Opinion filed September 17, 2020

In The

Eleventh Court of Appeals 

__________

No. 11-20-00094-CV

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IN THE INTEREST OF A.L., A CHILD

On Appeal from the 326th District Court

Taylor County, Texas

Trial Court Cause No. 9569-CX

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

This is an appeal from an order in which the trial court terminated the parental 

rights of the mother and father of A.L. The mother filed an appeal. On appeal, she

presents four issues: one in which she complains of the lack of a request for an 

extension under the terms of the mediated settlement agreement and three in which 

she challenges the legal and factual sufficiency of the evidence. We affirm the trial 

court’s order of termination.

Termination Findings and Standards

The termination of parental rights must be supported by clear and convincing 

evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2019). To terminate 
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parental rights, it must be shown by clear and convincing evidence that the parent 

has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that 

termination is in the best interest of the child. Id.

In this case, the trial court found that Appellant had committed two of the acts 

listed in Section 161.001(b)(1)—those found in subsections (E) and (O). 

Specifically, the trial court found that Appellant had engaged in conduct or 

knowingly placed the child with persons who engaged in conduct that endangered 

the child’s physical or emotional well-being and that Appellant had failed to comply 

with the provisions of a court order that specifically established the actions necessary 

for her to obtain the return of the child, who had been in the managing 

conservatorship of the Department of Family and Protective Services for not less 

than nine months as a result of the child’s removal from the parents for abuse or 

neglect. The trial court also found, pursuant to Section 161.001(b)(2), that 

termination of Appellant’s parental rights would be in the best interest of the child.

To determine if the evidence is legally sufficient in a parental termination case, 

we review all of the evidence in the light most favorable to the finding and determine 

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

finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the 

evidence is factually sufficient, we give due deference to the finding and determine 

whether, on the entire record, a factfinder could reasonably form a firm belief or 

conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d 

17, 25–26 (Tex. 2002).

With respect to the best interest of a child, no unique set of factors need be 

proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied). 

But courts may use the non-exhaustive Holley factors to shape their analysis. 

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not 

limited to, (1) the desires of the child, (2) the emotional and physical needs of the 
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child now and in the future, (3) the emotional and physical danger to the child now 

and in the future, (4) the parental abilities of the individuals seeking custody, (5) the 

programs available to assist these individuals to promote the best interest of the 

child, (6) the plans for the child by these individuals or by the agency seeking 

custody, (7) the stability of the home or proposed placement, (8) the acts or 

omissions of the parent that may indicate that the existing parent–child relationship 

is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id. 

Additionally, evidence that proves one or more statutory grounds for termination 

may also constitute evidence illustrating that termination is in the child’s best 

interest. C.J.O., 325 S.W.3d at 266.

Background Facts

The record reflects that the Department became involved with Appellant

shortly after A.L.’s birth in 2019. The initial intake related to drug use by the parents. 

The Department began family-based safety services, and the parents partially 

engaged in those services for a few months. Removal was necessitated by 

Appellant’s continued use of methamphetamine. While A.L. was in Appellant’s 

care, Appellant submitted to a urine analysis in which she tested positive for 

methamphetamine at a level greater than 10,000 ng/mL and amphetamine at a level 

of 640 ng/mL. Upon removal, a hair follicle test was conducted on three-month-old 

A.L.; she tested positive for methamphetamine at a level of 10,370 pg/mg, 

amphetamine at 517 pg/mg, and marihuana at 0.2 pg/mg.

After the Department removed A.L., Appellant continued to test positive for 

drugs. As the trial date approached, Appellant avoided at least three drug tests: she 

bleached her hair prior to two hair follicle tests (even though she had been ordered 

not to bleach her hair), and she trimmed her fingernails and toenails so that they were 

too short for a court-ordered nail bed test.
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The record reflects that the Department and the parents participated in the 

creation of a family service plan after A.L. was removed. The trial court made that 

family service plan an order of the trial court. Appellant failed to comply with most 

of the plan’s provisions. In addition to her continued drug use, Appellant failed to 

maintain stable housing; she was evicted twice while the case was pending in the 

trial court. Appellant also failed to obtain and maintain steady employment. 

Additionally, her visits with A.L. did not go well; Appellant often fell asleep during 

the visits, which were supervised. Appellant informed her conservatorship 

caseworker on many occasions that she was scared of A.L.’s father due to incidents 

of domestic violence.

At the time of removal, the Department sought to place A.L. with family or 

friends of the family, but the family members and friends suggested by the parents 

were either not willing or not suitable. A.L. was therefore placed in foster care. She 

remained in the same foster home throughout the case below. The foster home was

an appropriate home, and the foster parents were able to meet all of A.L.’s needs. 

A.L. loved her foster parents and had bonded with her foster family. The 

conservatorship caseworker testified that A.L. seemed happy, was doing very well, 

was well-adjusted, and was thriving in her foster home. The foster parents intend to

adopt A.L. if she becomes available for adoption. The conservatorship caseworker 

believed that termination of Appellant’s rights would be in the best interest of A.L.

The Department’s goal for A.L. was termination of the parents’ rights and adoption 

by the foster parents.

Analysis

Sufficiency of the Evidence

In her second and third issues, Appellant challenges the legal and factual 

sufficiency of the evidence to prove grounds (E) and (O). We need only address her

challenge to the trial court’s finding under Section 161.001(b)(1)(E). See In re N.G., 
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577 S.W.3d 230, 234–35 (Tex. 2019) (addressing due process and due course of law 

with respect to appellate review of grounds (D) and (E) and holding that an appellate 

court must provide a detailed analysis if affirming the termination on either of these 

grounds).

Under subsection (E), the relevant inquiry is whether 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 D.O., 338 S.W.3d 29, 34 (Tex. 

App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must 

be based on more than a single act or omission; a voluntary, deliberate, and conscious 

course of conduct by the parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex. 

App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex. 

App.—Eastland 1999, no pet.). The offending conduct does not need to be directed 

at the child, nor does the child actually have to suffer an injury. In re J.O.A., 283 

S.W.3d 336, 345 (Tex. 2009). Drug use may constitute evidence of endangerment. 

Id. A parent’s drug addiction and its effect on the parent’s life and ability to parent

a child may establish an endangering course of conduct. In re J.T.G., 121 S.W.3d 

117, 125–26 (Tex. App.—Fort Worth 2003, no pet.) (citing Dupree v. Tex. Dep’t of 

Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no 

writ)). Domestic violence may also constitute evidence of endangerment. C.J.O., 

325 S.W.3d at 265.

Based upon evidence of Appellant’s use of methamphetamine while 

responsible for the care of A.L.; A.L. testing positive for methamphetamine at a level 

of 10,370 pg/mg, amphetamine at 517 pg/mg, and marihuana at 0.2 pg/mg; 

Appellant’s continued use of drugs after removal; and the existence of domestic 

violence between the parents, the trial court could have found by clear and 

convincing evidence that Appellant engaged in a course of conduct that endangered 

A.L. We hold that the evidence is legally and factually sufficient to uphold the trial 
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court’s finding as to Appellant under subsection (E). Accordingly, we overrule 

Appellant’s second issue. Because only one statutory ground is necessary to support 

termination and because we have upheld the trial court’s finding as to subsection (E), 

we need not reach Appellant’s third issue. See FAM. § 161.001(b)(1); N.G., 577 

S.W.3d at 234–35.

In her fourth issue, Appellant challenges the legal and factual sufficiency of 

the evidence to support the trial court’s finding that termination of her parental rights 

was in the best interest of A.L. Appellant used methamphetamine while A.L., who 

was an infant, was in Appellant’s care. Both Appellant and A.L. tested positive for 

methamphetamine and amphetamine. A.L. also had marihuana in her system at the 

time of removal. Appellant and A.L.’s father, who also struggled with 

methamphetamine use, engaged in domestic violence. Furthermore, Appellant had 

no stable housing or employment.

A.L. had been placed in an adoptive foster home where all of her needs were 

being met. She had been in the same foster home since she was removed from her 

parents, and she had bonded with her foster family. The conservatorship caseworker 

testified that it would be in A.L.’s best interest to terminate Appellant’s parental 

rights.

Based upon the evidence presented in this case, we defer to the trial court’s 

finding as to the child’s best interest. See C.H., 89 S.W.3d at 27. We hold that, based 

on the evidence presented at trial and the Holley factors, the trial court could 

reasonably have formed a firm belief or conviction that termination of Appellant’s 

parental rights would be in A.L.’s best interest. See Holley, 544 S.W.2d at 371–72. 

Upon considering the record as it relates to the child’s desires (A.L. was too young 

to express any desire), the emotional and physical needs of the child now and in the 

future, the emotional and physical danger to the child now and in the future, the 

parental abilities of those involved, the plans for the child by the Department, 
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Appellant’s use of methamphetamine, the existence of domestic violence between 

the parents, the instability of Appellant’s housing situation, and the stability of the 

placement, we hold that the evidence is legally and factually sufficient to support the 

finding that termination of Appellant’s parental rights is in the best interest of the 

child. See id. We cannot hold that the finding as to best interest is not supported by 

clear and convincing evidence. We overrule Appellant’s fourth issue.

Request for Extension

In her first issue, Appellant asserts that error exists because the parties failed 

to request an extension of the dismissal date as mandated by the parties’ mediated 

settlement agreement. See FAM. § 263.401. We note that a trial court may grant an 

extension of up to 180 days in this type of case if the trial court finds that 

extraordinary circumstances necessitate that the child remain in the temporary 

managing conservatorship of the Department and that continuing the appointment 

of the Department as temporary managing conservator is in the child’s best interest. 

See id. § 263.401(b).

The record reflects that the parties entered into a mediated settlement 

agreement (MSA) approximately three weeks prior to the pretrial hearing and five 

weeks prior to the final hearing on termination. In the MSA, the parties agreed in 

part as follows:

If [Appellant] complies with the requirements below, all parties 

agree to join in a request for an extension of this case pursuant to Texas 

Family Code § 263.401:

• [Appellant] will continue to comply and complete all 

parts of her service plan.

• [Appellant] will complete a residential drug abuse 

treatment program and provide proof of completion to 

the Department. 

. . . .
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If [Appellant] has applied and is on a waiting list for a residential 

treatment program at the time of the pretrial setting in this cause, due 

to no intentional delay on her part, then all parties agree to join in a 

request for an extension of this case pursuant to Texas Family Code 

§ 263.401.

Although Appellant asserted in her motion for new trial (which was neither 

verified nor supported by an affidavit) and on appeal that she was on a waiting list 

for a residential treatment program on the date of the pretrial setting, the record 

contains no evidence to support Appellant’s assertion. Nor does the record reflect 

that Appellant “continue[d] to comply and complete all parts of her service plan” as 

required by the MSA. We note that the appellate record does not contain a reporter’s 

record from the pretrial hearing.

The reporter’s record from the final hearing reflects that Appellant did not 

appear for trial because she was supposed to enter an inpatient treatment facility that 

morning. Appellant’s trial counsel announced “not ready” and requested a 

continuance because Appellant “was on her way to rehab.” The trial court denied 

trial counsel’s request. The conservatorship caseworker testified that Appellant was 

supposed to enter the inpatient treatment facility at 8:00 a.m. that morning but that, 

at 9:17 a.m., Appellant informed the caseworker that she had overslept and that she 

was on her way at that moment. Because the record does not show that Appellant 

had complied with the terms of the MSA, we cannot hold that her trial counsel was 

in any way deficient for failing to request an extension based on the MSA or that the 

trial court erred in not granting an extension pursuant to Section 263.401. We 

overrule Appellant’s first issue.
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This Court’s Ruling

We affirm the order of the trial court.

JOHN M. BAILEY

CHIEF JUSTICE

September 17, 2020

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

1

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.