical care under

their supervision and that J.L.H. was attending and enjoying school and continuing to receive

therapy. Based on this and other evidence, the jury could have rationally inferred that the Fegers

would be a more stable and beneficial placement for the children.

The Court Appointed Special Advocate (CASA) and guardian ad litem for the

children, Jennifer Horton, testified that when she was first assigned the case, the children had already

been placed with the Fegers and that she had observed that the children “were doing well” with the

Fegers. She added, “The children seemed healthy and peaceful.” Horton further testified that she

had observed several visits between E.S. and the children and that, during those visits, J.L.H.’s

15
behavior “was quite sporadic,” while there did not appear to be much “attachment” or “engagement”

between E.S. and the infant, M.Y. Horton also testified that she believed it was in the best interest

of the children to have E.S.’s parental rights terminated. She explained:

I have three primary concerns. In the 17 months that this case has gone on, there has

been established consistent positive drug tests for the parents. The parents have had

an opportunity to participate in services to address drug use, and they have not

completed those services. I also have concern that in the time I’ve been on the case,

they’ve missed over 30 opportunities to visit with their children.

Similar testimonyregarding the best interest of the childrenwas elicited from the CPS

caseworker assigned to the case, Michelle DeHaven. DeHaven concluded that E.S.’s parental rights

should be terminated because the children “need a stable, predictable, loving, safe home that theycan

stay in . . . for the rest of their childhood, the rest of their lifetime. . . . They need to have that—that

stability and permanency.” DeHaven did not believe that E.S. would be able to provide the children

with such stability. Viewing the above evidence in the light most favorable to the jury’s finding, we

conclude that the evidence is legally sufficient to prove that termination of E.S.’s parental rights was

in the best interest of the children.

We reach the same conclusion after giving due consideration to the disputed

evidence in the case. There was disputed evidence regarding the desires of J.L.H. Although there

was evidence tending to show that he had bonded with the Fegers, there was other evidence tending

to show that he still loved his mother and wanted to remain in her care. Although J.L.H. did not

testify, several witnesses, including witnesses for the Department, testified that J.L.H. clearly loved

his mother, became upset when his visits with her would end, and expressed a desire to go home

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and live with her. Additionally, E.S.’s individual therapist, Melinda Parker, testified that E.S. was

making efforts to improve herself through therapy and become a better parent and had, in her

opinion, overcome her drug problem. Finally, E.S. provided testimony from which the jury could

rationally infer that, despite her drug problem, E.S. loved her children and cared about their wellbeing. Although the testimony of E.S. and her therapist and the apparent desire of J.L.H. to be

reunited with his mother provide some evidence that termination of E.S.’s parental rights might

not have been in the best interest of the children, we cannot say, in light of the other evidence

summarized above, that “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 conviction” that termination of E.S.’s parental rights was in the best interest of the children.

Accordingly, we conclude that the evidence is also factually sufficient to support the jury’s finding.

We overrule E.S.’s second issue. 

CONCLUSION

We affirm the district court’s order terminating the parental rights of E.S.

__________________________________________

Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: May 30, 2014

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