In the Interest of A.H., a Child v. the State of Texas

Opinion filed August 21, 2024

In The

Eleventh Court of Appeals
__________

No. 11-24-00075-CV
__________

IN THE INTEREST OF A.H., A CHILD

On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 10738-CX

MEMORANDUM OPINION
This is an accelerated appeal from an order in which the trial court terminated
the parental rights of the mother and father of A.H. 1 Only the mother, Appellant,
has appealed. On appeal, Appellant challenges the sufficiency of the evidence to
support the trial court’s findings that (1) she committed the alleged acts as grounds
for termination of her parental rights, and (2) termination of her parental rights is in
the child’s best interest. She also challenges the trial court’s jurisdiction, arguing
that the case was automatically dismissed prior to the trial court’s rulings. We affirm
the trial court’s order of termination.

1
We use initials to refer to the child and the child’s family members. TEX. R. APP. P. 9.8(b).
I. Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2023). To terminate
one’s parental rights, it must be shown by clear and convincing evidence that the
parent has committed one of the acts listed in Section 161.001(b)(1)(A)–(V), and
that termination is in the best interest of the child. Id. at § 161.001(b)(2). 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.” FAM. § 101.007 (West 2019).
In this case, the trial court found that clear and convincing evidence
established that Appellant committed at least one of the acts listed in
Section 161.001(b)(1)—specifically, that Appellant: (1) knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which
endangered the physical or emotional well-being of the child; and (2) engaged
in conduct or knowingly placed the child with persons who engaged in
conduct which endangered the physical or emotional well-being of the
child. See id. § 161.001(b)(1)(D), (E). The trial court further found, pursuant to
Section 161.001(b)(2), that termination of Appellant’s parental rights was in the
child’s best interest. See id. § 161.001(b)(2).
In her second and third issues on appeal, Appellant challenges the trial court’s
findings under subsections (D) and (E) and its best-interest finding as being
unsupported by legally or factually sufficient evidence.
In reviewing a legal sufficiency challenge, we must decide whether “a
reasonable trier of fact could have formed a firm belief or conviction that its finding
was true.” In re J.W., 645 S.W.3d 726, 741 (Tex. 2022) (quoting In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002)). Cognizant of the required appellate deference to the
factfinder, “we look at all the evidence in the light most favorable to the finding,
2
assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so, and disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible.” Id. (internal
quotation marks omitted). “However, we may not disregard ‘undisputed facts that
do not support the finding,’” and the factfinder is “the sole arbiter of the witnesses’
credibility and demeanor.” Id. (quoting J.F.C., 96 S.W.3d at 266 (then quoting In
re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021)). As such, when considering the
credibility of the evidence presented, we may not substitute our judgment for that of
the factfinder. J.F.-G., 627 S.W.3d at 316.
In assessing whether the evidence is factually sufficient, we weigh the
disputed evidence that is contrary to the finding against all the evidence that favors
the finding. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). We give due deference
to the finding and determine whether, on the entire record, a factfinder could
reasonably form a firm belief or conviction about the truth of the allegations against
the parent. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002); In re L.C.C., 667 S.W.3d 510, 512 (Tex. App.—Eastland
2023, pet. denied).
With respect to the best interest of a child, no unique set of factors need be
proved. L.C.C., 667 S.W.3d at 513; In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—
Eastland 2010, pet. denied). Further, the best interest determination does not restrict
the proof to any specific factor or factors. In re D.M., 58 S.W.3d 801, 814 (Tex.
App.—Fort Worth 2001, no pet.). However, courts may use the non-exhaustive
Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976). These include, but are not limited to: (1) the desires of the child; (2) the
emotional and physical needs of the child now and in the future; (3) the emotional
and physical danger to the child now and in the future; (4) the parental abilities of
the individuals seeking custody; (5) the programs available to assist these individuals
3
to promote the best interest of the child; (6) the plans for the child by these
individuals or by the agency seeking custody; (7) the stability of the home or
proposed placement; (8) the acts or omissions of the parent that may indicate the
existing parent-child relationship is not a proper one; and (9) any excuse for the acts
or omissions of the parent. Id.
To support a best interest finding, the Department is not required to prove
each Holley factor; in some circumstances, evidence of the presence of only one
factor will suffice. C.H., 89 S.W.3d at 27; In re D.M., 452 S.W.3d 462, 473 (Tex.
App.—San Antonio 2014, no pet.). Additionally, the same evidence that proves one
or more statutory grounds for termination may also constitute sufficient, probative
evidence illustrating that termination is in the child’s best interest. C.H., 89 S.W.3d
at 28; C.J.O., 325 S.W.3d at 266.
The absence of evidence of some Holley considerations does not preclude the
factfinder from reasonably inferring or forming a strong conviction or belief that
termination is in the child’s best interest, particularly if the evidence indicates that
the parent-child relationship and the parent’s conduct has endangered the safety and
well-being of the child. C.H., 89 S.W.3d at 27. This is so because the best interest
analysis evaluates the best interest of the child, not the parent. In re E.C.R., 638
S.W.3d 755, 767 (Tex. App.—Amarillo 2021, pet. denied) (citing In re B.C.S., 479
S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.)).
In this regard, the factfinder may measure a parent’s future conduct by her
past conduct and determine whether termination is in the child’s best interest. In re
E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied); In re D.S.,
333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.). The factfinder may infer
that a parent’s past conduct that endangered the safety and well-being of the child
may recur in the future if the child is returned to the possession of the parent. In re
J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.); May v.
4
May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi–Edinburg 1992, writ
denied). Additionally, the factfinder may infer from a parent’s past inability to meet
the child’s physical and emotional needs an inability or unwillingness by the parent
to meet the child’s physical and emotional needs in the future. J.D., 436 S.W.3d at
118; see also In re A.S., No. 11-16-00293-CV, 2017 WL 1275614, at *3 (Tex.
App.—Eastland Mar. 31, 2017, no pet.) (mem. op.).
II. The Evidence Presented at Trial
The Department has been involved in Appellant’s life since January 2021 due
to her marihuana use, mental health concerns, and the incidents of domestic violence
between her and the father. In October 2021, while Appellant was pregnant with
A.H., the Department removed Appellant’s one-year-old son, A.H.2. Appellant’s
Facebook posts prior to A.H.2’s removal included threats of suicide by overdosing
on pills and not wanting to care for A.H.2. Appellant voiced pervasive thoughts
about injuring A.H.2, “killing him by smothering him with a pillow,” “leaving him
on random people’s door step[s],” and stating that she “didn’t care if [the
Department] removed [him].” She also texted the father that she was cutting herself,
was intending to cut A.H.2, and was intending to treat A.H.2 “like [her] baby daddy
treats [her].” Appellant likewise told a Department investigator that she struck
A.H.2 and choked him.
A.H. was born on December 1, 2021. In June 2022, A.H.’s father became
upset that six-month-old A.H. was crying, so he held a blanket over her face.
Appellant did not remove the blanket but posted on social media about what the
father had done. Around that time, the Department was alerted to another concerning
Facebook post by Appellant, which indicated that “possible domestic violence” was
ongoing between her and the father.
Department Investigator Ashley McNalley and another Department case
manager met with Appellant at her home. Appellant was required to take medication
5
daily to treat her depression, but McNalley found unused medication for a
prescription that had been filled almost two months prior. Given Appellant’s history
with the Department, the domestic violence in her home, and the potential danger
that it posed to A.H., the Department sought and was granted temporary managing
conservatorship of A.H. in June 2022.
At the final termination hearing, permanency case manager Christophe
Mwungura testified that Appellant completed most of the requirements in her Family
Plan of Service. However, Appellant tested positive for marihuana in August 2022
and September 2023, missed scheduled visits with A.H. in October 2023, and failed
to submit to drug testing in July, August, October, and December 2023.
Appellant was arrested in July 2023 for assaulting her mother while living in
her grandmother’s home. When she bonded out, she lived with her sister’s friend
for “[p]robably less than a month,” with her friend for “a month or two,” with the
father’s aunt for two or three months, then again with her grandmother, where she
has been since. Appellant pled guilty to assaulting her mother and satisfied her
sentence by serving fourteen days in the Taylor County jail in November 2023.
Appellant and the father testified at trial and admitted to “physically fighting”
with each other. Appellant acknowledged that she used marihuana prior to the
Department’s involvement but denied any use thereafter. She attributed her positive
drug test results to exposure by her friends, explaining: “I can’t control that. If I’m
going to a party, can’t control who’s there.” Appellant claimed that she only has
“[l]ike one or two” drinks at parties that she attends at bars “[l]ike every other week.”
The trial court terminated Appellant’s parental rights under
Section 161.001(b)(1)(D) and (E) and found termination to be in the best interest of
A.H. This appeal followed.

6
III. Analysis
A. Automatic Dismissal
Appellant contends in her first issue that the trial court’s order of termination
is void because this case was automatically dismissed prior to the commencement
of the final hearing. See FAM. § 263.401. Specifically, Appellant argues that the
trial court did not “commence” the final hearing on the merits for purposes of
Section 263.401 before the December 16, 2023 automatic dismissal date.
In a parental termination proceeding, a trial on the merits must commence by
“the first Monday after the first anniversary of the date the court rendered a
temporary order appointing the department as temporary managing conservator,”
otherwise the trial court is deprived of jurisdiction over the suit and the suit is
automatically dismissed. Id. § 263.401(a). In determining whether trial has truly
“commenced,” our sister courts have considered factors such as: (1) whether the
putative commencement date is recited as a trial date in the final order; and
(2) whether, during the time between calling the case and recessing on the putative
commencement date: (a) preliminary matters were addressed; (b) the parties
announced “ready”; (c) opening statements were made; (d) witnesses were sworn;
(e) a party presented a witness to testify; and (f) exhibits were admitted by the trial
court. In re R.R., 676 S.W.3d 808, 813–15 (Tex. App.—Corpus Christi–Edinburg
2023, pet. denied); In re J.L.J., 645 S.W.3d 294, 295–96 (Tex. App.—Houston [14th
Dist.] 2022, pet. denied); In re Z.S., 631 S.W.3d 313, 318–19 (Tex. App.—Houston
[14th Dist.] 2020, no pet.) (collecting cases); see also In re J.M.F., No. 14-22-00628-
CV, 2023 WL 2182435, at *3 (Tex. App.—Houston [14th Dist.] Feb. 23, 2023, no
pet.) (mem. op.).
In J.L.J., the Fourteenth Court of Appeals held that trial did not commence
prior to the automatic dismissal date because:

7
No preliminary matters were addressed; the parties did not announce
ready; no opening statements were made; and no exhibits were
admitted. Moreover, no party called a witness to testify; the only
witness to be sworn in and testify was called by the trial court, and the
witness was asked only his name. His connection to the case was left
unexplained.
645 S.W.3d at 297. A party presenting a witness to testify has been consistently
recognized as the commencement of trial. See R.R., 676 S.W.3d at 813–15 (the
Department called the caseworker and sought to introduce an exhibit before
recessing); In re E.A.R., 672 S.W.3d 716, 720 (Tex. App.—San Antonio 2023, pet.
denied) (the Department called its first witness who provided brief testimony); Z.S.,
631 S.W.3d at 317–18 (the Department investigator testified that she had nine years’
experience and that she received allegations of neglect, then the trial court recessed
the trial); J.M.F., 2023 WL 2182435, at *2 (the parties announced ready and a
witness was sworn and provided “roughly a page” of testimony in the record).
In the present case, the trial court’s order terminating Appellant’s parental
rights shows that trial began on December 13, 2023. On that date, Appellant
appeared pro se but ultimately accepted the trial court’s appointment of counsel. The
Department announced that it “will be seeking termination for today and [will] be
calling Ashley McNally as our first witness.” After Appellant’s trial counsel was
appointed and announced not ready for trial, the trial court announced: “with a hard
dismissal date of December 16th, we are going to begin this trial.” The Department
thereafter offered two exhibits, which the trial court admitted, before trial recessed;
trial resumed on February 13, 2024.
At each subsequent proceeding, the trial court reiterated that trial began on
December 13, 2023, and the parties agreed after the conclusion of the final hearing
that trial commenced on that date. Although no witnesses were presented on the
putative commencement date, that is but one factor to be considered in the analysis.
See J.L.J., 645 S.W.3d at 297; see also In re A.N.C., 679 S.W.3d 311, 319–320 (Tex.
8
App.—San Antonio 2023, pet. pending) (concluding that trial had commenced when
the parties announced ready, the witnesses were sworn in, and the rule was invoked,
then the parties identified for the trial court whom they intended to present as
witnesses). Here, we conclude that offering exhibits that the trial court admitted was
sufficient to “commence” trial on the merits for purposes of Section 263.401.
Appellant suggests that this was “not a serious attempt to start trial.” We
disagree. Moreover, whether the Department’s introduction of exhibits was
strategically “for the sole purpose of avoiding the mandatory dismissal deadline” is
a matter for the legislature to consider, not the court. E.A.R., 672 S.W.3d at 720; see
also Z.S., 631 S.W.3d at 318 (“[t]he legislature . . . is free to address that concern
and could have done so in recent amendments”). We have considered the relevant
factors and conclude, as the trial court did, that trial commenced on December 13,
2023, prior to the automatic dismissal date.
Accordingly, we overrule Appellant’s first issue.
B. Termination under Subsections (D) and (E) – Endangerment
Appellant contends in her third issue that the evidence is legally and factually
insufficient to prove grounds (D) and (E) because “[A.H.] was never in any danger.”
Although only one statutory ground is necessary to support termination, appellate
courts must address a parent’s challenges to a trial court’s findings under subsections
(D) or (E), as they may have implications for the parent’s rights to other children.
See FAM. § 161.001(b)(1); In re N.G., 577 S.W.3d 230, 234–35 (Tex. 2019)
(addressing due process and due course of law considerations with respect to
appellate review of grounds (D) and (E) and holding that an appellate court must
provide a detailed analysis if affirming the termination on either ground). And when
the evidence pertaining to both subsections (D) and (E) is interrelated, as it is here,
we may conduct a consolidated review of the trial court’s endangerment findings.
See In re A.L.S., 660 S.W.3d 257, 263–64 (Tex. App.—San Antonio 2022, pet.
9
denied); In re J.D., 436 S.W.3d 105, 114 (Tex. App.—Houston [14th Dist.] 2014,
no pet.); In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort Worth 2009, no
pet.).
The statutory endangerment grounds require clear and convincing proof that
the parent has: “(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of
the child,” or “(E) 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.” FAM. § 161.001(b)(1)(D), (E); In re S.M.R., 434 S.W.3d 576, 585 (Tex.
2014). “[E]ndangerment encompasses a larger array of conduct that ‘expose[s a
child] to loss or injury’ or ‘jeopardize[s]’ the child.” In re R.R.A., 687 S.W.3d 269,
277 (Tex. 2024) (quoting Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987)). The term means “more than a threat of metaphysical injury or potential
ill effects of a less-than-ideal family environment,” but “does not require actual
harm.” In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); see R.R.A., 687 S.W.3d at
277 (citing Boyd, 727 S.W.2d at 533).
To terminate a parent’s rights for endangerment under subsections (D) or (E),
the “parent’s endangering conduct need not ‘be directed at the child [nor must] the
child actually suffer[] injury.’” R.R.A., 687 S.W.3d at 277 (quoting Boyd, 727
S.W.2d at 533); In re C.E., 687 S.W.3d 304, 310 (Tex. 2024). “[T]ermination under
[subsection] (D) requires that the child’s environment is a source of endangerment,
and the parent’s conduct may create that dangerous environment.” C.E., 687 S.W.3d
at 310. Endangerment under subsection (E), in contrast, focuses on the parent’s
conduct, and whether the endangerment of the child’s well-being was the direct
result of the parent’s acts, omissions, or failures to act. In re J.S., 687 S.W.3d 541,
550 (Tex. App.—Eastland 2024, no pet.). Termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and
10
conscious course of conduct by the parent is required. Id.; In re D.T., 34 S.W.3d
625, 634 (Tex. App.—Fort Worth 2000, pet. denied). “A factfinder may infer
endangerment from ‘a course of conduct’ that presents substantial risks to the child’s
physical or emotional well-being.” R.R.A., 687 S.W.3d at 277.
A parent’s actions prior to and after the children’s removal may show an
endangering course of conduct. See J.S., 687 S.W.3d at 550 (“[E]ndangering
conduct may include a parent’s actions before the child’s birth and may relate to the
parent’s actions while the parent had possession of other children.”). “Even
evidence of criminal conduct, convictions, and imprisonment prior to the birth of a
child will support a finding that a parent engaged in a course of conduct that
endangered the child’s well-being.” In re A.J.M., 375 S.W.3d 599, 606 (Tex. App.—
Fort Worth 2012, pet. denied); 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 and offenses that occurred before the child’s birth may be considered as
part of a course of conduct that endangers a child.).
Drug use and its effects on the parent’s life and ability to parent may also
demonstrate an endangering course of conduct. J.O.A., 283 S.W.3d at 345; In re
A.A.M., 464 S.W.3d 421, 426 (Tex. App.—Houston [1st Dist.] 2015, no pet.)
(“Illegal drug use creates the possibility that the parent will be impaired or
imprisoned and thus incapable of parenting.”). “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.” R.R.A., 687 S.W.3d at 278. “A reviewing court should not evaluate
drug-use evidence in isolation; rather, it should consider additional evidence that a
factfinder could reasonably credit that demonstrates that illegal drug use presents a
risk to the parent’s ‘ability to parent.’” Id. (quoting J.O.A., 283 S.W.3d at 345).
Thus, under certain circumstances, such as the ones that are present in this case, “any
11
drug activity may render the parent incapable of parenting.” J.S., 687 S.W.3d at 554
(citing R.R.A., 687 S.W.3d at 278).
According to Appellant, the Department intervened with A.H.2 “[b]ecause
[she] cut his hair,” and with A.H. “[b]ecause they thought [she] wasn’t mentally
stable to take care of her.” She contends on appeal that “[A.H.] was never in any
danger” because her conduct, including assaulting her mother, occurred after A.H.’s
removal. However, Appellant ignores the well-established law that courts may
“consider parental conduct that did not occur in the child’s presence, including
conduct before the child’s birth or after the child was removed from a parent’s care.”
A.L.S., 660 S.W.3d at 264; see also In re N.J.H., 575 S.W.3d 822, 831–32 (Tex.
App.—Houston [1st Dist.] 2018, pet. denied) (“[D]rug activity can constitute
endangerment even if it transpires outside the child’s presence.”). Additionally, “[a]
court need not require physical injury . . . to materialize to find” endangerment.
R.R.A., 687 S.W.3d at 279.
Appellant understates the substantial risks that her behavior and home
environment posed to her children prior to each of their removals. The Department’s
involvement began after Appellant publicized her suicidal ideations on Facebook
and vocalized frequent homicidal ideations that were targeted at A.H.2. While
A.H.2 was in the Department’s care after A.H. was born, Appellant broadcasted the
father’s ongoing aggression and violence on social media, rather than attempting to
protect A.H. from it. See N.J.H., 575 S.W.3d at 831–32 (“A child is endangered if
his [or her] environment creates a potential for danger that the parent disregards.”).
Appellant admitted to “physically fighting” with the father, and the father
testified that at least one of their arguments involved “pushing” and “shoving.” The
father’s aggression extended to A.H. at least once when he held a blanket over her.
At the final hearing, the father ultimately denounced his actions as “really stupid,”
whereas Appellant was devoid of any commensurate remorse for taking to social
12
media and “announcing” the father’s conduct, rather than removing the blanket. See
In re E.P.C., 381 S.W.3d 670, 683–84 (Tex. App.—Fort Worth 2012, no pet.) (The
parent’s failure to provide proper nutrition, leaving the child alone, and his lack of
remorse for doing so was evidence of endangerment.). Therefore, the trial court
could have rationally determined, and formed a strong conviction or belief, that
Appellant’s and the father’s abusive relationship and Appellant’s failures to act
created “conditions or surroundings which endangered [A.H.]’s physical or
emotional well-being.” FAM. § 161.001(b)(1)(D); see In re O.E.R., 573 S.W.3d 896,
905 (Tex. App.—El Paso 2019, no pet.) (“Physical violence in the home leads to an
unstable and unpredictable environment for children.”).
We further observe that, although Appellant was a victim of the father’s abuse,
her conscious disregard of a substantial risk to A.H. that flows from such conduct
does not convert Appellant’s “status as an abuse victim into a de facto basis for
termination” under these circumstances. See In re A.P., 672 S.W.3d 132, 137 (Tex.
2023) (Young, J., concurring). In this regard, Appellant exhibited a continuing
pattern of abusive and unstable behavior outside of her relationship with the father—
she assaulted her mother, was convicted and confined in jail, missed several drug
test appointments, and tested positive for illegal substances. See N.J.H., 575 S.W.3d
at 832 (“[A]busive and violent criminal conduct by a parent can also produce an
environment that endangers a child’s well-being, and evidence that a person has
engaged in such conduct in the past permits an inference that the person will continue
[to engage in] violent behavior in the future.”); see also In re J.I.T.P., 99 S.W.3d
841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“Domestic violence, want
of self control, and propensity for violence may be considered as evidence of
endangerment.”).
Appellant contends that she “was acting out due to postpartum depression.”
“While mental incompetence or mental illness alone are not grounds for termination
13
of the parent-child relationship, ‘[w]hen a parent’s mental state allows the parent to
engage in conduct that endangers the physical or emotional well-being of the child,
that conduct has bearing’” on the trial court’s decision to terminate a person’s
parental rights. In re E.G., 643 S.W.3d 236, 253 (Tex. App.—Amarillo 2022, no
pet.) (quoting In re P.W., 579 S.W.3d 713, 727 (Tex. App.—Houston [14th Dist.]
2019, no pet.)). The trial court was thus permitted to consider Appellant’s alarming
behavior surrounding A.H.2’s removal, and that she was not taking her prescribed
medication for depression, although required, while caring for A.H. See id.; see also
In re M.S., 662 S.W.3d 620, 630 (Tex. App.—Beaumont 2023, pet. denied)
(mother’s “unstable behavior and . . . untreated mental health issues” are evidence
of endangerment).
Furthermore, Appellant tested positive for marihuana in November 2021 and
March 2022 after A.H.2’s removal, and again in August 2022 and September 2023
while A.H. was in the Department’s care. She also refused to submit to drug testing
in July, August, October, and December 2023. The Texas Supreme Court has
consistently recognized that “miss[ing] multiple drug tests after the [child]’s
removal” and “test[ing] positive for marijuana shortly before the final hearing
commence[s]” permits a reasonable factfinder to find endangerment by clear and
convincing evidence. R.R.A., 687 S.W.3d at 277–78 (quoting J.O.A., 283 S.W.3d at
346).
Appellant’s voluntary, deliberate, and conscious acts constitute more than a
single instance of conduct. Her past behavior, minimization of her conduct, drug
use, failure to submit to required drug screens, and failure to properly address and
treat her mental health issues, permit the rational conclusion that relinquishing A.H.
to her care would pose a substantial risk of harm to the child. See In re Z.G., No. 02-
23-00038-CV, 2023 WL 3521848, *5 (Tex. App.—Fort Worth May 18, 2023, pet.
denied) (mem. op.) (the parent’s denials and refusal to acknowledge the pervasive
14
“drug use of the family unit” weighed in favor of terminating his parental rights); In
re A.J.W., No. 04-19-00346-CV, 2019 WL 6333468, at *6 (Tex. App.—San Antonio
Nov. 27, 2019, no pet.) (mem. op.) (“The [trial] court could have rationally
concluded that [mother] is unable to protect her children or to provide them a safe
and stable environment because she minimizes her drug problem.”); In re A.E.,
No. 05-14-01340-CV, 2015 WL 1184179, at *7 (Tex. App.—Dallas Mar. 16, 2015,
pet. denied) (mem. op.) (the mother’s “choice to minimize her past drug use” was a
factor of “particular significance” in the best-interest analysis).
On this record, we conclude that there is legally and factually sufficient
evidence to support the trial court’s finding that Appellant engaged in a continuing
course of conduct that endangered the physical or emotional well-being of A.H.
See FAM. § 161.001(b)(1)(E). We likewise conclude that the evidence is legally
and factually sufficient to establish that Appellant was aware of A.H.’s
endangering environment prior to removal and consciously disregarded it. See id.
§ 161.001(b)(1)(D).
Accordingly, we overrule Appellant’s third issue.
C. The Best Interest of the Child Determination
In Appellant’s second issue, she challenges the legal and factual sufficiency
of the evidence to support the trial court’s finding that termination of her parental
rights is in the best interest of A.H.
First, we reiterate that evidence of each Holley factor is not required to support
a best interest finding. In re S.R., 452 S.W.3d 351, 366 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied); In re S.O., No. 05-22-01019-CV, 2023 WL 2237084, at
*11 (Tex. App.—Dallas Feb. 27, 2023, no pet.) (mem. op.). Put differently, the
absence of evidence on some of these factors does not preclude a best interest
finding, “particularly if [the] undisputed evidence shows the parental relationship
endangered the child’s safety.” In re N.T., 474 S.W.3d 465, 477 (Tex. App.—Dallas
15
2015, no pet.) (quoting In re A.E., No. 05-14-01340-CV, 2015 WL 1184179, at *6
(Tex. App.—Dallas Mar. 16, 2015, pet. denied) (mem. op.)). Indeed, “evidence
relating to one single factor may be adequate in a particular situation to support a
finding that termination is in the best interests of the child.” In re K.S., 420 S.W.3d
852, 855 (Tex. App.—Texarkana 2014, no pet.). “‘[B]est interest’ is a term of art
encompassing a much broader, facts-and-circumstances based evaluation that is
accorded significant discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013)
(quoting Holley, 544 S.W.2d at 371–72.).
The trial court, as the trier of fact, is the sole judge of the witnesses’
credibility. J.F.-G., 627 S.W.3d at 312. We are not at liberty to disturb the
determinations of the trier of fact so long as those determinations are not
unreasonable. Id. at 311–12; In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). Giving
due deference to the trial court, as we must, we hold that, based on the evidence in
the record and the application of the Holley factors, the trial court could have
reasonably formed a firm belief or conviction that termination of Appellant’s
parental rights was in the best interest of A.H. See Holley, 544 S.W.2d at 371–72.
As we have said, in its best interest determination, a trial court, as the
factfinder, may infer that a parent’s past endangering conduct may recur if the child
is returned to the parent. See In re L.N.C., 573 S.W.3d 309, 318 (Tex. App.—
Houston [14th Dist.] 2019, pet. denied); J.D., 436 S.W.3d at 118; see also In re T.B.,
No. 09-20-00172-CV, 2020 WL 6787523, at *8 (Tex. App.—Beaumont Nov. 19,
2020, no pet.) (mem. op.) (“The factfinder may consider prior CPS history of
neglect, drug abuse, or lack of care for the children.”). Evidence that is relevant to
Section 161.001(b)(1) termination grounds may also be relevant to the determination
of the child’s best interest. In re C.V.L., 591 S.W.3d 734, 753 (Tex. App.—Dallas
2019, pet. denied). And evidence that supports termination under the grounds listed
in Section 161.001(b)(1) can be considered by the trial court in its best-interest
16
analysis. See C.H., 89 S.W.3d at 28; C.J.O., 325 S.W.3d at 266. Therefore, the trial
court could properly consider Appellant’s endangering conduct in determining
whether the termination of her parental rights was in A.H.’s best interest. See C.H.,
89 S.W.3d at 28; C.J.O., 325 S.W.3d at 266.
The record shows that Appellant and the father exposed A.H. to domestic
violence and marihuana use for the first several months of her life. Appellant’s older
child—A.H.2—had already been removed because of Appellant’s threats to harm
him and herself, her marihuana use, and the ongoing domestic violence in the home.
See C.H., 89 S.W.3d at 27–28 (past performance as a parent “could certainly have a
bearing on [a parent’s] fitness to provide for” her child). After A.H.’s removal,
Appellant tested positive for illegal substances twice, missed at least four drug test
appointments, was convicted of and confined for assault, and lived in several
impermanent locations. Such conduct undoubtedly “exposes the child[] to the
possibility that [Appellant] may be impaired or imprisoned,” which weighs in favor
of finding that termination of Appellant’s parental rights was in A.H.’s best interest.
See J.S., 687 S.W.3d at 551; In re Z.J.B., No. 14-18-00759-CV, 2019 WL 347474,
at *5, *7 (Tex. App.—Houston [14th Dist.] Jan. 29, 2019, pet. denied) (mem. op.)
(a parent’s single positive drug screen and his failure to submit to three additional
drug screenings suggested continued illegal drug use by him and weighed in favor
of the trial court’s best-interest finding).
Despite Appellant’s denial of drug use, the trial court, as the factfinder, was
permitted to disbelieve Appellant’s testimony and conclude that she continued using
marihuana during the pendency of this case. See In re A.B., 437 S.W.3d 498, 503
(Tex. 2014). In any event, Appellant refused to dispense with her drug-related
conduct by continuing to surround herself with others who used drugs. See, e.g., In
re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.). Even with
her periods of compliance, Appellant’s pattern of conduct could lead to “a life of
17
uncertainty and instability” for A.H. See In re R.W., 129 S.W.3d 732, 739 (Tex.
App.—Fort Worth 2004, pet. denied). And the trial court was not required to
conclude that Appellant had adequately addressed her drug issues in light of her
refusal to appear for scheduled drug tests and her positive tests in the months leading
up to the final hearing. See J.O.A., 283 S.W.3d at 346 (“[E]vidence of improved
conduct, especially of short-duration, does not conclusively negate . . . a long history
of drug use and irresponsible choices.”).
Additionally, A.H.’s foster mother testified that A.H. is “doing great” in her
current placement. A.H. has bonded with her foster parents and their four sons, and
the foster parents hope to adopt her. See Holley, 544 S.W.2d at 371–72. Appellant,
by contrast, did not demonstrate the ability to maintain stable housing, control her
aggression, or abstain from marihuana use. Instead, Appellant minimized her
conduct and imputed blame to everyone except herself. See A.J.W., 2019
WL 6333468, at *6; A.E., 2015 WL 1184179, at *7. For example, Appellant
justified assaulting her mother because her mother got “all in her face” and made her
upset. She also testified that she was not receiving any counseling or other treatment
at the time of trial because she was not “dealing with the same level of depression.”
The trial court was entitled to find that these factors weighed in favor of terminating
Appellant’s parental rights to A.H.
Appellant’s other excuses for her behavior included her age, lack of education,
inability to afford housing, postpartum depression, the delayed return of A.H.2, and
her caseworker “ghost[ing]” her. Although we are sympathetic to the struggles of
young parents, which can be compounded by mental health issues, we are bound to
protect, as the trial court did, the best interest of the child. See FAM. § 153.002 (West
2014) (“The best interest of the child shall always be the primary consideration of
the court.”); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003); see also In re R.M.C.,
No. 04-18-00706-CV, 2019 WL 1370367, at *3 (Tex. App.—San Antonio Mar. 27,
18
2019, pet. denied) (mem. op.) (“Although we are sympathetic to the parents’ efforts
to regain custody, . . . termination of . . . [their] parental rights is in [the child’s] best
interest.”). Consequently, Appellant’s criminal behavior, her failure to secure a safe
and stable home environment, her failures to submit to scheduled drug testing, and
her positive drug tests support the trial court’s best-interest finding. See E.C.R., 638
S.W.3d at 769 (“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 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (“A parent’s drug use,
inability to provide a stable home, and failure to comply with [her] family service
plan support a finding that termination is in the best interest of the child.”).
Upon considering the record as it relates to Appellant’s actions and inactions,
the emotional and physical danger to A.H. now and in the future, Appellant’s
parental abilities, and Appellant’s history with the Department, we hold that the
evidence is legally and factually sufficient to support the trial court’s finding that
termination of Appellant’s parental rights is in the best interest of A.H. See J.W.,
645 S.W.3d at 741; Holley, 544 S.W.2d at 371–72.
Accordingly, we overrule Appellant’s second issue.
IV. This Court’s Ruling
We affirm the order of the trial court.

W. STACY TROTTER
JUSTICE

August 21, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

19