COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE INTEREST OF:

Z.E.C. and E. K .M.

, a

/k / a E.C.M.,

CHILDREN

. §

§

§

§

§ No. 08

- 23

- 00282

- CV

Appeal from the

112 th Judicial D istrict Court

o f Crockett County, Texas

(TC# 22

- 09

- 08226

- CV )

MEMORANDUM OPINION

Appellant Z.C. appeals the trial court ’ s judgment terminating her parental rights and

appointing the Department of Family and Protective Services (the Department) as sole managing

conservator of children, Z.E.C. and E.K.M. 1 The trial court terminated Z.C. ’ s parental rights on

the predicate grounds of child endangerment and failure to comply with a family service plan ; and

further determined that termination was in the children ’ s best interest

. See T EX

. F AM

. C ODE A NN

.

§ § 161.001(b)(1)(D), (O)

, and (b)(2)

. In eight issues, Z.C. challenges the legal and factual

sufficiency of the evidence to support the predicate grounds for termination, and the finding s about

1 To protect the privacy of the parties, we refer to them by their initials. See T EX

. F AM

. C ODE A NN

. § 109.002(d) ;

T EX

. R. A PP

. P

. 9.8(a), (b)(2)

. As for E.K.M., we note he is occasionally referred to as E.C.M. throughout the record

of this appeal.2

the children ’ s best interest and the Department ’ s reasonable efforts to return the children to their

parent before commen c ing a trial on the merits

. For the following reasons, we affirm.



### F ACTUAL AND 

### P ROCEDURAL 

### B ACKGROUND

Z.C. is the mother of Z.E.C. and E.K.M., two toddler boys

, three and one respectively, at

the time of trial

. A.S. is the a lleged father of both boys

. 2

A. The initial investigation 3

On September 5, 2022, t he Department received a referral reporting concerns of neglectful

supervision of two children by parents, Z.C. and A.S. The investigation revealed Z.C. had tested

positive for methamphetamine at the birth of E.K.M., her third child

. The Department had prior

involvement with Z.C. due to a history of substance abuse. And t wice before, Z.C. tested positive

when giving birth.

At the hospital, w hen a caseworker first met with Z.C.

, she initially denied she had most

recently used illicit drugs

. But during the conversation, she acknowledged her use of

methamphetamine a month prior

, and again a few days before giving birth

. Eventually, s he

admitted she had been using daily while at home

, but she denied that Z.E.C

. , her three year old

,

was also present. She explained her mother picked up Z.E.C. daily for a couple of hours and she

used methamphetamine while he was out of the home. Also, she said that A.S. had used drugs with

her. Upon discharge from the hospital, Z.C. planned t o return home where she lived with A.S. and

2 At the start of the final hearing, the trial court terminated A.S. ’ s parental rights based on his waiver of his rights.

3 During the final hearing, t he trial court took judicial notice of its previous rulings including temporary orders

following the adversary hearing. A lthough a trial court may take judicial notice of its records, it may not take such

notice of the truth of factual statements and allegations made therein. Guyton v. Monteau

, 332 S.W.3d 687, 693

( Tex. App.

— Houston [14th Dist.] 2011, no pet.)

. Here, the Department ’ s original petition attache d an affidavit in

support of the removal of the two children subject of this suit

. W e refer to the affidavit in this decision but only to the

extent it provides context and improves our understand ing of the factual background

.3

Z.E.C. She briefly mentioned she had a friend who was interested in adopting her newborn child

,

but no paperwork or formal process had yet begun. Z.C. reported she had previously attended a

drug class

, but she still continued to use methamphetamine

. The nursing staff observed track marks

on Z.C. ’ s arms.

Detailing Z.C. ’ s prior CPS history, the investigator noted that Z.C. tested positive for

marijuana use at the birth of Z.E.C. in 2020. Thereafter, i n July 2021, Z.C. tested positive for

methamphetamine and marijuana when her second child was born

, a daughter who is not a subject

of this suit

. Furthermore, i n September 2021, Z.C. ’ s daughter was found alone in an apartment and

the Department found reason to believe that Z.C. and her mother neglectfully supervised the child.

In October 2021, the daughter presented to the emergency room with seizure like activity and

tested positive for methamphetamine

. Z.C. and her mother admitted to their use of

methamphetamine and the Department found reason to believe Z.E.C. and her daughter were

exposed to methamphetamine

. The case was closed in May 2022 after Z.C. ’ s daughter was placed

with the child ’ s aunt.

Following the intake of the case

, t he Department was concerned that Z.C. ’ s and A.S. ’ s use

of drugs in their home placed Z.E.C. and E.K.M. at risk of harm from drug exposure. Due to the

children ’ s vulnerable ages and their inability to self

- protect

, the Department believed there was an

immediate danger to the physical health or safety of Z.C. ’ s two children. The caseworker initiated

the removal process and placed Z.E.C. and E.K.M

. with the same aunt who was caring for Z.C. ’ s

daughter.

B. The p rocedural background

On September 9, 2022, the Department filed its original petition after taking emergency

possession of the children. That same day, the trial court entered an order for protection naming4

the Department temporary sole managing conservator of the children. Following an adversary

hearing, the trial court appointed the Department temporary managing conservator and designated

Z.C. as possessory conservator.

The trial court ordered Z.C. to participate in services by work ing with a caseworker to

develop her service plan

. Upon her signi ng of the plan, the Department was ordered to provide her

with a copy of the plan. The service plan was later adopted and made an order of the court.

C. The final hearing

A bench trial was held on October 5, 202 3

, wherein the Department sought to terminate

the parental rights of A.S. and Z.C.

, as to both of the children subjects of this suit

. A.S. voluntarily

waived his parental rights

, while t he Department presented the following evidence in support of

the termination of Z.C. ’ s parental rights.

(1) The caseworker ’ s testimony

Heather Chagola, a caseworker for t he Depart ment and a custodian of its records

, testified

she became personally involved in the case in November 2022

. Chagola ’ s testimony focused

largely on the Department ’ s concerns about Z.C. ’ s methamphetamine usage

, her exposure to

domestic violence, and her compliance with the trial court ’ s ordered service plan

.

Chagola testified that, after the adversary hearing of September 2022, the trial court ordered

th e Department to provide services to Z.C. that could lead to her reunification with her children.

Z.C. was ordered to comply with the service plan. Chagola reported that Z.C. had not fully

complied with services. She believed Z.C. initially worked well with the caseworker assigned

. Bu t

over time, the caseworker could not reach Z.C.

, and she did not contact t he Department. Chagola

documented that Z.C. did not resume services until around April 2023. In sum, she described that5

Z.C. had participated “ on and off with all of her services, ” and failed to complete several ordered

by the court.

For example, Chagol a testified that Z.C. was ordered to submit to monthly d rug testing.

But Z.C. only tested three or four times while missing multiple tests. When tested on three

occasions, Z.C. tested negative

. Chagola explained, however, the multiple missed tests were

automatically deemed positive per the Department ’ s policy

. As for substance abuse treatment, Z.C.

voluntarily enrolled herself into a rehab facility but she left after two weeks, before completing the

program. As for Z.C. ’ s drug usage, Chagola testified the children ’ s physical or emotional welfare

was endangered when illicit drugs were taken while she was caretaking a child. She described that

d rug usage infringed on a parent ’ s ability to maintain responsibility

. Based on Z.C. ’ s failure to

consistently test negative for drug use

, the Department felt she had not addressed or alleviate d the

concerns about her usage.

Chag o la also testified the Department had concerns about domestic violence between Z.C.

and A.S. The caseworker noted Z.C. had unexplained bruises on her face and her body at the start

of the case

. When questioned a bout her bruises, Z.C. noticeably look ed to A.S. before she

answered

. In February 2023, there was a reported incident of domestic violence involving Z.C.,

A.S., and Z.C. ’ s mother

. Chagola testified that Z.C. denied the incident at first, but later confirmed

it

. Chagola confirm ed that Z.C. had completed eight domestic violence classes. Nonetheless,

Chagola expressed that she believed the domestic violence in the home ha d negatively impacted

Z.E.C.

, the older of the two children. Specifically, she received reports that Z.E.C. was showing

signs of aggression. Due to t his behavior

, there were times when Z.E.C. was not allowed to remain

at daycare. Chagola described that Z.E.C. appeared to act aggressively only with women. She6

noted he “ straightens up ” around his foster father

. Chagola reported that Z.E.C. was currently on

a waiting list to receive therapy.

The service plan also required that Z.C. obtain appropriate housing, provide proof of

residence, allow for announced and unannounced home visits, and report n ames and phone

numbers of any person over the age of 14 who reside d in the home

. Chagola testified that, when

the case began, Z.C. lived with A.S. and his mother. By the time of trial, she understood that Z.C.

lived in Lubbock with her sister. Although Chagola suspected that Z.C. moved frequently, having

lived in at least six different locations during the course of the case

, not much information was

known about many of her previous addresses. Also, Z.C. had failed to provide her current a ddress

.

Chagola testified the Department could not determine whether Z.C. could provide a safe and stable

home for her children because she frequently move d without providing her change of address. As

for her employment, Chagola was only able to verify that Z.C. worked for a retail business for

about a month. Z. C. informed the Department that she had also previously worked for a hotel

chain

, and she currently cleaned houses

. Chagola testified, however, that she was not able to

confirm th o se claim s

.

Chagola also testified about Z.C. ’ s visitation with her children

. As of March of 2023, Z.C.

attended seven visits and miss ed five. Chag o la noted her absences had bec o me so frequent that the

Department asked her to confirm her attendance both 24

- hours and 2

- hours in advance. When

visits were held, Chagola observed Z.C. ’ s interactions with Z.E.C. and E.K.M. She believed that

Z.C. favored Z.E.C. and paid little attention to E.K.M, who was not yet a year old. Chagola

acknowledged that Z.C. would regularly ask about how the children had been f or the “ past two,

three months. ” But she did not keep up with their medical needs and did not ask to attend doctor ’ s

appointments. Chagola was not aware of whether Z.E.C., who had by then turned three years of7

age, had expressed a desire to live with Z.C. Chagola confirmed that Z.C. complete d parenting

classes as ordered

.

Finally, Chag o la noted the Department offered Z.C. transportation to help her attend visits

with her children and to submit to drug test ing

. She a lso mentioned that Z.C. was provided with a

copy of her service plan on at least three separate occasions. Overall, Chag o la reported

, it had been

difficult throughout the case for the Department to contact Z.C.

, and she failed to respond to

messages and calls.

(2) Z.C. ’ s testimony

Z.C. responded briefly to the caseworker ’ s testimony. Her direct examination resulting

from questioning by the Department ’ s counsel spans only three pages of the reporter ’ s record.

First, she addressed the caseworker ’ s claim that she had failed to return messages. She commented,

“ [j]ust as much as when I tried to get a hold of her, she ’ s not getting in contact with me. ” Then, a t

one of the visits, she and the caseworker had confirmed numbers only to learn that the Department

h ad the wrong number for reaching her. At that point, Z.C. provided a new number to her

caseworker

. Second, on a new topic, counsel asked if she denied that she was currently pregnant.

She answered, “ Yes. ” At that point, no further questions were asked.

On cross

- examination by her own counsel

, Z.C. testified that A.S. had physically abused

her and acted controlling during their relationship. She further confirmed they both were using

drugs “ at some point, ” and A.S. dealt drugs for money

. When Z.C. voluntarily left a treatment

facility, A.S. had picked her up. At that point, she described that A.S. ’ s violence against her

continued, though not as much as before. She credited the change to his drug dealing paying well.

She confirmed that she and A.S. were no longer together and there existed no chance of them

getting back together.8

Z.C. also responded to other parts of the caseworker ’ s testimony. First, she refuted the

caseworker ’ s claim that she favored one child over the other. She testified she loved both of her

children. Second, on her compliance with the service plan, she described that she had been trying

to work the services. To date, she completed parenting classes and others addressing abuse. From

the beginning of her involvement with the Department, sh e added that she has been attending

counseling and relying on supportive programs such as narcotics anonymous and alcoholics

anonymous.

As for her current residence, Z.C. testified she lives in an apartment in Midland with A.S. ’ s

father

. She claimed he was trying to help her get her kids back. She described that A.S. ’ s father

maintained a positive relationship with A.S. She confirmed she currently did not have a job

, but

she was actively seeking employment. Her testimony under cross

- examination ended after a mere

11 pages of the reporter ’ s record.

(3) CASA recommendation

The court

- appointed special advocate ( CASA ) recommended termination because there

was “ no consistent improvement in services, specifically housing and employment. ” CASA further

recommended the Department be named managing conservator of the children.

(4) Trial court ’ s judgment

At the end of the trial, t he trial court found there was clear and convincing evidence that

Z.C. failed to comply with the service plan and she previously placed the children in an

environment that was knowingly dangerous to the children. T he trial court further found

termination of parental rights was in the children ’ s best interest. The trial court later entered a

written order terminating Z.C. ’ s parental rights based on T EX

. F AM

. C ODE A NN

.

§ § 161.001(b)(1)(D) and (O)

. Z.C. brought this appeal.9 

### S TANDARD OF 

### R EVIEW 

### A ND 

### A PPLICABLE 

### L AW

The involuntary termination of a parent ’ s rights to their child is an issue of constitutional

dimension deserving of a heightened burden of proof. Holick v. Smith

, 685 S.W.2d 18, 20

( Tex. 1985) ; In re J.T.G.

, 121 S.W.3d 117, 124 ( Tex. App.

— Fort Worth 2003, no pet.)

. As such,

the quantum of proof required in termination cases rises from preponderance of the evidence to

clear and convincing evidence. In re J.T.G.

, 121 S.W.3d at 124

. Clear and convincing evidence is

defined as “ 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. ” T EX

. F AM

. C ODE

A NN

. § 101.007

.

When the legal sufficiency of the evidence is challenged

, reviewing courts consider all the

evidence in the light most favorable to the required finding to “ determine whether a reasonable

trier of fact could have formed a firm belief or conviction that its finding was true. ” In re J.O.A.

,

283 S.W.3d 336, 344 ( Tex. 2009)

. We defer to the fact

- finder ’ s conclusions, indulge every

reasonable inference supporting the finding, and presume the fact

- finder resolved any disputed

facts in favor of the findings. Interest of L.D.C.

, 622 S.W.3d 63, 69 ( Tex. App.

— El Paso 2020,

no pet.)

. While we may not disregard undisputed facts, we disregard any evidence that a reasonable

fact

- finder could have disbelieved or found to be incredible. Id.

Likewise, in reviewing the trial court ’ s findings for factual sufficiency, the reviewing court

looks to whether the evidence is such that the fact

- finder could reasonably form a firm belief or

conviction about the truth of the allegations. In re J.F.C.

, 96 S.W.3d 256, 266 ( Tex. 2002)

.

Importantly, we must not substitute our judgment for that of the fact

- finder

. Interest of D.R.V.

,

No. 08

- 22

- 00238

- CV, 2023 WL 2544577, at *5 ( Tex. App.

— El Paso Mar. 16, 2023, no pet.)

(mem. op.)

. We must give due consideration to evidence that the fact

- finder reasonably could have10

found to be clear and convincing. In re J.F.C.

, 96 S.W.3d at 266

. We also “ consider whether

disputed evidence is such that a reasonable factfinder could not have resolved that disputed

evidence in favor of its finding. ” Id. The evidence is factually insufficient when, in light of the

entire record, the disputed evidence that a reasonable fact

- finder could not have credited in favor

of the finding is so significant that a fact

- finder could not reasonably have for med a firm belief or

conviction. Id.

Section 161.001 of the Texas Family Code states that a court may order the termination of

a parent

– child relationship provided it finds clear and convincing evidence that (1) at least one of

the grounds for termination enumerated in § 161.001(b)(1) is proved, and (2) termination is in the

child ’ s best interest. T EX

. F AM

. C ODE A NN

. § 161.001(b)

. In turn, § 161.001(b)(1) lists 22 grounds

for terminating the parent

– child relationship, each of which is sufficient alone to justify

termination. Id

. ; see In re A.V.

, 113 S.W.3d 355, 362 ( Tex. 2003) (stating only one predicate

finding under § 161.001 is necessary to support termination). Reviewing courts are always

required to review a trial court ’ s findings under subsections (D) and (E)

, whenever those grounds

are implicated

, because affirmative findings under th o se grounds have collateral consequences

with respect to the parent ’ s rights to future children. Interest of N.G. , 577 S.W.3d 230, 235

– 36

(T ex. 2019)

.



### S ECTION 

### ( D) : E NDANGERING 

### E NVIRONMENT

In her first and second issues, Z.C. asserts there was legally and factually insufficient

evidence to support the trial court ’ s finding of endangerment under subsection ( D )

.

Termination under subsection (D) requires clear and convincing evidence that the parent

“ knowingly placed or knowingly allowed the child to remain in conditions or surroundings which

endanger the physical or emotional well

- being of the child [

. ] ” T EX

. F AM

. C ODE A NN

.11

§ 161.001(b)(1)(D)

. “ Endanger ” as used by the statute means “ to expose [the child] to loss or

injury; to jeopardize. ” Interest of J.W.

, 645 S.W.3d 726, 748 ( Tex. 2022) (quoting Tex as Dep ’ t of

Human Services v. Boyd

, 727 S.W.2d 531, 533 ( Tex. 1987) )

. Although “ endanger ” means more

than “ a threat of metaphysical injury or the possible ill effects of a less

- than

- ideal family

environment, ” it does not require that the conduct be directed at the child or that the child actually

suffer injury. Id. The relevant time frame for evaluating this ground is “ before the child ’ s removal

since conditions or surroundings cannot endanger a child unless that child is exposed to them. ” Id.

(internal quotation mark s omitted).

Initially, the children were removed from Z.C. because she tested positive for

methamphetamine upon E. K .M. ’ s birth. Z.C. admitted to using drugs in the past

, and even though

she voluntarily entered a rehabilitation program, she left the facility early to return to A.S. who

was earning income dealing drugs

. During the pendency of the case

, Z.C. failed to comply with

mandatory drug test ing at least on a monthly basis

. Although she tested negative on three tests, the

multiple remaining tests were considered positive because of her failure to submit to testing

.

Though the caseworker testified that Z.C. had been inconsistent with her compliance with the

service plan, Z.C. pointed out she currently received counseling through A

. A

. and N

. A.

In her brief testimony, Z.C. neither declared that she no longer used drugs nor indicated

when it was that she had last used. A parent ’ s illegal drug use may support a finding of

environmental endangerment

. See Interest of A.H.

, 679 S.W.3d 817, 829 ( Tex. App.

— El Paso

2023, pet. denied) (mem. op.)

. Additionally

, a parent ’ s failure to submit to court

- ordered drug tests

can be taken as an indication that the parent was avoiding testing because of illicit drug use. See

In re E.R.W.

, 528 S.W.3d 251, 265 ( Tex. App.

— Houston [14th Dist.] 2017, no pet. ). Also

, a

parent ’ s continued drug use when the custody of her children is in jeopardy supports a finding of12

endangerment. See In re S.R.

, 452 S.W.3d 351, 360 ( Tex. App.

— Houston [14th Dist.] 2014,

pet. denied ). Based on th e totality of the evidence, we conclude the trial court could have

reasonably believed that Z.C. would continually place the children in a situation that would

endanger their safety and well

- being

.

The trial court also considered evidence of domestic abuse in Z.C. ’ s relationship

.

Caseworker Chagola noted a prior caseworker had view ed bruises on Z.C. and learned of a

domestic violence incident in the past. Although no specific evidence of domestic violence

between Z.C. and A.S. was introduced by the Department

, Z.C. conceded that A.S. had been

violent towards her and controlling during their relationship. Thus, t here was no dispute that he r

relationship with him had been abusive

, yet she voluntarily left the rehabilitation facility to return

to him while he dealt dru gs

. Although Z.C. testified they were no longer together, the trial court

could have disbelieved her testimony based on her repeated pattern of returning to A.S. There was

evidence that A.S. was always with Z.C. at visits and court hearings. The trial court also heard

from Z.C. that she w as currently living with A.S. ’ s father who in turn maintained his relationship

with A.S. “ Domestic violence and a propensity for violence may be considered evidence of

endangerment, even if the endangering acts did not occur in the child ’ s presence, were not directed

at the child, or did not cause actual injury to the child. ” Interest of G.M.

, 649 S.W.3d 801, 809

( Tex. App.

— El Paso 2022, no pet.) (citing Boyd

, 727 S.W.2d at 533 ). Based on this evidence

, the

trial court could have reasonably believed that Z.C. would continually place the children in a

situation that would endanger their safety and well

- being. See Interest of G.M.

, 649 S.W.3d 801,

809 ( Tex. App.

— El Paso 2022, no pet.) (holding a parent ’ s decision to continue living with

someone who has caused instances of domestic violence may support an endangerment finding

under s ubsection ( D) ) ; s ee C.H. v. Tex as Dep ’ t of Family & Protective Services

, 389 S.W.3d 534,13

540 ( Tex. App.

— El Paso 2012, no pet.) (holding that a parent ’ s inappropriate, abusive, or unlawful

conduct may create an environment that endangers the physical and emotional well

- being of a

child as required for termination under subsection (D) ).

Viewing this evidence in a light most favorable to the trial court ’ s finding, as we must, we

hold the evidence is legally and factually sufficient to support the trial court ’ s finding that Z.C.

knowingly placed Z.E.C. and E.K.M. in an environment that endangered their physical or

emotional well

- being. See T EX

. F AM

. C ODE A NN

. § 161.001(b)(1)(D) ; Interest of A.H.

, 679 S.W.3d

at 829 ; Interest of R.A.B.

, No. 08

- 22

- 00247

- CV, 2023 WL 3672050, at *7 ( Tex. App.

— El Paso

May 25, 2023, pet. denied) (mem. op.)

. We overrule the first and second issues.

Having determined the trial court ’ s predicate findings under subsection ( D ) was grounded

in legally and factually sufficient evidence, we decline to address Z.C. ’ s third and fourth issues

relating to subsection (O), as it is unnecessary to the resolution of the appeal. T EX

. R. A PP

. P. 47.1

.



### B EST 

### I NTEREST OF THE 

### C HILD

In her fifth and sixth issues, Z.C. contends the evidence was legally and factually

insufficient to establish that termination was in the best interest of the children. The involuntary

termination of parental rights must also be supported by legally and factually sufficient evidence

that termination is in the child ’ s best interest. T EX

. F AM

. C ODE A NN

. § 161.001(b)(2) ; Interest of

G.C.S.

, 657 S.W.3d 114, 133 ( Tex. App.

— El Paso 2022, pet. denied)

. “ A strong but rebuttable

presumption exists that it is in the child ’ s best interest to preserve the parent

- child relationship. ”

Interest of A.H.

, 679 S.W.3d at 831

. The child ’ s best interest is analyzed under the Holley factors:

(A) the desires of the child; (B) the emotional and physical needs of the child now

and in the future; (C) the emotional and physical danger to the child now and in the

future; (D) the parental abilities of the individuals seeking custody; (E) the

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

child; (F) the plans for the child by these individuals or by the agency seeking14

custody; (G) the stability of the home or proposed placement; (H) the acts or

omissions of the parent which may indicate that the existing parent

- child

relationship is not a proper one; and (I) any excuse for the acts or omissions of the

parent.

Holley v. Adams

, 544 S.W.2d 367, 372 ( Tex. 1976) (internal citations omitted)

. While no single

factor is controlling, in some factual situations, evidence may weigh in favor of termination based

on a single Holley factor. See Interest of A.H.

, 679 S.W.3d at 831

.

A. The child ren ’ s desire s

“ When children are too young to express their desires, the factfinder may consider whether

the children have bonded with the foster family, are well

- cared for by them, and have spent

minimal time with a parent. ” Interest of A.H.

, 679 S.W.3d at 831

– 32 (quoting In re S.R.

, 452 S.W.3d

351, 369 ( Tex. App.

— Houston [14th Dist.] 2014, pet. denied ) ). Here, Z.E .C. and E.K.M. were

three years old and one year old, respectively, and there was no evidence of their ex pressed desires.

Moreover, there was no evidence presented of whether the children ha d bonded with the foster

family. Caseworker Chagola did testify the current placement at the foster home was not a

permanent placement

.

There was evidence tha t, since March 7, 2023, Z.C. attended seven visits with her children

and missed five. Chagola testified that Z.C. ’ s visit s were inconsistent to the point that she was

asked to call in advance of visit s to confirm her attendance. Without objection, Chagola testified

that Z.C. had “ a very small bond ” with Z.E.C. and had no bond with E.K.M.

Based on this evidence

, the trial court could have found termination weighed in favor of a

best interest finding because Z.C. spent minimal time with the children and did not nurture or

maintain a strong bond through visitation

. See Interest of O.E.R.

, 573 S.W.3d 896, 90715

( Tex. App.

— El Paso 2019, no pet.) (stating that evidence that child has spent minimal time with

parent bears on the first Holley factor).

B. The emotional and physical needs of the children and their exposure to emotional

and physical danger

We consider each child ’ s needs individually. There was no evidence presented regarding

E.K.M. ’ s emotional or physical needs. As to Z.E.C., there was evidence he had begun to show

aggression and the Department had placed him on a waiting list for therapy.

In terms of physical and emotional danger to the children, “ a fact finder may infer [the]

past conduct endangering the well

- being of a child may recur in the future if the child is returned

to the parent. ” Interest of O.E.R.

, 573 S.W.3d at 907

. As discussed when analyzing the predicate

finding under subsection (D), there is evidence of record of endangering conduct and dangerous

environment. In addition to Z.C. testing positive for drugs at each child ’ s birth, there was also

evidence that she continued to test positive for drug use throughout the pendency of the case

.

Importantly, Z.C. did this knowing it could result in termination of her parental rights. This C ourt

has noted that methamphetamine is a Penalty Group 1 narcotic and is a “ hard drug, ” which carries

a greater risk of danger and incarceration. See Interest of R.A.B.

, 2023 WL 3672050, at *11 (citing

T EX

. H EALTH & S AFETY C ODE A NN

. § 481.102(6) ). Moreover, there was evidence that Z.C.

continued to associate with A.S., who previously abused he r, and he was a drug dealer while she

lived with him

.

Based on th e totality of th is evidence, the trial court could have determined that Z.C. would

continue to expose the children to emotional and physical danger. These factors all weigh in favor

of supporting the trial court ’ s best interest finding.16

C. Parenting abilities and programs available to assist

When reviewing parenting abilities, a fact

- finder may consider the parent ’ s past neglect or

inability to meet the physical and emotional needs of the children. Interest of O.E.R.

, 573 S.W.3d

at 907

– 08

. Although Z.C. continued to be involved with the children during the pendency of the

case by attending visitation and taking some classes, her failure to submit herself to drug tests and

complete other required services could lead a reasonable trier of fact to conclude she had poor

parenting abilities.

In considering the best interest of the child in termination proceedings, t he trial court may

consider that the parent failed to comply with the court ordered service plan for reunification of

the child. Interest of G.C.S.

, 657 S.W.3d at 135

. Although Z.C. testified she complete d classes

, she

provided no records to the Department knowing they were part of her plan. Z.C. ’ s failure could

lead a reasonable trier of fact to conclude she was unwilling to take advantage of services offered

and further doubt her parenting abilities. This weighs in favor of the best interest finding.

D. Plans for the children and the stability of the proposed placement

Z.C. did not testify as to any plans for the children. The evidence did show she failed to

maintain housing and employment stability throughout the case. The Department was unable to

assess the propriety of Z.C. ’ s current living space because Z.C. failed to keep the Department

apprised of her residence. Z.C. also had about three different jobs throughout the case, but the

Department was only able to verify one

— a retail job lasting a month

— while she did not provide

proof for her other claimed jobs. Z .C. admitted she was currently not working and did not have a

vehicle.

The Department did not provid e evidence of any specific plans for the children. T here was

evidence that the current foster home was not the intended permanent placement for the children.17

Additionally, Chagola testified that the Department planned to pursue adoption for Z.E.C. and

E.K.M. The Department ’ s records do show the intention to keep the children together. However,

the proper inquiry is “ whether, on the entire record, a factfinder could reasonably form a firm

conviction or belief that termination of the parent ’ s rights would be in the child ’ s best interest

—

even if the agency is unable to identify with precision the child ’ s future home environment. ” In re

C.H.

, 89 S.W.3d 17, 28 ( Tex. 2002)

.

Therefore, the lack of a firm permanency plan does not weigh against the best interest

finding. A reasonable trier of fact could conclude that the Department ’ s plans and stability for the

children supported termination. These factors weigh in favor of the best interest finding.

Viewing the evidence in the light most favorable to the finding, the trial court could

reasonably have formed a firm belief or conviction that the termination of Z.C

. ’ s parental rights

was in the children ’ s best interest. Accordingly, the finding was supported by legally and factually

suff icient evidence. We overrule Z.C. ’ s fifth and sixth issue s.



### R EASONABLE 

### E FFORTS TO 

### R E TURN THE 

### C HILDREN

In her seventh and eighth issue, Z.C. asserts there was legally and factually insufficient

evidence to establish by clear and convincing evidence that the Department complied with

§ 161.001(f) and (g)

. The two sections provide:

(f) In a suit for termination of the parent

- child relationship filed by the Department

of Family and Protective Services, the court may not order termination of the

parent

- child relationship under Subsection (b)(1) unless the court finds by clear and

convincing evidence and describes in writing with specificity in a separate section

of the order that:

(1) the department made reasonable efforts to return the child to the parent

before commencement of a trial on the merits and despite those reasonable

efforts, a continuing danger remains in the home that prevents the return of

the child to the parent; or18 (2) reasonable efforts to return the child to the parent, including the

requirement for the department to provide a family service plan to the

parent, have been waived under Section 262.2015.

(g) In a suit for termination of the parent

- child relationship filed by the Department

of Family and Protective Services in which the department made reasonable efforts

to return the child to the child ’ s home but a continuing danger in the home

prevented the child ’ s return, the court shall include in a separate section of its order

written findings describing with specificity the reasonable efforts the department

made to return the child to the child ’ s home.

T EX

. F AM

. C ODE A NN

. § 161.001(f), (g)

.

T he legislature recently amended § 161.001 to include additional requirements for trial

courts in termination suits filed by the Department and a new ground for termination that relates

to convictions for solicitation of a minor; however, these amendments only apply to suits filed on

or after September 1, 2023. Act effective date September 1

, 2023, 88th Leg., R.S., ch. 728, § 1,

2023 Tex. Sess. Law Serv. 1770, 177 2 (codified at T EX

. F AM

. C ODE A NN

. § 161.001(b)(1)(V) );

Act effective date September 1

, 2023, 88th Leg., R.S., ch. 675, § 1, 2023 Tex. Sess. Law. Serv.

1646 , 1646 (codified at T EX

. F AM

. C ODE A NN

. § 161.001(f), (g)). The original petition to terminate

the parent

- child relationship in this case was filed prior to September 1, 2023. We therefore apply

the law in effect on the date the suit was filed.

Accordingly, we overrule Z.C. ’ s seventh and eighth issues.



### C ONCLUSION

W e affirm the order terminatin g Z.C. ’ s parental rights to Z.E.C. and E.K.M.

GINA M. PALAFOX

, Justice

February 2 6

, 2024

Before Alley, C.J., Palafox and Soto

, JJ.