In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-23-00375-CV __________________
IN THE INTEREST OF H.R.S.
__________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 22-12-16955-CV __________________________________________________________________
MEMORANDUM OPINION
This is a parental rights termination case. Following a bench trial
in the suit affecting the parent-child relationship (SAPCR), the trial court
terminated the parent-child relationship between H.R.S. (Hunter) and
his mother (Mother). 1 When the trial ended, the trial court found by clear 0 F
1We have used pseudonyms for the names of the minor and his mother to protect Hunter’s identity. Tex. R. App. P. 9.8 (Protection of Minor’s Identity in Parental-Rights Termination Cases). The trial court also terminated the parental rights of three men the Department alleged 1 and convincing evidence that six statutory grounds existed to support
terminating Mother’s relationship with Hunter and found that
terminating her rights to Hunter is in Hunter’s best interest. 21 F
In one issue, Mother challenges the order terminating her parental
rights, arguing the evidence is legally and factually insufficient to
support the trial courts predicate findings under: (1) subsection (D), that
she knowingly placed or knowingly allowed Hunter to remain in
conditions or surroundings that endangered his physical or emotional
well-being; (2) subsection (E), that she engaged in conduct or knowingly
placed Hunter with persons who engaged in conduct that endangered his
physical or emotional well-being; (3) subsection (N), that she
constructively abandoned Hunter; (4) subsection (O), that she failed to
comply with the provisions of a court-ordered-family-service; (5)
in its petition as the men who might be Hunter’s father. None of the alleged fathers filed notices of appeal. See Tex. Fam. Code Ann. § 161.002(b)(3) (authorizing the rights of alleged fathers to be terminated for children who are not yet one-year old if the petition seeking to terminate the parent-child relationship is filed before the child’s first birthday or if an alleged father hasn’t registered with the paternity registry). 2Id. §§ 161.001(b)(1)(D), (E), (N), (O), (P), (R); 161.001(b)(2).
2 subsection (P), that she used a controlled substance in a manner that
endangered Hunter’s health or safety and failed to complete a court-
ordered, substance-abuse-treatment program; and (6) subsection (R),
that she was a cause of Hunter’s being born addicted to alcohol or a
controlled substance, other than a controlled substance legally obtained
by prescription. Mother also challenges the trial court’s finding under
section 161.001(b)(2) that terminating her rights to Hunter is in Hunter’s
best interest. 3 Relying on these findings, the trial court signed a 2 F
judgment terminating Mother’s relationship with Hunter, and
subsequently Mother filed a timely appeal.
We address Mother’s arguments challenging the trial court’s
subsections (D) and (E) findings first and will not reach Mother’s
remaining arguments, which (broadly construed) challenge the trial
court’s predicate findings under subsections (N), (O), (P), and (R). 4 On3 F
3Id. §§ 161.001(b)(1)(D), (E), (N), (O), (P), (R); 161.001(b)(2). 4Id. §§ 161.001(b)(1)(D) (conditions-based endangerment), (E) (conduct-based endangerment), (N) (constructive abandonment), (O) (failed to comply with court-ordered family service plan), (P) (used a controlled substance in a manner that endangered a child and failed to comply with a court-ordered substance abuse treatment program), and (R) (caused a child to be born addicted to alcohol or a controlled 3 appeal, an appellate court need not reach every argument raised by the
appellant if the evidence is sufficient to support one of the predicate
grounds on which the trial court relied to terminate the parent-child
relationship and the evidence also supports the trial court’s best-interest
finding because when the evidence supports a predicate finding and a
best-interest finding the trial court’s order terminating a parent’s
relationship with their child will withstand the parent’s sufficiency
challenge on appeal. 5 4 F
Because we conclude the evidence admitted in the trial is sufficient
to support the trial court’s condition- and conduct-endangerment
findings, we overrule Mother’s sole issue and affirm the trial court’s
Order of Termination.
Background
Our discussion of the background focuses on the evidence relevant
to Mother’s placing, allowing, or engaging in conduct that endangered
substance, other than a controlled substance legally obtained by a prescription). 5In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); see also Tex. R. App.
P. 47.1 (allowing courts of appeals to limit their discussions in opinions to the issues necessary to the disposition of the appeal). 4 Hunter’s physical or emotional well-being since a trial court’s subsection
(D) and (E) findings, when challenged by a parent, must be reviewed on
appeal. 6 5 F
The appellate record shows that within a week of Hunter’s birth,
the Department filed its Original Petition for Protection of a Child, for
Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship with the Montgomery County District Clerk. The
Montgomery County District Clerk assigned the case to the County Court
at Law Number 3. 7 The Department’s petition is supported by an 6 F
affidavit signed by Sophia Cortez, a CPS Investigator employed by the
Department. Among other things, Cortez’s affidavit alleges that after
6See In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (holding that given
the potential collateral consequences of a trial court’s condition-based and conduct-based endangerment findings under section 161.001(b)(1)(D) or (E), a parent has a liberty interest in having these findings reviewed on appeal and that a failure of an appellate court to review them would run afoul of a parent’s fundamental liberty interest in parenting). 7The county courts at law in Montgomery County have concurrent
jurisdiction with district courts in family law cases. So even though the district clerk file stamped the petition, the district clerk serves as the clerk of the county courts at law for the cases in which the district and the Montgomery County courts at law have concurrent jurisdiction. See Tex. Gov’t Code Ann. § 25.1722(a)(1), (e). 5 Hunter was born, a social worker contacted the Department and advised
the Department that: (1) Hunter’s mother told the hospital upon her
admission that she had used heroin but denied she was currently using
drugs; (2) Mother “was positive for opiates, amphetamines, and
benzodiazepines[;]” (3) the day after Mother was admitted to the hospital
and gave birth to Hunter, Mother left the hospital against medical advice;
(4) when Mother returned to the hospital, she was “under the influence”
and “found to have several needles in her possession and drug residue
was found in her bag[;]” and (5) when Mother returned to the hospital,
she admitted “to heroin use[,]” and “that the mother is now in the
intensive care unit[,] . . . is intubated, in respiratory failure, having drug
withdrawals, and [] it is unclear whether or not she will survive.” Cortez’s
affidavit also states that Mother has a criminal history, including charges
for possession of marijuana and a controlled substance, and Cortez also
advised the Department that Mother has a history with Child Protective
Services. Cortez’s affidavit concludes by stating that Hunter’s mother
“has continued to show a pattern of drug use and has tested positive for
drugs with the births of all of her children. The child, [Hunter], is now
6 suffering from drug with draws (sic) due to his mother’s (mother’s name
deleted) abuse.”
The trial court granted the Department’s petition requesting that
Hunter be temporarily removed from Mother’s custody, the trial court
placed Hunter into the temporary custody of the Department, and
subsequently, the judge conducted a full adversary hearing. At the
conclusion of the full adversary hearing, the judge signed temporary
orders requiring that Mother, among other things, “comply with the
requirements” of “the Department’s original, or any amended, service
plan during the pendency of this suit.” The Department’s family service
plan required Mother, among other things, to “engage in and complete a
drug and alcohol assessment with a licensed service provider . . . and
follow all recommendations given to her from this assessment and [ ]
actively participate and complete all recommended services.”
In November 2023, the trial court called the case to trial. Three
witnesses testified during the trial: (1) the Department’s caseworker,
Signora Hadnot; (2) the Court Appointed Special Advocate, whom we will
7 call the CASA; and (3) Hunter’s foster mother (Pat). 8 In addition to the 7 F
testimony of these witnesses, the trial court admitted nineteen exhibits
into evidence during the trial, including Petitioner’s Exhibit 7, an exhibit
that contains the medical records the Department obtained from HCA
Kingwood Medical Center (HCA Kingwood) in Kingwood, Texas, the
hospital in which Hunter was born.
Hunter’s medical records from HCA Kingwood were admitted into
evidence without objection during the trial. The records show that
Hunter was born at HCA Kingwood in December 2022. His mother was
twenty-eight years old when he was born. The doctor who delivered
Hunter admitted him into the hospital’s neonatal intensive care unit
(NICU) the day he was born. Hunter’s doctor diagnosed Hunter as a
preterm newborn (34 weeks of gestation), and his medical records show
that he had anemia, neonatal withdrawal symptoms from his mother’s
use of drugs, “affects from his mother’s use of opiates,” and he tested
positive for opiates at birth. Hunter’s admission history also shows that
8A pseudonym.
8 during mother’s pregnancy with Hunter, Hunter’s mother didn’t receive
any prenatal care.
Based on Hunter’s doctor’s diagnosis of “Drug Withdrawal
Syndrome-newborn-mat[ernal] exp[osure,]” his doctor started him on a
morphine treatment therapy. Hunter’s medical records show that he was
then slowly weaned from the morphine over the next thirty days. The day
that the morphine therapy started, Hunter’s records reflect that his
“mother left [the hospital] against medical advice yesterday [around
eight o’clock pm].”
That said, Hunter’s medical records also show that Mother
returned to the hospital the following day “concerned about her blood
pressure and [] complaining of severe abdominal pain.” 9 The notes in 8 F
Hunter’s medical records state that “Mother with Heroin dependency and
admits to using half a gram of heroin a day.” Hunter’s records reflect that
9Hunter’s mother’s medical records were not offered or introduced
into evidence in the trial. Mother did not testify in the trial. For those reasons, the only information about Mother’s medical treatment is the information that was incidentally included in the records the Department obtained from HCA Kingwood tied to Hunter’s birth, records the Department obtained based on its use of a medical authorization that was signed by Hunter’s custodian. 9 Mother told a social worker at the hospital that she wanted “to go to [a
certain detox facility, which Mother named] for detoxing from IV heroin
use.”
On the third day of Hunter’s stay in the NICU, according to
Hunter’s records, Mother was admitted into the hospital’s intensive care
unit “for severe agitation.” When Mother failed to respond after she was
given doses of several drugs while in intensive care, she was intubated.
The medical records in evidence reflect that a social worker at the
hospital tried to locate a drug treatment center that would accept Mother
as a patient once the physician responsible for admitting Mother to the
hospital determined she was “medically stable.” Hunter’s medical records
show that the endotracheal tube that Mother was given to help her
breathe was removed either later the day she was intubated or the next
day. 10 9 F
10As previously mentioned, the information in Hunter’s records about Mother’s treatment isn’t complete because the records in evidence don’t include records, if any, the Department may have obtained if Mother signed a medical authorization that authorized the Department to obtain her medical records. Also, Mother’s attorney never offered Mother’s medical records into evidence during the trial. 10 Hunter was in the NICU for nearly five weeks before he was
discharged by the hospital into the custody of the Department. When
Hunter was discharged, the Department placed him in a foster home. The
discharge summary from Hunter’s hospital records states that he was
“[d]oing well clinically at time of discharge.” It also notes that when
Hunter was born, he had “increased tone and irritability [resulting from
his] illicit drug exposure,” which improved after he was treated with the
medication and “nonpharmacological comfort measures” while in the
NICU. The report concludes Hunter “is at risk for neonatal abstinence
syndrome.”
We turn next to the testimony that the trial court heard during the
trial. The Department’s attorney called Signora Hadnot, the
Department’s caseworker, as its first witness. Hadnot explained that in
January 2023, she was assigned to work on Hunter’s case. Without
objection, Hadnot testified that during a status hearing in February
2023, Mother testified that her drug of choice was heroin and that Mother
also testified she began using heroin when she was twenty-years old.
Hadnot explained the Department’s service plan required Mother to
11 participate at the Department’s request in random urinalysis and hair
follicle tests, but that Mother failed to comply with the Department’s
requests that Mother be tested for drugs.
According to Hadnot, she was present at the courthouse for a
permanency hearing in Hunter’s case on September 21, 2023, when she
saw Mother outside the courtroom before a permanency hearing in the
case, which had been scheduled to begin that day. According to Hadnot,
when she saw Mother, Mother “seemed to be incoherent, slurring her
words, something – she – she was not in the right state.” The trial court’s
docket sheet shows that the parties’ attorneys appeared for the
permanency hearing but that “No parents appeared[;] . . . Parties entered
in Rule 11 recently with an agreement for Mother to take a drug test, but
she did not appear for that; She has not taken one drug test during the
case[.]”
When Hadnot testified, she also described the information in
Hunter’s medical records including the fact that the records note
Mother’s use of drugs. But since we have already described most of the
relevant information tied to the drug use that is in these records, we will
12 not repeat that same information here to the extent that Hadnot relied
on the information in the medical records in describing Mother’s use of
drugs. In addition to emphasizing that the medical records suggest that
Mother used heroin while she was pregnant with Hunter, Hadnot
testified that based on the investigation that she conducted in Hunter’s
case, she learned that Mother has two other children but doesn’t have
custody of either child. Hadnot explained that Mother acknowledged that
she had given these two children up for adoption. According to Hadnot,
she had asked Mother for the information she needed to contact the
adoptive parents of these two children, but Mother had not given her
sufficient information to find and contact the adoptive parents. 11 1 0 F
Hadnot also addressed what Mother completed and didn’t complete
of her family service plan. According to Hadnot, Mother completed the
parenting class, drug assessment, and psychological evaluation, but she
never successfully completed the drug treatment plan. Hadnot also
testified that the service plan required that Mother participate in random
11In Hunter’s medical records, the maternal history section of the
records state that Mother “[h]as a 7[-] and 2[-]year old. She does not have custody of either child.” 13 urinalysis and hair follicle tests, but Mother had not complied with the
plan’s requirements by submitting to these tests. For example, Hadnot
told the court that even though Mother had enrolled and participated in
a drug treatment program, Mother refused to comply with her request to
share the tests results Mother received on the drug tests she was given
when she was enrolled in that program. 12 1 1 F
Hadnot also described the problems she had during the pendency
of the case communicating with Mother. For example, Hadnot said that
Mother didn’t consistently maintain her visitation schedule with Hunter
after the trial court ordered him removed from Mother’s custody and
before the case went to trial. According to Hadnot, during August 2023
12Hadnot did acknowledge receiving a copy of one drug screen test
that Mother took while she was in a drug treatment program. Yet Hadnot did not explain whether Mother is the person who provided her with the copy of the test result, what the result was on that test, and Hadnot was never asked to explain where she acquired the information showing what Mother’s result was on the test. The evidence that was admitted during the trial shows that during the time that Mother was in a drug treatment program, drug tests were administered according to the program’s protocol “on a regular basis.” So, the trial court could have concluded have were multiple test results available from the program that Mother failed to provide to the Department despite Hadnot’s request that Mother provide the Department with the results of all her tests. 14 Mother’s visits “really started falling off[,]” as that month Mother “began
having no shows” even though Mother would confirm a visit “and then
not show up.” In the three-months period before trial, Hadnot said,
Mother did not visit Hunter at all because the court had ordered Mother’s
visits suspended until she both submitted to a drug screen and obtained
a clean result.
Hadnot told the court that Mother failed to cooperate with the
Department’s investigation in several other respects. In an unannounced
visit in October 2023, Hadnot said she arrived and found that she couldn’t
gain entrance to the property where Mother was living because the gate
to the property was secured by a chain, which was locked. According to
Hadnot, when she called Mother and Mother found out that Hadnot was
at the residence and needed someone to unlock the gate, the call suddenly
disconnected. After the incident at the gate, Hadnot said her
communications with Mother had been limited to text messages as
Mother “did not talk to me over the phone.” Even though Hadnot agreed
that Mother sent text messages to her in response to the text messages
she sent Mother, Hadnot characterized the responses that Mother sent
15 her by text as consisting of nothing more than excuses for why Mother
couldn’t meet Hadnot in person.
When asked what concerns the Department would have if Hunter
were to be returned to Mother, Hadnot testified that “the child would not
be safe. The child would be – I think the child would be in danger with
her current state of drug use.” Hadnot testified that the Department’s
plan is for Hunter to be adopted by his foster placement, which she
described as “very much” in his best interest.
On cross-examination, Mother’s attorney established that Mother
had enrolled in and was receiving treatment and counseling in a
methadone-maintenance treatment program and recently enrolled in
college. A one-page letter, dated in April 2023, which is from the
treatment program in which Mother was enrolled, was marked as an
exhibit and admitted into evidence during the trial. The letter shows that
as of April 20, 2023, Mother had been in the treatment program since
February 2, 2023. The letter also states:
This treatment is not a form of detoxication, and in a patient with long-term opioid dependence, it is reasonable to expect long-term and perhaps indefinite maintenance on OPIOD Pharmacotherapy Treatment (METHADONE) along with 16 counseling. Failure to pursue this course will result in a high probability of return to short-acting opiate drugs in order to prevent withdrawal symptoms. P[atien]t has been compliant with our program.”
The Department’s attorney called Hunter’s Court Appointed
Special Advocate, his CASA, to develop information from the CASA to
support the Department’s claims. First, Hunter’s Casa testified that she
understood the Department’s goal in Hunter’s case was for his current
foster family to adopt him, and she said that she was in “agreement with
that” goal. Second, Hunter’s CASA testified that Hunter’s foster parents
love him, take care of him, and they meet his physical and emotional
needs. Third, the CASA told the court that she had spoken to Mother,
and that in her opinion it would not be safe to return Hunter to her
because Mother,
has not shown responsibility in getting herself clean. She is not able to stay out of criminal mischief, criminal problems . . . [Mother] has never stated a permanent address to me to even be able to visit and see if she even has an environment conducive to taking care of the child.
As to the criminal mischief the CASA discussed, the exhibits
admitted into evidence in the trial include exhibits that show Mother was
arrested several times after Hunter was born. In May 2023, Mother was 17 arrested for theft and for driving while intoxicated. She pleaded guilty to
the theft and driving while intoxicated charges, and the trial court
sentenced her to serve twenty-two days in jail, with credit for time served.
On October 5, 2023, Mother was indicted for possessing
methamphetamine on or about May 28, 2023, a third-degree felony. Later
that month on the indictment for possession of meth, Mother pleaded
guilty, the trial court deferred adjudicating her guilt, and placed Mother
on community supervision for three years. On or about September 25,
2023, Mother was charged with evading arrest. That charge was
dismissed after Mother pleaded guilty in the cases we have already
described.
The CASA testified that she agreed that Mother’s rights should be
terminated and that, in her opinion, it would be in Hunter’s best interest
if the court were to terminate Mother’s parental rights. On cross-
examination, the CASA agreed she had seen Mother when Mother
exercised her visitation rights. The CASA conceded it was obvious that
Mother loves Hunter and that Mother had begun to bond with him.
18 The Department called Pam, Hunter’s foster mother, as the
Department’s last witness. Pam testified that Hunter had been in her
home and in her care since being released from the hospital in January
2023. Pam testified that she said she was aware that the Department’s
goal was for her to adopt Hunter, and she told the court that she was
certain that she and her husband “want to adopt[.]” Pam explained that
since Hunter has lived in her home, she has taken care of him and all of
his physical and medical needs. She also told the court that Hunter is
“loved by all of our friends, family, I mean, everyone. He’s very loved.”
At the conclusion of the trial, the trial court orally announced that
it would find that the evidence supported terminating Mother’s parent-
child relationship with Hunter under subsections (D), (E), (N), (O), (P),
and (R). 13 The trial court also found that terminating Mother’s parental 1 2 F
rights to Hunter is in Hunter’s best interest. 14 On November 14, 2023, 1 3 F
13Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (N), (O), (P), (R). 14Id. § 161.001(b)(2).
19 the trial court signed an Order of Termination, which tracks the findings
the trial court orally pronounced in the trial. 15 1 4 F
Standard of Review
In Mother’s sole issue, she argues the evidence is legally and
factually insufficient to support the trial court’s order terminating her
parent-child relationship with Hunter. At trial, the Department had the
burden to prove through clear and convincing evidence that Mother’s
relationship with Hunter should be terminated. 16 Clear and convincing 1 5 F
evidence is statutorily defined: it means “the measure or degree of proof
that will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.” 17 In cases 1 6 F
tried to the bench, the trial court acts as the factfinder and decides which
15The case was tried to an associate judge. However, the Clerk’s
Record contains a Rule 11 agreement in which the parties signed a stipulation waiving their rights to appeal the associate judge’s rulings to the referring court (which in this case would have been the judge of the County Court at Law Number 3, although no order of referral was included in the appellate record). Yet while the parties waived their right to appeal the associate judge’s rulings to the referring court, they expressly reserved their right to appeal from any final order or judgment that resulted from the ruling or recommendation of the associate judge. 16Id. § 161.001(b). 17Id. § 101.007; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
20 witnesses are credible, how to weigh the testimony, and resolves any
conflicts and inconsistencies that may exist in the testimony. 18 Yet even 1 7 F
though a clear and convincing evidence standard applies to our review,
“[a]ll evidentiary standards, including clear and convincing evidence,
recognize the relevance of circumstantial evidence.” 19 1 8 F
When reviewing for legal insufficiency, we review all the evidence
“in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that
its finding was true.” 20 We assume the factfinder resolved the disputed 1 9 F
facts in a manner that favors the finding it made if a reasonable
factfinder could have resolved the issue that way. 21 For that reason, we 2 0 F
disregard all evidence that a reasonable factfinder could have disbelieved
or found to have been incredible. 22 If we conclude that no reasonable 2 1 F
18See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); In
the Int. of D.P., No. 09-22-00048-CV, 2022 Tex. App. LEXIS 5279, at *24 (Tex. App.—Beaumont July 28, 2022, pet. denied). 19In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015). 20In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). 21Id. 22Id.
21 factfinder could form a firm belief or conviction that the fact in dispute is
true, we must find the evidence legally insufficient. 23 2 2 F
On the other hand, under a factual sufficiency review, the reviewing
court “give[s] due deference” to findings the trial court made in the
trial. 24 In other words, the reviewing court must avoid supplanting the 2 3 F
judgment the factfinder made with a “judgment of its own.” 25 The 2 4 F
question that is to be answered in the appeal is “whether the evidence is
such that a factfinder could reasonably form a firm belief or conviction
about the truth of the State’s allegations.” 26 “If, in light of the entire 2 5 F
record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient.” 27 Under factual sufficiency review, the court 2 6 F
reviewing the evidence must avoid applying a standard that requires the
Department to prove beyond reasonable doubt that the parent engaged
23See In re J.L., 163 S.W.3d at 85. 24In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (cleaned up). 25Id. 26In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). 27In re J.F.C., 96 S.W.3d at 266.
22 in the conduct that ran afoul of one of the twenty-six grounds the
legislature listed for terminating the parent-child relationship. 28 2 7 F
On appeal, to support an argument that the evidence is factually
insufficient to support a verdict, the parent challenging the verdict
should explain why the factfinder could not have credited the evidence
the parent challenges in favor of the finding the parent disputes. 29 A 2 8 F
reviewing court will not find the evidence factually insufficient unless “in
light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or
conviction” in favor of its finding. 30 2 9 F
In her appeal, Mother also challenges the trial court’s best-interest
finding. In reviewing a best-interest finding, we examine the record for
the evidence that addressed the various, non-exclusive factors relevant
to a child’s best interest against the nonexclusive factors the Texas
28In re H.R.M., 209 S.W.3d at 108. 29See In re J.F.C., 96 S.W.3d at 266. 30Id. at 267.
23 Supreme Court identified in Holley v. Adams. 31 Yet the factors set out in 3 0 F
Holley aren’t exclusive, and the evidence in the record tied to the
factfinder’s decision-making process in reaching its best-interest finding
need not include evidence that addressed all nine Holley factors. 32 3 1 F
31See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). In Holley, the Texas Supreme Court used these factors when reviewing the best-interest finding: • the child’s desires; • the child’s emotional and physical needs, now and in the future; • the emotional and physical danger to the child, now and in the future; • the parenting abilities of the parties seeking custody; • the programs available to assist the party seeking custody; • the plans for the child by the parties seeking custody; • the stability of the home or the proposed placement; • the parents’ acts or omissions that reveal the existing parent- child relationship is improper; and • any excuse for the parent’s acts or omissions. 32In re C.H., 89 S.W.3d at 27 (noting the lack of evidence on some
Holley factors “would not preclude a factfinder from reasonably forming a strong belief or conviction that termination is in the child’s best interest”). 24 Analysis
The Endangerment Findings
Mother combined all her arguments in a single issue even though
she challenged all seven of findings the trial court relied on to terminate
her rights in the brief that she filed to support her appeal. 33 We address 3 2 F
Mother’s arguments challenging the trial court’s condition-based and
conduct-based endangerment findings first to decide whether the
evidence supports either of those findings before addressing the
arguments Mother raises challenging the trial court’s other findings. 343 3 F
While similar, the condition-based and conduct-based subsections,
subsection 161.001(b)(1)(D) and (E), are not identical. Under subsection
(D), the Department had to prove by clear and convincing evidence that
Mother knowingly placed Hunter or allowed Hunter to remain in
conditions or surroundings that endangered his physical or emotional
well-being. 35 Under subsection (E), the Department had the burden to 3 4 F
33Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (N), (O), (P), (R);
161.001(b)(2). 34Id. § 161.001(b)(1)(D), (E). 35Id. § 161.001(b)(1)(D).
25 prove by clear and convincing evidence that Mother engaged in conduct
or knowingly placed Hunter with persons who engaged in conduct that
endangered his physical or emotional well-being. 36 As used in 3 5 F
subsections (D) and (E), the commonly understood meaning of the term
endanger is “to expose to loss or injury; to jeopardize.” 37 3 6 F
Generally, a parent’s conduct that subjects a child to a life of
uncertainty and instability has engaged in conduct that endangers their
child’s physical and emotional well-being. 38 That said, proof of 3 7 F
endangerment requires “more than a threat of metaphysical injury or the
possible ill effects of a less-than-ideal family environment[,]” yet “it is not
necessary that the conduct be directed at the child or that the child
actually suffers an injury.” 39 Rather, endangering a child based on a 3 8 F
parent’s conduct means “to expose a child to loss or injury or to jeopardize
36Id. § 161.001(b)(1)(E). 37Inre J.F.-G., 627 S.W.3d 304, 313 (Tex. 2021); Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (citing Endanger, Webster’s New Twentieth Century Dictionary of the English Language 599 (1976)). 38See In re J.O.A., 283 S.W.3d 336, 345 n.4 (Tex. 2009). 39Boyd, 727 S.W.2d at 533.
26 a child’s emotional or physical health.” 40 And importantly, the parent’s 3 9 F
endangering conduct need not occur in the child’s presence, so conduct
relevant to a factfinder’s decision may include conduct that occurred
before or after the child the subject of the Department’s suit was born. 41 4 0 F
Generally, from evidence of a parent’s past conduct showing the parent
subjected a child to a life of uncertainty and instability, a factfinder may
infer that the parent will continue to engage in the conduct and the same
conduct will endanger another child’s physical and emotional safety and
well-being. 42 4 1 F
Here, the evidence shows that when Hunter was born, Mother was
an IV heroin user who had been using heroin for approximately eight
years. To be sure, after Hunter was born, Mother enrolled in a methadone
treatment program and enrolled in college. Yet the most current
document that Mother’s attorney presented in the trial to establish that
40In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). 41See J.O.A., 283 S.W.3d at 345; In the Int. of B.P., No. 09-22-00031-
CV, 2022 Tex. App. LEXIS 4277, at *25 (Tex. App.—Beaumont June 23, 2022, no pet.). 42J.O.A., 283 S.W.3d at 345; In re D.P., 2022 Tex. App. LEXIS 5279,
at *25. 27 Mother was still pursing treatment was a document dated April 20, 2023.
The trial occurred in late November 2023. As the factfinder, the trial
court wasn’t required to infer that Mother had gained control over her
addiction when she didn’t appear for the trial and didn’t present evidence
showing that she was in a drug treatment program or that she had ever
successfully completed one. Additionally, Mother didn’t present the trial
court or the Department with any evidence that she had obtained
negative results on drug screens after April 20, 2023, and Mother’s
attorney didn’t call any witnesses to refute the testimony of the
Department’s witnesses who questioned whether Mother had gained
control over her addiction to drugs.
As is often the case in appeals arising from trials in cases that
involve parents addicted to illicit substances, whether a trial court’s
decision is reasonable turns to consideration that may include: (1) the
evidence of nature and degree of the evidence about the parent’s abuse of
a substance or addiction; (2) the degree to which a reasonable factfinder
might believe (or disbelieve) that the parent has gained control over the
parent’s historical patterns as they relate to that parent’s addiction or
28 abuse of a drug; and (3) whether the trial court could have reasonably
inferred from the direct and the circumstantial evidence that the parent’s
substance abuse issues endangered the child.
In our opinion, there is ample evidence in this record to support the
trial court’s subsection D and E findings. A pattern of drug abuse will
support a finding of conduct endangering a child under subsection D or
E even if there is no evidence that such drug use caused a physical or
actual injury to the child. 43 For example, a history of illegal drug use and 4 2 F
drug-related criminal activity is conduct that subjects a child to a life that
is uncertain and unstable, and the uncertainty and instability tied to the
parent’s drug use endanger the child’s physical and emotional well-
being. 44 A parent’s continued drug use when the custody of the parent’s 4 3 F
43Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). 44In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998,
pet. denied); Dupree v. Tex Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ); see also In re S.R., 452 S.W.3d 351, 361-62 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (parent’s drug use may qualify as a voluntary, deliberate, and conscious course of conduct endangering the child’s well-being); Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (illegal drug use may support termination 29 child is in jeopardy is also evidence that may support a trial court’s
finding of endangerment. 45 Further, a factfinder may reasonably infer 4 4 F
that a parent’s failure to submit to court-ordered drug tests indicates that
the parent avoided testing because the parent was using illegal drugs. 464 5 F
A parent’s drug use, incarcerations, incidents of domestic violence,
criminal history, and evidence that the parent’s employment and housing
were unstable prior to and during the case creates a course of conduct
from which a factfinder may determine that the parent endangered the
child’s emotional and physical well-being. 47 4 6 F
The medical records allowed the trial court to conclude that when
Mother had Hunter, she was an IV heroin addict with an eight-year
history that involved her addiction to that drug. Although the evidence
under subsection E because it “exposes the child to the possibility that the parent may be impaired or imprisoned[]”). 45See In re S.R., 452 S.W.3d at 361-62 (citing Cervantes-Peterson v.
Tex. Dep’t of Family & Protective Servs., 221 S.W.3d 244, 253, 254 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (en banc)). 46In re E.R.W., 528 S.W.3d 251, 265 (Tex. App.—Houston [14th
Dist.] 2017, no pet.). 47See In re M.C., No. 09-18-00436-CV, 2019 WL 1561824, at *6 (Tex.
App.—Beaumont Apr. 11, 2019, no pet.) (mem. op); see also In re D.O., 338 S.W.3d 29, 36-37 (Tex. App.—Eastland 2011, no pet.); In re V.V., 349 S.W.3d 548, 553-54 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). 30 shows Mother had enrolled in a methadone treatment program, it also
showed that to maintain control over her heroin addiction, Mother
needed to pursue methadone maintenance on a long-term if not
permanent basis or a high probability existed that she would return to
opiate drugs to prevent suffering symptoms of withdrawal. The trial
court heard testimony that Mother wasn’t allowed to exercise her rights
of visitation in the three months leading up to the trial because she failed
to provide the Department with a negative drug screen. And while
Mother enrolled in a methadone treatment program after the
Department filed suit, the evidence Mother presented shows that she was
in that program as of April 23, 2023, but doesn’t show whether she was
still pursuing a methadone therapy and counseling program between
June 2023 and the trial in November 2023.
The trial court could have also reasonably believed that Mother’s
addiction harmed Hunter. Mother’s addiction left Hunter, according to
Hunter’s medical records, at risk of “neonatal abstinence syndrome” upon
being discharged from the hospital and even after he was treated and
weaned from methadone after he was hospitalized for over a month. The
31 trial court also heard testimony that Mother had a criminal history, had
two other children that she had given up for adoption, and that all three
of Mother’s children were born during the eight-year period in which she
had been using heroin based on the history the trial court heard about
Mother’s use of drugs. Given medical records showing that Hunter tested
positive for opiates after he was born, Mother’s history of heroin use for
eight years, her recent history of daily IV heroin use, her failure to obtain
neonatal treatment while she was pregnant with Hunter, the lack of
evidence that she sought a drug treatment program after she became
pregnant with Hunter and didn’t’ enroll in one until Hunter was removed
from her care, the lack of evidence to show that prior to trial Mother had
successfully completed a drug treatment program, and the lack of
evidence that Mother had recent tests results that were negative for the
presence of drugs, we conclude the trial court could have formed a firm
belief or conviction that Mother knowingly allowed Hunter to remain in
conditions that exposed him to the effects of Mother’s use of illicit
substances—including heroin—and that the conditions both in the past
and in the future if were to be returned to her would endanger and had
32 in the past endangered his physical or emotional well-being. 48 We further 4 7 F
conclude that this same evidence allowed the trial court to form a firm
belief or conviction that Mother knowingly engaged in a course of conduct
that in the past endangered and were he to be returned to her would
endanger Hunter’s physical or emotional well-being. 49 4 8 F
Having determined that the evidence is legally and factually
sufficient to support both predicate endangerment findings under
subsection (D) and (E), we need not address whether the evidence would
also support the trial court’s predicate findings of one or more of
subsections (N), (O), (P), or (R), the remaining predicate findings that
Mother challenged in her brief. 504 9 F
Best-Interest Finding
Next, we address Mother’s argument that the evidence is legally
and factually insufficient to support the trial court’s best-interest finding.
48See J.O.A., 283 S.W.3d at 346; In the Int. of J.O., No. 09-16-00485-
CV, 2017 Tex. App. LEXIS 5011, at *5-6 (Tex. App.―Beaumont June 1, 2017, pet. denied) (mem. op.); Tex. Fam. Code Ann. § 161.001(b)(1)(D). 49Id.; Tex. Fam. Code Ann. § 161.001(b)(1)(E). 50In re B.K.D., 131 S.W.3d 10, 16 (Tex. App.—Fort Worth 2003, pet.
denied); see also Tex. R. App. P. 47.1. 33 With respect to the child’s best interest, there is a strong presumption
that the best interest of a child is served by keeping the child with the
parent. 51 Yet it is equally presumed the “the prompt and permanent 5 0 F
placement of the child in a safe environment is . . . in the child’s best
interest.” 52 Under the Family Code, there is a strong presumption that 5 1 F
keeping a child with a parent is in the child’s best interest. 53 Even so, it 5 2 F
is also presumed “the prompt and permanent placement of the child in a
safe environment is…in the child’s best interest.” 545 3 F
In reviewing a parent’s challenge to a best-interest finding and
when considering the non-exclusive factors in Holley, courts focus on the
best interest of the child, not the best interest of the child’s parent. 55 5 4 F
Additionally, the Department is not required to present evidence
51Tex. Fam. Code Ann. § 153.131(b); In re R.R., 209 S.W.3d 112, 116
(Tex. 2006). 52Tex. Fam. Code Ann. § 263.307(a). 53Id. § 153.131(b); see also In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (noting that a “strong presumption” exists favoring keeping a child with its parent). 54Tex. Fam. Code Ann. § 263.307(a) 55Holley, 544 S.W.3d at 371-72; In the Int. of H.M.R.J., No. 09-22-
00171-CV, 2022 Tex. App. LEXIS 8471, at *26 (Tex. App.—Beaumont Nov. 17, 2022, no pet.). 34 addressing all of the Holley factors, and the fact the Department doesn’t
present evidence on some factors doesn’t preclude the trier of fact from
forming a strong belief or conviction that terminating the parent’s
relationship with the child is in a child’s best interest, particularly when
the evidence is undisputed that the parent endangered the child. 56 5 5 F
In a best-interest analysis, the evidence that supports a trial court’s
subsection (D) and (E) finding may also support the trial court’s best-
interest finding. 57 A trial court’s best-interest finding may be based on 5 6 F
direct or circumstantial evidence, or it may be based on subjective factors
that the trial court may have observed in the trial. 58 When evaluating 5 7 F
what is best for a child’s future, trial courts may consider a parent’s past
conduct when that conduct is relevant to the child’s best interest. 59 5 8 F
Ultimately, the question is whether the evidence when considered as a
whole allowed the trial court to reasonably form a firm belief or conviction
56In re C.H., 89 S.W.3d at 27. 57In re T.R.S., No. 09-18-00482-CV, 2019 Tex. App. LEXIS 4913, at
*14 (Tex. App.—Beaumont June 13, 2019, no pet.) (noting that the same evidence that supports a trial court’s subsection D and E findings may be relevant to the trial court’s best-interest finding). 58Id. 59Id.
35 that it was in Hunter’s best interest for the trial court to terminate
Mother’s parental relationship with her child. 60 5 9 F
The trial court was entitled to consider Mother’s past conduct
including her conduct before Hunter was born in deciding whether a
decision to terminate Mother’s parental rights to him would be in
Hunter’s best interest. 61 At trial, the trial court was entitled to infer from 6 0 F
the evidence that Mother’s addiction issues were longstanding and
persisted even after Hunter was born. For example, the trial court heard
testimony that Mother refused to submit to drug tests that the
Department asked Mother to take during the pendency of the case even
though she was required to submit to the tests under the court-ordered
service plan. The trial court also heard testimony that Mother failed to
provide the Department with drug tests that demonstrated she was not
taking drugs even though she knew that unless she provided the
Department with these tests, she couldn’t exercise her rights of visitation
and see Hunter in the three-month period before the November trial.
60In re C.H., 89 S.W.3d at 25, 27-28. 61Id. at 27-28.
36 When they testified, both the CASA and Hadnot expressed concerns
about whether Hunter would be safe were he to be placed in Mother’s
care given their reservations about whether Mother had gained the
ability to control her addiction.
While Mother highlights the evidence in the trial record that is
positive, that shows her love for Hunter, that shows she and Hunter had
started to form a bond, and that shows she enrolled in a methadone
treatment program after the case was filed, that she attended parenting
classes, and that shows she enrolled in college, the trial court wasn’t
required to favor her interests above those of Hunter in placing him
promptly and permanently in a safe environment. Mother provided the
trial court with no evidence that she could provide Hunter a safe and
stable home. To the contrary, the record shows that Mother is
unemployed, nothing show she has a home in which Hunter can live, and
there is no evidence that she currently has any job skills that will allow
her to earn a sufficient income to provide Hunter with a safe and stable
home.
37 On the other hand, the trial court heard Hunter’s foster mother
testify that Hunter is in a safe environment where he is loved and that
she provides for his physical and medical needs. The trial court also heard
testimony from the Department’s caseworker and the foster mother that
the Department’s goal for Hunter was to have him adopted by his foster
parents and that his foster parents are providing him with a safe and
stable home. At trial, Hunter’s foster mother testified that she wanted to
adopt him.
“While parental rights are of constitutional magnitude, they are not
absolute.” 62 Simply put, given Mother’s historical use of illegal drugs and 6 1 F
the seriousness of her addiction, the trial court could have reasonably
formed a firm belief or conviction that terminating Mother’s parental
rights so that Hunter could be promptly and permanently placed in a safe
home where his needs can be met is in his best interest. 63 6 2 F
62In re C.H., 89 S.W.3d at 28. 63Id. at 27-28.
38 Conclusion
Having addressed the dispositive issues in Mother’s appeal, we
overrule Mother’s sole issue. Accordingly, the trial court’s Order of
Termination is,
AFFIRMED.
HOLLIS HORTON Justice
Submitted on February 6, 2024 Opinion Delivered April 4, 2024
Before Golemon, C.J., Horton and Johnson, JJ.