1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-13-00395-CV

____________________

IN THE INTEREST OF A.H.

_______________________________________________________ ______________

On Appeal from the 1st District Court 

Newton County, Texas

Trial Cause No. 13368 

________________________________________________________ _____________

MEMORANDUM OPINION 

In this appeal, S.P. challenges the legal and factual sufficiency of the 

evidence supporting the trial court’s findings that statutory grounds for termination 

exist and that termination is in the best interest of her daughter, A.H. See Tex. 

Fam. Code Ann. § 161.001(1)(D), (E), (N), (O), (2) (West 2014). We affirm the 

trial court’s judgment. 

Legal and Factual Sufficiency

“The decision to terminate parental rights must be supported by clear and 

convincing evidence.” In the Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). Clear 

and convincing evidence is “the measure or degree of proof that will produce in the 
2

mind of the trier of fact a firm belief or conviction as to the truth of the allegations 

sought to be established.” Tex. Fam. Code Ann. § 101.007 (West 2014). A 

judgment will be affirmed if a parent committed one or more predicate acts or 

omissions and termination is in the child’s best interest. See Tex. Fam. Code Ann. 

§ 161.001 (West 2014); see also J.L., 163 S.W.3d at 84.

In reviewing the evidence for legal sufficiency, we consider all of the 

evidence in the light most favorable to the termination finding to determine 

whether a reasonable trier of fact could have formed a firm belief or conviction 

that its finding was true. J.L., 163 S.W.3d at 84–85. We assume the factfinder 

resolved any disputed facts in favor of its finding, if a reasonable factfinder could 

do so, and “disregard all evidence that a “reasonable factfinder could have 

disbelieved[.]” Id. at 85 (quoting In the Interest of J.F.C., 96 S.W.3d 256, 266 

(Tex. 2002)).

When we review a termination of parental rights for factual sufficiency, we 

give “due consideration” to any evidence that the factfinder could reasonably have 

found to be clear and convincing. J.F.C., 96 S.W.3d at 266; see also In the Interest 

of C.H., 89 S.W.3d 17, 25 (Tex. 2002). We consider the disputed evidence and 

determine whether a reasonable factfinder could have resolved that evidence in 

favor of the finding. J.F.C., 96 S.W.3d at 266. The evidence is factually 
3

insufficient if the disputed evidence that does not reasonably support the finding is 

so significant that a factfinder could not have reasonably formed a firm belief or 

conviction that the fact at issue was true. Id.

Factual Background

The trial court found that S.P. (1) knowingly placed or knowingly allowed 

A.H. to remain in conditions or surroundings which endanger her physical or 

emotional well-being; (2) engaged in conduct or knowingly placed A.H. with 

persons who engaged in conduct which endangers the child’s physical or emotional 

well-being; (3) constructively abandoned A.H., who had been in temporary 

managing conservatorship of the Department for not less than six months, and (i) 

the Department made reasonable efforts to return A.H. to S.P., (ii) S.P. has not 

regularly visited A.H., and (iii) S.P. has demonstrated an inability to provide the 

child with a safe environment; and (4) failed to comply with the provisions of a 

court order that specifically established the actions necessary to obtain return of the 

child in Department care for not less than nine months as a result of a removal for 

abuse or neglect. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (N), (O).

S.P. testified that she started smoking marijuana at the age of nine and using 

methamphetamines at age 13. At age 31, S.P had been addicted to 

methamphetamine for over half of her life. S.P. described being high each morning 
4

as part of her daily routine before her incarceration. S.P. used drugs “off and on” 

throughout her life, including during her pregnancies, and at least one of her 

daughters was born with drugs in her system.1 S.P. admitted she was around her 

children while she was high on methamphetamine and that was a dangerous 

situation for the children to be in. S.P. said she “spiraled down” after the 

Department removed A.H., because addiction is “hard to overcome.”

The affidavit for removal that was filed with the Department’s original 

petition states that the Department received two intakes for neglectful supervision 

of three children, including six-month-old A.H. First, S.P. and A.H. were

reportedly living in a van with a leaking roof. A.H. was dirty and had a terrible 

diaper rash. Second, the two older children reportedly found syringes and pills 

while visiting with their mother, and observed S.P.’s boyfriend injecting himself 

with a syringe in his neck. S.P. failed a drug test the following day, and the 

children were voluntarily placed with relatives or family friends. S.P. went to a 

rehabilitation facility called Franklin House for treatment, but she left the facility 

and the Department filed for removal on May 8, 2012.

 1

Two older children were given other placements and were not the subject of 

the case now on appeal. S.P. gave birth to a fourth child after CPS began its 

investigation into the neglect of A.H. S.P. used methamphetamines during the 

pregnancy. The same foster family was caring for both of S.P.’s younger children. 
5

The Department obtained temporary managing conservatorship of A.H. and 

established a family service plan for S.P. The family service plan required that 

S.P. visit A.H. She was allowed two visits each month, but she had to provide a 

negative drug screen before the visit could occur. Over a nine-month period, S.P. 

accomplished three scheduled visits and one unscheduled visit after a court hearing 

on October 24, 2012. The family service plan required random drug screens, but 

S.P. failed to comply with that requirement. 

The Department required confirmation of scheduled visits twenty-four hours 

before each visit, and the family service plan required that S.P. maintain safe,

clean, and appropriate housing. The foster care worker never performed the 

necessary home visit because S.P. failed to provide an accurate residence address.

S.P. lived with at least two different men and in at least four different towns while 

A.H. was in the Department’s care. 

As a result of a positive drug screen, S.P. re-entered rehabilitation at 

Franklin House on January 4, 2013. A subsequent indictment accused S.P. of 

delivering a controlled substance to a minor on November 23, 2012. S.P. resolved 

the criminal case through a plea bargain agreement for deferred adjudication with a 

ten-year period of community supervision. S.P. left Franklin House because she 

was transported to court for a hearing on the criminal case and subsequently 
6

confined in a substance abuse felony punishment facility as a condition of 

community supervision. On the date of the termination hearing, S.P. would have to 

remain in the SAFP facility another few months, then go to a halfway house. She 

completed a parenting class while in the SAFP facility. The foster care worker 

testified that the child could not be returned to her mother in the SAFP facility and 

making the Department A.H.’s permanent managing conservator would not obtain 

permanency for the child. 

S.P. had been in the SAFP facility approximately four months at time of the 

hearing. She completed a six-week, eight-session parenting course. S.P. stated that 

she would be released from SAFP in one and one half months, and she hoped that 

she would be placed in a Beaumont halfway house. Once established in a halfway 

house, a friend would help her get a job working at the Vidor restaurant where her 

friend’s mother is the manager. S.P. would possibly be released from the halfway 

house after three months. 

S.P. testified that she performs community service in the community under 

supervision by a squad boss and that she attends church regularly. She realizes that 

when she is doing drugs she is not being a good mother. After her release to the 

halfway house S.P. intends to live with a family friend she considers to be her 

“mamaw.” Then she will move away from the area, perhaps to Nacogdoches where 
7

she hoped a friend could get her a job at the chicken plant. S.P. admitted that she 

did nothing to obtain a home for her family prior to her incarceration and that 

“[t]here’s nothing I can do until I’m released.”

The CASA representative, Cecelia Dixon, visited A.H. at her foster parents’ 

home at least once each month beginning in August 2012. Dixon stated that A.H. is 

“really doing well” with her foster family and that termination of the existing 

parent-child relationship and adoption by the foster family would be in the child’s 

best interest. She admitted that she has not visited S.P. during the time S.P. has 

been in jail and in a SAFP facility.

Ground for Termination

In her first issue, S.P. contends the trial court’s findings, including the 

finding regarding subsection (O), are not supported by clear and convincing 

evidence. S.P. acknowledges that A.H. was removed as a result of S.P.’s drug 

addiction, but she contends the initial allegations of neglect were unsubstantiated. 

Establishing grounds for termination under subsection (O) requires removal under 

chapter 262 of the Texas Family Code for abuse or neglect, but “those words are 

used broadly.” In the Interest of E.C.R., 402 S.W.3d 239, 248 (Tex. 2013).

Consistent with chapter 262’s removal standards, “abuse or neglect of 

the child” necessarily includes the risks or threats of the environment 

in which the child is placed. Part of that calculus includes the harm 

suffered or the danger faced by other children under the parent’s care.
8

If a parent has neglected, sexually abused, or otherwise endangered 

her child’s physical health or safety, such that initial and continued 

removal are appropriate, the child has been “remov[ed] from the 

parent under Chapter 262 for the abuse or neglect of the child.”

Id. (citation omitted). The Department removed A.H. because she was reported to 

be living in a van with a leaking roof and her siblings were exposed to drug use by 

S.P. and her boyfriend. The Department determined that it was necessary to obtain 

temporary managing conservatorship over A.H. after S.P., an admitted long-time 

drug addict, left the rehabilitation facility and then refused to return. S.P. claimed 

she was not using drugs, but she failed a drug test on the day of the removal. 

During the termination hearing, S.P. admitted she was using drugs before and after 

the Department took temporary custody of A.H. The trial court could reasonably 

find that the Department removed A.H. from S.P. for the abuse or neglect of A.H. 

See id.

The trial court also considered evidence that supports a finding that S.P. 

failed to comply with the court order. S.P. continued to abuse methamphetamines 

after the Department established a family service plan and while S.P. was pregnant 

with another child. She failed to pass drug screens and did not attend scheduled 

visits with her child. S.P. failed to obtain appropriate housing and admitted she 

could not assume custody of A.H. on the date of the termination hearing.
9

S.P. admits that she did not begin work on her parenting plan right away, but 

argues that the evidence that she failed to complete the court-ordered actions 

necessary to obtain the return of A.H. is factually insufficient because by the date 

of the termination hearing, she had completed the parenting course and had been 

“drug free” for almost seven months. Evidence that S.P. was not abusing drugs 

while she was confined in a SAFP facility and that she expected to temporarily 

reside with a family friend after her eventual release from the facility is not so 

significant that the trial court could not form a firm conviction or belief that S.P. 

failed to visit A.H., failed to obtain and maintain appropriate housing, and failed to 

complete drug treatment before the date of the termination hearing. We conclude 

the evidence supporting a termination finding under subsection (O) is both legally 

and factually sufficient.

The judgment will be affirmed if clear and convincing evidence supports a 

single termination finding and the trial court’s finding that termination is in the 

best interest of the child. See J.L., 163 S.W.3d at 84. We note that S.P. admitted (1) 

she used drugs while she was pregnant, (2) she was around her children while she 

was high on methamphetamine, and (3) it was dangerous for her children to be 

with her while she was high. The evidence that weighs against a finding of 

endangerment consists of S.P.’s testimony that, although she used drugs while her 
10

children were in her care, they never saw her use drugs. The factfinder could 

consider the children’s exposure to their mother’s drug use to be endangering, and 

S.P. admitted her children saw her when she was high, even if they did not watch

her injecting methamphetamine. The evidence that weighs against the finding is 

not so significant that the trial court could not have reasonably formed a firm belief 

or conviction that S.P.’s drug use endangered A.H. See Tex. Fam. Code Ann. § 

161.001(1)(E). We overrule issue one.

Best Interest

Regarding the child’s best interest, we consider a non-exhaustive list of 

factors: (1) desires of the child; (2) emotional and physical needs of the child now 

and in the future; (3) emotional and physical danger to the child now and in the 

future; (4) parental abilities of the individual seeking custody; (5) programs 

available to assist this individual to promote the best interest of the child; (6) plans 

for the child by this individual or by the agency seeking custody; (7) stability of the 

home or proposed placement; (8) acts or omissions of the parent which may 

indicate that the existing parent-child relationship is not proper; and (9) any excuse 

for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 

(Tex. 1976); see also Tex. Fam. Code. Ann. § 263.307(b) (West 2014).
11

S.P. argues that the Department provided little information about A.H.’s 

living conditions before her removal to foster care, and other than testimony 

concerning S.P.’s drug addiction provided little information about S.P.’s behavior 

at that time. Because her drug addiction provides the Department’s evidence 

concerning her parenting abilities, she contends the evidence that termination 

would be in A.H.’s best interest is insufficient in light of the evidence of her 

recovery from addiction. 

S.P. failed in her first attempt to attain and maintain sobriety through a 

rehabilitation facility’s program. A factfinder may infer from past relapses that 

similar conduct will recur if the child is returned to the parent. See In the Interest of 

I.C.W., No. 02-12-00226-CV, 2013 WL 173746, at *13 (Tex. App.—Fort Worth 

Jan. 17, 2013, no pet.) (mem. op.). S.P. had achieved sobriety only while 

incarcerated, and none of the evidence in the record required the factfinder to 

conclude that S.P. has the skills to permanently maintain her recovery after her 

release from confinement. “[E]vidence of improved conduct, especially of shortduration, does not conclusively negate the probative value of a long history of drug 

use and irresponsible choices.” In the Interest of J.O.A., 283 S.W.3d 336, 346 

(Tex. 2009) (analyzing evidence of endangerment under subsection 

161.001(1)(E)). 
12

S.P.’s current incarceration prevented her from assuming the care of A.H. 

S.P. expected to obtain employment in a restaurant during her residence in a 

halfway house, but had no assurance that she would be housed in a local halfway 

house; she did not have a firm offer of employment; and she provided no evidence 

to corroborate her claim that her friend could get her a job. S.P. hoped to obtain 

long-term employment through a friend, but she admitted her plan “has not been 

set into motion yet.” “[A] parent without stability, income, or a home is unable to 

provide for a child’s physical and emotional needs.” In the Interest of M.C.H., No. 

14-12-00103-CV, 2012 WL 1795123, at *4 (Tex. App.—Houston [14th Dist.] May 

17, 2012, no pet.) (mem. op.). 

The Department’s plan for A.H. was for her adoption by the foster family 

that has cared for A.H. since she was sixth months old. At the time of trial, A.H. 

was almost two years old and knew no parents other than her foster parents. The 

CASA representative had met with the foster family monthly, and she testified that 

the foster family was meeting A.H.’s emotional and physical needs. The foster 

family was also caring for A.H.’s younger sister, who was eight months old at the 

time of the termination hearing.

As the sole finder of fact, the trial court could reasonably form a firm 

conviction or belief that (1) S.P. lacked the ability to provide stability for A.H., (2)
13

the Department had found a permanent home for A.H. where her emotional and 

physical needs would be met, and (3) termination would be in the child’s best 

interest. The evidence of S.P.’s successful recovery while confined in the SAFP 

facility and her testimony concerning her plans for the future weigh against 

termination, but in light of the entire record, including the evidence of S.P.’s past 

conduct and the lack of certainty in her future plans, that evidence is not so 

significant that a reasonable factfinder could not reasonably have formed a firm 

belief that termination of S.P.’s parental rights is in A.H.’s best interest. We 

overrule issue two and affirm the trial court’s judgment. 

AFFIRMED.

 ________________________________

STEVE McKEITHEN

 Chief Justice

Submitted on March 18, 2014

Opinion Delivered April 10, 2014

Before McKeithen, C.J., Kreger and Horton, JJ.