In the Interest of E.C.-L.H.-D., a Child v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00190-CV

IN THE INTEREST OF E.C.-L.H.-D., A CHILD

On Appeal from the 316th District Court
Hutchinson County, Texas
Trial Court No. 45,400, Honorable James M. Mosley, Presiding

November 5, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellants, Mother and Father, appeal from the trial court’s order terminating their

parental rights to their son, E.C.-L.H.-D., in a suit brought by Appellee, the Texas

Department of Family and Protective Services.1 Mother challenges the sufficiency of the

evidence to support the trial court’s findings under the predicate grounds and the finding

that termination is in the best interest of the child. Father challenges the sufficiency of

the evidence to establish reasonable efforts to return the child to him and the sufficiency

1To protect the privacy of the parties involved, we refer to the child by the initials E.D., and family

members by their relationship to the child. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b).
of the evidence to support the predicate grounds. We affirm the trial court’s judgment of

termination as to Mother and Father.

BACKGROUND

Mother and Father have a history of involvement with the Department. In January

of 2022, the Department investigated allegations of neglectful supervision of a newborn,

J.D., due to Mother’s drug use and concerns of domestic violence between Mother and

Father.2 During the investigation, the Department learned that in October of 2021, Father

assaulted Mother while she was pregnant with J.D. The Department’s involvement in that

case concluded with termination of Mother’s and Father’s parental rights to J.D. in

February of 2023. While that case was pending, the Department investigated new

allegations beginning in December of 2022 when Mother and newborn E.D. tested

positive for methamphetamine.3 On December 28, 2022, the Department filed its petition

for protection, conservatorship, and termination of Mother’s and Father’s parental rights

as to E.D. Following an adversary hearing, the Department was appointed temporary

managing conservator and E.D. was placed in a foster home with his sister, J.D.

The trial court conducted a bench trial on the Department’s petition in May of 2024.

The following evidence was presented at the termination trial.

Mother and Father have been in an “on and off” relationship for three years and

both parties admitted to domestic violence between them. Mother described her

2 J.D. was born on January 12, 2022.

3 E.D. was born on December 25, 2022.

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relationship with Father as tumultuous.

The Department developed a family service plan for Mother and the trial court

ordered compliance with the plan’s requirements. Among other things, the plan required

Mother to maintain stable housing and employment, participate in individual counseling,

abstain from the use of illegal drugs, submit to random drug screens, complete rational

behavior therapy (RBT), and participate in parenting classes.

Mother completed individual counseling. She was continuing to see her counselor

and attending domestic violence classes at the time of the final trial. She did not complete

RBT or parenting classes. Mother is bonded with E.D. and visited him weekly.

Throughout the case, Mother failed to establish housing or employment stability. Mother

moved to a new home a few weeks before the final hearing. When the caseworker saw

the home, it was in disarray, and there was no room set up for E.D. As for her

employment, she recently obtained a job at the Borger Country Club in the maintenance

department. Before that, she was employed at Dirt Cheap Lawns. Mother failed to

provide any pay stubs to verify her employment at either job.

In June of 2023, Mother enrolled in an inpatient substance abuse treatment

program as required by her service plan. She completed the treatment program, but

resumed her methamphetamine use shortly after her discharge from treatment. She

consistently tested positive for methamphetamine and marijuana throughout the case.

Mother’s hair follicle test was positive for methamphetamine and marijuana on the

following dates: May 9, August 8, and November 1, 2023, and January 30, 2024. In 2024,

her urinalysis was positive for methamphetamine and marijuana on January 22, and

positive for methamphetamine and amphetamine on March 8. Since 2019, Mother’s
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longest period of sobriety is seven months. She admitted that she used drugs during her

pregnancies with E.D. and J.D.

Father was served with the current termination suit during J.D.’s termination trial.

According to Father, he did not trust the Department, so he did not pursue any contact

with Department representatives. Concerning that time, Father testified, “I wasn’t stable.

Me and [Mother’s]—after [J.D.] got taken, our rights were taken, our relationship pretty

much went out the window. I didn’t have a place to stay, a residence. My phone was—I

didn’t have money or finances to keep my phone on through—just the trouble of my

addiction and troubles.”

The Department produced evidence that in 2006, Father was convicted of

misdemeanor assault after striking a woman in the face with his closed fist. In October

of 2021, Father was charged with assaulting Mother when she was pregnant with J.D.

After E.D. came into the Department’s care, on May 4, 2023, Mother and Father were

involved in an altercation in which Father broke Mother’s phone, “grabbed her by the

neck” and “push[ed] her to the ground.”4 This incident led to Father’s indictment for the

third-degree felony offense of assault family violence with a previous conviction. Father

was incarcerated several times during the pendency of the case, including in May,

August, and November of 2023. The caseworker testified to her unsuccessful efforts to

locate Father and engage him in services. In February of 2024, the caseworker was

notified that Father was in the Hutchinson County Jail. In March of 2024, as part of a plea

bargain, Father pleaded guilty to the third-degree felony offense of possession of a

4 Mother testified that this incident occurred after she completed drug rehabilitation treatment. She
said that she and Father had not reconciled, but were merely living in the same house.

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controlled substance (methamphetamine) committed on April 16, 2023, and a second-

degree felony offense of burglary of a habitation committed on November 11, 2023. He

was sentenced to ten years in prison with his confinement suspended and he was placed

on community supervision for five years. As a condition of his supervision, he was

required to complete a Correctional Rehabilitation and Treatment Center (CRTC)

program. At the time of trial, Father was incarcerated in the Hutchinson County Jail

awaiting transfer to a CRTC. Father testified that he is not in a position currently to take

care of E.D. because of his incarceration and probation requirements.

E.D. was sixteen months old at the time of trial. He is placed in a foster home with

his sister, J.D. E.D. appears happy and he is “perfectly healthy.” He is doing very well in

his placement and is bonded with the foster parents. The foster parents intend to adopt

E.D. and J.D. if parental rights are terminated.

The trial court terminated Mother’s parental rights to E.D. on the grounds of

endangering conditions, endangerment, prior termination of parental rights based on

endangering conditions or conduct, failure to comply with a court order that established

actions necessary to obtain return of the child, and continued substance abuse after

completion of a court-ordered substance abuse treatment program. See TEX. FAM. CODE

ANN. § 161.001(b)(1)(D), (E), (M), (O), (P).5 The trial court terminated Father’s parental

rights to E.D. on the grounds of endangering conditions, endangerment, prior termination

of parental rights based on endangering conditions or conduct, and constructive

abandonment. See § 161.001(b)(1), (D), (E), (M), (N). The trial court also found that

5 Further references to provisions of the Texas Family Code will be by reference to “section ___”

or “§ ___.”

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termination was in the best interest of E.D. See § 161.001(b)(2). The Department was

appointed the permanent managing conservator of E.D. Mother and Father timely

appealed the resulting judgment.

STANDARD OF REVIEW

When reviewing the legal sufficiency of the evidence in a termination case, the

appellate court should look at all the evidence in the light most favorable to the trial court’s

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.F.C., 96 S.W.3d 256, 266 (Tex. 2002). To

give appropriate deference to the factfinder’s conclusions, we must assume that the

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

so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or

found to have been not credible, but we do not disregard undisputed facts. Id. Even

evidence that does more than raise surmise or suspicion is not sufficient unless that

evidence can produce a firm belief or conviction that the allegation is true. In re K.M.L.,

443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we

determine that no reasonable factfinder could have formed a firm belief or conviction that

the matter that must be proven was true, then the evidence is legally insufficient and we

must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).

In a factual sufficiency review, we must give due consideration to evidence that the

factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96

S.W.3d at 266. We must determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.

Id. We must also consider whether disputed evidence is such that a reasonable factfinder
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could not have resolved the disputed evidence in favor of its finding. Id. If, considering

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.

APPLICABLE LAW

A parent’s right to the “companionship, care, custody, and management” of his or

her child is a constitutional interest “far more precious than any property right.” Santosky

v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re

M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination

proceedings and strictly construe the involuntary termination statutes in favor of the

parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural

parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to

accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)

(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may

forfeit his or her parental rights by his or her acts or omissions, the primary focus of a

termination suit is protection of the child’s best interests. See id.

In a case to terminate parental rights under section 161.001 of the Family Code,

the petitioner must establish, by clear and convincing evidence, that (1) the parent

committed one or more of the enumerated acts or omissions justifying termination, and

(2) termination is in the best interest of the child. § 161.001(b). Clear and convincing

evidence is “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.”

§ 101.007; In re J.F.C., 96 S.W.3d at 264. Both elements must be established and
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termination may not be based solely on the best interest of the child as determined by the

trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re

K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied). “Only one

predicate finding under section 161.001[(b)](1) is necessary to support a judgment of

termination when there is also a finding that termination is in the child’s best interest.” In

re A.V., 113 S.W.3d at 362. We will affirm the termination order if the evidence is both

legally and factually sufficient to support any alleged statutory ground the trial court relied

upon in terminating the parental rights if the evidence also establishes that termination is

in the child’s best interest. In re K.C.B., 280 S.W.3d at 894–95.

The clear and convincing evidence standard does not mean the evidence must

negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,

902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall

that the trier of fact has the authority to weigh the evidence, draw reasonable inferences

therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the

right to resolve credibility issues and conflicts within the evidence and may freely choose

to believe all, part, or none of the testimony espoused by any witness. Id. Where

conflicting evidence is present, the factfinder’s determination on such matters is generally

regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no

writ).

The appellate court cannot weigh witness credibility issues that depend on

demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d

570, 573 (Tex. 2005) (per curiam). Even when credibility issues are reflected in the written

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transcript, the appellate court must defer to the factfinder’s determinations, if those

determinations are not themselves unreasonable. Id.

Reasonable Efforts to Return Child

In his first issue, Father contends there was legally and factually insufficient

evidence that the Department made reasonable efforts to return E.D. as required by

section 161.001(f). That section provides:

(f) In a suit for termination of the parent-child relationship filed by the
Department of Family and Protective Services, the court may not order
termination of the parent-child relationship under Subsection (b)(1) unless
the court finds by clear and convincing evidence and describes in writing
with specificity in a separate section of the order that:
(1) the department made reasonable efforts to return the child to the
parent before commencement of a trial on the merits and despite those
reasonable efforts, a continuing danger remains in the home that prevents
the return of the child to the parent; or
(2) reasonable efforts to return the child to the parent, including the
requirement for the department to provide a family service plan to the
parent, have been waived under Section 262.2015.

§ 161.001(f).

The legislature recently amended section 161.001 to include the additional

requirement that the trial court make a finding concerning reasonable efforts the

Department made to return the child to the parent. However, this amendment only applies

to suits filed on or after September 1, 2023. Act of May 22, 2023, 88th Leg., R.S., ch.

675, §§ 1, 7–8, 2023 Tex. Gen. Laws 1644, 1644–45 (codified at TEX. FAM. CODE ANN.

§ 161.001(f)). The petition to terminate the parent-child relationship in this case was filed

on December 28, 2022, prior to September 1, 2023, when the amendment took effect.

Id. We apply the law in effect on the date the suit was filed. See In re Z.E.C., No. 08-23-
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00282-CV, 2024 Tex. App. LEXIS 1404, at *26 (Tex. App.—El Paso Feb. 26, 2024, no

pet.) (mem. op.). Accordingly, we overrule Father’s first issue.

Sufficiency of the Evidence Under Subsections 161.001(b)(1)(D) and (E)

In Mother’s first issue and Father’s third issue, they challenge the legal and factual

sufficiency of the evidence to support termination of their parental rights under

subsections 161.001(b)(1)(D) and (E). We review the trial court’s findings under both

subsections (D) and (E) when raised on appeal because of the potential consequences

to a parent’s parental rights in a future proceeding concerning a different child. In re N.G.,

577 S.W.3d 230, 235–37 (Tex. 2019) (per curiam). Because the evidence pertaining to

subsections (D) and (E) is interrelated, we may conduct a consolidated review. In re

M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g).

A trial court may order termination of a parent-child relationship if the court finds

by clear and convincing evidence that a parent has knowingly placed or knowingly

allowed a child to remain in conditions or surroundings which endanger the physical or

emotional well-being of the child and/or 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. See § 161.001(b)(1)(D), (E). Both subsections (D) and (E)

require proof of endangerment. To “endanger” means to expose the child to loss or

injury or to jeopardize the child’s emotional or physical health. Boyd, 727 S.W.2d at

533. A child is endangered when the environment creates a potential for danger that

the parent is aware of but consciously disregards. J.S. v. Tex. Dep’t of Family &

Protective Servs., 511 S.W.3d 145, 159 (Tex. App.—El Paso 2014, no pet.). Endanger

means more than a threat of metaphysical injury or the possible ill effects of a less-
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than-ideal family environment, but it is not necessary that the conduct be directed at

the child or that the child suffer injury. In re N.K., 399 S.W.3d 322, 330–31 (Tex. App.—

Amarillo 2013, no pet.).

While both subsections (D) and (E) focus on endangerment, they differ regarding

the source of the physical or emotional endangerment to the child. See In re B.S.T., 977

S.W.2d 481, 484 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Subsection (D)

requires a showing that the environment in which the child is placed endangered the

child’s physical or emotional health. Doyle v. Tex. Dep’t of Protective & Regulatory

Servs., 16 S.W.3d 390, 394 (Tex. App.—El Paso 2000, pet. denied). Conduct of a parent

or another person in the home can create an environment that endangers the physical

and emotional well-being of a child as required for termination under subsection (D). In

re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no pet.). “ Inappropriate,

abusive, or unlawful conduct by persons who live in the child’s home or with whom the

child is compelled to associate on a regular basis in his home is a part of the ‘conditions

or surroundings’ of the child’s home” under subsection (D). In re M.R.J.M., 280 S.W.3d

at 502. The factfinder may infer from past conduct endangering the child’s well-being that

similar conduct will recur if the child is returned to the parent. Id. Thus, subsection (D)

addresses the child’s surroundings and environment rather than parental misconduct,

which is the subject of subsection (E). Doyle, 16 S.W.3d at 394.

Under subsection (E), the cause of the danger to the child must be the parent’s

conduct alone, as evidenced not only by the parent’s actions, but also by the parent’s

omission or failure to act. In re M.J.M.L., 31 S.W.3d 347, 350–51 (Tex. App.—San

Antonio 2000, pet. denied); Doyle, 16 S.W.3d at 395. To be relevant, the conduct does

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not have to have been directed at the child, nor must actual harm result to the child from

the conduct. Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 84

(Tex. App.—Dallas 1995, no writ). Additionally, termination under subsection (E) must be

based on more than a single act or omission; a voluntary, deliberate, and conscious

course of conduct by the parent is required. In re E.P.C., 381 S.W.3d 670, 683 (Tex.

App.—Fort Worth 2012, no pet.). The specific danger to the child’s well-being need not

be established as an independent proposition but may be inferred from parental

misconduct. In re B.C.S., 479 S.W.3d 918, 926 (Tex. App.—El Paso 2015, no pet.). “[A]

parent’s use of narcotics and its effect on his or her ability to parent may qualify as an

endangering course of conduct.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).

Here, the Department presented evidence that Mother had prior involvement with

the Department and a history of substance abuse since 2019. At the time that E.D. was

removed, Mother and Father had a pending termination case involving another child, J.D.

As to E.D., Mother used methamphetamine during her pregnancy and she and E.D.

tested positive for methamphetamine when E.D. was born in December of 2022. After

E.D.’s birth, Mother tested positive for marijuana and methamphetamine on multiple

occasions, including before and after she completed an inpatient substance abuse

treatment program. In determining whether a parent has engaged in a course of conduct

endangering a child, we may look at the conduct both before and after the child’s birth.

In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.). A parent’s ongoing

drug abuse is conduct that subjects a child to a life of uncertainty and instability, which

endangers the physical and emotional well-being of the child. See In re A.B., 125 S.W.3d

769, 777 (Tex. App.—Texarkana 2003, pet. denied). Additionally, the trial court could

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have considered Mother’s failure to complete significant requirements of her service plan

as part of its endangering conduct analysis under subsection (E). In re H.G., No. 07-21-

00278-CV, 2022 Tex. App. LEXIS 2687, at *20 (Tex. App.—Amarillo Apr. 25, 2022, pet.

denied) (mem. op.). “While illegal drug use alone may not be sufficient to show

endangerment, a pattern of drug use accompanied by circumstances that indicate related

dangers to the child can establish a substantial risk of harm.” In re R.R.A., 687 S.W.3d

269, 278 (Tex. 2024). Those risks are present here as Mother did not complete domestic

violence classes, did not have stable housing, and had difficulty maintaining employment.

After E.D. was removed, Father was uncooperative with the Department. He

candidly admitted that he was unstable and troubled by his addiction; he had no money,

phone, or place to live. The Department produced evidence concerning the tumultuous

relationship between Mother and Father including two incidents of domestic violence.

During the pendency of the current case, Father engaged in criminal activity and was

incarcerated for three felony offenses: assault, possession of a controlled substance, and

burglary. Abusive or violent conduct by a parent or other resident of the child’s home, as

well as illegal drug use and criminal activity, support a conclusion that the child’s

surroundings endanger his physical or emotional well-being. In re J.T.G., 121 S.W.3d

117, 125 (Tex. App.—Fort Worth 2003, no pet.); In re B.W., No. 07-19-00248-CV, 2019

Tex. App. LEXIS 9845, at *8 (Tex. App.—Amarillo Nov. 12, 2019, no pet.) (mem. op.).

Finally, Father was incarcerated at the time of the final hearing and unable to visit with

E.D., establish a safe and stable home, or have employment. “When a pattern of drug

use is coupled with credible evidence of attendant risks to employment, housing, and

prolonged absence from the [child], a factfinder reasonably can find endangerment to the

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child’s physical or emotional well-being under (D) and (E).” In re R.R.A., 687 S.W.3d at

281.

Having examined the entire record, we find that the trial court could reasonably

form a firm belief or conviction that Mother and Father knowingly placed or knowingly

allowed E.D. to remain in conditions or surroundings which endangered his physical or

emotional well-being and engaged in conduct which endangered E.D.’s emotional and

physical well-being. The same evidence is factually sufficient to support the trial court’s

affirmative finding. We overrule Mother’s first issue and Father’s third issue.

Having found that the evidence is legally and factually sufficient to support the trial

court’s finding under subsections 161.001(b)(1)(D) and (E), we need not address the

portion of Mother’s first issue challenging the trial court’s findings under (O) and (P). Only

one predicate ground is required to support termination when there is also a finding that

termination is in the child’s best interest. In re A.V., 113 S.W.3d at 362. Mother has

conceded the evidence is sufficient as to predicate ground (M) by not challenging that

ground by her appeal.

Having found that the evidence is legally and factually sufficient to support the trial

court’s finding under 161.001(b)(1)(D) and (E), we need not address the portion of

Father’s first issue challenging the trial court’s findings under 161.001(b)(1)(N), or his

second issue challenging the trial court’s findings under subsection 161.001(b)(1)(M).

See In re A.V., 113 S.W.3d at 362. As Father does not challenge the sufficiency of the

evidence to support the best-interest finding, we affirm the trial court’s order terminating

Father’s parental rights to E.D.

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Best Interest

In her second issue, Mother challenges the factual and legal sufficiency of the

evidence to support the best-interest finding made under section 161.001(b)(2). A

determination of best interest necessitates a focus on the child, not the parent. In re

B.C.S., 479 S.W.3d at 927. Appellate courts examine the entire record to decide what is

in the best interest of the child. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is

a strong presumption that it is in the child’s best interest to preserve the parent-child

relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

In assessing whether termination is in a child’s best interest, the courts are guided

by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976).6 “[T]he State need not prove all of the factors as a condition precedent to parental

termination, ‘particularly if the evidence were undisputed that the parental relationship

endangered the safety of the child.’” In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—

Houston [1st Dist.] 2002, pet. denied) (quoting In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)).

Evidence that supports one or more statutory grounds for termination may also constitute

evidence illustrating that termination is in the child’s best interest. See In re E.C.R., 402

S.W.3d at 249. The best-interest analysis may consider circumstantial evidence,

subjective factors, and the totality of the evidence as well as direct evidence. In re N.R.T.,

6 These factors include: (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 abilities
of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to
promote the child’s best interest; (6) the plans for the child by the individuals or agency seeking custody;
(7) the stability of the home or proposed placement; (8) the parent’s acts or omissions which may indicate
that the existing parent-child relationship is improper; and (9) any excuse for the parent’s acts or omissions.
Id.

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338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). We must also bear in mind

that a child’s need for permanence through the establishment of a stable, permanent

home has been recognized as the paramount consideration in determining best interest.

See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).

The trial court was allowed to consider evidence that Mother used

methamphetamine during her pregnancy with E.D. and tested positive for

methamphetamine and marijuana multiple times during the case. Moreover, Mother had

a sporadic work history, and she was unable to maintain stable housing. Not long after

Mother completed an inpatient drug rehabilitation program as a part of her court-ordered

services, she again relapsed into drug use, testing positive for marijuana and

methamphetamine shortly before trial. By her own admission, Mother has a history of

substance abuse since 2019. As an active drug user, Mother’s course of conduct

demonstrates that she is “not willing and able to provide the child with a safe

environment—a primary consideration in determining the child’s best interest.” In re A.C.,

394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.); see also In re

E.R.W., 528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“A parent’s

drug use supports a finding that termination is in the best interest of the child.”). A trial

court is permitted to consider a parent’s drug use, inability to provide a stable home, and

failure to comply with a family plan of service in its best-interest determination. In re S.B.,

207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.). Mother’s ongoing use

of marijuana and methamphetamine and her association with family members who use

methamphetamine suggests that similar conduct will occur in the future, thereby

constituting evidence of emotional and physical danger to E.D. now and in the future. In

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re V.A., No. 07-17-00413-CV, 2018 Tex. App. LEXIS 1521, at *13 (Tex. App.—Amarillo

Feb. 27, 2018, no pet.) (mem. op.). The evidence before the trial court concerning

Mother’s substance use was significant and, thus, weighs heavily in favor of the trial

court’s best-interest finding.

The incidents of family violence between Mother and Father also support a finding

that Mother cannot provide a safe and stable home for E.D. See In re A.M., 495 S.W.3d

573, 581 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (relying in part on “history of

assaultive conduct between the mother and the father” in affirming decision that

termination of father’s rights was in children’s best interest). Physical violence in the home

leads to an unstable and unpredictable environment for children. In re N.M.L., No. 07-17-

00310-CV, 2018 Tex. App. LEXIS 607, at *14 (Tex. App.—Amarillo Jan. 19, 2018, pet.

denied) (mem. op.).

The court also heard evidence from which it found that Mother failed to complete

court-ordered services. A parent’s failure to complete court-ordered services when her

parent-child relationship is in jeopardy creates a reasonable inference that the parent is

incapable of availing herself of programs that promote the best interest of the child, both

now and in the future. The factfinder can infer from a parent’s failure to take the initiative

to utilize the available programs that the parent did not have the ability to motivate herself

in the future. In re S.P., 509 S.W.3d 552, 558 (Tex. App.—El Paso 2016, no pet.). A trial

court is permitted to consider a parent’s failure to comply with a family plan of service in

its best-interest determination. In re S.B., 207 S.W.3d at 887–88. This evidence weighs

heavily in favor of the best-interest finding.

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Stability and permanence are paramount in the upbringing of children. In re J.D.,

436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The stability of the

proposed home environment is an important consideration in determining whether

termination of parental rights is in a child’s best interest. In re D.M., 452 S.W.3d 462, 472

(Tex. App.—San Antonio 2014, no pet.). The factfinder may compare the parent’s and

the Department’s plans for the child and determine whether the plans and expectations

of each party are realistic or weak and ill-defined. In re J.D., 436 S.W.3d at 119–20. The

evidence at trial indicated that Mother had a history of instability in housing and

employment. The caseworker visited Mother’s newest residence shortly before trial and

found the home in “disarray” and E.D.’s room not set up. Mother testified that she had

five jobs since January of 2022, and she was working a seasonal job at the time of trial.

Despite her inability to maintain sobriety, she requested that the trial court return E.D. to

her care because “[she] deserve[s]” her child. Conversely, the foster family has been

providing a drug-free environment for the past eighteen months, and the stability,

structure, security, and consistency that E.D. needs. The evidence shows that E.D. is

placed in a foster home with his sister, J.D. E.D. is strongly bonded with his foster family.

E.D. is doing well in the home and the foster family plans to adopt E.D. and J.D. At the

time of trial, E.D. was only sixteen months old and, thus, too young to testify about his

desires. When a child is too young to express his desires, the factfinder may consider

whether the child has bonded with the foster family, is well-cared for by them, and has

spent minimal time with a parent. In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston

[14th Dist.] 2014, pet. denied). Further, the Department’s plan for E.D.’s adoption

provides permanence and stability for E.D. and weighs heavily in favor of the trial court’s

conclusion that termination of Mother’s parental rights is in the best interest of E.D.
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Applying the applicable Holley factors to the evidence, we conclude the evidence

is legally and factually sufficient to establish a firm conviction in the mind of the trial court

that termination of Mother’s parental rights is in the best interest of E.D. See In re S.B.,

207 S.W.3d at 887–88 (parent’s drug use, inability to provide stable home, and failure to

comply with service plan supported best-interest finding). We overrule Mother’s second

issue challenging the best-interest determination.

CONCLUSION

Having overruled the issues raised by Mother’s and Father’s appeal, we affirm the

judgment of the trial court terminating Mother’s and Father’s parental rights.

Judy C. Parker
Justice

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