Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-23-00907-CV
IN THE INTEREST OF J.A.B., J.L.B., and J.B.
From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2022-PA-00495 Honorable Kimberly Burley, Associate Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Irene Rios, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
Delivered and Filed: April 3, 2024
AFFIRMED
Vanessa A. 1 appeals from the trial court’s order terminating her parental rights to thirteen-
year-old J.A.B., nine-year-old J.L.B., and seven-year-old J.B. We affirm.
BACKGROUND
On March 28, 2022, the Department of Family and Protective Services (“the Department”)
filed the underlying suit to terminate Vanessa A.’s parental rights, along with an affidavit in
support of emergency removal of the children. The children were removed and placed under the
care of the Department. After a bench trial, the trial court terminated Vanessa A.’s parental rights
pursuant to section 161.001(b)(1)(D), (E), (O), and (P) of the Texas Family Code. The trial court
1 To protect the identity of the minor child, we refer to the parties by fictitious names, initials, or aliases. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-23-00907-CV
also found that termination of her parental rights was in the best interest of the children. On appeal,
Vanessa A. argues the evidence is legally and factually insufficient to support the trial court’s
predicate (D) and (E) findings. She also argues the evidence is legally and factually insufficient to
support the trial court’s best-interest finding.
SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the
Department has the burden to prove by clear and convincing evidence that parental rights should
be terminated pursuant to one of the predicate grounds in subsection 161.001(b)(1) and that
termination of parental rights is in the best interest of the child. TEX. FAM. CODE § 161.001(b)(1),
(2). In reviewing the legal sufficiency of the evidence to support these findings, we look “at 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.” In re J.O.A., 283 S.W.3d
336, 344 (Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). In reviewing the
factual sufficiency of the evidence, we consider disputed or conflicting evidence. Id. at 345. “If,
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, then the evidence is factually insufficient.” Id. (quoting In re J.F.C.,
96 S.W.3d at 266). Under these standards, the factfinder is the sole judge of the weight and
credibility of the evidence. Id.
Vanessa A.’s parental rights were terminated pursuant to multiple predicate grounds.
However, in her brief, she challenges the trial court’s findings under subsections (D), (E), and (O);
she does not challenge the trial court’s finding under subsection (P). If, as here, the trial court
terminates the parent-child relationship on multiple grounds under section 161.001(1), we may
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affirm on any one ground because, in addition to finding that termination is in the child’s best
interest, only one predicate violation under section 161.001(1) is necessary to support a termination
decree. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re D.J.H., 381 S.W.3d 606, 611-12 (Tex.
App.—San Antonio 2012, no pet.). Thus, because Vanessa A. has not challenged the trial court’s
finding under subsection (P), the trial court’s order terminating her parental rights may be affirmed
on that ground so long as we determine under Vanessa A.’s third issue that there is legally and
factually sufficient evidence to support the trial court’s best-interest finding.
However, even though the trial court’s unchallenged finding under subsection (P) may
support its termination order, we must still consider Vanessa A.’s issues relating to the sufficiency
of the evidence to support the trial court’s findings under subsections (D) and (E). Because
termination findings under subsections (D) and (E) may serve as the basis for a future termination
of parental rights proceeding, the supreme court has explained that due process requires that we
address any appellate issue regarding the sufficiency of the evidence of a trial court’s finding under
either (D) or (E). See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019).
B. Subsection (D) and (E) Predicate Grounds
Subsection (D) allows termination of parental rights if, along with a best-interest finding,
the factfinder finds by clear and convincing evidence that the parent “knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which endanger the physical
or emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(D). “A child is endangered
when the environment creates a potential for danger that the parent is aware of but consciously
disregards.” In re C.J.G., No. 04-19-00237-CV, 2019 WL 5580253, at *2 (Tex. App.—San
Antonio Oct. 30, 2019, no pet.) (mem. op.) (quoting In re S.R., 452 S.W.3d 351, 360 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied)).
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Subsection (E) allows termination of parental rights if the trial court finds by clear and
convincing evidence that the parent “engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical or emotional well-being of the
child.” TEX. FAM. CODE § 161.001(b)(1)(E). Under subsection (E), the trial court must determine
“whether there is evidence that a parent’s acts, omissions, or failures to act endangered the child’s
physical or emotional well-being.” In re C.J.G., 2019 WL 5580253, at *2.
Under both subsections, “endanger” means “to expose a child to loss or injury, or to
jeopardize a child’s emotional or mental health.” Id. at *3 (citing In re M.C., 917 S.W.2d 268, 269
(Tex. 1996)). “[A] parent need not know for certain that the child is in an endangering
environment, awareness of such a potential is sufficient.” Id. at *2 (quoting In re R.S.-T., 522
S.W.3d 92, 109 (Tex. App.—San Antonio 2017, no pet.)). Under subsection (D), a trial court
considers “evidence related to the environment of the children to determine if the environment was
the source of endangerment to the children’s physical or emotional well-being.” In re J.T.G., 121
S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). “Conduct of a parent in the home can
create an environment that endangers the physical and emotional well-being of a child.” Id. “For
example, abusive or violent conduct by a parent or other resident of a child’s home may produce
an environment that endangers the physical or emotional well-being of a child.” Id. “Parental and
caregiver illegal drug use and drug-related criminal activity likewise supports the conclusion that
the children’s surroundings endanger their physical or emotional well-being.” Id. Similarly, under
subsection (E), “[a]n endangerment finding often involves physical endangerment, but the statute
does not require that the parent’s conduct be directed at the child or that the child suffer actual
injury.” In re K.J.G., No. 04-19-00102-CV, 2019 WL 3937278, at *5 (Tex. App.—San Antonio
Aug. 21, 2019, pet. denied) (mem. op.). “Rather, the specific danger to the child’s well-being may
be inferred from the parent’s misconduct alone.” Id. (citation omitted). “Conduct that subjects a
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child to a life of uncertainty and instability endangers the physical and emotional well-being of a
child.” Id. “Thus, evidence of illegal drug use by a parent and its effect on a parent’s life and her
ability to parent may establish an endangering course of conduct under subsection (E).” Id.; see In
re J.O.A., 283 S.W.3d at 346 (holding evidence sufficient to support finding of endangerment even
though father had made significant recent improvements because “evidence of improved conduct,
especially of short-duration, does not conclusively negate the probative value of a long history of
drug use and irresponsible choices”); In re K-A.B.M., 551 S.W.3d 275, 286 (Tex. App.—El Paso
2018, no pet.) (“A parent’s use of drugs and its effect on his or her ability to parent may qualify as
an endangering course of conduct.”); Walker v. Tex. Dep’t of Fam. & Protective Servs., 312
S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“Because it exposes the child
to the possibility that the parent may be impaired or imprisoned, illegal drug use may support
termination under section 161.001(1)(E).”).
While “endanger” has the same definition under both subsections (D) and (E), “there are
some distinctions in the application of subsections (D) and (E).” In re C.J.G., 2019 WL 5580253,
at *3. Termination under subsection D may be based upon a single act or omission. Id. at *3 (citing
In re R.S.-T., 522 S.W.3d at 109). In contrast, termination under subsection E “may not rest on a
single act or omission; it must be ‘a voluntary, deliberate, and conscious course of conduct.’” Id.
(quoting Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied)). Additionally, “[i]n evaluating endangerment under subsection D, we consider the child’s
environment before the Department obtained custody of the child.’” Id. (quoting In re S.R., 452
S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)) (emphasis added). “‘Under
subsection E, however, courts may consider conduct both before and after the Department
removed the child from the home.” Id. (quoting In re S.R., 452 S.W.3d at 360) (emphasis added).
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Vanessa A. argues there is legally and factually insufficient evidence to support termination
of her parental rights under either subsection (D) or (E) because there was no evidence at trial that
“any harm had happened to the children.” In response, the Department points to evidence of
Vanessa A.’s pattern of drug abuse that began before the Department became involved in the
underlying case and continued up to the time of trial, and her history of domestic violence.
The record reflects that Vanessa A. acknowledged using illegal substances multiple times,
tested positive for illegal substances multiple times, and was in and out of both inpatient and
outpatient treatment programs multiple times. Vanessa A. testified at trial that she had been
working with the Department since 2019 (i.e., three years before the Department filed the
underlying cause) and that the primary reason for the Department’s involvement in her life was
her “kids’ safety.” When asked why there was an issue with her children’s safety, she replied that
it was “[b]ecause of the drug use that [she] had in [her] past.” She testified her “drug of choice”
was “methamphetamine.”
There was also evidence of domestic violence between Vanessa A. and her significant
others that affected the children. Tedi McVea, Vanessa A.’s therapist testified that in 2019,
Vanessa A. had six minor children. 2 The children “have been off and on in [the] State[’s] care for
several years, even prior to 2019.” When asked what actions caused the children to be in the State’s
care, McVea replied, “The mother and father of those children.” According to McVea, the
Department became involved because of “issues with substance abuse, domestic violence, and also
some familial dynamics.”
McVea has worked with Vanessa A. since 2019 with some breaks in service. McVea
testified,
2 The termination of her parental rights to three of those children are at issue in this appeal.
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There were some breaks due to indication of care. For example, there were periods where she would go into inpatient treatment, where there would be a planned pause in individual counseling. And there have been times where services went from mandated to elective, and during that time the consistency would vary. There was a period of time during the elective process where we did not have services for several months.
McVea testified that when the Department filed the instant case in 2022, Vanessa A. came back
into his care. McVea explained there were “stressors” in Vanessa A.’s life that triggered her
relapses with substance abuse, including issues with mental health, “[i]nappropriate or unhelpful
peers; violen[t] or abusive relationships”; and “basic case management need issues.” McVea
testified Vanessa A. had completed inpatient treatment programs “twice, at a minimum” and
outpatient drug treatment about four times. According to McVea, the outpatient programs were
“more difficult to gauge” because “there were times she would start outpatient, and then outpatient
would be interrupted by an inpatient referral,” or “she would discharge from outpatient and start
inpatient [and] maybe there would be an attendance issue, so she would restart inpatient.” McVea
testified that since April 2022, Vanessa A. had tested positive for illegal substances four times.
Further, he testified that since April 2022, she had not reached a point where he could successfully
discharge her from therapy.
McVea explained that Vanessa A. has a “very minimal, limited” support system that “is
not sufficient.” She is not employed, but has public housing. McVea was asked at trial whether,
given Vanessa A.’s stage in care and her frequent relapses with substance abuse, he had an opinion
as to her ability to parent small children. McVea responded, “I think, in general, the
recommendation is that children are not in a household where there is active drug use.” McVea
testified that one trigger to Vanessa A.’s relapses is domestic violence and having contact with
“her perpetrator.” McVea “believe[d] there was contact between the both of them.” He discussed
Vanessa A. being the “victim of domestic violence with the father of” one of her children. With
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respect to the domestic violence, McVea was asked whether Vanessa A. indicated where her
children were at the time when those domestic violence incidents occurred. McVea replied, “I
know that there were times where her youngest child was in the vehicle while her abuser was
standing outside the vehicle [and Vanessa A. was] standing outside the vehicle.”
Erinna Rios, an investigator with the Department, testified the children were removed in
March 2022 from Vanessa A.’s care because of allegations of neglectful supervision and possible
use of methamphetamine. When Rios questioned Vanessa A. at the time the children were
removed, Vanessa A. admitted that she had relapsed the day before by using illegal substances.
Raymundo Molina, a conservatorship worker, testified about Vanessa A.’s pattern of
completing inpatient drug treatment, relapsing during outpatient treatments, and then being placed
back into inpatient drug treatment. He referred Vanessa A. to outpatient drug treatment in August
2022. She was discharged from treatment on November 1, 2022. Molina testified he asked Vanessa
A. to drug test on November 29, 2022, and she was positive for methamphetamines. Vanessa A.
then entered inpatient treatment in December 2022 and did not have any positive drug tests during
inpatient treatment. When she completed inpatient treatment in March 2023, she was referred back
to Alpha Home for outpatient treatment. However, she “was discharged unsuccessfully” “in May
of 2023.” Alpha Home recommended inpatient treatment for Vanessa A. but she declined. In July
2023, Molina referred Vanessa A. to outpatient treatment with Lifetime in July 2023. Molina
testified that he had talked to Vanessa A. about going back to inpatient treatment but “she just
stated that she—that’s not something that she was interested in.” Molina explained that all these
additional referrals were required because although she completed inpatient treatment, she
relapsed again once inpatient treatment had been completed. Molina testified that while Vanessa
A. completed many of her services, she did not successfully achieve the goals of her service plan
and had not addressed the issues that had brought the children into the Department’s care. Molina
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explained that if the children were returned, he was concerned about Vanessa A. continuing to use
illegal substances. He testified that Vanessa A. was not employed and had not provided any
documentation of employment or financial stability. He also testified that while this case was
pending, Vanessa A. had been placed on probation for a criminal offense. Molina further testified
that after removal from Vanessa A.’s care, the oldest child, twelve-year-old J.A.B., wanted to be
placed by herself, and not with her siblings, because she wanted a break from being her siblings’
caregiver. J.A.B. has been placed in a foster home alone. Molina testified that J.A.B. “was very
shut down” in the beginning of this case but is now “more verbal and more expressive” since being
in foster care.
Lorie Wong, an outpatient counselor at Alpha Home, testified that Vanessa A. was
admitted for outpatient treatment on March 13, 2022. However, because Vanessa A. had three
positive drug tests for methamphetamines in one month, she was discharged in May 2022 with a
referral to residential inpatient treatment. Wong explained that Vanessa A. was unable to remain
sober during outpatient treatment.
Vanessa A. testified that she was unemployed. She admitted to a history of domestic
violence, including being arrested for assault and being placed on probation. Vanessa A. testified
that she had assaulted the former girlfriend of her one-year-old daughter’s father. 3 When asked
about her illegal drug use, Vanessa A. testified that she gets her illegal substances from “a drug
dealer” and claimed that all her drugs were free. At trial, she admitted to seeing her drug dealer
the previous month. She explained the illegal drugs helped her “focus” and gave her a “boost.”
Vanessa A. was asked whether she would allow a babysitter whom she knew was using illegal
drugs to care for her children. Vanessa A. replied, “No.”
3 Vanessa A.’s parental rights to this daughter have not been terminated.
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Given Vanessa A.’s pattern of illegal drug abuse and domestic violence, of which there
was evidence both before and after removal, we hold the evidence was legally and factually
sufficient to support the trial court’s findings under subsections (D) and (E). See In re J.T.G., 121
S.W.3d at 125.
C. Best Interest of the Children
Vanessa A. also argues the evidence is legally and factually insufficient to support the trial
court’s finding that termination of her parental rights is in the children’s best interest. See TEX.
FAM. CODE § 161.001(b)(2); In re J.O.A., 283 S.W.3d at 344 (explaining legal and factual
sufficiency standard). There is a strong presumption that the best interest of a child is served by
keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In determining
whether the child’s parent is willing and able to provide the child with a safe environment, the trial
court should consider the relevant factors set out in section 263.307. See TEX. FAM. CODE
§ 263.307(b). 4 In addition to these statutory factors, in considering the best interest of the child, a
factfinder may also consider the nonexclusive list of factors set forth by the Texas Supreme Court
in Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). 5 The Holley factors are neither all-
4 These factors include (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out- of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the Department; (5) whether the child is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with: (A) minimally adequate health and nutritional care; (B) care, nurturance, and appropriate discipline consistent with the child’s physical and psychological development; (C) guidance and supervision consistent with the child’s safety; (D) a safe physical home environment; (E) protection from repeated exposure to violence even though the violence may not be directed at the child; and (F) an understanding of the child’s needs and capabilities; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. TEX. FAM. CODE § 263.307(b). 5 These factors include, but are not limited to, the following: (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental
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encompassing nor does a court need to find evidence of each factor before terminating the parent-
child relationship. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); see In re E.A.R., 672 S.W.3d 716,
722 (Tex. App.—San Antonio 2023, pet. denied) (noting that a best-interest finding does not
require proof of any particular factor). “Evidence of a single factor may be sufficient for a
factfinder to form a reasonable belief or conviction that termination is in the child’s best interest.”
In re E.A.R., 672 S.W.3d at 722 (quoting In re J.B.-F., No. 04-18-00181-CV, 2018 WL 3551208,
at *3 (Tex. App.—San Antonio July 25, 2018, pet. denied)). Finally, in determining whether
termination of the parent-child relationship is in the best interest of a child, a factfinder may also
judge a parent’s future conduct by her past conduct. In re E.A.R., 672 S.W.3d at 722; In re E.D.,
419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). The predicate grounds for
termination may also be probative of best interest. In re C.H., 89 S.W.3d at 28; In re E.A.R., 672
S.W.3d at 722.
In support of her argument that the evidence is legally and factually insufficient to support
the trial court’s best-interest finding, Vanessa A. points to the following evidence:
• Molina’s testimony that there were positive interactions between her and the children and that she was bonded with the children; • McVea’s testimony that the children were bonded with Vanessa A.; • Vanessa A.’s testimony that her oldest child said she wanted to come home; • Molina’s testimony that the children had been placed in two different foster homes, they were doing well and in therapy, and their placements were non-adoptive foster homes; • The caseworker’s testimony that the children were doing well; • Molina’s testimony that Vanessa A. had stable housing; • Testimony that Vanessa A. completed domestic violence classes and anger management classes, and was in therapy with McVea; • McVea’s testimony that she was active in sessions and motivated towards sobriety.
abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the child’s best interest; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent’s acts or omissions that may indicate the existing parent-child relationship is improper; and (9) any excuse for the parent’s acts or omissions. In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013) (citing Holley, 544 S.W.2d at 371-72).
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This record is clear that Vanessa A. is bonded with her children. However, this record is
also clear that Vanessa A. has a pattern of substance abuse and domestic violence. The testimony
in this case was consistent that Vanessa A. is not able to care for her children because of her
ongoing substance abuse and domestic violence issues. While she has stable housing, she does not
have employment. The testimony in this case was also consistent that Vanessa A. has not addressed
the issues that brought her children into the Department’s care. There was also evidence that the
children are doing well in their current placements and their needs are being met. Molina testified
the children have been under the conservatorship of the Department for almost a year and a half.
According to Molina, twelve-year-old J.A.B. has improved in foster care. J.L.B. and J.B. have
been placed together in a foster home, and all three children were in therapy and “positive progress
had been reported.” In looking at all the evidence in the light most favorable to the trial court’s
finding, we conclude a reasonable trier of fact could have formed a firm belief or conviction that
the termination of Vanessa A.’s parental rights was in the children’s best interest. See In re J.O.A.,
283 S.W.3d at 344. Thus, we hold the evidence is legally sufficient to support the trial court’s best-
interest finding. While Vanessa A. points to her housing and the bond she has with the children, a
rational trier of fact could have looked to evidence of Vanessa A.’s pattern of drug abuse and
domestic violence, and determined termination of her rights was in the best interest of the children.
See id. at 345. Therefore, we also hold the evidence is factually sufficient to support the trial court’s
best-interest finding.
CONCLUSION
For the reasons stated above, we affirm the trial court’s order terminating Vanessa A.’s
parental rights.
Liza A. Rodriguez, Justice
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