In the Interest of H.R.S. v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00375-CV
__________________

IN THE INTEREST OF H.R.S.

__________________________________________________________________

On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 22-12-16955-CV
__________________________________________________________________

MEMORANDUM OPINION

This is a parental rights termination case. Following a bench trial

in the suit affecting the parent-child relationship (SAPCR), the trial court

terminated the parent-child relationship between H.R.S. (Hunter) and

his mother (Mother). 1 When the trial ended, the trial court found by clear
0 F

1We have used pseudonyms for the names of the minor and his
mother to protect Hunter’s identity. Tex. R. App. P. 9.8 (Protection of
Minor’s Identity in Parental-Rights Termination Cases). The trial court
also terminated the parental rights of three men the Department alleged
1
and convincing evidence that six statutory grounds existed to support

terminating Mother’s relationship with Hunter and found that

terminating her rights to Hunter is in Hunter’s best interest. 21 F

In one issue, Mother challenges the order terminating her parental

rights, arguing the evidence is legally and factually insufficient to

support the trial courts predicate findings under: (1) subsection (D), that

she knowingly placed or knowingly allowed Hunter to remain in

conditions or surroundings that endangered his physical or emotional

well-being; (2) subsection (E), that she engaged in conduct or knowingly

placed Hunter with persons who engaged in conduct that endangered his

physical or emotional well-being; (3) subsection (N), that she

constructively abandoned Hunter; (4) subsection (O), that she failed to

comply with the provisions of a court-ordered-family-service; (5)

in its petition as the men who might be Hunter’s father. None of the
alleged fathers filed notices of appeal. See Tex. Fam. Code Ann. §
161.002(b)(3) (authorizing the rights of alleged fathers to be terminated
for children who are not yet one-year old if the petition seeking to
terminate the parent-child relationship is filed before the child’s first
birthday or if an alleged father hasn’t registered with the paternity
registry).
2Id. §§ 161.001(b)(1)(D), (E), (N), (O), (P), (R); 161.001(b)(2).

2
subsection (P), that she used a controlled substance in a manner that

endangered Hunter’s health or safety and failed to complete a court-

ordered, substance-abuse-treatment program; and (6) subsection (R),

that she was a cause of Hunter’s being born addicted to alcohol or a

controlled substance, other than a controlled substance legally obtained

by prescription. Mother also challenges the trial court’s finding under

section 161.001(b)(2) that terminating her rights to Hunter is in Hunter’s

best interest. 3 Relying on these findings, the trial court signed a
2 F

judgment terminating Mother’s relationship with Hunter, and

subsequently Mother filed a timely appeal.

We address Mother’s arguments challenging the trial court’s

subsections (D) and (E) findings first and will not reach Mother’s

remaining arguments, which (broadly construed) challenge the trial

court’s predicate findings under subsections (N), (O), (P), and (R). 4 On3 F

3Id. §§ 161.001(b)(1)(D), (E), (N), (O), (P), (R); 161.001(b)(2).
4Id. §§ 161.001(b)(1)(D) (conditions-based endangerment), (E)
(conduct-based endangerment), (N) (constructive abandonment), (O)
(failed to comply with court-ordered family service plan), (P) (used a
controlled substance in a manner that endangered a child and failed to
comply with a court-ordered substance abuse treatment program), and
(R) (caused a child to be born addicted to alcohol or a controlled
3
appeal, an appellate court need not reach every argument raised by the

appellant if the evidence is sufficient to support one of the predicate

grounds on which the trial court relied to terminate the parent-child

relationship and the evidence also supports the trial court’s best-interest

finding because when the evidence supports a predicate finding and a

best-interest finding the trial court’s order terminating a parent’s

relationship with their child will withstand the parent’s sufficiency

challenge on appeal. 5
4 F

Because we conclude the evidence admitted in the trial is sufficient

to support the trial court’s condition- and conduct-endangerment

findings, we overrule Mother’s sole issue and affirm the trial court’s

Order of Termination.

Background

Our discussion of the background focuses on the evidence relevant

to Mother’s placing, allowing, or engaging in conduct that endangered

substance, other than a controlled substance legally obtained by a
prescription).
5In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); see also Tex. R. App.

P. 47.1 (allowing courts of appeals to limit their discussions in opinions
to the issues necessary to the disposition of the appeal).
4
Hunter’s physical or emotional well-being since a trial court’s subsection

(D) and (E) findings, when challenged by a parent, must be reviewed on

appeal. 6
5 F

The appellate record shows that within a week of Hunter’s birth,

the Department filed its Original Petition for Protection of a Child, for

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

Relationship with the Montgomery County District Clerk. The

Montgomery County District Clerk assigned the case to the County Court

at Law Number 3. 7 The Department’s petition is supported by an
6 F

affidavit signed by Sophia Cortez, a CPS Investigator employed by the

Department. Among other things, Cortez’s affidavit alleges that after

6See In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (holding that given

the potential collateral consequences of a trial court’s condition-based
and conduct-based endangerment findings under section
161.001(b)(1)(D) or (E), a parent has a liberty interest in having these
findings reviewed on appeal and that a failure of an appellate court to
review them would run afoul of a parent’s fundamental liberty interest
in parenting).
7The county courts at law in Montgomery County have concurrent

jurisdiction with district courts in family law cases. So even though the
district clerk file stamped the petition, the district clerk serves as the
clerk of the county courts at law for the cases in which the district and
the Montgomery County courts at law have concurrent jurisdiction. See
Tex. Gov’t Code Ann. § 25.1722(a)(1), (e).
5
Hunter was born, a social worker contacted the Department and advised

the Department that: (1) Hunter’s mother told the hospital upon her

admission that she had used heroin but denied she was currently using

drugs; (2) Mother “was positive for opiates, amphetamines, and

benzodiazepines[;]” (3) the day after Mother was admitted to the hospital

and gave birth to Hunter, Mother left the hospital against medical advice;

(4) when Mother returned to the hospital, she was “under the influence”

and “found to have several needles in her possession and drug residue

was found in her bag[;]” and (5) when Mother returned to the hospital,

she admitted “to heroin use[,]” and “that the mother is now in the

intensive care unit[,] . . . is intubated, in respiratory failure, having drug

withdrawals, and [] it is unclear whether or not she will survive.” Cortez’s

affidavit also states that Mother has a criminal history, including charges

for possession of marijuana and a controlled substance, and Cortez also

advised the Department that Mother has a history with Child Protective

Services. Cortez’s affidavit concludes by stating that Hunter’s mother

“has continued to show a pattern of drug use and has tested positive for

drugs with the births of all of her children. The child, [Hunter], is now

6
suffering from drug with draws (sic) due to his mother’s (mother’s name

deleted) abuse.”

The trial court granted the Department’s petition requesting that

Hunter be temporarily removed from Mother’s custody, the trial court

placed Hunter into the temporary custody of the Department, and

subsequently, the judge conducted a full adversary hearing. At the

conclusion of the full adversary hearing, the judge signed temporary

orders requiring that Mother, among other things, “comply with the

requirements” of “the Department’s original, or any amended, service

plan during the pendency of this suit.” The Department’s family service

plan required Mother, among other things, to “engage in and complete a

drug and alcohol assessment with a licensed service provider . . . and

follow all recommendations given to her from this assessment and [ ]

actively participate and complete all recommended services.”

In November 2023, the trial court called the case to trial. Three

witnesses testified during the trial: (1) the Department’s caseworker,

Signora Hadnot; (2) the Court Appointed Special Advocate, whom we will

7
call the CASA; and (3) Hunter’s foster mother (Pat). 8 In addition to the
7 F

testimony of these witnesses, the trial court admitted nineteen exhibits

into evidence during the trial, including Petitioner’s Exhibit 7, an exhibit

that contains the medical records the Department obtained from HCA

Kingwood Medical Center (HCA Kingwood) in Kingwood, Texas, the

hospital in which Hunter was born.

Hunter’s medical records from HCA Kingwood were admitted into

evidence without objection during the trial. The records show that

Hunter was born at HCA Kingwood in December 2022. His mother was

twenty-eight years old when he was born. The doctor who delivered

Hunter admitted him into the hospital’s neonatal intensive care unit

(NICU) the day he was born. Hunter’s doctor diagnosed Hunter as a

preterm newborn (34 weeks of gestation), and his medical records show

that he had anemia, neonatal withdrawal symptoms from his mother’s

use of drugs, “affects from his mother’s use of opiates,” and he tested

positive for opiates at birth. Hunter’s admission history also shows that

8A pseudonym.

8
during mother’s pregnancy with Hunter, Hunter’s mother didn’t receive

any prenatal care.

Based on Hunter’s doctor’s diagnosis of “Drug Withdrawal

Syndrome-newborn-mat[ernal] exp[osure,]” his doctor started him on a

morphine treatment therapy. Hunter’s medical records show that he was

then slowly weaned from the morphine over the next thirty days. The day

that the morphine therapy started, Hunter’s records reflect that his

“mother left [the hospital] against medical advice yesterday [around

eight o’clock pm].”

That said, Hunter’s medical records also show that Mother

returned to the hospital the following day “concerned about her blood

pressure and [] complaining of severe abdominal pain.” 9 The notes in
8 F

Hunter’s medical records state that “Mother with Heroin dependency and

admits to using half a gram of heroin a day.” Hunter’s records reflect that

9Hunter’s mother’s medical records were not offered or introduced

into evidence in the trial. Mother did not testify in the trial. For those
reasons, the only information about Mother’s medical treatment is the
information that was incidentally included in the records the
Department obtained from HCA Kingwood tied to Hunter’s birth, records
the Department obtained based on its use of a medical authorization that
was signed by Hunter’s custodian.
9
Mother told a social worker at the hospital that she wanted “to go to [a

certain detox facility, which Mother named] for detoxing from IV heroin

use.”

On the third day of Hunter’s stay in the NICU, according to

Hunter’s records, Mother was admitted into the hospital’s intensive care

unit “for severe agitation.” When Mother failed to respond after she was

given doses of several drugs while in intensive care, she was intubated.

The medical records in evidence reflect that a social worker at the

hospital tried to locate a drug treatment center that would accept Mother

as a patient once the physician responsible for admitting Mother to the

hospital determined she was “medically stable.” Hunter’s medical records

show that the endotracheal tube that Mother was given to help her

breathe was removed either later the day she was intubated or the next

day. 10
9 F

10As
previously mentioned, the information in Hunter’s records
about Mother’s treatment isn’t complete because the records in evidence
don’t include records, if any, the Department may have obtained if
Mother signed a medical authorization that authorized the Department
to obtain her medical records. Also, Mother’s attorney never offered
Mother’s medical records into evidence during the trial.
10
Hunter was in the NICU for nearly five weeks before he was

discharged by the hospital into the custody of the Department. When

Hunter was discharged, the Department placed him in a foster home. The

discharge summary from Hunter’s hospital records states that he was

“[d]oing well clinically at time of discharge.” It also notes that when

Hunter was born, he had “increased tone and irritability [resulting from

his] illicit drug exposure,” which improved after he was treated with the

medication and “nonpharmacological comfort measures” while in the

NICU. The report concludes Hunter “is at risk for neonatal abstinence

syndrome.”

We turn next to the testimony that the trial court heard during the

trial. The Department’s attorney called Signora Hadnot, the

Department’s caseworker, as its first witness. Hadnot explained that in

January 2023, she was assigned to work on Hunter’s case. Without

objection, Hadnot testified that during a status hearing in February

2023, Mother testified that her drug of choice was heroin and that Mother

also testified she began using heroin when she was twenty-years old.

Hadnot explained the Department’s service plan required Mother to

11
participate at the Department’s request in random urinalysis and hair

follicle tests, but that Mother failed to comply with the Department’s

requests that Mother be tested for drugs.

According to Hadnot, she was present at the courthouse for a

permanency hearing in Hunter’s case on September 21, 2023, when she

saw Mother outside the courtroom before a permanency hearing in the

case, which had been scheduled to begin that day. According to Hadnot,

when she saw Mother, Mother “seemed to be incoherent, slurring her

words, something – she – she was not in the right state.” The trial court’s

docket sheet shows that the parties’ attorneys appeared for the

permanency hearing but that “No parents appeared[;] . . . Parties entered

in Rule 11 recently with an agreement for Mother to take a drug test, but

she did not appear for that; She has not taken one drug test during the

case[.]”

When Hadnot testified, she also described the information in

Hunter’s medical records including the fact that the records note

Mother’s use of drugs. But since we have already described most of the

relevant information tied to the drug use that is in these records, we will

12
not repeat that same information here to the extent that Hadnot relied

on the information in the medical records in describing Mother’s use of

drugs. In addition to emphasizing that the medical records suggest that

Mother used heroin while she was pregnant with Hunter, Hadnot

testified that based on the investigation that she conducted in Hunter’s

case, she learned that Mother has two other children but doesn’t have

custody of either child. Hadnot explained that Mother acknowledged that

she had given these two children up for adoption. According to Hadnot,

she had asked Mother for the information she needed to contact the

adoptive parents of these two children, but Mother had not given her

sufficient information to find and contact the adoptive parents. 11
1 0 F

Hadnot also addressed what Mother completed and didn’t complete

of her family service plan. According to Hadnot, Mother completed the

parenting class, drug assessment, and psychological evaluation, but she

never successfully completed the drug treatment plan. Hadnot also

testified that the service plan required that Mother participate in random

11In Hunter’s medical records, the maternal history section of the

records state that Mother “[h]as a 7[-] and 2[-]year old. She does not have
custody of either child.”
13
urinalysis and hair follicle tests, but Mother had not complied with the

plan’s requirements by submitting to these tests. For example, Hadnot

told the court that even though Mother had enrolled and participated in

a drug treatment program, Mother refused to comply with her request to

share the tests results Mother received on the drug tests she was given

when she was enrolled in that program. 12 1 1 F

Hadnot also described the problems she had during the pendency

of the case communicating with Mother. For example, Hadnot said that

Mother didn’t consistently maintain her visitation schedule with Hunter

after the trial court ordered him removed from Mother’s custody and

before the case went to trial. According to Hadnot, during August 2023

12Hadnot did acknowledge receiving a copy of one drug screen test

that Mother took while she was in a drug treatment program. Yet Hadnot
did not explain whether Mother is the person who provided her with the
copy of the test result, what the result was on that test, and Hadnot was
never asked to explain where she acquired the information showing what
Mother’s result was on the test. The evidence that was admitted during
the trial shows that during the time that Mother was in a drug treatment
program, drug tests were administered according to the program’s
protocol “on a regular basis.” So, the trial court could have concluded have
were multiple test results available from the program that Mother failed
to provide to the Department despite Hadnot’s request that Mother
provide the Department with the results of all her tests.
14
Mother’s visits “really started falling off[,]” as that month Mother “began

having no shows” even though Mother would confirm a visit “and then

not show up.” In the three-months period before trial, Hadnot said,

Mother did not visit Hunter at all because the court had ordered Mother’s

visits suspended until she both submitted to a drug screen and obtained

a clean result.

Hadnot told the court that Mother failed to cooperate with the

Department’s investigation in several other respects. In an unannounced

visit in October 2023, Hadnot said she arrived and found that she couldn’t

gain entrance to the property where Mother was living because the gate

to the property was secured by a chain, which was locked. According to

Hadnot, when she called Mother and Mother found out that Hadnot was

at the residence and needed someone to unlock the gate, the call suddenly

disconnected. After the incident at the gate, Hadnot said her

communications with Mother had been limited to text messages as

Mother “did not talk to me over the phone.” Even though Hadnot agreed

that Mother sent text messages to her in response to the text messages

she sent Mother, Hadnot characterized the responses that Mother sent

15
her by text as consisting of nothing more than excuses for why Mother

couldn’t meet Hadnot in person.

When asked what concerns the Department would have if Hunter

were to be returned to Mother, Hadnot testified that “the child would not

be safe. The child would be – I think the child would be in danger with

her current state of drug use.” Hadnot testified that the Department’s

plan is for Hunter to be adopted by his foster placement, which she

described as “very much” in his best interest.

On cross-examination, Mother’s attorney established that Mother

had enrolled in and was receiving treatment and counseling in a

methadone-maintenance treatment program and recently enrolled in

college. A one-page letter, dated in April 2023, which is from the

treatment program in which Mother was enrolled, was marked as an

exhibit and admitted into evidence during the trial. The letter shows that

as of April 20, 2023, Mother had been in the treatment program since

February 2, 2023. The letter also states:

This treatment is not a form of detoxication, and in a patient
with long-term opioid dependence, it is reasonable to expect
long-term and perhaps indefinite maintenance on OPIOD
Pharmacotherapy Treatment (METHADONE) along with
16
counseling. Failure to pursue this course will result in a high
probability of return to short-acting opiate drugs in order to
prevent withdrawal symptoms. P[atien]t has been compliant
with our program.”

The Department’s attorney called Hunter’s Court Appointed

Special Advocate, his CASA, to develop information from the CASA to

support the Department’s claims. First, Hunter’s Casa testified that she

understood the Department’s goal in Hunter’s case was for his current

foster family to adopt him, and she said that she was in “agreement with

that” goal. Second, Hunter’s CASA testified that Hunter’s foster parents

love him, take care of him, and they meet his physical and emotional

needs. Third, the CASA told the court that she had spoken to Mother,

and that in her opinion it would not be safe to return Hunter to her

because Mother,

has not shown responsibility in getting herself clean. She is
not able to stay out of criminal mischief, criminal problems
. . . [Mother] has never stated a permanent address to me to
even be able to visit and see if she even has an environment
conducive to taking care of the child.

As to the criminal mischief the CASA discussed, the exhibits

admitted into evidence in the trial include exhibits that show Mother was

arrested several times after Hunter was born. In May 2023, Mother was
17
arrested for theft and for driving while intoxicated. She pleaded guilty to

the theft and driving while intoxicated charges, and the trial court

sentenced her to serve twenty-two days in jail, with credit for time served.

On October 5, 2023, Mother was indicted for possessing

methamphetamine on or about May 28, 2023, a third-degree felony. Later

that month on the indictment for possession of meth, Mother pleaded

guilty, the trial court deferred adjudicating her guilt, and placed Mother

on community supervision for three years. On or about September 25,

2023, Mother was charged with evading arrest. That charge was

dismissed after Mother pleaded guilty in the cases we have already

described.

The CASA testified that she agreed that Mother’s rights should be

terminated and that, in her opinion, it would be in Hunter’s best interest

if the court were to terminate Mother’s parental rights. On cross-

examination, the CASA agreed she had seen Mother when Mother

exercised her visitation rights. The CASA conceded it was obvious that

Mother loves Hunter and that Mother had begun to bond with him.

18
The Department called Pam, Hunter’s foster mother, as the

Department’s last witness. Pam testified that Hunter had been in her

home and in her care since being released from the hospital in January

2023. Pam testified that she said she was aware that the Department’s

goal was for her to adopt Hunter, and she told the court that she was

certain that she and her husband “want to adopt[.]” Pam explained that

since Hunter has lived in her home, she has taken care of him and all of

his physical and medical needs. She also told the court that Hunter is

“loved by all of our friends, family, I mean, everyone. He’s very loved.”

At the conclusion of the trial, the trial court orally announced that

it would find that the evidence supported terminating Mother’s parent-

child relationship with Hunter under subsections (D), (E), (N), (O), (P),

and (R). 13 The trial court also found that terminating Mother’s parental
1 2 F

rights to Hunter is in Hunter’s best interest. 14 On November 14, 2023,
1 3 F

13Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (N), (O), (P), (R).
14Id. § 161.001(b)(2).

19
the trial court signed an Order of Termination, which tracks the findings

the trial court orally pronounced in the trial. 15
1 4 F

Standard of Review

In Mother’s sole issue, she argues the evidence is legally and

factually insufficient to support the trial court’s order terminating her

parent-child relationship with Hunter. At trial, the Department had the

burden to prove through clear and convincing evidence that Mother’s

relationship with Hunter should be terminated. 16 Clear and convincing
1 5 F

evidence is statutorily defined: it means “the measure or degree of proof

that will produce in the mind of the trier of fact a firm belief or conviction

as to the truth of the allegations sought to be established.” 17 In cases
1 6
F

tried to the bench, the trial court acts as the factfinder and decides which

15The case was tried to an associate judge. However, the Clerk’s

Record contains a Rule 11 agreement in which the parties signed a
stipulation waiving their rights to appeal the associate judge’s rulings to
the referring court (which in this case would have been the judge of the
County Court at Law Number 3, although no order of referral was
included in the appellate record). Yet while the parties waived their right
to appeal the associate judge’s rulings to the referring court, they
expressly reserved their right to appeal from any final order or judgment
that resulted from the ruling or recommendation of the associate judge.
16Id. § 161.001(b).
17Id. § 101.007; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

20
witnesses are credible, how to weigh the testimony, and resolves any

conflicts and inconsistencies that may exist in the testimony. 18 Yet even
1 7 F

though a clear and convincing evidence standard applies to our review,

“[a]ll evidentiary standards, including clear and convincing evidence,

recognize the relevance of circumstantial evidence.” 19 1 8 F

When reviewing for legal insufficiency, we review all the evidence

“in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that

its finding was true.” 20 We assume the factfinder resolved the disputed
1 9 F

facts in a manner that favors the finding it made if a reasonable

factfinder could have resolved the issue that way. 21 For that reason, we
2 0 F

disregard all evidence that a reasonable factfinder could have disbelieved

or found to have been incredible. 22 If we conclude that no reasonable
2 1 F

18See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); In

the Int. of D.P., No. 09-22-00048-CV, 2022 Tex. App. LEXIS 5279, at *24
(Tex. App.—Beaumont July 28, 2022, pet. denied).
19In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015).
20In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
21Id.
22Id.

21
factfinder could form a firm belief or conviction that the fact in dispute is

true, we must find the evidence legally insufficient. 23 2 2 F

On the other hand, under a factual sufficiency review, the reviewing

court “give[s] due deference” to findings the trial court made in the

trial. 24 In other words, the reviewing court must avoid supplanting the
2 3 F

judgment the factfinder made with a “judgment of its own.” 25 The 2 4 F

question that is to be answered in the appeal is “whether the evidence is

such that a factfinder could reasonably form a firm belief or conviction

about the truth of the State’s allegations.” 26 “If, in light of the entire
2 5 F

record, the disputed evidence that a reasonable factfinder could not have

credited in favor of the finding is so significant that a factfinder could not

reasonably have formed a firm belief or conviction, then the evidence is

factually insufficient.” 27 Under factual sufficiency review, the court
2 6 F

reviewing the evidence must avoid applying a standard that requires the

Department to prove beyond reasonable doubt that the parent engaged

23See In re J.L., 163 S.W.3d at 85.
24In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (cleaned up).
25Id.
26In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
27In re J.F.C., 96 S.W.3d at 266.

22
in the conduct that ran afoul of one of the twenty-six grounds the

legislature listed for terminating the parent-child relationship. 28
2 7 F

On appeal, to support an argument that the evidence is factually

insufficient to support a verdict, the parent challenging the verdict

should explain why the factfinder could not have credited the evidence

the parent challenges in favor of the finding the parent disputes. 29 A 2 8 F

reviewing court will not find the evidence factually insufficient unless “in

light of the entire record, the disputed evidence that a reasonable

factfinder could not have credited in favor of the finding is so significant

that a factfinder could not reasonably have formed a firm belief or

conviction” in favor of its finding. 30
2 9 F

In her appeal, Mother also challenges the trial court’s best-interest

finding. In reviewing a best-interest finding, we examine the record for

the evidence that addressed the various, non-exclusive factors relevant

to a child’s best interest against the nonexclusive factors the Texas

28In re H.R.M., 209 S.W.3d at 108.
29See In re J.F.C., 96 S.W.3d at 266.
30Id. at 267.

23
Supreme Court identified in Holley v. Adams. 31 Yet the factors set out in
3 0 F

Holley aren’t exclusive, and the evidence in the record tied to the

factfinder’s decision-making process in reaching its best-interest finding

need not include evidence that addressed all nine Holley factors. 32
3 1 F

31See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). In
Holley, the Texas Supreme Court used these factors when reviewing the
best-interest finding:
• the child’s desires;
• the child’s emotional and physical needs, now and in the future;
• the emotional and physical danger to the child, now and in the
future;
• the parenting abilities of the parties seeking custody;
• the programs available to assist the party seeking custody;
• the plans for the child by the parties seeking custody;
• the stability of the home or the proposed placement;
• the parents’ acts or omissions that reveal the existing parent-
child relationship is improper; and
• any excuse for the parent’s acts or omissions.
32In re C.H., 89 S.W.3d at 27 (noting the lack of evidence on some

Holley factors “would not preclude a factfinder from reasonably forming
a strong belief or conviction that termination is in the child’s best
interest”).
24
Analysis

The Endangerment Findings

Mother combined all her arguments in a single issue even though

she challenged all seven of findings the trial court relied on to terminate

her rights in the brief that she filed to support her appeal. 33 We address
3 2 F

Mother’s arguments challenging the trial court’s condition-based and

conduct-based endangerment findings first to decide whether the

evidence supports either of those findings before addressing the

arguments Mother raises challenging the trial court’s other findings. 343 3 F

While similar, the condition-based and conduct-based subsections,

subsection 161.001(b)(1)(D) and (E), are not identical. Under subsection

(D), the Department had to prove by clear and convincing evidence that

Mother knowingly placed Hunter or allowed Hunter to remain in

conditions or surroundings that endangered his physical or emotional

well-being. 35 Under subsection (E), the Department had the burden to
3 4 F

33Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (N), (O), (P), (R);

161.001(b)(2).
34Id. § 161.001(b)(1)(D), (E).
35Id. § 161.001(b)(1)(D).

25
prove by clear and convincing evidence that Mother engaged in conduct

or knowingly placed Hunter with persons who engaged in conduct that

endangered his physical or emotional well-being. 36 As used in 3 5
F

subsections (D) and (E), the commonly understood meaning of the term

endanger is “to expose to loss or injury; to jeopardize.” 37
3 6 F

Generally, a parent’s conduct that subjects a child to a life of

uncertainty and instability has engaged in conduct that endangers their

child’s physical and emotional well-being. 38 That said, proof of
3 7 F

endangerment requires “more than a threat of metaphysical injury or the

possible ill effects of a less-than-ideal family environment[,]” yet “it is not

necessary that the conduct be directed at the child or that the child

actually suffers an injury.” 39 Rather, endangering a child based on a
3 8 F

parent’s conduct means “to expose a child to loss or injury or to jeopardize

36Id. § 161.001(b)(1)(E).
37Inre J.F.-G., 627 S.W.3d 304, 313 (Tex. 2021); Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (citing Endanger,
Webster’s New Twentieth Century Dictionary of the English Language
599 (1976)).
38See In re J.O.A., 283 S.W.3d 336, 345 n.4 (Tex. 2009).
39Boyd, 727 S.W.2d at 533.

26
a child’s emotional or physical health.” 40 And importantly, the parent’s
3 9 F

endangering conduct need not occur in the child’s presence, so conduct

relevant to a factfinder’s decision may include conduct that occurred

before or after the child the subject of the Department’s suit was born. 41
4 0 F

Generally, from evidence of a parent’s past conduct showing the parent

subjected a child to a life of uncertainty and instability, a factfinder may

infer that the parent will continue to engage in the conduct and the same

conduct will endanger another child’s physical and emotional safety and

well-being. 42
4 1 F

Here, the evidence shows that when Hunter was born, Mother was

an IV heroin user who had been using heroin for approximately eight

years. To be sure, after Hunter was born, Mother enrolled in a methadone

treatment program and enrolled in college. Yet the most current

document that Mother’s attorney presented in the trial to establish that

40In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
41See J.O.A., 283 S.W.3d at 345; In the Int. of B.P., No. 09-22-00031-

CV, 2022 Tex. App. LEXIS 4277, at *25 (Tex. App.—Beaumont June 23,
2022, no pet.).
42J.O.A., 283 S.W.3d at 345; In re D.P., 2022 Tex. App. LEXIS 5279,

at *25.
27
Mother was still pursing treatment was a document dated April 20, 2023.

The trial occurred in late November 2023. As the factfinder, the trial

court wasn’t required to infer that Mother had gained control over her

addiction when she didn’t appear for the trial and didn’t present evidence

showing that she was in a drug treatment program or that she had ever

successfully completed one. Additionally, Mother didn’t present the trial

court or the Department with any evidence that she had obtained

negative results on drug screens after April 20, 2023, and Mother’s

attorney didn’t call any witnesses to refute the testimony of the

Department’s witnesses who questioned whether Mother had gained

control over her addiction to drugs.

As is often the case in appeals arising from trials in cases that

involve parents addicted to illicit substances, whether a trial court’s

decision is reasonable turns to consideration that may include: (1) the

evidence of nature and degree of the evidence about the parent’s abuse of

a substance or addiction; (2) the degree to which a reasonable factfinder

might believe (or disbelieve) that the parent has gained control over the

parent’s historical patterns as they relate to that parent’s addiction or

28
abuse of a drug; and (3) whether the trial court could have reasonably

inferred from the direct and the circumstantial evidence that the parent’s

substance abuse issues endangered the child.

In our opinion, there is ample evidence in this record to support the

trial court’s subsection D and E findings. A pattern of drug abuse will

support a finding of conduct endangering a child under subsection D or

E even if there is no evidence that such drug use caused a physical or

actual injury to the child. 43 For example, a history of illegal drug use and
4 2 F

drug-related criminal activity is conduct that subjects a child to a life that

is uncertain and unstable, and the uncertainty and instability tied to the

parent’s drug use endanger the child’s physical and emotional well-

being. 44 A parent’s continued drug use when the custody of the parent’s
4 3 F

43Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190
S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
44In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998,

pet. denied); Dupree v. Tex Dep’t of Protective & Regulatory Servs., 907
S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ); see also In re S.R., 452
S.W.3d 351, 361-62 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
(parent’s drug use may qualify as a voluntary, deliberate, and conscious
course of conduct endangering the child’s well-being); Walker v. Tex. Dep’t
of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied) (illegal drug use may support termination
29
child is in jeopardy is also evidence that may support a trial court’s

finding of endangerment. 45 Further, a factfinder may reasonably infer
4 4
F

that a parent’s failure to submit to court-ordered drug tests indicates that

the parent avoided testing because the parent was using illegal drugs. 464 5 F

A parent’s drug use, incarcerations, incidents of domestic violence,

criminal history, and evidence that the parent’s employment and housing

were unstable prior to and during the case creates a course of conduct

from which a factfinder may determine that the parent endangered the

child’s emotional and physical well-being. 47
4 6 F

The medical records allowed the trial court to conclude that when

Mother had Hunter, she was an IV heroin addict with an eight-year

history that involved her addiction to that drug. Although the evidence

under subsection E because it “exposes the child to the possibility that
the parent may be impaired or imprisoned[]”).
45See In re S.R., 452 S.W.3d at 361-62 (citing Cervantes-Peterson v.

Tex. Dep’t of Family & Protective Servs., 221 S.W.3d 244, 253, 254 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (en banc)).
46In re E.R.W., 528 S.W.3d 251, 265 (Tex. App.—Houston [14th

Dist.] 2017, no pet.).
47See In re M.C., No. 09-18-00436-CV, 2019 WL 1561824, at *6 (Tex.

App.—Beaumont Apr. 11, 2019, no pet.) (mem. op); see also In re D.O.,
338 S.W.3d 29, 36-37 (Tex. App.—Eastland 2011, no pet.); In re V.V., 349
S.W.3d 548, 553-54 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
30
shows Mother had enrolled in a methadone treatment program, it also

showed that to maintain control over her heroin addiction, Mother

needed to pursue methadone maintenance on a long-term if not

permanent basis or a high probability existed that she would return to

opiate drugs to prevent suffering symptoms of withdrawal. The trial

court heard testimony that Mother wasn’t allowed to exercise her rights

of visitation in the three months leading up to the trial because she failed

to provide the Department with a negative drug screen. And while

Mother enrolled in a methadone treatment program after the

Department filed suit, the evidence Mother presented shows that she was

in that program as of April 23, 2023, but doesn’t show whether she was

still pursuing a methadone therapy and counseling program between

June 2023 and the trial in November 2023.

The trial court could have also reasonably believed that Mother’s

addiction harmed Hunter. Mother’s addiction left Hunter, according to

Hunter’s medical records, at risk of “neonatal abstinence syndrome” upon

being discharged from the hospital and even after he was treated and

weaned from methadone after he was hospitalized for over a month. The

31
trial court also heard testimony that Mother had a criminal history, had

two other children that she had given up for adoption, and that all three

of Mother’s children were born during the eight-year period in which she

had been using heroin based on the history the trial court heard about

Mother’s use of drugs. Given medical records showing that Hunter tested

positive for opiates after he was born, Mother’s history of heroin use for

eight years, her recent history of daily IV heroin use, her failure to obtain

neonatal treatment while she was pregnant with Hunter, the lack of

evidence that she sought a drug treatment program after she became

pregnant with Hunter and didn’t’ enroll in one until Hunter was removed

from her care, the lack of evidence to show that prior to trial Mother had

successfully completed a drug treatment program, and the lack of

evidence that Mother had recent tests results that were negative for the

presence of drugs, we conclude the trial court could have formed a firm

belief or conviction that Mother knowingly allowed Hunter to remain in

conditions that exposed him to the effects of Mother’s use of illicit

substances—including heroin—and that the conditions both in the past

and in the future if were to be returned to her would endanger and had

32
in the past endangered his physical or emotional well-being. 48 We further
4 7 F

conclude that this same evidence allowed the trial court to form a firm

belief or conviction that Mother knowingly engaged in a course of conduct

that in the past endangered and were he to be returned to her would

endanger Hunter’s physical or emotional well-being. 49 4 8 F

Having determined that the evidence is legally and factually

sufficient to support both predicate endangerment findings under

subsection (D) and (E), we need not address whether the evidence would

also support the trial court’s predicate findings of one or more of

subsections (N), (O), (P), or (R), the remaining predicate findings that

Mother challenged in her brief. 504 9 F

Best-Interest Finding

Next, we address Mother’s argument that the evidence is legally

and factually insufficient to support the trial court’s best-interest finding.

48See J.O.A., 283 S.W.3d at 346; In the Int. of J.O., No. 09-16-00485-

CV, 2017 Tex. App. LEXIS 5011, at *5-6 (Tex. App.―Beaumont June 1,
2017, pet. denied) (mem. op.); Tex. Fam. Code Ann. § 161.001(b)(1)(D).
49Id.; Tex. Fam. Code Ann. § 161.001(b)(1)(E).
50In re B.K.D., 131 S.W.3d 10, 16 (Tex. App.—Fort Worth 2003, pet.

denied); see also Tex. R. App. P. 47.1.
33
With respect to the child’s best interest, there is a strong presumption

that the best interest of a child is served by keeping the child with the

parent. 51 Yet it is equally presumed the “the prompt and permanent
5 0 F

placement of the child in a safe environment is . . . in the child’s best

interest.” 52 Under the Family Code, there is a strong presumption that
5 1 F

keeping a child with a parent is in the child’s best interest. 53 Even so, it
5 2 F

is also presumed “the prompt and permanent placement of the child in a

safe environment is…in the child’s best interest.” 545 3 F

In reviewing a parent’s challenge to a best-interest finding and

when considering the non-exclusive factors in Holley, courts focus on the

best interest of the child, not the best interest of the child’s parent. 55
5 4 F

Additionally, the Department is not required to present evidence

51Tex. Fam. Code Ann. § 153.131(b); In re R.R., 209 S.W.3d 112, 116

(Tex. 2006).
52Tex. Fam. Code Ann. § 263.307(a).
53Id. § 153.131(b); see also In re R.R., 209 S.W.3d 112, 116 (Tex.

2006) (noting that a “strong presumption” exists favoring keeping a child
with its parent).
54Tex. Fam. Code Ann. § 263.307(a)
55Holley, 544 S.W.3d at 371-72; In the Int. of H.M.R.J., No. 09-22-

00171-CV, 2022 Tex. App. LEXIS 8471, at *26 (Tex. App.—Beaumont
Nov. 17, 2022, no pet.).
34
addressing all of the Holley factors, and the fact the Department doesn’t

present evidence on some factors doesn’t preclude the trier of fact from

forming a strong belief or conviction that terminating the parent’s

relationship with the child is in a child’s best interest, particularly when

the evidence is undisputed that the parent endangered the child. 56 5 5 F

In a best-interest analysis, the evidence that supports a trial court’s

subsection (D) and (E) finding may also support the trial court’s best-

interest finding. 57 A trial court’s best-interest finding may be based on
5 6 F

direct or circumstantial evidence, or it may be based on subjective factors

that the trial court may have observed in the trial. 58 When evaluating
5 7 F

what is best for a child’s future, trial courts may consider a parent’s past

conduct when that conduct is relevant to the child’s best interest. 59 5 8 F

Ultimately, the question is whether the evidence when considered as a

whole allowed the trial court to reasonably form a firm belief or conviction

56In re C.H., 89 S.W.3d at 27.
57In re T.R.S., No. 09-18-00482-CV, 2019 Tex. App. LEXIS 4913, at

*14 (Tex. App.—Beaumont June 13, 2019, no pet.) (noting that the same
evidence that supports a trial court’s subsection D and E findings may be
relevant to the trial court’s best-interest finding).
58Id.
59Id.

35
that it was in Hunter’s best interest for the trial court to terminate

Mother’s parental relationship with her child. 60 5 9 F

The trial court was entitled to consider Mother’s past conduct

including her conduct before Hunter was born in deciding whether a

decision to terminate Mother’s parental rights to him would be in

Hunter’s best interest. 61 At trial, the trial court was entitled to infer from
6 0 F

the evidence that Mother’s addiction issues were longstanding and

persisted even after Hunter was born. For example, the trial court heard

testimony that Mother refused to submit to drug tests that the

Department asked Mother to take during the pendency of the case even

though she was required to submit to the tests under the court-ordered

service plan. The trial court also heard testimony that Mother failed to

provide the Department with drug tests that demonstrated she was not

taking drugs even though she knew that unless she provided the

Department with these tests, she couldn’t exercise her rights of visitation

and see Hunter in the three-month period before the November trial.

60In re C.H., 89 S.W.3d at 25, 27-28.
61Id. at 27-28.

36
When they testified, both the CASA and Hadnot expressed concerns

about whether Hunter would be safe were he to be placed in Mother’s

care given their reservations about whether Mother had gained the

ability to control her addiction.

While Mother highlights the evidence in the trial record that is

positive, that shows her love for Hunter, that shows she and Hunter had

started to form a bond, and that shows she enrolled in a methadone

treatment program after the case was filed, that she attended parenting

classes, and that shows she enrolled in college, the trial court wasn’t

required to favor her interests above those of Hunter in placing him

promptly and permanently in a safe environment. Mother provided the

trial court with no evidence that she could provide Hunter a safe and

stable home. To the contrary, the record shows that Mother is

unemployed, nothing show she has a home in which Hunter can live, and

there is no evidence that she currently has any job skills that will allow

her to earn a sufficient income to provide Hunter with a safe and stable

home.

37
On the other hand, the trial court heard Hunter’s foster mother

testify that Hunter is in a safe environment where he is loved and that

she provides for his physical and medical needs. The trial court also heard

testimony from the Department’s caseworker and the foster mother that

the Department’s goal for Hunter was to have him adopted by his foster

parents and that his foster parents are providing him with a safe and

stable home. At trial, Hunter’s foster mother testified that she wanted to

adopt him.

“While parental rights are of constitutional magnitude, they are not

absolute.” 62 Simply put, given Mother’s historical use of illegal drugs and
6 1 F

the seriousness of her addiction, the trial court could have reasonably

formed a firm belief or conviction that terminating Mother’s parental

rights so that Hunter could be promptly and permanently placed in a safe

home where his needs can be met is in his best interest. 63 6 2 F

62In re C.H., 89 S.W.3d at 28.
63Id. at 27-28.

38
Conclusion

Having addressed the dispositive issues in Mother’s appeal, we

overrule Mother’s sole issue. Accordingly, the trial court’s Order of

Termination is,

AFFIRMED.

HOLLIS HORTON
Justice

Submitted on February 6, 2024
Opinion Delivered April 4, 2024

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

39