## In the Court of Appeals Second Appellate D istrict of Texas at Fort Worth

___________________________ N o. 02

- 19

- 00118

- CV

___________________________

On Appeal from th e 367 th D istrict Court Denton County, Texas Trial Court No. 17

- 8176

- 367
Before Sudderth, C.J.; Bassel and Womack , JJ. Memorandum Opinion by Justice Bassel 

### I N THE 

### I NTEREST OF 

### Z.J. AND 

### D.J., C HILDREN2 MEMORANDUM OPINION
I. Introduction
Th i s is an ultra

- accelerated appeal 1 in which Appellant B.H. ( Father ) ap peals the termination of his parental rights to his daughter Jane 2 and in which Appellant K.J. (Mother) appeal s the termination of her pare ntal rights to her daughter Jane and her son Jo h n following a two

- day jury trial. 3 I n tw o points, Father argues that it was
unconscionable for the trial court to terminate his parental rights to Jane based on his
failure to com ply with his service plan be cause of his indige n c e , and he argues that the evidence is insufficient to support the trial cou rt’s e ndan gering

- environment and endangering

- conduct findings

. Mother’s court

- appointed attorney filed a motion to
withdraw as counsel and an Anders b rief in s upport of that motion. Because an unchallenged predicate gro und su pports t he termination of Father’s parental rights

1 See Tex. R. Jud. Admi n. 6.2(a) ( re quiring appellate court to dispose of appeal from a judgment termin ating parental rights, so far as reasonably possible, within 180 days aft er notice of appeal is filed). Unfortunately, it was not reasonabl y possible to dis pose of this appeal within 18 0 days afte r the notice of ap peal was filed due to unresolved questions about the children ’ s sta tus under the Indi an Child Welfare Act. After abating this app eal three times to resolve th o se questions, the tri al court signed an order on November 1, 2019, f i nding tha t the children are not Indian children. With those questions resolved, we may dispose of this appeal.

2 See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to mino rs in an appeal from a judgment terminat ing pa r ental rights). All childr e n are referred to using aliases.

3 John ’ s father ’s parental rights were also terminated, but he did not file a notice of appeal. He is referenced in this opinion when necessar y to sh ow the role that he played in the childr en’s r e moval.3 and because Mother’s appeal is frivolous, we affirm the trial court’s judgment

t erminating Father’s parental rights to Jane and terminatin g Mother’s parental rights to Jane and John. II. Factual Background 4
A. Overv iew At the time of the termination trial in March 2019, Mother had been in a relationship with John ’ s father for nine y ears. Mother’s relationship with Fat h er coincided with h e r relat ionship with John ’ s father , when they all lived in Michigan. Mother, Father, and John ’ s father have all struggled with drug use , and Mother and
the children lived with John ’ s father in a drug house in Michigan

. In D ecembe r 2016, M other moved Jane a nd John to Texas in search of a better
environment for her kids , but she moved into another drug house. During a drug raid
on the home in September 2 017 , police discovered unsanitary conditions in the hom e and found a gun si tting on a dresser and cocaine residue on a scale that was accessible
to the children

. T he Texas Department of Family and Protective Services (the Department) was called to the scene and took possession of t he children.

4 Because Father cha l lenge s the suffici ency of the evidence to support several of the predicate grounds and because we are r equired to address and detail our analysis of the endange ring

- environmen t or en dangering

- conduct findings , we set forth a det a iled factual background. S ee generally In re N.G. , 577 S.W.3d 230, 2 37 (Tex. 2019) (per curiam) (holding that due

- process and due

- cour se

- of

- law requirements mandate that an appellate court must address and detail i ts ana l ysis for an appeal of termination of parental r ights when a p arent has presente d an issue under F amily C ode S ection 161.001(b)(1)(D) or (E) even when there is suffi cient evidence to support another enumerated ground for termination).4 M other’ s parenta l rights to Jane and John were terminated based on the endangering environment and endangering conduct that Mother had exposed them to
in addition to fail ing to com plete her court

- ordered services

. F a ther, who lived in
Michi gan t hrough out the c ase and who tested positive for various illegal drugs , had
hi s parental rights to Jane terminated based on exposing her to an endangering environment and endangerin g conduct, fail ing to complete his court

- ordere d services , and construct ively aband on ing her

. Additionally, Mother’s and Father’s parental rights were t erminated based on the jury’s best

- interest findings. B. Life in Michigan
Mother , who grew up in Michigan, started smoking mari j uana at sixteen and
continued smoking marijuana as she go t older

. Mother testified that in Michigan, people consider marijuana use to be normal because it is legal to use it for both medicinal and recreational purp o ses. Even though Mother knew th at marijuana wa s a dr ug, sh e “didn’t think that it was a big problem” for her. Mother believed that marijuana helped reduce her rage i ssues. Mother said that marijuana kept her calm
and ke p t her out of trouble and that without it, her anger was “ just unma nageab le.”
After giving birth to Jane in June 2014 , Mother did not work outside the home

. Mother said that Fathe r never came to see J ane and that he did not do “anything pertaining to taking care of her. ” Mother tes tified that when she applied for food stamps in Michigan, Father was not providing any financial support for Jane.5 Mother testified that when she was pregnant with John , she smok e d marijuana
until she was six

- a nd

- a
- half months pregna nt but then stopped bec ause she wanted John to test negative for drugs when he was born in June 2015

. 5 Mother mentioned
that she was involved w ith CPS in Michigan because John tested positiv e for marijuana , but she did not specify when this occurr ed

. Mother t estifi ed t hat she had knowledge of John ’ s father ’s criminal activity in Michigan : she knew that he smoked marijuana , hung around the wrong crow d , and dealt drugs. M o ther admitted that she an d her children liv ed with John ’ s father in Michigan whi le he was dealing drugs. Mother testified that she decided to move to Texas on December 24, 2016, because “the living environment in Michigan wasn’t fit for [her] t o raise [her] kids there.”
C. Life after Mov ing to Texas
When Mothe r came to Texas, s he moved in with John’s paternal aunt and her
fiancé. When Mother moved in, she knew that they were selling drugs out of the
home. Moth e r later testified that when she had moved in , she di d not know that drugs were being sold out of the house , but “months afterwards [,] . . . that is when [she] caught on that it was drugs being sold out [of] th e house.” Mother testified t h at she did not want to raise her children in a drug house but that she did not have

an ywhe re else to go and was doing the best that she could at that time

.

5 Mot her testi fied t h at even though it was legal in Michigan to smo k e marijuana, it was not okay to do so around children and that CPS could “ still get involved in yo ur life if y our kids test dirty duri ng pregnancy. ”6 Mother testified that John ’ s father moved to Texas in February or March 2017
and th a t he did not immediately star t selling drugs. B ut Mother knew that John ’ s father was using drugs. Mo ther also knew that John ’ s father was a felon and that he had a gun, but she testified that she did not know that the gun was located in the room where they slept. Mother testified that her c hildren did not have a ccess to the
gun. Mother said that she ha d talked to John ’ s father about getting rid of the gun and
about a bstaining from drugs but that he did not take h e r advice.
Mother was also us ing drugs. Mother said that she spent $50 per day on marijuana , which equated to twenty or twenty

- five “ blunts. ” 6 She testified that it t ook
her at least sev en blunts to get high and th at once she started sobering up, she then
decide d wh ether she wanted to get high aga in.
D. Mother’s Parenting Skills in the Texas Drug House Mother testified that she worked at a gro up home doing laundry and
housekee ping for five or six months and that her childr e n were watched by the people
she was living with who were dealin g coca ine and marijuana. When asked what steps she had taken to protect her children from the drugs , Mother a dmitted that she did

not do anything to keep her children away from the cocaine and the marijuana that

w as in the house where they were living

. Mother testified that John’s behavior and anger wa s worse than other two

- year

old s and was different than anythi ng she had ever seen. Mother said that when Jo h n

6 Mother explained that a blunt is like a cigar and i s larg er than a joint.7 d id not get his way, he tend ed to throw things, hit p eople (without regard to th eir size or their age), “ mess up ” televisions, throw dirt in kids’ hair, take stuff from kids, or
bite them. When a sked if sh e had ever tried to teach John not to hit people or how to
calm down, Mother said that she ha d talk ed to him a bout not h itting people but that a

two

- year

- old boy “ain’t just going to take that and run with that.” Mother said that
she did n ot ever seek any professional help for John. Mother said that she had tried to handle J ohn by giving him juice or popsicles, by letting him watch Spiderman , or by taking him to the park until he fell asleep. Mother admitted that Joh n was a handful for her and that she ha d left a
thirteen

- or fourteen

- ye ar

- old girl in charge of h im whe n he played outside. Mother
did not think that the teena ger could more effectively handle John than she could.
E
. The Drug Ra id
Detective Adam Deweber with the Denton Polic e Department test ified that h e was familiar with Mother and John ’ s father base d on numerous tips in the summer of 2017 regarding drug activity at their residence. Based on the tips, Detective Dewe ber
used a confidential informant who made mult i ple purchases of crack cocai ne at Mother and John ’ s father ’s residence. The last controlled purchase was made in September 2017 , and t he person who sold the drugs to the confidential informant w as “Little Man,” who is John ’ s father

. Detective Deweber th en obtained a search

warra nt for the residence, a nd Denton Police Department’s tactical team executed the search warrant around 9 a.m. on September 22, 2017.8 After t he tactical team secured the home, Detective De w eber was present for
the sea rch of the home

. Detective D eweber test ifie d that John ’ s father had voluntarily told him that he had a nine

- millimeter handgun in his possession and that
it was located o n the dresser next to his bed. John ’ s father was arre sted o n a warrant for manufacture and delivery of under one gram of cocaine , and Mother was arrested for endangering a child. Detective Deweber explained that the endanger ment charge was due to Mother’s “keeping her ki d s in a known drug house where drugs were being used and sold that ultimately ended in a tact[ical] raid[,] whic h put those kids in danger.” Detective Deweber testified that the children were in dang er because it is
“not a safe environment to h av e kids in a house where drugs a re being used and
sold.”
F . The Department Take s Possession of the Children
Shani Dartha rd, an investigator with the Department , testified that she was assigned to re spond to the drug raid in which Mother and John ’ s father w ere arrested.
W h en Darthard arrived on the scene, six adults were handcuffed in the backyard, and
four or five children were running around. The police told Darthard th at they had
conducted controlled purchases of d r ugs from the home, that the childre n were present during the purchases, that cocaine was accessible to the children, and that there were guns in the home.
Dar thard spoke with Mother, who wa s crying and upset. Darthard’s
unders t andin g was that Mother live d in th e d r ug house because s he did not have9 anywhere else to stay after she and her children had moved to Texas. Mother told
Darthard that she knew drugs wer e being sold out of the home but that she did not

want to r e port it because she did not wan t to b e a snitch. Mother denied knowing that there were guns in the home. Mother told Darthard that she was using marijuana “[a]ll the time. Every day.”
Mother in dicated to Dar t hard that she ha d an a nger

- management problem an d said that was one of the reasons that she used marijuana daily. Mother explained that she used marijuana because it helped her with her attitude and with staying ca lm when her
children screa med , which they did “ a lot of

. ” Mother a gr eed to take a drug test and

s tate d that she would test positive for marijuana. Mother said that she did not use any other drugs. Mother signed an acknowled gement of substance abuse and admitted
that she had abu s ed substances in the chil dren’s presence. Darthard spoke with John ’ s father who said that he had moved to Texas in March or April 2017. He took responsibility for the situation a nd admitted to selling and using drugs. John ’ s father said that his and Mo th er’s most recent marijuana use was the day before they were arrested. When Darthard entered the home, she encountered piles of trash, piles of clothes, holes in the wall, dirty dishes in the kitchen, flie s everyw here, and “food and
stuff everyw here.” The police pointed out to Darthard a scale and cocaine that were on the table. Darthard also noted that the children did not have beds to sleep in.
Darthar d testified t hat the children’s living conditi ons we re deplorable , posing a safety10 hazar d , and agreed t hat the home was not a place to raise child ren . Darthard believed that the children were endangere d by living in a home where drug s were being sol d

. Darthard testi fied that a coworker took possession of the children on September 22, 2017. The children we re taken for drug testing , and b ased on the

re s ults of the drug tests, the Depar tment had further concerns. 7 The children were placed in fos ter care. G
. Mother’s Release from Jail
After her arrest on the day of the drug raid for two counts of child
endan germent

— one count based on Jane and one count based on John

— Mother spent two or three days in jail

. Her mother ca me fro m Michigan to bail her out

. Mother also received financial help for meeting her $25,000 bond from the people she was living with.
H . T he Department Learns that John ’ s father I s N ot the Father of Jane
Af t er the initial advers ary hearin g, Mot her informed Darthard that Father was the father of Jane. Mother testified that Jane was two

- and

- a
- half years old when they
moved to Texas and that F ather had se en her approximately twenty times and had kept h er overnight a couple of times.

7 Mothe r testified that John had tested positive for cocaine and ma rijuana. The record also revealed that Jane had te sted positive for cocaine. Mother said that John was exposed to t he fum es “[f ]rom cooking up the dope” and that it was in his hair follicle. She said, “It’s not like he peed it out [,] o r [Jane] peed it o ut. It is a hair follicle.” Mother agreed that she knew what was happening and that sh e had allowe d h er chi ldren to stay in th e drug house.11 When Darthard contacted Father in Michigan and told him what was going on
with Jane , Father said that he had limited contact with Mother and Jane. Father told
Dart hard that Mother had left Michigan wit h J ane and that he did not know where
she was. 8 Father asked how Jane was doing and said that he did not want her in
foster care. D arthard described Father as “a concerned parent trying to figure out why his daughter was in foster care

. ”
Father t old Darthard that he had been smoking marijuana since he was a teenager and that he smoked marijuana every other day. D arthard testified that
Father did not have a medical

- mari juana card at the time of the tempora ry

- ord ers h e aring. D a rthard testified that even with a medical

- marijuana card, marijuana use is never appropriate in the presence of children

. Darthard told Father that he would need to take a drug test, and he asked her what he would need to d o so that he would

tes t negative. After Father asked that question, the Department requested that Father undergo a drug test on October 13, 2017, but Father did not take the test until five

8 Mother testified that Father knew she was in Texas but did not know her exact location. Moreov er, Father told D a rthard t hat he had initiated proceedings in Michigan to bring Jane back t o Mic higan beca us e Mother had taken her to Texas in violation of a court order. T here was evidence that the case was dismissed by agreement of the parties , but Moth er said that she d id not agree to dismiss the suit because she did not even know that it had been filed.12 days lat er. F ather’s urinalysis was ne gati v e , but his hair

- folli cle test was positive for amphetamine, marijuana, 9 cocaine, and methamphetamine.
Father came to Tex as for the next hearing. At trial , Darthard re capped Father ’ s testimony from the October 20, 20 1 7 adversary hearing , stating that h e had testified
that he had been arrested in 20 10 for “ possession of dangerous drugs ” and in 2013 for possession of cocaine but that he had not been arrested “ for ye ars. ” 10
I . Parents Ordered to Work Service s Darthard testified t hat the trial court ordered all three parents (Mother, Fathe r, and John ’ s father ) to work services. The services required Mother and Father to
refrain from a ll criminal activity, any use of alcohol or ill e gal substances , and a ny misuse of prescription drugs ; to attend and to part icipat e in Narcotic s Anonymous ( NA ) / Alcoholics A n onymous ( AA ) meetings ; to complete a psychosocial assessment ; to attend individual c ounseling sessions ; to pay child support and me d ical support ; to part icipate in visits ; to complete parenting classes ; to establish and maintain suitable

9 Chris t i na Ross, the conservatorship worker who took over the case in February 2018 , explained that Father had tested positive i n October 2017 and tha t he was not issue d a medical

- marijuana card in Mich igan unti l March 2018. Moreover, Father coul d no t tell Ross what con dition qualifi ed him for a medical

- marijuana card.

10 The record from the adversary hearing reflects that Father did not recall being arr ested for those ch arg es ; explained th at he was arrested for hav ing one Vicodin in h i s possession ; and claimed that the 2009 arrest “was bro ught b ack up and handled in ’13, but it’s the same case [involving the Vicodin pill].” Father told Darthard that he had been a rrested three ti mes on drug charges, inclu ding for possession o f a controlled substance. T he record also inclu des arrest records from Michigan, showing that Fa ther had been arrested for aggravated felony assault in February 2017, intimidation in January 2017 , and burglary in June 2014.13 and legal empl oyme nt for at least six months and continuing throughout the pendency of the case ; to es tablish and maintain safe, stable, and appropri a te housing ; to partic ipate in a drug and alcohol assessment and follow the recommendations ; to

co mplete a psychological eval ua tion ; and to submit to random drug testing

. Ross acknowledged that Father was a non

- offen d ing parent but testif ied that he was ordered to work services based on his drug

- test results

. Darthard told Father that the Department would not pay for any of his court

ordered services in Michig an but that the Department would find out what s ervices Michigan offered that would be comp atible with his required services. 11 Darthard said that the Departm ent would pay for Fathe r’s se rvices if he relocated to Texas. Fa ther
said that he had recently started a new job in Michigan a n d that he was not interested in staying wit h his aunt who lived in Fort Worth in order for him to work his services
in Texas because his life , which included other children, was in Michigan.
1. Mother’s Compliance Although Mother comple t ed the intensive outpatient program (IOP) in June
2018 , she admitted that she was still smoking two or three blunts pe r day three
months late r in S eptember 2018. Mother agreed that every time that she bought

11 Brenda Zambonino, a supervisor with the Department , testif ied that the Department does not have the resources to pay for services for a parent who lives out of state. Zambonino explained th a t whe n an indigent par ent li ves out of s tate, the D e partment works very hard to locate services in his area that are free o r that have sliding

- scale fees

.14 ma rijuana while the Department ’ s case was pending, she was engaging in criminal activity

. Mother said that she stopped smoking m arijuana in September 2 018 be cause otherwise she would lose Jane and John. Mother said that she had been clean for
four

- and

- a
- hal f months at the time of the terminati on trial

. Mother testified that she did not have a problem with m arijuana and never had. Mother testified that she was “staying with an uncle” at the time of the
termination trial. Mother testified that at her uncle’s one

- b edroom apartment, he slept in the bedroom, and she slept in the living room.
Mother test ified that she worked twenty

- five hours per week at a spor ting goods store at the time of the termination trial and that the rest of the day she sat at home waiti ng to go to work

. Mother said that she paid her uncl e $100 per month for

re nt and $0 for utilities and that she spent $100 per month on food. Mother testified
that sh e d i d not have much money left over at the end of ea ch month. Mother then
said that bef ore trial, she paid $40 to get her nails do ne and $190 to get her hair d one. M other admitted that she had not made any child

- support or medical

- s upport payments for the children but said that she had given thin gs to Jane and John at the
week ly visits

.

Dar thard testifie d that she had monitore d two of the parent

– child visits and
had note d that the visits went fine, that Mother had in t eracted with the kids, and that15 there were no concerns. Both Darthard and Ross said that Mother appear ed to be
bonded to her children and tha t the child ren ap pear ed to be bonded to her. Ross testified that the Department ha d talked to Mother and John ’ s father about appropriate food and dr ink choices but that they had not changed what they brought for the children. Ross explai ne d th at there was a concern about sugary fo ods and drinks causing tooth decay because the c hildren had dental problems when they came into the Department’s care. 12 Despite the Department’s requests not to give John sugary foods, Mother and John ’ s father bou ght cookies and Air Heads from the vending machines for John

. Ross further explained that “being hopped up on sugar”

cause d the children to have difficulties returning to daycare after the vis its. Ross
testified that she had seen no change in Mother’s pa renting abi lities at the visits after
she had complet ed pa r enting classes.
2. Father’s Compliance
Ross testified that Father had complied with some of the services on his service plan. Father compl eted o ne of his services through First Step, and the reco rds from First Step reflect that Father listed his first drug of choice as “weed” and his secon d drug of choice as cocaine.
Ross te stified that she had calle d Father numerous times but h ad tal ked to him only once

— in August 2018

— and had given him her contac t information. During the
one time that Ross spoke with Fathe r, they discussed doing his psychological

12

John ’s front teeth required caps due to bottle rot

.16 evaluation with Dr. Lara Hastings, and Ross provi ded Father with her contact
i nforma tion. Ross said that Father was very hard to understand because his speech
was slurred. Ross offered Father a visit with Jane , but he said that he would have to get back to Ross

. Father did not as k about Jane during that ph on e conv ersation, and
Father n ever called Ross t o check on Jane. The record shows that Father vis ited with Jane only two times while the case was pending and that those two visits had occur red
in October 2017 when he w as in Texas for the adversary hearing.
The record reve a led that Father did not complete several other services even though there is no cost to attend A A or N A ; there is no cost for a psychosocial, a psych ological evaluation, or a drug as sessment if done in Texas at a prov ider listed in the temporary orders ; a n d those three services could be completed in one or two days with the only cost being travel to and from Texas

. Father also had not completed a fre e pare nting class that was available in his area in Michigan.
Father did not ask for help in finding free or low

- cost counseling services. Moreover, Father nev er told Ross that he could n ot afford the s ervices that he was being ask ed to complete.
At the October 201 7 adversary hearing, Father said that he worked in the family business and made approximately $100 per week and that he cut hair and made $7 0 or $80 per week

. But Father di d not give Ross information about his ability to provide Jane with a saf e home and did not send her pay stubs showing t h at he could17 provide for her. Ross testified that based on Father’s social

- media p ostings, he appeared to be doing okay financ ially. 13 J . Fat h er’s R elationship with Jane
Ross testified t hat Jane does not know Father as her father but instead believes
that John ’ s father is her father. Ross f urther testified that Fat her had not demonstrated any of his parental abilities and had not sho wn that he is able to meet Jan e’s ph ysical and emotional needs.
K. Mother’s Commun i ty Supervision Mother ultimately took a plea offer for the two counts of child endangermen t that she was charged with in connection with the drug raid and received three years’
defer red

- adju dicati on community supervision. As part of her deferred

- adjudication community supervision, Mother is required to undergo random drug testing every
month. Mother had a positive drug test in November 2018

. Mother understoo d that
if she did not co mply with her community

- supervision conditions , she could go to jail
and further jeopardize her children.
L . Mother’s Third Ch ild Mother gave birth to a son in Decemb er 2018. The hospital notes state that
Mot her admitted using THC during the two weeks l ea d ing up to the child’s birth.

13 The ad litem ad mitted a pi cture of a F ebruar y 5 post from Father’s Fa ceb o ok page that s tates, “Still spending old money,” and depicts a pile of money. Mother testified t hat when she dated Father, he had paid for things in cash and that she believed he had received t he cash from selli ng mar ijuana.18 Mother denied that she had made this admission

. When t he child was discharged from the hospital, CPS took possession of him. 14
M . The Children’s S tatus
Ross test ified that Jane had undergone a p sychological evaluation and that
based on those results, she was receiving play therapy on a weekly basis. John had undergone two psychological evaluations, and based on the results, he was receivin g play therapy once a week and behavioral thera p y twice a week. Ross testifie d that behavioral therapy was work i ng wit h John to help him control his emotions, to redirect his attention, and to understand “no.”
N . Mother’s Plans
Mothe r testified that she had changed and that her m a rijuana addiction was

over. Mo ther testified that in orde r to sta y clea n, she was not going to smoke marijuana and was going to keep working and educating herself to do everything that
she needed t o do “to stay str ong for [her] babies.” Mother testified that if her parental rights were not terminated, her pla n was to move to a place where her monthly rent would be $849 with all bills paid. Mother understood that her current job would not cover that amount, and so she had ap p lied for another job that paid $12 per ho ur. Mother explained tha t she was going to sav e up her paychecks to
afford the rent. Mother also had a tax refund that she was going to put towar d the

rent. But Mother said tha t she did not know how much daycare would cost and had

14 Mother’s third c hild is t he subject of a se parate case.19 not looked into one. Mother testified that she loved Jane and John a nd that she
wished she had taken a better route than the one that had led to their placement in the Department’s care.
O
. The Department’s Concerns , Recommendations, and Plans
Ross o pined that Mother’s plan for the children was not viable because (1) she

wa s not stable and would likely have difficult y renting her own pl ace due to prior evictions, (2) she had not sho w n how she would be able to provide for the children or for daycare, a nd (3) she had not shown how she would remain sober.
Ross’s concerns abou t returning the children to Mother included her failure to demonst rate an ability to provide for their b asic needs and suitable housing, to maintain a signi ficant period of abstinence, to a cknowledge her drug problem, and to demonstrate positive lifestyle ch anges since the children’s removal. Ross te stified th at Mother had not paid child support, had not maintained safe and suitable housing, and had not successfully comple ted drug treatment because she had continued using drugs
after she had finished the I OP

. Ross said that Mother does not have a support system other than John ’ s father , who w as heading to jail in the immediate future on criminal charges. Ross opined that it was in Jane’s and John’s best interest s for Mother’s parental rights to be termina ted becaus e Mother was not a ble to meet their physical or
basic n e eds, had put them in physical danger , had continued to use the controlle d
substanc e that had initially put the children in danger, and had not demonstrated that she possesses the necessary p arenting a bilities

.20 Ross testified that Father’s crimin a l involvement in Michigan endangered Jane by ex posing her to drugs and a lifestyle that is not appropriate for a child. Ross said that the Department believed that termination of Father’s parenta l ri ghts t o Ja ne was in her best interest becau s e he had ultimately abandoned her and had made no

attem pt to contact Ross, visit Jane, or work serv ices. Zambonino testified that it is in a child’s best interest to have permanency and that the Departm ent’s plan for the children is adoption

. Zambonino testified that a local home study w as pending at the time of the termin ation trial and that if it w ere approved, Jane and John could be placed there if their parents’ rights were terminate d.
P. Outcome
After heari ng the e v idence ab ove, the jury found by clear and convin cing
evidence that Mother had knowin gly pl aced or had knowingly allowed the children to
remain in conditions or surroundings that had endanger ed the ir physical or emotional
well

- being , had engaged in conduct or had kn owingly placed the childre n with persons
who had engaged in conduct that had endan gered the physical and emotional well

being of the children , and had failed to comply with the provisions of a c ourt order that spe cifically established the actions necessary for her to obtain the retu rn of the
children who ha d been in the temporary m anagin g conservatorship of the Department for not less than nine month s . The jury also found that termination of
the paren t

– child relationship between Mo ther an d the chi l dren was in the children’s
b est interest

.21 The jury found that Father had knowi ngly p laced or had knowingly allowe d Jane to remain in conditions or surroundings that had endanger ed her phys ical or
emotional well

- bein g , had engaged in co n duct or ha d knowingly placed Jane with
persons wh o had engaged in conduct that had endangered her p hysica l and emotional
well

- being , had failed to comply with the provisions of a c ourt order that specifically
established the actions nec essary for Father t o obtain th e return of Jane w ho ha d been
in the tem porary managing conservatorship of the Department for no t less than nine
months , and had constructively abandoned Jane . The jury additionally found that

term ination of the parent

– child relationship betwee n Fathe r an d Jane was in Jane ’s
b est interest

. The tri al court signed an order of termination setting fo rth th e jury’s findings. Father and Mother each perfected an a ppeal from the trial court’s judgment
terminati n g thei r parental rights.
III. Burden of Proof and S tandard of Review
For a trial court to terminate a parent

– child relationsh ip, th e Department must prove two elements by clear and convincing evidence: ( 1) t hat the parent’s actions satisfy one ground lis t ed in F amily C ode S ection 161.001(b)(1); and ( 2) th at termination is in the c hild’s best interest. Tex. Fam. Code Ann. § 161.0 01(b); In re E.N.C. , 384 S.W.3d 796, 803 (Tex. 2012); In re J.L. , 163 S.W.3d 79, 8 4 (Tex. 2005).
E vidence is clear and convincin g if it “will produce in the mind of the trier of f act a22 firm belief or convi ction as to the truth of the allegations sought to be es tablished.” Tex. Fam. Code Ann. § 101.007; E.N.C. , 384 S.W.3d at 802.
To de termine whether the evidence is legally suffici e nt in parental

- termination cases, we look at all t he evidence in the light m ost favorable to the challenged finding
to determi ne whe ther a reasonable factfinder could form a firm belief or conviction
that the finding is true. In re J.P.B. , 180 S.W.3d 570 , 573 ( Tex. 2005). We assume that
the factfinder s ettled any evident iary con flicts in favor of its finding if a reasonable
fac tfinde r could have done so. Id. We disregard all evidence that a reasonable
fact finder could have disbelieved, and we consider u ndispu ted evidence even if it is contrary to the f inding. Id. That is, we consider evidence favorable to the finding if a

re asonab le factfinder could, and we disregard contrary evidence unless a reasonable
factfinder could not. See i d. The factfinder i s the sole judge of the witnesses’ credibility and demeanor. In re J.O.A. , 283 S.W.3d 336, 346 (Tex. 2009). We must perform “an e xacting review of the entire record” in determining the factual sufficiency of the evidence supporting the termination of a parent

– child relationship. In re A.B. , 437 S.W.3d 4 98, 500 (Tex. 2014 ). Ne vertheless, we give due
deference to the factfinde r’s fi nding s and do not supplant t he verdict with our own.
In re H.R.M. , 209 S.W. 3d 105, 108 (Tex. 2006). We review the whole r e cord t o decide whether a factfinder could reasonably form a firm convi ction or belief that the parent
violate d a predicate gro und li sted in section 161.001(b)(1) and that t he termination of the parent

– child r elationship would be in the child ren’ s best int e rest. Tex. Fam. Code23 Ann. § 161.001(b); In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder reasonably could form su ch a f irm conviction or belief, then the evidence is factually
sufficient. C.H. , 89 S.W.3d at 18

– 19.
IV. Father’s Appeal
A. W a iver Due to Unchal lenged Ground The termination judgm ent reflects that Father’s parental rights were terminated
based on fou r pred icate grounds: endangering environment ( S ubsection (D)); endangering conduct ( S ubsection (E)); constructive abandonment ( S ub s ecti on (N)); and failure to comply with a court

- order ed service plan ( S ubsection (O))

. See Tex.
Fam. Co de Ann. § 16 1.001( b)(1)(D), (E), (N), (O). But Father’s two arguments on appeal challenge only the endangering

- environment ground, the endange r ing

- conduct ground, and the failure

- to

- comply

- with

- a
- service

- plan ground . By f ailing to challenge
the trial cou rt’s constru ctive

- abandonment finding under S ubsection ( N ), Father has waived any complaint abou t the sufficiency of the evidence to support th a t fi nding.
See id. § 161.001(b) (requiring only one predicat e ground to suppor t termination); In re
Z.M.M. , 577 S.W.3d 541, 542 (Tex. 2019) (per curiam ) (stating that “only one ground is required to terminate parental ri ghts”); In re A.V. , 113 S.W.3d 355, 362 (Tex. 2 0 03) (interpreting S ection 161.001(b) as requirin g only one predica te ground); see also T oliver
v. Te x. Dep ’t of Family & Protective Servs. , 217 S.W.3d 85, 102

– 03 (Tex. App.

— Houston [1st Dist.] 2006, no pet.) (holding that failure to challenge all of the t r ial court’s predicate

- ground findings resulted i n waiver).24 B . Suf ficiency of Unchal lenged Constr uctive

- Abandonment Ground
Moreover , the record before us contains sufficient evidence to support the trial

cour t’s unchallenged S ubsection ( N ) finding. 15 The D e partment was appointed as Jane’s temporary mana ging conservator i n October 2017 and served in th at cap acity through the time of the termination trial in March 2019, thus satisfying the six

- month requirement of S ubsection (N). With re s p ect to the Department ’ s efforts to return Jane to Father , there wa s evidence of a c o urt

- ordered servic e plan and evidence that Father did not comply with the service plan

. See In re N.R.T. , 338 S.W. 3d 667, 674 (Tex. App.

— Amarillo 2011, no pet.) ( c iting In re M.R.J.M. , 280 S.W.3d 494, 505 (Tex. App.

— Fort Worth 2009, no p et.) (op. on reh ’ g ) , and stating that i mple mentation of a family service plan by the Department is ordinarily considered a reasonable effort to

15 The Texas Family Code p rovides that the trial court may terminate the parent

– child relationship if the trial court finds by clear and convincing eviden ce that the paren t has ( N ) constructively abandoned the child w ho has bee n in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and: (i) the [D] epartment has made reasonab le effor ts to ret u rn the child to the parent; (ii) the parent h a s not regu larly visited or m aintained significant contact with the child; and (iii) the parent has demonstrated an inab ility to provide the child with a safe environment[.] Tex. Fam. Code Ann . § 161. 001(b)(1) ( N ).25 retu rn a child to her parent )

. The record demonstr a t e s that Father ha d not visited Jane since October 2017 and ha d not maintained any contact, much l ess significant contact, with Jane during the case. Moreover, Father’s positive hair

- strand drug test
reflect s an inability to provide Jane with a safe e nvi r onment. W hether viewed through the lens of legal or factual sufficiency, the record contain s suff icient evidence from
which the factfinder could reasonably have formed a firm conviction or belief that
Father had neither regularly visited n or maintaine d s i gnificant contact with Jane while she was in the Department’ s care and that Fa t her had no t de monstr ated an ability to provide a safe environment for Jane

. See In re P.R. , 994 S.W.2d 411, 416 (Tex. App.

— For t Worth 1999, pet. dism ’ d w.o.j.) ( holding e vid e nce sufficient to support S ubsection (N) finding because mot her sporadically v i sited child, u sed dr ugs, and failed to comply with service plan) , disapproved on other grounds by In re J.F.C. , 96 S.W.3d 256, 267 n.39 (Tex. 2002)

. C . Sufficiency of Endangering

- Conduct Finding Although only on e ground under S ection 16 1.001 (b)(1) is necessa r y t o support termination, 16 i n light of the Texas Supreme Court’s recent opinio n in N.G

. , we also

16 See Tex. Fam. Code Ann. § 161.001(b) (1) ; Z.M.M. , 57 7 S.W.3d at 542 ; A .V. , 113 S.W.3d at 362 ; see also In re G.H. , No. 02

- 18

- 00080

- CV, 2018 WL 3968788, at *10 (T ex. App.

— Fort Worth Aug. 16, 2018, no pet.) (mem. op.) (overruling is sues challengin g o ther (b)(1) grounds for termination because the record conta ined sufficient ev idence to support an unchallenged (b)(1) ground).26 re view t he sufficiency of the evidence to support the trial court’s S ubsection ( E ) finding. See 577 S.W.3d at 237

. Subsection (E) prov ides that parenta l ri ghts may be terminated if the parent has “engaged in conduct or knowingly placed th e child with p ersons who engaged in
conduct [t h at] endangers the physical or emotional well

- being of the child.” T ex . F am . C ode Ann. § 161.001(b)(1)(E)

. To “endanger” m ean s to expose a child to loss or injury or to jeopardize a child’s emotional or ph ysi cal health. T ex. De p’t of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987) ; see In re M.C. , 917 S.W.2d 268, 269 (Tex . 1996) (per curiam)

. It is n ot necessary to establish that a p arent intended to endanger a child to support termination under S ub section (E). Se e M.C. , 917 S. W.2d

a t 270. Nor is it necessary to establish that the parent’s conduct was directed at the
child or caused actual harm; rat her, it is sufficient if the p a ren t’s conduct endangers
the child’s well

- being. See Walker v. Tex. D ep ’ t of Fam ily & P rotective Serv s. , 31 2 S.W.3d 608, 616

– 17 (Tex. App.

— Houston [1st Dist.] 2009, pet. denied). The endangering
conduct does not have to occ ur in the child’s presence. Id. at 617. T h e c onduct may
occur before the child’s birth and either b efore or after the child’s re moval by the
D epartm ent
. Id. A parent’s past endangering conduct may create an inference that the past conduct may recur and further jeopardize the child’s present or f utu re physical or emotional well

- being. See In re D.M. , 58 S.W.3d 801, 812 (Tex. App.

— Fort Worth 20 01, no pet.). “As a general rule, conduct that subjects a child to a life of uncertainty and instability en dang ers the physical and emotional well

- being o f a27 child.” In re R.W. , 129 S.W.3d 732, 739 (Tex. App.

— Fo rt Worth 2004, pet. denied). A parent ’ s us e of i llegal drugs, and its effect on his or her ability to parent, may qualify as endangering conduct. See J.O .A. , 283 S.W.3d at 345

. M oreover, a parent ’ s criminal conduct, convictions, or im prisonment is
relevant to t he question of wheth er he engaged in an endangering course of conduct.
In re S.R. , 452 S.W.3d 351, 360

– 61 (Tex. App.

— Hous ton [14th Dist.] 2014, pet

. denied) ; A. S. v. Te x

. D ep ’ t of Family & Protective Servs. , 394 S.W.3d 703, 712

– 13 (Tex. App.

— El Paso 2012, no pet.). Im prison ment alone is not an endangering course of conduct but is a fact properly considered on the endangerme nt issue. Boyd , 727
S.W.2 d at 533

– 34. Routine l y s ubjecting a child to the probability that he will be lef t alone because his parent is in jail end angers the child ’ s physical and emotional well

being. In re S.M. , 389 S.W.3d 483, 492 (Tex. App.

— El Paso 20 12, no pet.).
The evidence showed that the resu l ts of Father’s October 2017 hair

- strand drug test were posi tive for amphetamine, c ocaine, mariju ana, a nd methamphetamine. Based on Father’s drug

- test results, the Department concluded that Jane could not be placed in Father’s care. Additio n all y, Father had been arrested three times on drug charges

— including for possession o f a controlled substa nce

— and for aggravated felony assault in February 2017, intimidation in January 2017, and burglary in June
2014. T h e co nservatorship worker t estified that Father’s criminal involvement in Michigan end angered Jane by exposi ng her to drugs and a lifestyle that is not appropriate for a child. Although Father clai ms to be the “non

- offending parent,”28 during the tim e that Jane was i n the Department ’ s custody, he had taken no steps to
contact her after the two v isits in October 2 017 , and he had never provided any
financial support
. And even thou gh Fat he r was given a service plan, h e did not

c om plete it

. See In re U.H.R. , No. 07

- 18

- 00318

- CV , 2019 WL 81874, at *5 (Tex. App.

— Amarillo Jan. 2, 2019, no pet.) (mem. op.) (stating that trial court could have considered parent’s failure to complete signi ficant requirements of her service plan as
part of the endangering

- conduct analysis under S ubsection (E)). A reasonable
factfinder could infer fro m Fath er’s past drug use and his failure to work his service plan that his drug use may recur and may result in additional criminal conduct, thereby inhibit i ng his ability to parent and further jeopardiz ing Jane’s fu tur e physical
or emotional well

- being

. See D.M. , 58 S.W.3d at 812

. W hether view ed through the lens of legal or factual sufficiency, the record cont ains sufficient evidence

— including
Father’s dru g u se , his criminal history , his lack of contact with Jane, and his failure to complete his service plan to re medy his drug addiction

— from wh ich the factfinder could reasonably have formed a firm conviction or belief that Father’s conduct endangered Jane. Se e In re L.M. , 572 S.W.3d 823, 835

– 36 ( Tex. App.

— Houston [ 14th Dist.] 20 19, no pet.) (holding evidence sufficient to support S ubsection (E) finding
because the record reflected, among other things, father’s wholesale absence from daughter’s life, multipl e e pisodes of incarceration, and the potential for future
in carceration du e to d rug

- related activity) ; cf. In re C.M.

- L.G. , No. 14

- 16

- 00921

- C V, 2017 WL 1719133, at *8

– 10, *13 (Tex. App.

–– Houston [14th Dist.] M ay 2, 2017, pet.29 denied) (mem. op.) (addressing (E) findin g f or collateral

- consequences pur poses, holding e vidence sufficient under that g round, and affirming entire judgment). Accordingl y, w e overrule Father’s second point

. 17
V. Mother’s Appeal
Mother’s court

- appoi nted appellate attorney filed a motion to withd r aw as counsel and a brief in support of that mot ion, averring that af ter di ligently reviewing the record, s he believes that the a ppeal is frivolous. See Anders v. California , 386 U.S. 738, 744

– 45, 87 S. Ct. 1396, 1400 (1967); see also In re K.M. , 98 S.W. 3 d 774, 776

– 77 (Tex. App.

— For t Worth 2003, no pet .) (reasoning that An ders p rocedures apply in noncriminal appeals whe n appointmen t of counsel is mandated by statute). The brief meets the requirements of Ande rs by presenting a professional evaluation of t h e record and demonstrating w hy there are no argu able grounds to be ad vanced on appeal. Although given the opportunity, Mother di d not file a response. The Department filed a letter stating that it would not be submitting a response to the
Anders brief.
A s the reviewing appellate co urt, we must indepen dently examine the re cord t o decide whether an attorney is correct in determining that the appeal is frivolous. See

17 Having determined that the evidence is s ufficient to support the S ubsection ( E ) and (N) finding s, we ne ed not addr ess the re mainder of Father’s second point challenging t h e S ubsection (D) finding or his fi rst point challenging the S ubsection (O) finding. See Tex. R. App. P. 47.1 ; see also Tex. Fam. Code Ann. § 161.001(b) (1) (requiring on ly one predicate g round to suppo rt termi nation); Z.M.M. , 577 S.W.3d at 542 ;. A.V. , 113 S.W.3d at 362

. Father does not ch allenge the best

- interest finding; therefore, we do not a ddress it.30 Stafford v. State , 813 S.W.2d 503, 511 (Tex . Crim. App. 1991); In re K.R.C. , 346 S.W.3d
61 8 , 619 (Tex. App.

— El Paso 200 9, no pet.). Having carefully reviewed the re cord and the Anders brief, we agree that
Mo ther ’ s appeal is f rivolous. We find nothing in the record that might arguably
support Mo ther ’ s appeal. See Bledsoe v. State , 178 S.W.3d 824, 82 7 (Tex. Crim. App. 2005). But we deny the motion to withdraw becau se it does not show “good cause” separate and apart from its a ccurate determination that there are no arguable grounds for appeal. See In re P.M. , 520 S.W.3d 24, 27 (Tex. 2016) ( order) ; In re C.J. , 501 S.W.3d 254, 255 (Tex. App.

— Fo rt Worth, 2016, pets. de nied)

. 18
VI. Conclusion Having overruled the dispositive porti on of Father’s second point , having held that nothing in the record might arg uably support Mother’s appeal, and ha ving denie d
M other’ s court

- appointed attorney ’ s motion t o withdraw, we affirm th e tria l court ’s judgment terminating Father’s parental rights to Jane and Mother’s parental rights to Jane and John. /s/ Dabney Bassel Dabney Bassel Justice
Delivered: November 21, 2019

18 “[A]ppointed counsel ’ s obligations can be satisfied by filing a petition for review that sati sfies th e standards for an Anders brief.” P.M. , 520 S

. W.3d at 27

– 28.