### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00174
- CV

T. M. and O. A. , Appellant s

v. Texas Department of Family and Protective Services , Appellee

FROM THE 207TH DISTRICT COURT OF HAYS COUNTY NO. 20
- 0618 , THE HONORABLE WILLIAM R. HENR Y , JUDGE PRESIDING

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

T

. M . (Mother) and O

. A . (Father) appeal from the trial cour t ’ s order terminating their parental rights to their children E

. A . ( Daug hter ), born September 23, 20 1 3, and T. A

. ( Son ), born December 19, 2 014. T he trial court found that ter mination w as in the children ’ s best interest and that both parent s had: (1) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well

- being of the children, (2) constructively aba ndoned the children , and (3) failed to comply with the provi sions of a court order that specifically established the actions necessary for the parent to obtain the return of the children. See Tex. Fam. Cod e § 161.001(b ) (1)( E ), ( N ), (O), (2). Mother and Father appeal from the trial court ’ s findings related to statutory grounds and best interest and challeng e the court ’ s appoint ment of the Texas Department of Family and Protective Services as the children ’ s permanent man a ging conservator

.2 As explained below, we conclude that the evidence is factually insuff icient to support the trial court ’ s findings as to subsection (E) , and we therefore delete the or der ’ s finding s of statutory grounds under subsections (E)

. However , b ecause w e conclude that the eviden ce is legally and factually sufficient to support its finding s as to ( O) and as to best interest , we affirm the trial court ’ s order terminating M o ther and Father ’ s parental right s
. W e further affirm th e portion of the o rd er appointing the Department as the children ’ s managing conservator.

PROC EDURAL AND FACTUAL SUMMARY

T he Department sought conservatorship of the chi ldren March 1 0, 2020

. Mother appeared and an attorney was appointed to represent her at a March 20 , 20 2 0 status conferen ce
. In July, Father was served with citation through substitute ser vice aft er a n investigator with the Hays County District Attorney ’ s Office provided an affidavit describing her attempts to serve Father starting May 11 and opining that she believed Fath er was avoiding service, was “ aware of the service attempts [,] and [ha d] not made any attempts to accept service. ” He was noti fied of but did not appear at a perman en cy hearing on September 2 , and his attorney was appointed on December 4. T he final hear in g began on January 27 , 2021, and after Department caseworker Jud i Webster testi fied, the trial court conti nued the hearing to March 18

. 1
The De par tment in troduced into ev idence Mother ’ s and Father ’ s family

- service plan s , which were file d w ith the trial c ourt on April 10, 2020 ; t he resul ts of Mother ’ s Ma rch 6,
2020 drug test ; a s tatus hearing order signed by the trial court on M a y 8, 2020; an order for

s ubstituted service of Father signed J uly 8, 2020; proof of ser vice showing Father was ser ved on

1 The trial was held via video conference due to COVID

- 19 restrictions

. See Supreme Cour t of Texas ’ s Secon d Emer gency Order Re garding the COVID

- 19 State of Disaster (Misc. Docket No. 20

- 9043) and all subseq u ent Orders.3 July 1 3, 2020 ; and the court ’ s initial perma n ency hearing order signed September 2, 2020

. Mother ’ s drug test results show that she tes ted at a level of 1436 for me thamphetamine , well beyond the levels ne cessary to indi cate a positive result

. In it s May 8 S tatu s H earing O rder, the trial court noted that Mother had appeared with her a ttorney and that Father had not been notified and order ed that the parents ’ visitation plans and Mother ’ s famil y - ser vice plan were made order s of the court. In its S e pt ember 2 Initi al Permanency Hearing Order, the trial court found that Mother had appea re d wit h her attorney, that Fat her had been notified but did not appear, and that neither parent had demonstrated adeq uate and appropriate compliance with the ir service pl an. It order ed that Father ’ s famil y - service plan wa s made an order of the court , that the parents ’ visitation should be stopped , and th at , “ I f no additional services are e ngaged in, the Department is to proceed with trial at the next setting. ” The par en t s ’ service pl an s have virtually identical require ments, requiring each parent to obtain and maintain housing appr opriate for the parent and th e children, avoid criminal activit y and associating with known criminals, obtain and maintain emplo yment, compl ete a “ psycho

- so ci al ” evaluation and follow all recommendations, maint ain monthly contact with their caseworker, successf ully complete individual therapy, complete a drug and alcohol assessment and follow all recommendations, submit to r an dom drug tests a t th e Department ’ s request, and complete a parenting class. Mother was also ordered to com plete a psych ol ogical evaluation and follow all re comme n dations.
C aseworker Webster testified that the Department removed the children because Mother tested positiv e f or m ethamphetam ine. She also testified that a t the time the children w ere removed , Mo ther was homeless , and they were staying with friends after having liv ed in a shelter

. Webster testified about the parents ’ family

- service plans and said that neither pa rent had compli ed with their respective plan

.4 We b ster testified that she firs t contact ed Mother in mid

- March 2020 to arrange for drug testing , and Webster’s records “ show we had one result. ” A sked whether she was “ a w are of whether [Mother] tested aft er that point, ” an d Webster answered, “ After the first one, no , sir. ” She further testified that Mother was referred for a hair

- follicle test but “ did not show for th e
test. ” Mother was homeless when the case beg an , and Webster assumed at times during th e
p roceeding that Mother was living in her car because Mother never had a phy sical address and attended some of her virtual visitation s from a car

. Mother told Webster at one point that it

“ was n ’ t safe to get her mail at the address she was at , ” so Webste r a sk ed Mother to provi de an address where she could get mail

. Mother n ever pr ovi ded that information , so Webs ter instead sent Mother her visitation and family service plans via email. Webster said that Mother did not mak e her aware of any issues with Mo the r ’ s phone or with finding an internet connection , although Webs ter recall ed Mo ther saying once that “ she got better reception outside ” and
anot her t ime that she was having car problems

. Mother ne ver told We bster that she was “ having issues with any of her servic es , ” nor did she e ver report that sh e had found a job or a place to live

. Mother also failed to ma intain regular contact with We bster , and Webster said that throughout the case, she had reached out to Mother once or twice a month and would remin d
M other a bout drug t esting and “ that providers had been reaching out to her to set up serv i ces. ”
W ebster testified that she fi rst made contact with Father at the beginning of April
2020 , when she sent him a link to access a hearing and a drug

- test req ues t

— Fat he r never took that drug test

. Father told Webster that before the case beg an, he last had visitation with his children “ somet ime in 201 9, but he wasn ’ t specific of what

— exactly when. ” On April 7, Webster sent Father his visitation plan, which he ackn o wledged receiv ing

. In early May , Webster sent Father his family

- service p lan and an access link for a nother hearing and informed5 him that she was trying to serve him with citation. She testified that she had continued to reach out to Father , “ [p]r o bably on ce or twice a mo nth, ” “ through text messages and calling his phone about

— seeing abou t servi ces and to see how

— or to set up our monthly meetings with him. ”
Howe ver, Webster had never been to Father’s home or tried to visit it

. Webster was asked wh ether Fat her had taken any drug tests, and she answered, “ To my knowledge, no, sir. ” She also testified that she had “ not been informed ” that Father had ever said he uses drugs

. Mother and Father had been allowed virtual visit s with the children every o ther week until the cou rt o rdered visit ation stopped in S epte mber after findi ng that the parents had not made sufficient progress on their service plans

. Webster characterized the parents ’ visit ations as

“ sporadic

. ” She said that “ [i]n the beginning , Mom wa s doing visitation well ” and “ was reaching out to the children , ” and that the children acted happy to see Mother and were as affe ctionate as they c ould be in a virtual vis i t

. However, Mother started to miss one or two visits, which amounted to “ a whole mo nt h because they w ere only getting two visits a month, per [the] visitatio n plan

. ” A lthough Webster did not have the “ tot al num b er ” of visits Mother had missed , she said it was “ like, months in a row, she would miss visitations with the children. ” Sim ila rl y, Father also s tarted out making at least one of his visitations every month but then started missing every other visit , and t ow ard the end of the summer , Father had one visit in early August and “ quit visits after that

. ” As for potential placement s f or the children, M other had proposed her mother (Grandmother) as a potenti al placement, but Webster testified that Grandmother “ d id not want to be a placement fo r the children. ” Webster said that Father never returned a form listin g pote ntial placement s f or the children bu t that hi s s ister ( Aunt ) contacted Webster in July or Au gust seeking visitation with the children . However, We bster testified that Aunt “ did not mention6 placement at t hat time ” and said only “ that she wanted to be able to talk t o them on t h e phone. ” Webs ter informed Aunt that because she “ was not a legal part y ” to the case , she w ould have to talk to Father to obt ain details about the case

. Webster said she had not initiate d a home study after speaking to Aunt on August 31 because she wa s waiting for A u nt to start the pr ocess
. She also testified that Aunt te x ted in September to say the children “ had lots of famil y ” in Ca l ifornia and that she and he r family would like to be their placement and that she continued to text to inquire abou t b ei ng the children ’ s placement through January 2021. However , Webster had not contacted anyone in California to learn about Aunt ’ s home study and did not know whether Aunt had begun the process of being approved for placement in Cali fornia

. Finally, We bst er said she

cou ld not remember whether the Department had gotten a recomme ndation from the children ’ s
t herapist as to whether ter mination was in the ir best interest. Departmen t casew orker Cindy Doyle was assigned as Father ’ s courtesy

casewo rker in Apr il 20 20 and first mad e contact with him on May 28, 2020, when he responded
to an email she had sen t in mid

- April. Doy le att empted t o set up a psy chological evaluation for Father and asked him to send a signed release form, which she received m onths later, in O ctob er. I n early Sept ember , Father asked if he could meet with Doyle in perso n, but she said it would have to be via video call becau se of COVID

- 1 9. Doy le reported that Father did not reach out again until the end of September , when he texted to say “ that he was told that I was his caseworker and that he shou ld speak to me about starting classes. ” Do yle testified that she communicated with Father th r ough October and that she sent him a referral for a second provider to conduct a psychological evaluat ion a nd for a drug and alcoho l assessment

. How ever, the providers later told Doyle that they had been unable to contact Father. In January 2021, Doy le tried to make in

- person contact with Father, going to the address the Department had on record ,7 but Fat her w as not there . O n March 7, he emailed Doy l e his current address and a new phone number

. Doyle did not remember Father eve r telling her that he was living with and caring for his mother or that his mother had cancer. Doyle also did not recall if Fath er ha d been ordered to take d rug tests and did not think he had ever take n any such tests

. To Doyle ’ s knowledge, Father had not completed any of his required services by the time of the March hearing. Father testified and de nied using any illegal drugs other than smoking mar i juana when he was “ young er , ” saying he had last used marijuana about four years earlier

. Although his serv ice plan state s that he had “ admitted to doing Methamphetamine a month ago , ” Father denied making that statement . He also tes tifie d that he did not know h e had been ordered to take d rug tests

. Father knew he had been ordered to maintain stable housing and said he had done so
in Dece mber 2020 . He acknowledged that he had not completed a ps ychosocial evaluation, saying t hat he d id no t have tr ansportat ion on the day he was su pposed to go , that he rescheduled his appointment for th e next week but “ didn ’ t end up going after all , ” and tha t he never tried to resch edule again after that. He also knew th at he had been required to compl ete a drug and alcohol assess ment and said he d id not take the assessment because he was supposed to ge t date s for that service after he completed t he psy ch o so cial evaluation , which he never took. Final ly, he admitted that he had been ordered to take a pa renti ng class but had not don e so. Father said th at he had suggested both Aunt and his ex

- wife as poss ible placements , that the children ’ s half

siblings live with his ex

- wife , and that the children and A un t ’ s children “ know each other. ” Father testifi ed th at when the proceeding s tarted, he was liv ing wi t h and caring for his mother, who had cancer and w ho died in early August. Father believed that if h e had more time, he would have worked hard and completed his services , but admitted that he had not

en gaged i n services in the seve n months between h is mother ’ s death and the March hearing.8 In her test imony, M other admitted that she had not maintained monthly contact with Webster but asserted that she had tried to do s o and had issues in contact ing Web ster , who did not always retu rn Mother ’ s calls or texts

. Mother testified inconsistently about when sh e receiv ed her service plan, saying both that she had a sked Webster at lea st five times for the service plan but “ di d not receive it ” until the day befor e the Mar ch hearing and that she received email s with her service plan “ a couple times ” during the proceedi ng . Mot her testified that she had printed and read through the document the day before the M a rch hearing

. Mother said that during the time she was allowed v isitation, she tried to visit the children “ [e]very chan ce [she] could ” but she sometimes had diff iculties contacting Webster to get the visitation link or issues

w ith her phone , which would freeze or lose signal during a visit

. Mother i nsisted t hat she h ad told Webster about th o se technical diff iculties. Mother said that she had found stable hous ing after wo rking towar d that goal “ this entire time ” and had obtained employment about six months earlier. Mother acknowledge d that she had been or dered to co mplete a psychological evaluation and ha d not d one so, testifying , “ I just re ceived information yesterday , ” and assert ing that Webst er never gave her refer rals for a n evaluation

. Mother also admitted that she had tested positive for drug use , t hat she had been ordered to take random drugs tests but “ never we nt back and completed any more drug screen s , ” and that she had been ordered to complete a drug and alcohol assessment but had not done s o because she “ did not know who to contact

. ” Mother wa s asked abo ut the court

- ordered p arenting class and sa id that she had “ been look ing up which one s to take

. ” She testified that until the hearing , the document listed “ a whole slew of different kinds of classes , ” but “ as of yesterday, [she] found out which one [she ] needed to take ” and wa s “ in the process of ” comple ting it

. Mother believe d that since she had o btained housing and employment, she would be able to9 successfully pursue the other required services if she had more time

. Mother said, “ I know I ha ven ’ t showe d much progression in t his case. I have n ’ t been in a right state of mind mentally or emotionall y , ” explaining that she had been feeling depres sed due to losing custody of the children, the death s of several fa mily members , and the pandemic. The trial co urt appo in ted CASA o f Central Texas as the children ’ s guardian ad litem, and Lonette LaBorde, the children ’ s CASA supervisor , testified that the y were placed in a foster home and “ doing really, really well. ” She said they had made “ great stri des academica lly and therapeutica lly , emotionally

. ” The children were very bonded to their foster parents , had

“ developed a good tr usting relationship ” w ith them , and enjoyed activities with them and with the foster parents ’ extended family. LaBorde test ified that th e children ’ s therapi st thought it

“ wou ld be very traumatiz ing to the children ” to talk to the children about their family, including the fact that they had half

- siblings , and that CASA had had “ pretty regular contact ” with Aunt but had followe d the therapi st ’ s recommend ation not to ask the chi ldren about her or their other relatives. CASA ’ s concer ns were that Mother “ had not made any progress with any servic es ” by mid

- Oct ober and that Father had not started any services and did not have a stab le home by
De cember

. As far as L aBorde knew , neith er par ent had made any progress since then , and LaBorde testified that CASA believed that it was in the children ’ s be st interest for their parents ’ rights to be terminated. She said, “ It ’ s important for t hem to be abl e to move on. ”
Aun t testified that s he con tacted the Department to ask to be considered as a placement for the children whe n she first heard i n March 2020 that the children had been taken
in to the Department ’ s care
. She said she made it cle ar that s he w as ready to “ d o anyt hing for [the chil dren] if they needed us. ” Webster called in November to ask if Aunt “ wanted to be a placement , ” so Aunt and her family bought a b igger vehi cle, “ rea rranged our house hold, ” and10 started the process of being li ce nsed in California as a plac ement

. Aunt also said s he had sent CASA and the Department letters and pi ctures to give to the children and h ad sent the Department videos of her having video chats with the children “ to show that we did have a relationshi p with them p rio r
. ” However , the children ’ s attorn ey ad litem told the trial court that after the January hearing, he spoke to the children about their relationship with Aunt and their wishes

. Both children said they do not know Aunt and do not want to l ive wi th her , Son “ wants to be ad opted ” by his fo st er par ents , and Daughter “ wants to go back and live with her mother. ” At the conclusion of the hearing, the trial court found that ter mination of Mother ’ s and Father ’ s parental rights w as warranted under subsections (E), (N), and (O) an d was in the child ren ’ s best interest

. T he court noted that it had “ built in ” a continu ance requested by Father when it set the March hearing date nearly two months after the firs t day of testimony and said :

[ Mother and Fa ther ] had alm ost two months from our last heari ng w hen tr ial began to today. And the writing was on the wa ll in January. And if your clients could have read that writing, I think they could have gone a great distance to resolve the issues. But they didn ’ t. I know C OVID is out there. I know COVID has c a used a lot of issues for a lot of people.

. . . It ’ s s omewhat mitigating to a point. But to simply not contact your caseworker; to simp ly not show up for drug screens; to simply not go to your visits; t o simply not do a psychological e valuation; to simp ly not do any of the other services that the Court has o rdered is not acceptable. You can ’ t blame that on COVID.

STA NDARD OF REVIEW To terminate a parent ’ s rig hts to their child, the Depart ment mu st prove by cl ear

a nd convincing evidence that the parent e n gaged in conduct that amounts to at least one statutor y ground for termination pursuant to se ction 161.001 and th at ter mination is i n th e child ’ s be st inter est. Tex. Fam. Code § 161.001 (b) ; In re N.G. , 5 77 S.W.3d 2 30, 232 (Tex. 2019) (p er curiam) ; I n re S. M.R. , 434 S.W.3d 576, 580 (Tex. 2 014). Clear and conv inc ing evidence is “ the11 measure or degree of pr oof that w ill produce in the mind of the trier of fact a firm belief or convic tion as to t h e tr uth of the a llegat io ns so ught to be esta blished. ” T e x. Fa m. Cod e § 101.007; In re A.C. , 560 S.W.3d 624, 630 ( Tex. 20 18)

. W e defer to the decisions of the factfinder , whi ch , “ having full opportunity to obs erve witne ss t estimony firs t

- ha nd, is the sole arbiter wh en ass essi n g the cr edib ili ty and demeanor of w itne s ses
. ” In re A.B ., 437 S .W .3d 498, 503 (Tex. 2014)

. “ Th e distinction between legal and factual sufficie ncy lies in the extent to which disputed evidenc e contrary to a finding may be considered. ” A.C. , 56 0 S.W. 3d at 630. I n

re vie wing le gal sufficien cy , w e view the ev idence in the light most favorable to the f act finder ’ s determination, in cluding undisput ed contrary evidence , and assume the factfinder resolved dispu ted facts in favor of its finding. Id . at 630

- 3 1. I f the factf inder could have f ormed a fir m beli e f o r conviction that the finding was true, the ev idence is legally suffi cient. Id

. at 631. In

r eviewing factual sufficiency , we we igh the disputed evidence con t rary to the finding against all the evidence fa vo ring the fin ding and ask whether the d ispute d evidence is such that a r easonable factfi nd er co uld not have resolved it in favor of the finding. Id

. “ Evidence i s factually insu fficient if, in light of the entire record, the disputed evi dence a r easonabl e f actfind er could
not have cred ited in favor of a finding i s so signific ant that t he factfinder could not have formed

a firm belief or conviction that the findi ng was true. ” Id

.
DISCUSSION Mother and Father both assert five is sues on appeal, challengin g the trial court ’ s fi nding s of statutor y grou nds for termination, its finding that termination was in the children ’ s be st interest, and its decision to appoint the Department as the children ’ s managing con servator.12 We will first consider wheth er the evid ence is sufficient to support the court ’ s find ing of statutory grounds, beginning with its findi ng under subsection (E). S ee N .G. , 577 S.W.3d at 237

.
S ubsection (E), endangerment
Term ination may be ordere d under subsection (E) if the e vidence establishes that the parent “ enga ged in conduct o r knowin gly pl aced the child with persons who engaged in

c on duc t which endangers the phys ical or emotional we ll

- being of the child

. ” Tex. Fam. Code § 161. 001(b)(1)(E). “ [T] he relevant inquiry is whether ev idence exist s that the endangerme nt o f the child ’ s physical and emotional well

- being was the result of the p arent ’ s conduct, including acts and omissions or failures to act. ” A.C. v. Texas Dep ’ t of Fam. & Protective Servs. , 577 S .W.3d 689, 6 99 (Tex. App.

— Aust in 2019, pet. denied ) (quoting Asjes v. Tex as Dep ’ t of Protective & Regul

. Servs. , 142 S.W.3d 363, 370 (Tex. Ap p.

— E l Paso 2004, n o pet.)).

“ E ndangerment does not need to be established as an independent proposition but may be inferred from p arental mi sconduct , ” m eaning the Department does not have to prove that the
p arent ’ s mis conduct was directed at the child or th at the child suf fered an actual injury

. I d. (citing Texas Dep ’ t of Hum. Ser vs. v
. Boyd , 727 S.W. 2d 531, 533 (Tex. 1987) ) ; see I n re E.N.C. , 384 S.W.3d 796, 80 3 (Tex. 2012)

. Termination u nder subsection (E) requires more than a single act or omission , a nd the D epartment must show a voluntary, deliberate, and con scious course of conduct by the parent , considering a parent ’ s actions bo th befor e and after the child wa s removed from the home

. E.E

. v . Texas Dep ’ t of Fam. & Protective Servs

. , 598 S.W.3d 389, 405 (Tex. App.

— Aus tin 2020, no pet. )

.

“ As a general rule, conduct that s ubjects a child to a life of uncertainty and instabili ty endangers the physical a nd emotional well

- being of a child. ” J.G. v. Texas Dep ’ t of13 Fam. & Protective Servs. , 592 S. W.3 d 515, 524 (Tex. App.

— Austin 2019, no pet.) (quoting
In re J.O.A. , 283 S.W.3d 336, 3 45 n. 4 (Te x. 2 009) )

. Thus, “ a parent ’ s use of narcotic s and its effect on h is or her ability to parent may qua lify as an endangering course of con duct

. ” J.O.A. , 283 S.W. 3d at 345

. 2 T his is b ecause illegal drug use exposes child re n to th e pos sibility that the ir parents could be im paired or imprisoned , whi ch would endanger the ch ildren ’ s ph ys ical and emotional well

- being

. See A .C. , 577 S.W.3d at 699. And when the record contain s evidence of a parent’s drug use “ ‘ during the pendency of a termi nation suit, when he knows he is at risk of losing his children, ’ suc h evidence ha s been found legall y sufficient to support a finding of endangerment under subsection (E). ” In re C.V. L. , 591 S.W.3d 734 , 75 1 (Tex. App.

— Dallas 2019, pet. denied) (quoting I n re D.D.M. , No. 01

- 18

- 01033

- CV, 2019 WL 2939259, at *4 (Tex. Ap p.

— Houston [1st Di st.] J uly 9, 2019, no pet.) (mem. op.) ; see In re M.E.

- M .N. , 342 S.W.3d 254, 263 (Tex. App.

— Fort Worth 2011 , pet. denied ) ( stab i lity and permanence are of paramount

2 Mother cites In re L.C.L. , 599 S.W .3d 79 (Tex. App.

— Houston [14th Dist.], pet. denied) (en banc) , to support her argument that the Departme nt did not sh ow a ca usal link bet ween her drug use and the children ’s endangerment

. A lt hough we agree that a parent ’s drug use does not on its own automatic ally eq uate to endangermen t, see In re C.V. L

. , 591 S.W.3d 734 , 75 1 (Tex. App.

— Dal las 2019, pet. denied) , i t is not hard to imagine a case in whic h a parent ’s drug use might be so pervasiv e or seri ous, e ven in the a bsence of evidence of conduct that di rectl y en dangers the child or limited to times when the chil d w as no t in the parent ’s direct c are, that the drug u se on it s own could support a finding of endangerment. Importantly, in a n opi nion co ncurring with the denial of the Department ’ s peti tion for revi ew, Ju stice Lehrmann noted a split in the courts of appeals and seem ed to caution the lower courts against attempt ing to make blanket rules about the suffic i ency of evidence

. In re L.C.L

. , __ S .W.3d __ , No. 20

- 0432, 2021 WL 2603699, at *2 (Te x. June 25, 2 021) ( Le hrmann, J., concurring) . Justice Lehrmann noted a recent supreme court cas e reaffirm ing that endangering con duct under subsection (E) need not be di rected a t the child or cause t he chil d to su f fer actual injury

. Id . ( qu oting I n re J.F

. - G. , 627 S.W .3d 304 , 312

- 313 (Tex. 2021)) . She acknowledged that “ mere imprisonment, ” which sh e said was “ akin to ” “ mere drug use ” can not on its own support an endangermen t finding but noted that “ j ust as impri son ment cannot be viewed in a vac uum, neithe r can a parent ’ s drug use. ” Id . ( citing Tex as Dep ’ t of Hum. Servs. v. Boyd , 727 S.W.2d 531, 533

- 34 (Tex. 1987) )

.14 importanc e in termination case , and parent ’ s decision to use drugs during pende nc y of termi nation proceeding , when parent is at risk of losing chil d, supports a finding that parent engaged in conduct that endangere d child ’ s well

- being ); Cervantes

- Peterson v. Texas Dep ’ t of
Fam. & Protective Servs. , 221 S.W.3d 244, 253 (Tex. App

. — Houston [1st Dis t.] 20 06 , no pet. ) ( in finding sufficient evidence of en dangerment, appellate court noted that mother ’ s drug use continued after child ’ s removal , “ in the face of periodic nar cotics tests that placed her relationship with her child in jeop ardy ” ). The Depart ment p resented evid ence that at the time the children we re removed , Mother had tested positive for methamphetamine , she was homeless at the time and had left the shel ter she and the children had been living in, and Father admitted to usin g methamphetamine

a

bout a month earli er and had not see n the children sinc e 2019. Further , the Department presented evidence that neither pa rent took any drug test s d uri ng the cas e , resulting in a presumption that the parents would have tested po sitive fo r drug use , see J. K. v. Texas Dep ’ t o f
Fam. & Protective Servs. , No. 03

- 18

- 00814

- CV, 2019 WL 1646268, at *2 (Tex. App.

— Austin Apr. 17, 2019, pet. denied) (mem. op.); In re E.M. , 494 S.W.3d 209 , 222 (Tex. App.

— Waco 2015, pet. denied) ; inform ed the Departmen t that they had ob tained employ ment o r stable housing ; or completed the ir required parenting class, psy chological evaluation , or drug and alc ohol assessment

. Given the instability of Mother ’ s an d the children ’ s living environment , M o ther ’ s initial drug te st results and Fat her ’ s alleged admis sion that he ha d used methamphetam ine shortly be fore the children were removed , both parents ’ missing at least one drug test during the pendency of the pro ceeding , Father ’ s ap pa rent lack of involvement with the famil y w hen the children w ere re moved , the pa rents ’ failure to act on the court or ders or Department requests , and the uncertaint y that the parents ’ conduct caused in the children ’ s lives,15 we conclude that legally sufficient evid ence supports the trial court ’ s fin ding of grounds un der

su bsection (E)

. W e cannot , however , co nclude that t he evidence is fa ctually sufficient to support termination under su bsection (E) as to either parent

. We have little e vidence in this record beyond t he fact that Mother tested positi ve for methampheta mine, resulting in the children ’ s removal, and that she and Father missed some unknown number of drug tests 3 and failed to engage in services. However, “ a finding of endange rment based on drug use alone is not automatic. ” C.V. L. , 591 S. W.3d at 75 1

. Inst ead, t he Depa rtment must still present clear and convinc ing evidence of “ a continuing c ourse of conduct to satisfy the requ irements of subsection (E). ” Id

. As far as Mother ’ s conduct is concerned, t he Department did not present evidence about why Mother was ask ed to take he r initial fa iled drug test, such as concerns about how she

was car ing for th e children or that the child ren were dirty or malnourished, had miss ed sch ool, or the like. Nor did it present evidence as to the extent or duration of Mother ’ s drug use , whether she had us ed drugs while caring for the children , whethe r the children had a ny awareness of he r d r

u g u s e , whet her her dru g use had ever exposed the m t o dangerous indivi duals or circumstances, whether she had faced cri minal charges or incarcera tion at any p oint , or eve n about the Department ’ s general concerns about methamphetamine use and its possib le effects on

a person ’ s ab ility to care for her childre n
. As for Mother ’ s homelessness, th e Department did not present any evidence about her and t he children ’ s circumstanc es beyond the fact that they were

3 A lthough Mother acknowledged that she knew she had been ordered to submit to random drug screeni ngs and had no t done so, the De partment did not present evidence as to how many te sts had been requested of her

. T he Department only establ ish ed that Father missed on e drug test , in April 2020 , and did not present ev idence that any other tests were reques ted of him

.16 experiencing homeless ness when the children wer e removed

— t here was no evidence about how long the f amily had been homeless , about the shelter in which they had stayed, when or why they left the she lter , or wher e they were living after leaving the shelter

. Give n the pa ucity of ev idence presented by the D epartment

— which amounted to establishing that the childr en wer e removed because Mother was h omeless and had fail ed an initial drug test , that s he mis s ed some unkn own number of drug tests , and that she failed to
engag e in services

— we canno t conclude that th e evidence is factually sufficient to support a finding of a “ voluntary, deliberate, and conscious course of conduct ” by Mother that can be viewed as hav ing enda n ger ed the childre n. The Department similarly failed to pr esent factually s uf ficient evid ence

e stablishin g that Fathe r had engaged in a volunt a r y, deli berate, and conscious course of conduct that endangered t he children. Father admitted to usi ng marijuana but testified that he last used it four years before tr ial and denied using any other illega l drugs . T h e only evidence of such use

was a single asser tion in Father ’ s service plan that he had admitted to using methamphetamine a month earlie r, a statement t hat Father denied making and that We bster testified she was unaware of

. Fur ther, t he children were not i n Father ’ s care during the time in which he a llegedly admitted
to us ing met hampheta mine , and there was no evidence that he had left the ch ildren in Mot her ’ s

care at a t ime when she was usi n g methamphetam ine or that he was aware of any drug use b y Mother

. Indeed , t her e was no evidence about Father ’ s circumstances or his involvement with the family at the onset of the case other than We b ster ’ s testimony t hat he t old her he had last seen the children at some undefin ed time in 2019

. Finally , althou gh Father did n ot take the initia l drug screen requested by Webster i n Apr il 2020 , before he was served and before his se rv ice17 plan was made an order of the court , the record does not indic ate that any other drug tests we r e requested of h im

. 4
O n t his rec ord, w e co nclude that the evidence is legally sufficien t but factually
in sufficient to support the trial court ’ s finding that either Moth er or Father e nga ge d in a

“ voluntary, deliberate, and conscious course o f conduct ” that en dangered th e childr en ’ s physi cal

or emo tional well

- being. We sustain Mother ’ s and Fa t her ’ s first issue in part

. Subsection (O), com pl iance with fam ily
- service plans To termi nate p arental right s under subsec tion (O), the D epartme nt must sh ow by clear and convincing evidenc e that (1) the child was removed unde r Chapter 262 of the Texas
Fa mily Code for abuse or neglect, (2) the child has b een in the con servatorship of the Depart ment f or at least n ine months, an d (3) the paren t “ fail ed to comp ly with the provisions of a
court order that specifica lly established t he actions necessary for the parent to obtain return of the child. ” See Tex. Fa m. Code § 161. 001(b)(1)(O). On appeal, Mother and Father a rgue that ther e is insufficie nt evidence that the children were removed for “ abu se or negl ect. ” Whet her a child was removed for abuse or neglect i s a fact

- specific inquiry. S ee S

.M.R. , 4 34 S.W.3d at 583 ; D. F. v. Texas Dep ’ t of Fam. & Protecti v e Servs. , 39 3 S.W.3d 821, 830 (Tex. App.

— El Paso 2012, no pet.). C hapter 262 does n ot defin e the phra se “ ab use o r neglect , ” but the supreme court has explain ed that t he phrase is “ used broadly ” and not limi ted to allegat io ns of actual a buse or neglect in flicted on a child

. In re E.C.R. , 402 S.W.3d 239, 24 6 (Tex. 2013). Instead, because chapter 262 uses the standa rd of “ danger to the physical health or

4 According to t h e November 2020 permanency report, “ Due to the [D] e partment not [being] able to contact [Father , ] o ther drug referrals were not able to be placed. ” Howe ver, both Webster and Doyle com municated with Fat her throughou t the case

.18 safety of the child , ” a phrase “ centered on risk, rather than just a history of actual abuse o r neglect , ” abuse or n eglect “ necessarily includes the risks or threats of the environment in which th e child is placed. ” Id . at 247

- 48. As with its assertions of enda ngerment, t he Depart ment presented little evide nce that the ch ildren were removed for ab use or ne glect

. We bst er testified that the children were removed after Mother tested positive for met hamphetami ne and tha t the Department had

concerns about her homele ssness , but there was no evidence about the extent of Mother ’ s drug

use or the family ’ s living si tuation at th e time of removal. However, the trial court ’ s temporary orders provide addition al support for a fin ding of removal for neglect. 5 I n its March 10 order allowing the Department to take emergency custody of the children , the trial court found t hat there was “ an immediate danger to the physical hea lth or safety of the children ” and tha t their

“ c ontinuation in the home of [ the parents ] would be contra ry to the children ’ s welfare

. ” O n M arch 20 , the court signed an order extending the M a rch 10 orde r , finding th a t i t was in the children ’ s best interest for the Department to con tinu e as tem porary man aging conse rvator and that the children will suffer “ imm ediate and irreparable injury, loss, or damage ” if the emergency order s were not extended

. And in its temporar y orde r signed on April 2, 2020 , after a fu ll

5 A lthough a trial court may not take judic ial notice of the tr uth of allegatio ns contained in its records, it may take judicial notice o f its earlier order s or findi ngs of fact

. See C.S. v. Texas Dep ’ t of Fam. & Protective Servs

. , No. 03

- 17

- 00229

- CV, 20 17 WL 347107 2, at *3 (Tex. Ap p.

— A usti n Aug. 9, 2017 , no pet.) (mem. op. ) ; Tschir hart v. Tschirhart , 876 S.W.2d 507, 508 (Tex. App.

— Austin 1994 , no writ )

. Indeed , a trial court is “ presumed to have taken notice of its own records i n a case beca use ‘ [a] tri al judge jud icially knows wha t has previousl y taken place in the case on trial. ’ ” Asplundh Tree Expert Co. v. Abshire , 517 S.W.3d 320, 344 n.13 (Tex. App.

— Austin 2017, no pet.) (quoting Estate of Hoskins , 501 S.W. 3d 295, 310 (Tex. App.

— Corpus C hristi 2016, no pet.) ) ; see also In re J. E.H ., 384 S.W.3 d 864, 869

- 70 (Tex. App.

— San Antonio 2012 , no pet.) (if record is silent, “ the trial court may be presumed to have taken judicial n otice of the records in the court ’ s fi le without any req uest being ma de and witho ut an announ cement in the rec ord that it has done so ” )

. We note that i n this ca se, the same trial court judge signed all but the first M a rch 10 order.19 adversa r ial hearing held pu rsuant t o section 262.201, 6 the trial court stated that it found sufficien t evidence that there wa s “ a continuing danger to the [ children ’ s ] physical health or safety ” ca used by an ac t or failure to act by the parents and that “ continuation of the child [re n] in th e home

w ou ld be con trar y to the child [ren ] ’ s w elfare

. ”
T he trial c ourt found that the children should b e removed due to a risk of immediate and irreparable harm a nd that their removal should be extended due to a “ continuing danger ” t o their physica l health or safety , and the Department presented evidence that the family was homeless and in unstable circumstances when the children were removed and that M o ther had us ed meth amphet amine wh ile charged with car ing for the children. W e therefore conclude that the evidence is legall y and fa ctually sufficient t o support an implied finding that the childre n were removed due to abuse or neglect. See In re A.A.A. , 265 S.W.3d 507, 516 (Tex . App.

— Houston [1st Dist. ] 2008 , pet. denied) (child was remov ed on emerg ency basis after m other wa s arrested for shoplifting af ter leaving child at shelter , and trial court issued tempor ary order finding continuing danger to child ’ s physical health or saf ety if returned to mother ; court of appeals held that evidence was legall y suf ficient to su pport fin ding that child was removed for neglect and that, given evidence of mother ’ s lack of effort to find child after mother was release d , evidence w as factually sufficient to support same finding ) ; see also D.F. v. Texas De p ’ t

6 Under section 262.201, the trial court must hold a full adv ersar ial hearing soo n after the child is ta ken into the D epartment ’ s custo dy and must o rder the child returned unless i t find s sufficient evidenc e that “ there was a danger to the ph ysical health or safety of the child, including a dan ger that the child would be a victim of tr afficking , ” “ caused by an act or fail ure to act of the person entit led to possession and for the child to remain in the home is contrary to the welfare of the ch il d ” ; that “ the urgent need for protection required the immediate removal of the child and reas onable effo rts, consist ent with the c ircumstances and providing for the safety of the child, were made to eliminate or prevent the child ’ s removal ” ; and that “ re asonable effor t s have been made to enable the child to return home , but there is a substantial risk of a c ontinuing da nge r if the ch ild is returned h ome. ” See T e x. Fam. Code § 262.201(a), ( e) , (g).20 of Fam. & Protective Serv s. , 393 S .W.3d 821, 831 (Tex. App.

— El Paso 2012 , no pet. ) (finding sufficient evidence of removal for abuse or neglect in part because trial court enter ed
emergency order o f removal finding imm ediat e danger to child ’ s health or safety) ; I n re S.N. , 287 S.W .3d 183, 190 (Tex. App.

— Houston [14th D ist.] 2009 , no pet.) (same )

. The parents do not dispute that they failed to comply with the requirements of their court

- ordere d service plans, which estab lished the st eps necessary to rega in custody of the children , a nd the re cord establishes that fact

. Because the evidence is su fficient to support the finding that removal was due to abuse or neglect, the evidence i s legally and factually sufficient to support th e trial cou rt ’ s findin g of statutory gro unds under subsection (O)

. We overru le Mother ’ s and Father ’ s third issue. 7

Best interest
We review a t rial court ’ s find i n g o f b est interest in li ght of the fa cto rs s et ou t in
H

ol l ey v. A d am s : the child ’ s wis he s , i f appropr iate gi ven the child ’ s age; t he child ’ s em o tional and physical need s now a nd in the future ; present and f u tur e emoti onal or phy si c al danger pose d to the child ; t h e par entin g skills of those see king c ustody ; any p rog ra ms availabl e t o a s sist tho se

s e e ki ng custody to promot e th e child ’ s best in t erest ; plans for the chil d ’ s f utu re ; the stability of the h ome or pro p osed placement ; cond uc t by the parent that might show t h at t he parent

- child relationsh ip is inappropri at e ; and any excuse s f or the par e n t ’ s c o nduct. 544 S.W .2d 367 , 37 1

- 7 2 (Tex. 1976)

. The Holley factors are n ot e x haustiv e, not all factors must be p rove d, and a lack o f

7 Because we have f ound legally and factually sufficient evidence to support one stat utory ground for termination , we need not conside r their second iss ue, challen ging the cou rt ’ s finding o f grounds under s ubsection (N)

. See Spurck v. Texas Dep ’ t of Fam. & Protective Servs. , 396 S.W.3d 205, 222 (Tex. App.

— Aus ti n 2 013, no pet.) ( “ Having determined that the evidence is sufficient to su ppo rt the jury ’ s find ing on one of the statu tor y grounds, we need not consi der whether t he evidence would support other ground s for termination. ” )

.21 evid e n ce about some o f the factors doe s not “ preclude a factfind er fro m rea s onably for mi n g a strong convi c ti on or beli e f t hat termination is in the chil d ’ s best interest, particularly if the evid enc e [was] u ndisputed that the paren tal r elat ion ship endange red th e saf ety of the c hild. ”
In re C. H

. , 89 S.W.3d 17, 27 (Tex. 2002)

. Moth er tested pos itive for metham phetamine at the beginning of the ca se, never
t ook further drugs tests, and did not attemp t to address her drug prob lem or even have it assessed. Father ad mitted to having used marijuana but never took drug tests or completed an
assessment to determine whether he had a ny de pendenc y issues t hat nee ded to be addressed

. Further, Father seems to have had lit tle , if any, contact with his children for at least several months before the children were removed. Mother was homeles s whe n the childre n were removed , and although she testified that she had obtaine d stable housing a t some point during the
p roceeding , s he d i d not provid e any information about her housing to the Department or in her testimony

. Father had been living with his ill mother un til August and testified that he had obtained a stab le place to live in Decemb er, but he did not tell the Department h is new address until about two week s before the Mar ch hearing. The Department therefore had not been able to verif y the stab ility or appr opriateness of the parents ’ respective housing arrangements

. Bo th parents started out with fairly regula r visitations but then began to miss freq uent ly through the summer

. Neither parent ava il ed themselves of any of the court

- ordered services that might h ave helped address th e Department ’ s concerns, assist ed the pare nts in regaini ng c ustody , or addressed an y mental healt h o r dependenc y issues. T heir visitations were stopped in September after t hey both failed to make progress on any of their court

- ordered services , and n either parent took any action after that point to regain visitati on. In deed, desp ite be ing cautioned by the trial court at the end of the January hearing that “ if you cannot or will not22 provide a safe and stable home for your children, you r rights may be restricted or terminated , ” neither p arent took any action in the two months between the hearing dates that might indicate they were able to provide a safe , stable home for the children or that they were trying to do so. Mother asserted that she had not r eceived a copy of her family service p la n until

s hortly before the March hearing but also testified that she had received her service plan earlier but had not found a way to print it until just before the hearing , and Webster te s tified that t hey had discussed the plan repeatedly

. Mother claim ed diff icul ty in contacting W ebster, but Webster
t es t ifie d to the contrary , sayin g that she had repeatedly reached out to Mother and that Mother

never sa id she was having difficulty arranging services or with te chnology

. Doyle testified that she tried to work with Father and that he was no t v ery responsive and did not avail hims elf of any of the ser vices she tried to arrange. LaBor d e similarly testified that she and ot hers at CASA had “ attem pted contact with the parents consistently ” since CASA ’ s assign ment but th at it

“ appe ars that neither p arent has real ly made an effort to co mplete any part of their plan. ” The children had been in the same foster home since their removal, they were well

- bo nded to their f oster parents and th riving in the placement, and they had m ade “ great strides ” in school and through t herapy

. There was no t estimony that either child has phys ical or mental disabili ties or vulnerabilities , but the children ’ s therapist told the guardian ad litem that it would be “ very traumatiz ing ” to ask the m ab out the pro ceedin g or their r elatives. LaB or d e testified that the children ’ s foster parents hop e to adopt them and that she believed it was in the children ’ s be st interest for the p arents ’ right s to be terminated so the children could have “ a stable forev e r family , ” and t he children ’ s attorney ad litem a greed

. Son , who was six at the time of the h ear ing, told his attorney ad li tem that he wanted to be adopted by his foster placement , while Daugh ter , who was seven, said she wanted to return to Mother ’ s car e. However , there is23 no evid ence that the children we re mature en ough to express such preferences or that their wishes should be given significant weight

. See In re D.W. , 445 S.W.3 d 913, 926 (T ex. App.

— Dallas 2014 , pet. denied ) ( “ a child ’ s preference sho uld not be considered absent a showing of

s ufficient maturity ” ) ; I n re A.R. , 236 S.W.3d 460, 480 (Tex. App.

— Dallas 2007 , no pet. ) ( “ There was no indication the child was suffici ently mature to ex press a parental preference, and the court was not required t o consider the wishes of the child. ” ); see also Tex. Fam. Cod e § § 153.134(a) ( 6) ( allowing trial court in non - t ermination context t o consider child ’ s wishes if child is at least twelv e years old ) , 156.101(a)( 2 ) (same)

. Having considered all of the evidence presented a t the final hearin g and weigh ed it in light of the Holl ey fa ctors, w e hold that legally and factually sufficient evidence supports the trial court ’ s finding that terminati on of the par ent s ’ right s was in the children ’ s best interest. We overrul e Mother ’ s and Father ’ s fourt h issue.

Conse rvatorship
In t heir f ifth issue, Mot her and Fat her challenge the trial court ’ s appoint ment of the Depa rtment as the chi ldre n ’ s sole man ag ing conservat or , argu ing that the Department did not overcome the pre sumption that th e appointment of a child ’ s paren ts a s jo int managing

co nservators is in the best interest of the child

. See Tex. Fam. Code § 153.131

. However, th at
presu mption disappear s when a pare n t ’ s rights to their child have been terminated. See T. J.

v. Texas Dep ’ t of Fam. & Protec tive Servs ., N o. 03

- 14

- 00351

- CV, 2014 WL 6845198, at *5 (Tex. App.

— Austin Nov. 25, 2014 , no pet.) (mem. op. ) ; Spurck v. Texas Dep ’ t of Fam

. &
Protective Servs ., 396 S .W.3d 205, 219

- 20 (Tex. App.

— Austin 2013, no pet.) ; In r e D.O. , 338 S.W. 3d 29, 38

- 39 (Tex. App.

— Eastland 2011, no pet.)

. We ov errule the parents ’ fif th issue.24 CONCLUSIO N We affirm the trial court ’ s order terminating Mother ’ s and Father ’ s par ental rights under subsection (O ) and appointing the Department as permanent managing cons ervator of th e children

. H owever, we reverse th e portion of the judgment finding stat utory grounds under subsection (E) and remand for f urther proceedings as to that sub section

. See In re J.O.A. , 418 S.W.3d 625 , 626 (Tex. A pp.

— Amarillo 2009, no pet. ) (o p. on remand) ( “ remand is th e appropriate judgment when evidence is found to have been legally sufficient, but factually insufficient ” )

. If the matter is retried, the trial court is instructed to commence the trial no later than 180 days after m anda te is issued b y this Court. See T ex. R. App. P. 28 .4(c).

___________ ____________________________ ___ Darlene Byrne , Chief J ustice Before Chi ef J us tice Byrn e, Ju stices T rian a and Ke lly

Concurring and Dissenting Opinion by Justice Triana Affirmed in P art; Reversed and Remanded in Part

Filed : October 8 , 2021