In the Interest of D.M. and D.M v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00303-CV
__________________

IN THE INTEREST OF D.M. AND D.M.

__________________________________________________________________

On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 22-08-11390-CV
__________________________________________________________________

MEMORANDUM OPINION

Appellant “Cherie” appeals from an order terminating her parental rights to

two children—eight-year-old “Drew” and two-year-old “Dennis.” 1 After a trial, a

jury found by clear and convincing evidence that statutory grounds existed for

terminating Cherie’s parental rights, that terminating her parental rights would be in

the best interest of the children, and that the Department of Family and Protective

Services (“the Department”) should be appointed as the managing conservator of the

1
To protect the identity of the children we use pseudonyms to refer to the
mother, the children, family members, and foster parents. See Tex. R. App. P.
9.8(b)(2).
1
children. 2 See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (N), (O), (2). In a single

issue, Appellant argues that there was no evidence that she knowingly placed or

allowed the children to remain in conditions or surroundings that endanger their

physical or emotional well-being. See id. § 161.001(b)(1)(D). As explained below,

we affirm.

Background

The Department filed an Original Petition for Protection of a Child, for

Conservatorship, and for Termination in a Suit Affecting the Parent-Child

Relationship on August 31, 2022. An Affidavit in Support of Removal by a

Department representative was filed at the same time, and the affidavit states that

the Department received a report of neglectful supervision by Cherie—Drew’s and

Dennis’s mother. The affidavit also states that Cherie and the two children were

homeless, and Cherie had abused marijuana, amphetamine, methamphetamine,

“crank,”3 and crystal meth. In addition, the affidavit states that the report to the

Department described Cherie’s behavior as “erratic, unstable, emotional, tearful, and

depressed.” The affiant states that she talked with Cherie at a psychiatric hospital in

2
The jury also found that the identity and location of the children’s father or
fathers were unknown, and the final Order of Termination terminated “the unknown
father’s” parental rights as well. Only the children’s mother appealed from the final
Order of Termination.
3
According to the DEA, “crank” is a street name for methamphetamine.
United States Drug Enforcement Administration, Methamphetamine,
https://www.dea.gov/factsheets/methamphetamine (last visited January 5, 2024).
2
Conroe about the report of neglectful supervision, and Cherie said that her children

were with her friend “Molly.” The Department representative met with Molly, who

reported that she had met Cherie about two weeks earlier at a restaurant in Magnolia,

that she and her husband agreed to take care of the younger boy, Dennis, and that

another friend of Cherie’s, Masie Macintosh, was taking care of the older boy, Drew.

Molly reported that drug paraphernalia, including pipes and needles, were found in

Dennis’s belongings.

The trial court appointed the Department as temporary managing conservator

of Drew and Dennis on August 31, 2022. The trial court approved a family services

plan setting forth the requirements Cherie must complete before the trial court would

return the children to Cherie.

On April 13, 2023, Molly filed a Plea in Intervention as Dennis’s caregiver,

and she sought to be named Dennis’s managing conservator. Therein, Molly alleged

that she had been Dennis’s caregiver, and that he had been subject to her actual care,

control, and possession for at least six months not more than ninety days before the

Department filed its Original Petition. Molly also alleged that Cherie had voluntarily

placed Dennis in Molly’s care. In an affidavit attached to the Plea, Molly alleged

that she met Cherie at a restaurant on August 2, 2022, Cherie had been kicked out of

the apartment where she had been staying, and Cherie was homeless. Molly gave

Cherie her telephone number and told Cherie to call her if she needed anything.

3
Molly further alleged that a few days later, she called Cherie and arranged to meet

Cherie at the hotel where Cherie was staying to deliver diapers, clothes, and a bottle.

Upon arriving at the hotel, Molly learned that Cherie was being kicked out of the

hotel. The next day when Molly picked up Cherie and Dennis and took them to eat,

Molly learned that Cherie had left Drew “with a lady she had met at a gas station

named [Masie Macintosh,]” and that Cherie voluntarily placed Dennis with Molly.

According to the affidavit, based on what Cherie told Molly about how Cherie had

been living, Molly concluded that Dennis “was not being cared for [and] had not

experienced security, safety, and cleanliness” until Molly took him home. The

affidavit further states that Molly took Cherie for medical care, where Cherie was

referred to a psychiatric hospital, and then CPS was called, and a case was opened.

Molly further alleged that Dennis had been in her home and under her care since

August 2022. Molly subsequently filed a demand for a jury trial.

On July 5, 2023, about a month before trial, “Carla Sanders” filed a Petition

in Intervention. Therein, Carla alleged she was the children’s great aunt, she had

“substantial past contact with the children[,]” and she sought to be appointed sole

managing conservators of both Drew and Dennis. Carla also alleged that Cherie had

“engaged in a history or pattern of child neglect.” The record reflects that Carla lives

4
in Oklahoma.4 The trial court granted Carla’s Motion for Leave to File Petition in

Intervention as to Drew only.

In January of 2023, the Court Appointed Special Advocate requested that

Drew be moved from his current caregiver (Masie Macintosh) to a licensed foster

care home because of the caregiver’s financial limitations. In a status hearing in May

of 2023, 5 the Department told the trial court that Drew had been placed in a foster

home (Malorie and Bob Smith), and Dennis remained with Molly.

Evidence at Trial

Testimony of Katrina Petties

Katrina Petties testified that she is an investigator with the Department and

assigned to this case. Petties recalled that when she first met Cherie, the children’s

mother, in August of 2022, Cherie was in a psychiatric hospital. According to

Petties, Cherie told her she had lost her job at a convenience store, she was diagnosed

with depression and anxiety, and her children were with Molly Barton. Petties also

testified that Cherie told her the children “had no fathers.” Petties testified that

Cherie told her that, upon discharge from the hospital, she was going to a center that

was “kind of like a homeless shelter[]” and that she had previously been living in a

4
The record reflects that Cherie lived in Oklahoma at some time before this
case began.
5
A docket entry dated March 2, 2023, states that Drew was placed in a foster
home at that time.
5
hotel. Cherie also told Petties that she had been using “uppers and downers[]” as

recently as a couple of days before Petties met Cherie. Cherie also told Petties that

she had used drugs while she was pregnant. Petties also testified that Cherie

disclosed that Dennis had a discoloration or mark on his abdomen where “her sister

had been watching him and she picked him up too hard.”

According to Petties, she went to see the children the same day she talked with

Cherie. Petties testified that Dennis was with Molly Barton, whom Cherie had met

at a restaurant a couple of weeks earlier. Petties further testified that Cherie contacted

Molly to say she had been kicked out of a friend’s house and Cherie did not have

anywhere for her children to go. Petties explained that she met Drew the same day,

who was with “another caregiver[]” who knew Molly.

Petties testified that Molly contacted her around early September 2022 to say

that Cherie was getting out of the hospital and wanted her children back, and it was

then that the Department decided to remove the children due to Cherie’s drug use

and a reason-to-believe finding for neglectful supervision and to seek temporary

custody. Petties explained that Drew stayed with Molly Barton, and Dennis stayed

with Masie Macintosh because “the children were already settled.”

Petties testified that the Bartons provided her with photos of Dennis’s baby

bag, which were admitted into evidence. Petties identified drug paraphernalia,

6
including a pipe, in the photos of the baby bag, and she agreed the photos contributed

to the reason-to-believe finding of neglectful supervision.

On cross-examination, Petties testified that she worked as an investigator in

this case for about two weeks. She also testified that, other than the mark on Dennis’s

abdomen, the children did not have any unexplained injuries, they were

appropriately clothed and fed, and they did not appear to have any untreated medical

or dental conditions. She agreed that she observed the Bartons’ home and did not

have concerns about it, nor did she observe any dangerous conditions in their home.

Petties also did not have concerns about the Macintosh home, and she agreed that

Cherie left the children with responsible adults.

Testimony of Carla Sanders

Carla Sanders testified that she lives in Oklahoma, and she is Dennis’s and

Drew’s great aunt. Carla further testified that she had driven from Oklahoma four

times in connection with this case—once a month for the four months before trial.

Carla recalled that she saw the boys at the CPS office, and she had not seen Drew

do anything that would possibly harm Dennis nor was she concerned for Dennis to

be around Drew.

According to Carla, Drew and Cherie lived with her for about one and a half

or two years before Cherie moved to Texas, and Cherie “was there for several

months and [then she] would leave for a few weeks and come back.” Carla recalled

7
that Drew had lived in at least four homes when he was in Oklahoma. Carla agreed

that Cherie has a substance abuse problem, she saw Cherie continuing to “smoke

and other things” while she was pregnant, she had seen Cherie act “unusual” and

“erratic,” and Cherie would “[f]ly off the handle, get mad at things, [and] not be able

to control herself[]” and would yell at Drew. Carla said she was concerned for Drew

based on Cherie’s behavior and was concerned that Cherie would ignore Drew. Carla

recalled that CPS became involved at one point, but they gave the children back to

Cherie. Carla testified that Cherie was able to provide the children a safe home, but

“[i]t might not have always been stable[.]” Carla agreed there had been two

judgments against Cherie for child neglect of Drew and for public intoxication in

2016. A copy of a 2017 Oklahoma judgment against Cherie for child neglect and

public intoxication was admitted into evidence.

Carla testified that she was asking for managing conservatorship of Drew, but

her home study did not pass because of her and her husband’s income, her husband’s

health problems, and because she has a “medical marijuana card” for her anxiety.

Carla further testified that, even when Cherie was at Carla’s home, Carla and

her husband were caring for Drew and that, about every other month, Drew would

go to Carla’s home without Cherie. Carla also testified that one of her big concerns

was that Drew felt like he had to take care of his brother, Dennis, and she wanted

Drew to be able to enjoy his childhood. Carla further testified that she speaks with

8
Cherie periodically, and that she knew Cherie was pregnant with another child at the

time of trial. According to Carla, in 2016 Drew was in the Oklahoma Department’s

custody for a few days after he was removed from Cherie’s home.

Testimony of Molly Barton

Molly Barton testified that she met Cherie at a restaurant in July of 2022.

Molly recalled that Cherie appeared anxious, nervous, emotionally upset, and “not

taken care of.” Molly testified that she was concerned for Cherie and her children,

and she gave Cherie her phone number and told Cherie she would help. According

to Molly, Cherie reached out to her a few days later and Molly gave Cherie clothes

and food. At some point, it was decided that Cherie would “go into rehab[.]” Drew

was already staying with another family, and Molly agreed to watch Dennis.

According to Molly, Cherie and her boys had been staying with a friend, but the

friend kicked them out after a disagreement, and then Masie let the boys stay with

her family. Molly testified that Cherie told her she met Masie at a gas station. Molly

further testified that, during the case and while she cared for Dennis, Drew would

come over and stay the night.

Molly testified that there was an “incident” when Cherie was at the psychiatric

hospital when Cherie got upset because CPS was involved. Molly recalled that CPS

visited her home and asked if she could protect Dennis. Molly testified that she did

not contact CPS or law enforcement when she first met Cherie at the restaurant

9
because “[s]he had a safe place to go[,]” but she felt concerned enough to give Cherie

her phone number.

Molly testified that, when Drew was staying with Masie, the boys would see

each other every week until COVID interrupted the visitation schedule. According

to Molly, she was asked if she could also take Drew in addition to caring for Dennis,

but she said she could not, and Drew was moved to a licensed foster home in

February of 2023. Molly testified that she had concerns about Drew because she had

seen him “run over” or push Dennis during visitations and because she thought Drew

was “oversexualized” and “really curious wanting to play with [Dennis] down

there[]” when Dennis was being changed. Molly also testified she was concerned

that Drew would scream in Dennis’s face and grab his hair, and she was concerned

about Drew being with Dennis unsupervised. Molly testified that, at the time of trial

in August of 2023, Dennis had been living in her home for a year, Drew was living

with his foster mother, Malorie, and Drew had been in three homes since August of

2022.

Molly agreed she was responsible for Dennis’s medical care and getting him

evaluated for Early Childhood Intervention. According to Molly, she let the

Department know “immediately” when she noticed that Dennis showed signs of

being developmentally behind. She also agreed that Dennis needed tubes in his ears,

but they were still waiting for a date for the procedure at the hospital.

10
Testimony of John Barton

John Barton testified that, at the time of trial, he and his wife were taking care

of Dennis, and they wanted to be his sole managing conservators. John testified that

two granddaughters (ages 6 and 10) also live in his home, that the two girls love

Dennis, and they would be “heartbroken” if Dennis were to be taken away.

John testified that he had concerns about Dennis being around Drew because

of Drew “being sexually active[]” and because of anger issues, such as grabbing

Dennis’s hair and screaming. John also testified that Dennis was a little bit behind

developmentally but “he’s catching up.” John agreed that Dennis is sick quite often

as well. He explained that he declined to take Drew into their home because “he acts

out sexually[]” and because John and his wife also have two girls in their home.

Testimony of Malorie Smith

Malorie Smith testified that she and her husband are Drew’s foster parents,

Drew was placed in their home February 21, 2023, and Drew had been with them

for about six months at the time of trial. According to Malorie, they knew that Drew

has a younger brother who was placed with someone else. Malorie testified that

when she and her husband were asked whether they would be willing to take both

boys, they said yes, and they are willing to adopt both boys. Malorie testified that

she and her husband also have two biological children.

11
Malorie described Drew as sweet, “supersmart[,]” loving, and wanting

attention. In Malorie’s opinion, Drew’s maturity level was “above where a normal

8-year-old would be.” Malorie testified that Drew’s transition into their home was

“easy[,]” and she did not think Drew had behavior issues. Malorie also testified that

when Drew first came into their home, there was “a lot of arguing[]” and Drew can

be stubborn, but they worked through it. According to Malorie, Drew goes to therapy

once a week and to speech therapy twice a week, but he does not have special needs.

Malorie testified that she had seen Drew and Dennis together during visitations, but

she has not seen anything concerning between the two boys. Malorie testified that

Drew “sees a therapist [be]cause it’s required by CPS, but he doesn’t have any

emotional issue there.” Malorie testified that she had not seen any sexual behaviors

by Drew nor any inappropriate behavior.

Malorie testified that, as a family, they play games, swim in their pool, and go

to drive-through safaris. Her husband plays video games with Drew, and Drew is

involved with football, swimming, and various sports camps. Malorie also testified

that Drew feeds their animals with their daughter, who is involved in FFA.

Testimony of Shaunta Holmes

Shaunta Holmes testified that since September 30, 2022, she has been the

conservatorship caseworker for the Department in this case. According to Holmes,

when the Department became involved with the children in this case, Cherie had

12
already placed Drew and Dennis with different caregivers, so the Department did

not put the children together. Holmes testified that she asked Cherie to give the

Department the name of the father of each child, but Cherie did not provide any

names. Holmes also testified that a search of the paternity registry did not show that

anyone had registered as the father of either child.

After some complaints and issues about finances were made by Drew’s initial

caregiver, in February 2023, Drew was moved into a foster home. Holmes testified

that Dennis was not placed with Drew in the foster home because Drew needed to

get adjusted before adding another child in that home.

A court-ordered family service plan for Cherie was admitted into evidence.

Holmes testified that Cherie was not ever able to prove any employment or housing,

and Holmes did not know where Cherie was living. According to Holmes, her last

contact with Cherie was by text about five or six months before trial. Holmes also

testified that Cherie was required to complete a drug and alcohol assessment and

follow recommendations, and to obtain substance abuse services, but Cherie did not

do these things. Holmes further testified that the service plan required Cherie to be

drug tested, that Holmes sent Cherie for random drug tests during the case, but that

Cherie had not completed a drug test. In addition, Holmes testified that Cherie was

required to participate in mental health services, including psychiatric and

psychological evaluations, individual counseling, and follow-through on

13
recommendations, but she did not complete these services. Holmes testified that

Cherie was allowed to visit the boys during the case, but Cherie did not participate

in any visitations with her children.

Holmes testified that she was not aware of any sexualized behavior by Drew,

nor had she received any such complaints about such behavior. Holmes also testified

that she had never been concerned for Dennis’s safety around Drew, that she had

observed the boys to be bonded, loving, and caring, and that on one occasion when

the boys were together on a visitation, she saw Drew comfort Dennis. Holmes was

aware that Drew was seeing a psychologist. Holmes agreed that Drew had lived in

two homes since the Department became involved in this case and that he lived in

five or six homes in Oklahoma. Holmes testified that the Department referred Drew

for children’s services, but he did not start participating in them until he was placed

with foster parents in February of 2023.

Holmes agreed that in about October of 2022, she asked the Bartons to have

an Early Childhood Intervention evaluation for Dennis, which revealed he has a

developmental delay of several months. Holmes also testified that at some point,

Dennis started receiving services but later stopped, and he was not receiving services

at the time of trial. She had not been able to get medical records from the Bartons,

although she had requested them. Holmes testified that Drew received individual

therapy and trauma behavioral therapy.

14
Holmes testified that it was in the children’s best interest for Cherie’s parental

rights to Drew and Dennis be terminated due to her noncompliance with the court-

ordered service plan, her failure to participate in visitation of the children, and her

failure to demonstrate to the Department that she can provide a safe, stable, and drug-

free environment for her children. According to Holmes, the Department’s plan was

to have the boys adopted together in a home.

Testimony of the Court Appointed Special Advocate

The Court Appointed Special Advocate (“CASA”) testified that she had been

assigned to this case for both children from the beginning. She visited the children

on a weekly basis until she was injured in the summer of 2023, when her supervisor

took over. The CASA testified that Dennis is “always happy[,]” and he claps his

hands and sings. The CASA testified that Drew is very smart and very kind, and

since being at the foster parents’ (the Smiths) home, he has “settled down” and

“opens up” more. The CASA testified that she was told that one time, on a family

trip, Drew tried to get the Bartons’ youngest daughter to go into the restroom with

him. In the CASA’s opinion, Cherie’s parental rights to the boys should be

terminated because she “has not done any of the plan set forth for her.”

Testimony of CASA Supervisor

The CASA Supervisor had supervisory involvement in this case for both

children for the entire time the case was pending. The CASA Supervisor stepped in

15
for two months because the CASA had an injury. The CASA Supervisor testified

that Drew is very smart, and he loves to play board games and sports. The CASA

Supervisor testified that Dennis is sweet, playful, and “a little bit shy at first[.]”

According to the CASA Supervisor, he saw Cherie at the beginning of the case

through court hearings, and she thought Cherie “seemed under the influence.” The

CASA Supervisor did not recommend placing Drew with the Bartons because he

thought “there’s a negative vibe that is always directed towards” Drew. As for a

placement with Carla Sanders and her husband, the CASA Supervisor was

concerned about their health and the home study was denied. The CASA Supervisor

testified that, since Drew had been with the foster parents, Drew has come out of his

shell. The CASA Supervisor had no concerns about Drew being hypersexualized.

The CASA Supervisor agreed that Cherie’s parental rights to Drew and

Dennis should be terminated because Cherie has been unable to provide a stable

environment, concerns about her drug use, and her failure to try to see the children

during the case. The CASA Supervisor had seen both boys together at the foster

parents’ home, and she saw them being playful and affectionate with one another.

Photos of drug paraphernalia found in Dennis’s baby bag as photographed by

Molly Barton and given to the Department were admitted into evidence. Cherie did

not testify nor was she present for the trial. At the close of the Department’s case,

Cherie’s attorney moved for a directed verdict on subsections D and E on

16
endangerment because there was no evidence that the environment the children were

in was dangerous. The trial court denied the motion.

The jury found there was clear and convincing evidence that Cherie had

knowingly placed or knowingly allowed Drew and Dennis to remain in conditions

or surroundings that endanger their physical or emotional well-being; that Cherie

had constructively abandoned Drew and Dennis after the Department was appointed

temporary managing conservator; that Cherie failed to comply with the court-

ordered service plan as to both Drew and Dennis; that termination of Cherie’s

parental rights was in Drew’s and Dennis’s best interest; that Drew’s and Dennis’s

fathers were unknown; and that the Department should be appointed managing

conservator of Drew and Dennis. The jury also found that there was not clear and

convincing evidence that Cherie had engaged in conduct or knowingly placed Drew

and Dennis with persons who engaged in conduct that endangered the boys’ physical

or emotional well-being. The jury further found that John and Molly Barton should

not be appointed possessory conservator of Dennis. The trial court adopted the jury’s

verdict and ordered Cherie’s and the unknown father’s parental rights terminated

and the Department to be managing conservator for Drew and Dennis. The trial court

signed the Order of Termination on September 5, 2023. Cherie timely filed her notice

of appeal.

17
Issue

In a single issue on appeal, Appellant argues that no evidence was presented

that she knowingly placed or allowed Drew and Dennis to remain in conditions or

surroundings that endanger their physical or emotional well-being.6 According to

Appellant, there was no testimony about the conditions in which the children were

living when they lived with her, and the evidence also showed that the children were

living with two separate caregivers and that CPS had no concerns about these

caregivers. Appellant also argues that, although there was evidence that she had

“drug paraphernalia” when she provided a baby bag to a caregiver, there was no

evidence that the items were tested, that they contained illegal substances, or that

she had used any substances while in possession of the children. 7

Standard of Review and Applicable Law

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

convincing evidence. Tex. Fam. Code Ann. § 161.001(b). Under the Family Code,

“‘[c]lear and convincing evidence’ means the measure or degree of proof that will

6
Essentially, Mother challenges the jury’s finding based on section
161.001(b)(1)(D) of the Texas Family Code.
7
Although Mother’s brief states her issue as a “no evidence” challenge, her
cited legal authorities and argument address the legal and factual sufficiency of the
evidence. Therefore, we will treat her issue as challenging the legal and factual
sufficiency of the evidence as to subsection D. See Perry v. Cohen, 272 S.W.3d 585,
588 (Tex. 2008) (“‘[W]e liberally construe issues presented to obtain a just, fair, and
equitable adjudication of the rights of the litigants.’”) (quoting El Paso Nat. Gas v.
Minco Oil & Gas, Inc., 8 S.W.3d 309, 316 (Tex. 1999)).
18
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.” Id. § 101.007; In re J.L., 163 S.W.3d 79,

84 (Tex. 2005). In a suit to terminate the parent-child relationship, the Department

as the movant must show that the parent committed one or more predicate acts or

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

Ann. § 161.001(b); In re J.L., 163 S.W.3d at 84.

In reviewing the legal sufficiency of the evidence in a parental rights

termination case, we must consider all the evidence in the light most favorable to the

finding to determine whether a reasonable factfinder could have formed a firm belief

or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344-45 (Tex.

2009) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume the

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

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

disbelieved. Id. In a factual sufficiency review, we “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 State’s allegations.’” Id. (quoting In re C.H., 89 S.W.3d 17, 25

(Tex. 2002)). “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

19
factfinder could not reasonably have formed a firm belief or conviction, then the

evidence is factually insufficient.” Id.

“In reviewing termination findings for factual sufficiency, a court of appeals

must give due deference to a jury’s factfindings[] and should not supplant the jury’s

judgment with its own[.]” See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)

(internal citations omitted). Jurors are the sole judges of the credibility of the

witnesses and the weight to give their testimony, and they may choose to believe one

witness and disbelieve another. See City of Keller v. Wilson, 168 S.W.3d 802, 819

(Tex. 2005). “All evidentiary standards, including clear and convincing evidence,

recognize the relevance of circumstantial evidence.” In re Lipsky, 460 S.W.3d 579,

589 (Tex. 2015); see also In re R.H.W. III, 542 S.W.3d 724, 734 (Tex. App.—

Houston [14th Dist.] 2018, no pet.).

Under subsection D, the Department had the burden to prove, by clear and

convincing evidence, that Cherie knowingly placed or allowed Drew and Dennis to

remain in conditions or surroundings that endangered their physical or emotional

well-being. Tex. Fam. Code Ann. § 161.001(b)(1)(D). The term endanger means

“‘expose to loss or injury; to jeopardize.’” In re J.F.-G., 627 S.W.3d 304, 312 (Tex.

2021) (quoting “endanger,” Webster’s New Twentieth Century Dictionary of the

English Language 599 (1976)). Generally, a parent’s conduct that subjects a child to

a life of uncertainty and instability endangers a child’s physical and emotional well-

20
being. See In re J.O.A., 283 S.W.3d at 345 n.4 (citing In re R.W., 129 S.W.3d 732,

739 (Tex. App.—Fort Worth 2004, pet. denied)).

Under subsection D, parental rights may be terminated if clear and convincing

evidence supports 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 Ann. § 161.001(b)(1)(D). “Subsection D

requires the endangerment to the child to be the direct result of the child’s

environment.” See In re J.H., No. 09-20-00056-CV, 2020 Tex. App. LEXIS 6189,

at *34 (Tex. App.—Beaumont Aug. 6, 2020, no pet.) (mem. op.) (citation omitted).

“Endangerment under subsection (D) arises from a child’s environment and a

parent’s disregard for the potential for danger created by the environment.” In re

I.V.H., No. 01-19-00281-CV, 2019 Tex. App. LEXIS 8659, at *14 (Tex. App.—

Houston [1st Dist.] Sept. 26, 2019, pet. denied) (mem. op.) (citation omitted). We

consider the child’s environment before the Department obtained custody in our

subsection D endangerment analysis. See In re J.L.V., No. 09-19-00316-CV, 2020

Tex. App. LEXIS 2070, at *34 (Tex. App.—Beaumont Mar. 11, 2020, pet. denied)

(mem. op.). Under subsection D, termination may be based on a parent’s single act

or omission. In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet.

denied). It is unnecessary that a parent know with certainty the child is in an

endangering environment; instead, awareness of the potential for danger and

21
disregarding the risk is enough to show endangering conduct. See In re J.H., 2020

Tex. App. LEXIS 6189, at *35.

A pattern of drug abuse will support a finding of conduct endangering a child

even if there is no evidence that such drug use caused a physical or actual injury to

the child. See In re J.O., No. 09-21-00341-CV, 2022 Tex. App. LEXIS 1769, at *31

(Tex. App.—Beaumont Mar. 17, 2022, pet. denied) (mem. op.); Vasquez v. Tex.

Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189, 196 (Tex. App.—Houston

[1st Dist.] 2005, pet. denied). A history of illegal drug use is conduct that subjects a

child to a life that is uncertain and unstable, endangering the child’s physical and

emotional well-being. In 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). A parent’s drug use, criminal

history, and employment and housing instability prior to and during the case create

a course of conduct from which the factfinder could determine the parent endangered

the child’s emotional and physical well-being. See In re M.C., No. 09-18-00436-CV,

2019 Tex. App. LEXIS 2961, at **15-16 (Tex. App.—Beaumont Apr. 11, 2019, no

pet.) (mem. op.); 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). A

parent’s continued drug use when the custody of her child is in jeopardy supports a

22
finding of endangerment. See 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, 253-54 (Tex.

App.—Houston [1st Dist.] 2006, no pet.)). Further, a factfinder can reasonably infer

that a parent’s failure to submit to court-ordered drug tests indicated the parent was

avoiding testing because she was using illegal drugs. In re E.R.W., 528 S.W.3d 251,

265 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

Analysis

In this case, in addition to finding that termination of Cherie’s parental rights

was in Drew’s and Dennis’s best interest, the jury found there was clear and

convincing evidence to support three statutory bases for termination: subsections D

(endangerment), N (constructive abandonment), and O (failure to comply with a

court-ordered service plan). See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (N), (O),

(2). Cherie only appeals the jury’s finding as to subsection D. Ordinarily, only one

statutory basis for termination is necessary to sustain a trial court’s order terminating

parental rights. See In re Z.M.M., 577 S.W.3d 541, 542 (Tex. 2019); In re A.V., 113

S.W.3d 355, 362 (Tex. 2003). However, the Texas Supreme Court has held that,

when a parent has appealed a finding on subsections D or E, due process requires

that an appellate court review the issue even when another statutory ground is

sufficient for termination because of the potential consequences for parental rights

23
to a different child in a later proceeding. See In re N.G., 577 S.W.3d 230, 235-36

(Tex. 2019).

Katrina Petties, an investigator for the Department, testified that Cherie told

her the children had “no fathers[,]” she had lost her job, and she was diagnosed with

depression and anxiety. At the time, Cherie was in a psychiatric hospital, and upon

release, Cherie planned to go to a homeless shelter. Cherie also told Petties that she

had given her children to two women she had just met. Petties testified that Cherie

told her she had been using “uppers and downers[]” and she had also used drugs

when she was pregnant. Petties also testified that Molly Barton had given her photos

of Dennis’s baby bag that Molly received from Cherie, and inside the bag was drug

paraphernalia, including a drug pipe.

After one of the caregivers (Masie) had financial issues taking care of Drew,

Drew was placed with a foster family. Shaunta Holmes, the caseworker, testified

that Cherie had not completed any of the services in her court-ordered service plan

and she had not visited the boys at all during the case. Holmes also testified that she

had referred Cherie for random drug tests during the case, but that Cherie had not

completed any drug tests. Carla, the great aunt to Drew and Dennis, testified that she

had witnessed Cherie act erratic and volatile, and that Cherie had not always been

able to provide a stable home for the boys. Carla also testified that there were

judgments in Oklahoma against Cherie for child neglect and public intoxication.

24
Molly Barton and Molly’s husband, who cared for Dennis, testified that Cherie asked

Molly to take Dennis after she met Cherie in a restaurant and Cherie appeared

emotionally upset and “not taken care of.” Molly also testified Cherie had asked

another acquaintance (Masie) to take care of Drew, but Cherie had just met Masie at

a gas station.

Molly testified that Dennis showed signs of being developmentally behind

and needed tubes in his ears. Molly’s husband John testified that he was concerned

about Drew being around Dennis because Drew was “sexually active[,]” Drew had

anger issues, and Drew sometimes would scream at Dennis and pull his hair. The

caseworker testified that Drew had lived in two homes since this case began and he

had lived in five or six homes in Oklahoma. She also testified that Drew was

receiving individual therapy and trauma behavioral therapy. She testified that she

was not aware of sexualized behavior by Drew. The caseworker also testified that

Dennis showed signs of developmental delay.

Based on the testimony and evidence in this case, the jury could have

concluded that Cherie’s conduct subjected Drew and Dennis to a life of uncertainty

and instability that endangered their physical and emotional well-being. See In re

J.O.A., 283 S.W.3d at 345 n.4. Evidence of Cherie’s drug use and emotional and

housing instability prior to and during the case reflect a course of conduct from

which the jury could conclude that Cherie endangered the children’s emotional and

25
physical well-being. See In re M.C., 2019 Tex. App. LEXIS 2961, at **15-16. The

jury could also reasonably have inferred that Cherie’s failure to submit to court-

ordered drug tests indicated that she was avoiding testing because she was still using

illegal drugs. See In re J.O., 2022 Tex. App. LEXIS 1769, at **31-32; In re E.R.W.,

528 S.W.3d at 265.

Viewing the evidence in the light most favorable to the jury’s findings, we

conclude that the jury could reasonably have formed a firm belief or conviction that

Cherie, through her acts or omissions, knowingly placed or knowingly allowed Drew

and Dennis to remain in conditions or surroundings that endangered their physical

or emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D). Further, in

light of the entire record, we conclude the disputed evidence the jury could not

reasonably have credited in favor of its endangerment finding is not so significant

that the jury could not reasonably have formed a firm belief or conviction that Cherie

endangered the children. See In re J.F.C., 96 S.W.3d at 266. Therefore, we conclude

that the evidence was legally and factually sufficient to support the jury’s verdict

and the trial court’s Order of Termination. See id.; In re J.O., 2022 Tex. App. LEXIS

1769, at **35-36; In re J.L.V., 2020 Tex. App. LEXIS 2070, at **36-37. We overrule

Appellant’s issue.

26
Having overruled Appellant’s issue, we affirm the trial court’s Order of

Termination.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on December 22, 2023
Opinion Delivered January 25, 2024

Before Golemon, C.J., Horton and Johnson, JJ.

27