## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 20

- 00038

- CV

IN THE INTEREST OF J.S. AND K.H., CHILDREN
On Appeal from the County Court at Law

Bowie County, Texas Trial Court No. 19C0207

- CCL

Before Morris s, C.J., B u rgess and Stevens, JJ. Memorandum Opinion by Justice Burgess2 

### ME MORANDUM OPINION The Department of Family and Protective Services (the Department) filed a petition to terminate Father ’s parental rights to his two
- year - old daughter, K.H
. 1 T he trial cour t t erminated Father ’s parenta l rights after finding that (1) he knowingly placed o r knowingly allowed the child to remain in conditions or surroundings that endanger ed her p hysical or emotional well

- being, (2) he engaged in conduct or knowi ngly placed the c h i ld with persons who engaged in conduct that endanger ed her physical or emotiona l well

- being , ( 3 ) he failed to comply with the provisions of a court order that specifically established the actions necessary for h im to obtain the child ’s
r eturn after she h a d be en in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of her removal for abuse or neglect , (4) h is parental rights to another child w ere previously terminated based on a f inding that hi s c o nduc t violated Grounds D or E or substantial equivalent provisions of the law of another state , and (5) termination of Father ’s parental rights was in the best interest s of K.H. K .H. ’ s mother volun tarily relinq uished her parental rights and does not appea l the trial court ’ s order terminating them. 2 See T EX . F AM . C ODE A NN . § 161.001(b)(1)(D), (E), (O) , ( M ), (b)(2 ) (Supp. )
. On appeal from the termination of h is parental rights, Father argues that the evidence is legally and factually insufficient to suppor t the trial court’s findings. Because we find the evidence sufficient to support both the trial court’s findin gs on pr ed icate Grounds D and E and

1 To protec t th e co nfidentia lity of the child involved, we refer to all parties by either initials or pseudonym s . See T E X . R. A PP . P. 9.8(b)(2).
2 This ter m i nation proceeding also involved another child, three

- year - old J.S. , whose father remained unknown at th e time of trial.3

its conclusion that terminating Father ’s parental rights was in the child ’ s best interest , we affirm the tria l court’s judgment. I. Factual and Procedural Background At trial , Erica Young, an investi gator with the Departme n t, testified that she became involved in the case after receiving reports that Father , a drug

- dealer, and Mother were both using methamphet amine. Young said that , while Father refused to take a drug tes t , both J.S. and K.H. tested “positive for s ome ille g al substances
. ” According to Young, Father had two oth er children who were adopted after his parental rights were terminated due to “conce rns for domestic violence
. ” 3 Young also testified that Father was previously charged with p ossession of marih uana an d assault causing bodily injury. Ch antel Finley, the Department’s conservatorship worker, testified that Father was incarcerated at the b eginning of the case for child endangerment of J.S. and K.H. after they tested positive for drugs , but was p laced on community supervis ion in August 2019
. Finley testified at the J une 2020 trial that Father had not completed much of his court

- ordered fami ly

- based service plan , but cross

- examination showed that Father had been incarcerated f or several mo nths at a S u bsta n ce A buse F elon y P unishment F acility (SAFPF)
. Mother , who was ordered into drug rehabilitation, relapsed after her releas e and was incarcer ated at the time of trial
. Father informed the trial court that he was incarcerated n ot only fo r child endange rmen t , but also for p ossession of a controlled substance and possession of a firearm. He testified that he

3 The Department introduced a judgment terminating Father ’s parental rights to another child , J .H. , after the trial cou rt f ound that Fa t h er had v iol ated Ground O. The Departme nt did not introduce a judgment terminating Father ’s parental rights to his other daughter or a judgment terminating parental rights in a pr ior case based on Grounds D or E or substantial ly equivalen t pr ovisions of t h e law of anoth er state .4

s moked drugs in the home where J.S. and K.H. lived and that , “if anybody ’s in the house, they ’re going to get drugs in thei r syste m.” Father said h e wa s incarcerated f or the nine months preceding trial , had a projected release date in July 2020, and planne d to live with a cousin after his r elease , but Patricia Smith, the Court Appointed Special Advocate (CASA), testified that Father currently had no inc o m e and could not provide the children with a safe and stable home. Father also testified a bout the classes and mandatory programs he was pa rticipating in while in SAFPF. Even though he admitted that he had a long

- time problem with dr ugs, Father testi fied that he loved K.H. and pro mised the court that he would never take drugs aga in. Finley and Smith testified that K.H. w as thriving in a fo ster care that was meeting her emotional and physical needs after her removal f rom Moth er and Father and that te r min a tion of their parental ri ghts was in the child’s best interest
. Finley added that K.H. ’s half

- sister, J.S. , was also doing well in foster care and that both children were “having pre

- placement visits in an adoptive hom e.” After hearing this evid en ce, t he trial court termina ted Father ’s parental rights. II. Standard of Review “The natural right existing between parents and their children is of constitutional dimensions.” In re E.J.Z
. , 5 47 S.W.3d 339, 343 (Tex. App.

— Texar kana 2018, no pet.) (quo t ing H olick v. Smith , 685 S.W .2d 18, 20 (Tex. 1985) )
. “ Indeed, parents have a fundamental right to make decisions concerning ‘ the care, custody, and control of their children. ’ ” Id. (quoting Trox el v. Granville , 53 0 U.S. 57, 65 (2 000 ) ). “Because the ter m inat i on of parental rights i mplicates fundamental interests, a higher standard of proof

— clear and convincing evidence

— is required at5

trial.” Id. (quoting In re A.B. , 437 S.W.3d 498, 502 (Tex. 201 4) ) . This Court is required to

“ en gage in an exacting revi e w of the entire record to de termine if the evidence is . . . sufficient to support the termination of parental rights. ” Id
. (quoting A.B. , 437 S .W.3d at 500)
.

“ [I]n voluntary termination statutes are strictly construed in favor of the parent. ” Id. (quot i ng I n re S.K.A. , 236 S.W.3d 875, 900 (Tex. App.

— Texarkana 2007, pet. denied) (quoting Holick , 685 S.W.2d at 20 ) ).

“ In order to terminate parenta l rights, the trial c ourt must find, by clear and co nvincing evidence, that the parent has engaged in at least one s tatutory ground for ter mination and that termination is in the child’s best interest. ” Id. (citing T EX . F AM . C ODE A NN . § 161.001; In re E.N .C. , 384 S.W.3d 796, 798 (Tex. 2012 ) ). “ ‘ Clear and convincing evidence ’ is that ‘ degr ee of proof that will pr o duce in the mind of the trie r of fact a firm belief or conviction as to the truth of the allegations sought to be established. ’ ” Id. (quoting T E X . F AM . C ODE A NN . § 1 01.007 (citing In re J.O.A. , 28 3 S.W.3d 336, 344 (Tex. 2009 ) ) )
. “ This standard of proof n eces s arily affects our review of the evidence. ” Id. “In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to de termine whether the fact

- finder reasonably could have formed a f irm belief or conviction that the grounds for terminat ion were proven.” In re L.E.S
. , 471 S.W.3d 915, 9 20 (Tex. App.

— Texarkana 2015, no pet.) (citing In re J.P.B
. , 180 S .W.3d 570, 573 (Tex. 2005) (per curiam); In re J

.L.B
. , 349 S.W.3d 836, 846 (Tex. App.

— Texarkana 2011, no pet.))
. “ W e assume the trial court , acting as fact

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

- finder could d o so, a nd disregarded evidence that the fact

- finder could ha ve6

reasonably disbelieved or the credibility of which reas onab l y could be doubted.” Id
. (citing J.P.B
. , 180 S.W.3d at 573).

“ In our review of factual sufficiency, we give due consideration to evidenc e the trial court could have reasonably found to be c lear and convincing. ” Id. (citin g In re H.R.M. , 209 S.W.3 d 10 5 , 109 (Tex. 2006) (per c uriam) )
. “ We consider only that evidence the fact

- finder reasonably could have found to be clear and convinc ing and determine ‘ whether the evidence is such that a fact[

- ]finder could reasonably form a firm belief or conviction abo u t the truth of the

. . . allegations. ’” Id. (quoting H.R.M. , 209 S.W.3d at 109 (quoting In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002)) (c iting I

n re J.F.C. , 96 S.W.3d 256, 264, 266 (Tex. 2002) ) ) . “ If, in light of the entire recor d, the disputed evidence t hat a reasonable fact [

- ] finde r could not have credited in favor of the finding is so significant that a fact [

- ] finder could not reasonably have formed a firm belief or conviction, then the evidence is fac tually insufficient.” Id. (quoting J.F.C. , 96 S.W. 3 d
a t 266 )
. “‘[I] n making thi s determination, ’ we must undertake ‘ an exacting review of the entire record with a healthy regard for the constitu tional interests at stake. ’” Id. (quoting In re A.B. , 437 S .W.3d 498, 503 (Tex. 2014) (quoting C.H. , 89 S.W.3d at 2 6) )
.

“ Despite the profou nd constitutional interests at stake in a proceeding to terminate parental rights, ‘ the rights of natural p arents a re not absolute; protection of the child is paramount.’” Id
. (quoting In re A.V. , 113 S.W.3d 355, 361 (Tex. 20 0 3) ( quoting In re J.W.T. , 872 S.W.2d 189, 195 (Tex. 1994)) ( citing In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003) )) . “A child’s emotional and phys ical interests must not be sacrificed merely to preserve par ental7

rights.” Id. (quoti ng In re C.A.J. , 459 S.W. 3 d 1 7 5, 179 (Tex. App.

— Texarka na 2015, no pet.) (citing C.H. , 89 S.W.3d at 26 ) ). III. Sufficient Evidence Supported the Trial Court’s Gro und D an d E Findings

“ Only one predicate finding under Section 161. 001[b](1) is necessary to support a judgment of ter m ina t ion when there is also a finding that termination is in the child’s best interest. ” Id. at 923 (quoting In re O.R.F. , 417 S.W.3d 24 , 37 (Te x. App.

— Texarkana 2013, pet. denied) (quoting A.V. , 113 S.W. 3d at 362) ( citing In re K .W. , 335 S.W.3d 767, 769 ( Tex
. App.

— Texarkana 2011, no pet . )) )
. Even so, i n In re N.G ., the Texas Supreme Court held that due process demands that we review the evidence supporting findings under Grounds D and E when they are chall enged on appeal because termination of parental r ig ht s under these grounds “may have implications for . . . parental rights to other children.” I n re N.G. , 577 S.W.3d 230, 234 (Tex. 2019) (per curiam). As a result, we focus our analysis on Grounds D and E. A. Termination of Paren tal Rights Under Ground D Gr o und D permits a predicate finding on proof that a parent “knowingly placed or knowingly allo wed the child to remain in conditions or surroun dings which endanger[ed] the physical or emotional well

- being of the child .” T EX . F AM . C ODE A NN . § 161.001(b)( 1)(D )
. Under this ground, “we mu st examine the time before the
. . . removal to determine whether the environment itself . . . [endangered] the physical or emotional well

- being of the child .” In re L.C
. , 145 S.W .3d 790, 795 (Tex. App.

— Texarkana 2004, no pet. ) . “‘[E]ndanger’ means to
ex pose to loss or injury; to jeopardize.” Tex. Dep ’ t of Human Servs. v. Boyd , 727 S.W.2d 531,8

533 ( Tex. 1 987) ; L. E.S. , 471 S.W.3d at 923 ; In re N.S.G
. , 235 S.W.3d 358, 367 (Tex. App.

— Texarkana 2007, no pet.). “It is not ne cess a ry that the conduct be direc ted at the child or that t he child actually suffer injury.” L.E.S. , 471 S.W.3d at 923. “A child is endangered when the environment crea tes a potential for danger that the parent is aware of, but d isregards.” In re N.B
. , No. 0 6

- 12

- 00007

- CV, 2013 WL 16054 57, at *9 (Tex. App.

— Texark ana May 8, 2012, no pet.) (mem. op.). “[S]ubsection (D) permits termination [of pare ntal rights] based on a s ingle act or omission [by the parent].” L.C. , 145 S.W.3d at 797; see In re A.B
. , 125 S.W. 3 d 769, 776 (Tex. App.

— Texark ana 2003, pet. denied). Here, Father ’s testimony showed that he knowingly placed K.H. in an environment that
e ndangered her physical well

- being. Father admitted that he smoked illegal drugs in t h e home where K.H. lived. He w as aware that doing so w ould endanger K.H. ’s he alth because he confessed that , “if anybody’s in the house, they’re going to get drugs in the ir system.” Because of Father ’s behavior, K.H. tested positive for illegal s ubstances , and Father was arres ted for endangering K.H. an d J.S. Bas ed on the fact that “illegal drug use by a parent . . . supports the conclusion that the child[]’s surroun dings endanger their physical or emotional well

- being,” we find the eviden ce legally a nd factually suffi cient t o su p port the trial cou rt’s Ground D fi nding. L.E.S. , 471 S.W.3d at 925 (citing In re J.T.G
. , 121 S.W.3d 117, 125 (Tex. App.

— Fort Worth 2003, no pet. )); see N.B
. , 2013 WL 1605457, at *9
.9

B. Termination of Parental Rig hts Under Ground E Ground E requi res a f

indi n g that a parent “ e ngaged in conduct or knowingly placed the child with persons who engaged in conduct which endanger [ed] the physical or emo tional well

being of the child .” T EX . F AM . C ODE A NN . § 161.00(b)(1)(E). Under Ground E, “it is sufficien t tha t th e child’s well

- being is jeopardized or exposed to loss or injury.” Id. (citing B oyd , 727 S.W.2d at 533; N.S.G
. , 235 S.W.3d at 367 )
. Termina tion under this ground must “ be based on more than a single act or omissio n. Instead, a ‘voluntary, delib erate , an d conscious course of conduct by the parent is required.’” Id. (quo ting Perez v. Tex. Dep ’ t of Protective & Regulatory Servs
. , 148 S.W.3d 42 7, 436 (Tex. App.

— El Paso 200 4, no pet.) (citing In re K.M.M
. , 993 S.W.2d 225, 228 (Te x. App.

— Eastland 199 9, no pet . ) )) ; see B oyd , 727 S .W.2d at 533; N.S.G
. , 235 S.W.3d at 36 6

– 6 7 . “ T he conduct to be examined includes what the parent did both before and af ter the child was born. ” In re S.K. , 198 S.W.3d 899, 902 (Tex. App.

— Dalla s 2006, pet. denied).

“ [C]onduc t tha t su b

jects a child to a l ife of uncertainty and instability endangers th e physical and emotional well

- being of a child. Drug use and its effect on a parent ’ s life and his ability to parent may establish an endangering course of co nduct. ” In re J .L.B
. , 34 9 S. W .3d 836, 84 8 (Tex. App.

— Texarkana 2011, no pet. ) (quoting N.S.G. , 235 S.W.3d at 367

– 68) ; see In re J.O.A
. , 283 S .W.3d 336, 345 n.4 (Tex. 200 9) ; In re S.N. , 272 S.W.3d 45, 52 (Tex. App.

— Waco 2008, no pet. ) ( “ Evidence of illegal dr ug use or alcohol a buse b y a p arent is often ci ted as conduct which will support an affirmative finding that the parent has engaged in a c ourse of conduct which has th e e ffect of endangering the child. ”)
. “B ecause it exposes the chil d to the10

possibility t hat the parent may be imp aire d or imprisoned, i llegal drug use may support termination under section 161.001 [b] (1 )( E). ” Walker v. Tex. De p ’ t Fam ily & Prot ective Servs
. , 312 S.W.3d 608, 617

– 18 (Tex. App.

— Houston [1st Dist.] 2009, pet. denied))
. Also , altho ugh “imprisonment, s tandi ng a l one, is not conduc t which endangers the physical or emotional well

- being of the child, ‘intentional criminal activity which expose[s] the pa rent to incarceration is relevant evidence tending to establish a course of conduct en dangering the emotio nal a nd p h ysical well

- being of the child.’” In re M.C
. , 482 S.W.3d 675, 685 (Tex. App.

— Texarkana 2016, pet. deni ed) (quoting L.E.S. , 471 S.W.3d at 92 4 (quoting In re A
. W
. T
. , 61 S.W.3d 87, 89 (Tex. App.

— Amarill o 2001, no pe t.) (per curi am)) )
. Father testified th at his mother was a drug

- add ict, that his father was an alcoholic, that he had a long

- time addiction to drugs , and t hat drugs were “all [he] kn ew. ” He continued, “ That’s all I grew up around.” Father had previously been arreste d for possession of drugs , as s ault, and unlawful possession of a firearm and had lost his parental rights to other children. As a result of his drug use in the home, Fat her endangered K.H. ’ s and J.S. ’s well

- being and was incar cerated for child enda ngermen t. He also knowingly pla ced K .H. in the care of Mother , a drug addict who had relapsed before trial. Father ’s incarceration, unemployment, and inabili ty to provide K .H. with a safe and stable home were all consequences o f his drug use. Consi dering these facts , in addition to th ose d iscussed in our Ground D analysis, we find the evidence legally and factually sufficient to show that Father engaged in conduct that enda nge red K.H. ’s physical well

being.11

Because we find the evidence sufficient to support the trial court’s Grounds D a n d E findings, we overrule Father ’s point s of error challenging the findings on statutory grounds
. IV. Sufficient Evi dence Supports the B est - Interest Finding “T here is a stro ng presumption th at keeping a chil d with a parent is in the child’ s best inte rest . ” In re J.A.S
. , Jr
. , No. 13

- 12

- 00612

- CV, 2013 WL 782692, at *7 (Tex. App.

— Corpus Christi Feb. 28, 2013, pet. denied ) (mem. op.) (citing In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006) (per curia m) )
. “Termination ‘ can never be ju stified without the most soli d and subs tanti al reasons.’” In re N.L.D
. , 412 S.W.3d 810, 822 (Tex. App.

— Texarkana 2013 , no pet.) (quoting Wiley v. Spratlan , 543 S.W.2d 34 9, 352 (Tex. 1976)). In determin i ng the best inte rests of the child, courts consider the following Holley fac tors : (1) the desir es of the child, (2) the emo tional and physical needs of the child now and in the future, (3) the emo tional and physical da nge r to the child now and in the future, (4) the paren tal abilities of the individuals se eking custody, (5) the pr ogra m s available to assist these individuals, ( 6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or om issions of the parent that may indicate the existin g parent
- child relationship is not a proper one, and (9) any exc u s e for the act s or omissions of the parent
. Id. at 818

– 19 (citing Holley v. Adams , 544 S.W.2d 367, 371

– 72 (Tex. 1976) ); see In re E.N. C. , 384 S.W.3d 796, 807 (Tex. 2012); see also T EX . F AM . C ODE A NN . § 263.307(b) (Supp.). Further, we may consider evid e nce used to su pport the grounds for termin ation of parental rights in the best

- interest analysis. In re C .H
. , 89 S .W.3d 17, 28 (Tex. 200 2)
. The evidence at trial showed that Father loved K.H. , who was too young to express her desires. As a result, w e fi n d the first Holley factor neutral. See In re H.C
. , 602 S.W.3d 65412

(Tex. App.

— Texarkana 2020, no pet.) (citing In re S.L.W
. , 529 S.W.3d 6 01, 613 n.9 (Tex. App.

— Texarkana 2017, pet. denied ) )
. As for the second and third Holley factors, K.H. was two at the time of t rial , and “young children req uire a great deal of time, attention, and protection.” In re L.W
. , No. 06

- 20

- 00012

- CV, 2020 WL 468 0284 , at *9 (Tex. App.

— Texarkana Aug. 13, 2020, no pet . h.). Yet, t he evidence showed tha t Father could not meet K .H. ’ s emotio nal and physical needs and h ad instead endangered her by his drug use. We find that the second and third Holley factors support term ination of Father ’s parental rights. Next, evid ence of prior terminations of Father ’ s parental rights to othe r ch i ldren and his drug use in the home wh ere K.H. lived showed that Father lacked the parental abilities r equired to care for the child. Al thou gh there were several programs to assist Father i n SAFPF, the evidence showed that Fat her had not completed sev eral portions of the family service plan, including parenting classes that were available in SAFPF. Father ’s long

- term drug history, prior
c rimi nal and CPS history, placement of K.H. with Mother , failure to complete the family ser vice plan, and knowing en dang e rment of K.H. showed that h is rel ationship with K.H. was not proper. As a result, we f

ind the fo urth, fifth, and eighth Holley factors agai nst Father
. Father testified that he pla n ned to get a job and an associate degree whi le living with a cousin w ho w a s “s omewhere in Texarkana” after his release from SAFPF but did not testify that K.H. could als o live with his cousin. In fact, Father did not offer a plan for K.H. ’s l iving
a rrangements or care , and the instability of his ho me was demonstrated by h i s pa s t actions
. On the other han d, K.H. was placed with J.S. in an appropriate foster home , and the Department’s13

plan was for both children to b e adopted together in another hom e . We find that the sixth and seventh Holley factors weigh in favor of termin ati n g Father ’s parental rights. While Father cited his incarceration as the reas on for failing to complete the family service plan, Finley test ified that, in spite of his incarce ration, Father could have , but failed to , take a d rug test, participate in pare ntin g classes , or s tart counseling
. We f ind that the remaining Holley factor f

avor s terminating Father ’s parental rights. We conclude tha t th e Department established, by clear and convincing evidence, that terminating Father ’ s parental rights was in K .H. ’ s be st inter est . As a result, we overr ule Father ’s last point of error. V . Concl usion We affirm the trial court’s judgment.

R a lph K. Burgess Justice Date S ubmitted: September 29, 2020 Date Decided: September 30 , 2020