In the Interest of R.F. Jr., a Child v. the State of Texas

Opinion filed April 3, 2025

In The

Eleventh Court of Appeals
__________

No. 11-24-00271-CV
__________

IN THE INTEREST OF R.F. JR., A CHILD

On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 10943-CX

MEMORANDUM OPINION
This is an accelerated appeal from the trial court’s order terminating the
parental rights of the mother and father of R.F. Jr. 1 Only the mother appealed. In her
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first three issues, Appellant challenges the sufficiency of the evidence to support the
trial court’s findings that she endangered R.F. pursuant to Sections 161.001(b)(1)(D)
and (E) of the Family Code, failed to comply with the provisions of her court-
ordered family plan of service under Section 161.001(b)(1)(O), and that termination
of her parental rights is in the child’s best interest. See TEX. FAM. CODE ANN.

We use initials to refer to the child and the child’s family members. See TEX. R. APP. P. 9.8(b).
1

Because the father is not a party to this appeal, we will hereinafter refer to the child as “R.F.”
§ 161.001(b)(1)(D), (E), (O) (West Supp. 2024). Appellant contends in her fourth
issue that the trial court erroneously admitted lab reports revealing her drug test
results. We affirm the trial court’s order.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. Id. § 161.001(b). 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. § 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.” Id. § 101.007 (West
2019).
In this case, the trial court, after a de novo hearing, 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; (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; and (3) failed to
comply with the provisions of a court order that specifically established the actions
necessary for Appellant to obtain the return of the child, who had been in the
permanent or temporary managing conservatorship of the Department of Family and
Protective Services (the Department) for not less than nine months as a result of the
child’s removal under Chapter 262 for abuse or neglect. See id. § 161.001(b)(1)(D),
(E), (O). 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).
2
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). Cognizant of the required
appellate deference to the factfinder, “we look at all the evidence in the light most
favorable to the finding, 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 In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002) 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). Because a trial court conducting a de novo hearing “may also
consider the record from the hearing before the associate judge,” we may do so as
well if it is included in the appellate record, as it is here. See FAM. § 201.015(c)
(West 2020); In re A.L.M.-F., 593 S.W.3d 271, 277 (Tex. 2019) (“[R]eview under
[S]ection 201.015 is not entirely independent of the proceedings before the associate
judge.”).

3
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 J.S., 687 S.W.3d 541, 547 (Tex.
App.—Eastland 2024, 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
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
4
analysis evaluates the best interest of the child, not the parent. J.S., 687 S.W.3d at
548 (citing In re E.C.R., 638 S.W.3d 755, 767 (Tex. App.—Amarillo 2021, pet.
denied)).
In this regard, the factfinder may measure a parent’s future conduct by his or
her past conduct in determining whether termination of the parent-child relationship
is in the child’s best interest. J.S., 687 S.W.3d at 548; In re Z.R.M., 665 S.W.3d 825,
829 (Tex. App.—San Antonio 2023, 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. 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.).
The Evidence Presented at Trial 2 1F

The Department intervened on August 23, 2022, the day after R.F. was born,
because his umbilical cord blood tested positive for marihuana. Appellant also
tested positive for marihuana at the hospital, and admitted to using marihuana while
she was pregnant with R.F. The Department initially gave Appellant the opportunity

R.F.’s biological father executed an affidavit of voluntary relinquishment of his parental rights to
2

R.F. on October 9, 2024, and is not a party to this appeal. As such, we limit our rendition of the facts
adduced at trial to those necessary for the resolution of the mother’s (Appellant’s) appeal.

5
to participate in family-based safety services (FBSS). 3 However, R.F.’s pediatrician
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expressed concern that he was not gaining weight, and R.F. tested positive for
marihuana again in January 2023. On January 18, 2023, the Department was granted
temporary managing conservatorship of R.F., and placed him with his paternal
grandmother, E.F., with whom he remained until the final termination hearing.
The Department created a family plan of service for Appellant, which was
made an order of the trial court on March 21, 2023. Appellant’s service plan required
her to complete a substance abuse assessment, parenting classes, grief counseling,
attend scheduled parent-child visitation, and by its April 14, 2023 order, the trial
court amended the service plan to additionally require Appellant to test negative for
illegal substances and legal substances without a prescription. Appellant was
likewise ordered to maintain safe housing that was free of drugs and other illegal
substances, and refrain from associating with persons participating in illegal
activities.
On June 13, 2024, while the underlying suit involving R.F. was pending,
Appellant and her new boyfriend had a child, A.L. On July 22 and September 30,
2024, A.L. tested positive for marihuana. An associate judge held a hearing over the
course of four days in July, August, and September 2024. After the associate judge
terminated Appellant’s parental rights to R.F., Appellant requested a de novo hearing
before the trial court. At each hearing, the Department presented evidence of
Appellant’s positive drug test results, which were admitted over her objection. After
R.F. was removed, Appellant tested positive for marihuana in December 2022,
January, February, March, April, and July 2023, and July 2024.

3
“Family-based safety services are protective services provided to a family whose children are not
in the conservatorship of the Department.” 40 TEX. ADMIN. CODE ANN. § 700.710 (2021). The
Department’s Child Protective Services Division provides family-based safety services to families and
children “to: (1) protect the children from abuse and neglect; (2) help the family reduce the risk of future
abuse or neglect; and (3) prevent the removal of the children from their home.” Id.
6
At the first hearing before the associate judge, the Department presented the
testimony of E.F. and the permanency case manager Allison-Rae Edmonson;
Edmonson was the only witness at the de novo hearing. Edmonson explained that
Appellant has not “refrained from associating with people participating in illegal
activities,” has not demonstrated that she is able to provide R.F. with a safe,
appropriate, drug-free home, and failed to submit to drug testing at least four times
when she was instructed to do so. For instance, at the time of the de novo hearing
in October 2024, Appellant was living with her mother, her sister, and her new
boyfriend. Appellant’s mother and Appellant’s boyfriend tested positive for
marihuana, and subsequently refused to submit to drug testing shortly before the de
novo hearing. In September 2024, A.L. and Appellant’s sister, who helps care for
A.L., tested positive for methamphetamine.
Appellant also did not complete her required grief counseling, the substance
abuse assessment, and “missed lots of” scheduled parent-child visits. Edmonson
attempted to facilitate Appellant’s substance abuse assessment through four different
providers, but Appellant failed to attend each scheduled appointment. And between
April 2023 and January 2024, Appellant missed twelve visits with R.F. E.F. attested
that even if Appellant attended a visit, she often left early. Finally, Appellant last
showed Edmonson proof of employment in May 2024. Appellant reported a change
in employment since then, but has not provided proof thereof, despite Edmonson’s
requests.
Both E.F. and Edmonson described R.F.’s growth and improvement since
removal. Edmonson observed that R.F. is “doing well” in E.F.’s home, has bonded
with her, and appears happy. R.F. “had a lot of problems when he first went into
[E.F.]’s home, and [has] progressed so much.” R.F. has received Early Childhood
Intervention (ECI) services “[f]or most of the case.” ECI resolved R.F.’s feeding
and swallowing issues, and addressed additional developmental delays as they
7
emerged. E.F. testified that R.F. “wears ankle braces because his feet are turning,”
receives occupational therapy and physical therapy twice a week, as well as speech
therapy. At the time of the de novo hearing, R.F. had worn the ankle foot orthoses
(AFOs) for a few months to improve his walking, and West Texas Rehab planned
on “changing his braces now to go all the way up to his knee.”
According to Edmonson, E.F. was able to care for R.F., and there were no
concerns about drug use in E.F.’s home. It was the Department’s position that it was
in R.F.’s best interest to remain with E.F. because she “provides a safe, stable home
for him[,] [h]e is bonded to everyone in that home, not just [E.F.], and his parents
haven’t been able to remain sober.” E.F. verified that she is willing and able to adopt
R.F. if his parents’ rights are terminated.
The trial court terminated Appellant’s parental rights under
Section 161.001(b)(1)(D), (E), and (O), and found termination to be in the best
interest of R.F. This appeal followed.
Evidentiary Ruling
Appellant contends in her fourth issue that the trial court erred by admitting
the drug test results “that contained layered hearsay,” rendering them “unreliable
and untrustworthy.” 4 At trial, Appellant objected to the admission of these exhibits,
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arguing that they contain information outside the scope of the hearsay exception for
business records affidavits. The trial court overruled Appellant’s objections and
admitted the exhibits into evidence.
Rule 803(6) of the Texas Rules of Evidence allows, as an exception to the rule
against hearsay, the admission of records kept in the course of regularly conducted
business activities. TEX. R. EVID. 803(6). The proponent must establish that the

4
Specifically, Appellant argues that the exhibits at issue “are medical test records not prepared by
the entities that produced them and three[sic] is no evidence to show how the drug tests were conducted or
that the methods used for those drug tests were reliable and that they contained medical opinions.” We
interpret this argument, as a challenge to the trustworthiness of the exhibits.
8
document was made at or near the time of the events recorded, from information
transmitted by a person with knowledge of the events, and made or kept in the course
of a regularly conducted business activity, unless the opponent demonstrates the
source of information or the method or circumstances of preparation indicate a lack
of trustworthiness. Id. The predicate for admission of a business record may be
established by an affidavit that complies with Rule 902(10) of the Rules of Evidence.
See TEX. R. EVID. 902(10).
Attached to each of the complained-of exhibits in this case was an affidavit
by the custodian of records for the Texas Alcohol and Drug Testing Service. The
affidavits pertained to hair, nail, urine, and oral fluid testing. The affidavits state
that “strict chain of custody procedures” were utilized, and that the drug testing was
performed by a certified scientist utilizing GC/MS (gas chromatography/mass
spectrometry) instruments and reviewed by a licensed medical review officer. The
affidavits generally track the language of Rule 803(6), which sets out the
requirements for authentication purposes of an affidavit that accompanies business
records. See TEX. R. EVID. 803(6), 902(10). The affidavits attached to the
complained-of exhibits in this case provide information regarding the chain of
custody, the testing procedures, and the qualifications of the analysts. The pages of
the exhibits that show the results of the lab testing were signed by the medical doctor
that was the certified medical review officers for the tests. Here, the affidavits are
in the form provided by Rule 902(10)(B).
Appellant failed to demonstrate to the trial court that the source of information
or the method or circumstances of preparation indicated a lack of trustworthiness.
See TEX. R. EVID. 803(6)(E). See H.G. v. Tex. Dep’t of Fam. & Protective Servs.,
No. 03-22-00373-CV, 2022 WL 17169847, at *4 (Tex. App.—Austin Nov. 23,
2022, no pet.) (mem. op.); In re J.H., No. 11-22-00122-CV, 2022 WL 16640888, at
*3 (Tex. App.—Eastland Nov. 3, 2022, pet. denied) (mem. op.). Consequently, the
9
trial court did not abuse its discretion in admitting the exhibits over Appellant’s
hearsay objections. See J.H., 2022 WL 16640888, at *3; In re S.W.W., No. 14-22-
00503-CV, 2022 WL 17982904, at *8 (Tex. App.—Houston [14th Dist.] Dec. 29,
2022, pet. denied) (mem. op.); In re E.B., No. 11-19-00001-CV, 2019 WL 3955974,
at *3 (Tex. App.—Eastland Aug. 22, 2019, no pet.) (mem. op.).
Moreover, even if we were to assume error, we would deem any such error
harmless. An error warrants reversal when it either “probably caused the rendition
of an improper judgment” or “prevented the appellant from properly presenting the
case to the court of appeals.” TEX. R. APP. P. 44.1(a); In re J.N., 670 S.W.3d 614,
619 (Tex. 2023). The reviewing court must evaluate the potential influence or
impact of the error on the trial court’s final judgment. J.N., 670 S.W.3d at 619. In
this case, we conclude that the trial court’s admission of the drug test results neither
caused the rendition of an improper judgment, nor prevented Appellant from
presenting her case to this court.
At the hearing before the associate judge, Appellant offered a permanency
report dated January 18, 2024, that lists Appellant’s drug test results by date. The
report further states that R.F. tested positive for marihuana at birth, and again after
the Department initiated the FBSS case. This same exhibit provides critical details
regarding R.F.’s initial lack of weight gain, developmental delays, his need for
occupational therapy, physical therapy, leg braces, and ECI services, as well as his
improvement while in E.F.’s care, and the bond he has formed with her. R.F.’s
medical records, which were admitted at the de novo hearing without objection,
reflect that both R.F. and Appellant tested positive for marihuana when R.F. was
born, and that Appellant admitted to using marihuana during pregnancy.
Therefore, the trial court’s findings and its termination of Appellant’s parental
rights are supported by clear and convincing evidence, even without the complained-
of exhibits. If erroneously admitted evidence is merely cumulative of other properly
10
admitted evidence, then the error is harmless. See State v. Dawmar Partners, Ltd.,
267 S.W.3d 875, 881 (Tex. 2008) (“The erroneous admission of testimony that is
merely cumulative of properly admitted testimony is harmless error.” (quoting
Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989))).
Consequently, to the extent that admitting the lab reports was error, if any, it was
harmless. See TEX. R. APP. P. 44.1(a). Accordingly, we overrule Appellant’s fourth
issue.
Sections 161.001(b)(1)(D) and (E) Endangerment
In her first issue, Appellant challenges the trial court’s findings that she
endangered R.F. as set forth in Sections 161.001(b)(1)(D) and (E). Specifically, she
contends that her marihuana use and R.F.’s exposure to marihuana never “caused
[him] any ill effects, whatsoever” or “created a significant danger” to him, nor did it
adversely affect her parenting capabilities or ability to “graduate high school, go to
college, [and] get a job.”
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)(M); 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). Thus, if
we conclude that the evidence is legally and factually sufficient to uphold the trial
court’s finding as to either subsection (D) or (E), we need not address the remaining
subsections, including the arguments raised by Appellant concerning subsection (O).
See FAM. § 161.001(b)(1); TEX. R. APP. P. 47.1. 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.,
11
660 S.W.3d 257, 263–64 (Tex. App.—San Antonio 2022, pet. denied); J.D., 436
S.W.3d at 114; 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. “A parent’s drug use, violence, or other abuse may make the child’s
environment endangering to the child.” In re J.S., 675 S.W.3d 120, 128 (Tex.
App.—Dallas 2023, no pet.). “A parent acts ‘knowingly’ when the parent is aware
that the environment creates a potential danger to the child but the parent disregards
that risk.” Id. Because conditions or surroundings cannot endanger a child unless
12
the child is exposed thereto, the relevant time frame for evaluating subsection (D) is
before the child’s removal. J.W., 645 S.W.3d at 749.
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. J.S., 687 S.W.3d at 550.
Termination under subsection (E) must be based on more than a single act or
omission; a voluntary, deliberate, and conscious course of conduct by the parent is
required. 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 (“endangering
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 incapable of parenting.”). “While illegal drug use alone may not be
sufficient to show endangerment, a pattern of drug use accompanied by
13
circumstances that indicate related dangers to the child can establish a substantial
risk of harm.” R.R.A., 687 S.W.3d at 278 (emphasis added). “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 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).
Here, Appellant admitted to using marihuana while pregnant with R.F. The
child tested positive for marihuana not only at birth, but again at four months old,
while the Department was providing family-based safety services. See In re C.S.,
No. 11-24-00186-CV, 2024 WL 5080505, at *1 (Tex. App.—Eastland Dec. 12,
2024, no pet.) (mem. op.); In re N.T., No. 02-24-00067-CV, 2024 WL 2066375, at
*5 (Tex. App.—Fort Worth May 9, 2024, no pet.) (mem. op.) (affirming a conduct-
based endangerment finding based in part on the children testing positive for
marihuana and cocaine upon removal). A mother’s “use of controlled substances
while pregnant create[s] a dangerous environment for [the child].” J.W., 645 S.W.3d
at 749. “[H]olding otherwise would effectively endorse a parent’s willful ignorance
of the significant risk that a pregnant mother’s drug use poses.” Id. at 750.
Moreover, Appellant repeatedly tested positive for marihuana in the twenty-
one months between R.F.’s removal and the de novo hearing, and refused several
times to submit to drug testing as required. It is undisputed that “a parent’s decision
to engage in illegal drug use during the pendency of a termination suit, when the
parent is at risk of losing a child, may support a finding that the parent engaged in
conduct that endangered the child’s physical or emotional well-being.” J.S., 687
S.W.3d at 551 (quoting In re A.M., 495 S.W.3d 573, 580 (Tex. App—Houston [1st
Dist.] 2016, pet. denied)). Based on the aforementioned, Appellant’s illegal drug
14
use undoubtedly “expose[d] the child[] to the possibility that [she] may be impaired
or imprisoned,” thereby creating an endangering environment. Id. And despite
Appellant’s assertion that there was no evidence that her marihuana use caused R.F.
any harm, R.F. was diagnosed as a “[n]ewborn affected by maternal use of
cannabis,” with “specified congenital abnormalities of [the] skin,” and “congenital
malformations of [the] skin.” As he grew older, his numerous developmental delays
required occupational therapy and physical therapy multiple times a week, speech
therapy, and months spent in leg braces. Such evidence permits the rational
inference that Appellant’s marihuana use adversely affected R.F. See In re D.K.H.,
No. 11-24-00012-CV, 2024 WL 3362933, at *4 (Tex. App.—Eastland 2024, no pet.)
(mem. op.) (trial court could consider the child’s lasting physical ailments, and
cognitive impairments and delays in finding that the mother’s drug use during
pregnancy endangered the child).
In arguing that “allowing the child to be around individuals who use drugs”
should not be held against her, Appellant ignores the clear language of subsections
(D) and (E): termination may be based on clear and convincing evidence that the
parent allowed the child to remain in dangerous conditions or surroundings, or with
persons who engage in endangering conduct. See FAM. § 161.001(b)(1)(D), (E).
The trial court could therefore consider that Appellant’s mother and Appellant’s
boyfriend tested positive for marihuana, her sister tested positive for
methamphetamine, and her youngest child, A.L., tested positive for
methamphetamine and marihuana while this case was pending. See In re S.V.,
No. 02-23-00188-CV, 2023 WL 5967890, at *9 (Tex. App.—Fort Worth Sept. 14,
2023, no pet.) (mem. op.) (affirming a conduct-based endangerment finding based
in part on evidence that “both drugs and drug users were finding their way into the
children’s home”); In re M.C.L., No. 04-21-00277-CV, 2022 WL 219002, at *6
(Tex. App.—San Antonio Jan. 26, 2022, no pet.) (mem. op.) (“A parent endangers
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her children by accepting the endangering conduct of other people.”); M.C. v. Tex.
Dep’t of Fam. & Protective Servs., No. 03-17-00104-CV, 2017 WL 3379114, at *5
(Tex. App.—Austin Aug. 1, 2017, no pet.) (mem. op.) (considering a parent’s
continued association with “people who smoke marihuana all the time” as evidence
of endangerment).
Equally unavailing is Appellant’s reliance on Section 262.116(a)(8) of the
Family Code in support of her contention that termination “based on a parent’s
marijuana use[] should be restricted.” Section 262.116(a)(8) prohibits the removal
of a child based solely on the parent testing positive for marihuana, unless the
parent’s marihuana use “caused significant impairment to the child’s physical or
mental health or emotional development.” FAM. § 262.116(a)(8). As this provision
governs removal of the child, rather than terminating the parent-child relationship,
it is immaterial to our analysis. Furthermore, it is well-established that a parent’s
failure to maintain sobriety—whether the substance used is legal or illegal—can
constitute endangerment. See J.S., 687 S.W.3d at 550 (“Evidence of endangerment
is demonstrated in many forms, including . . . alcohol and drug abuse.”); S.B. v. Tex.
Dep’t of Fam. & Protective Servs., 654 S.W.3d 246, 254 (Tex. App.—Austin 2022,
pet denied) (parents testing positive before and after removal, one of the children
testing positive at birth, and evidence of medical neglect supported the trial court’s
endangerment finding); In re N.J.H., 575 S.W.3d 822, 831 (Tex. App.—Houston
[1st Dist.] 2018, pet. denied) (“[D]rug activity can constitute endangerment even if
it transpires outside the child’s presence.”).
Based on the foregoing, we conclude that the evidence is sufficiently clear
and convincing such that a reasonable factfinder could have formed a firm
conviction or belief that Appellant engaged in conduct or knowingly placed the
children with persons who engaged in conduct that endangered the physical or
emotional well-being of the child. See FAM. § 161.001(b)(1)(E); see also In re W.D.,
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No. 10-18-00339-CV, 2019 WL 1291111, at *3 (Tex. App.—Waco Mar. 20, 2019,
no pet.) (mem. op.) (“evidence of both parents’ drug use, which resulted in the
children testing positive for marijuana” supported the trial court’s endangerment
finding). We likewise conclude that Appellant’s voluntary, deliberate, and
conscious acts constitute more than a single instance of conduct; the trial court could
have rationally formed a firm conviction or belief that Appellant’s actions created
“conditions or surroundings which endanger[ed] the physical or emotional well-
being of the child.” See FAM. § 161.001(b)(1)(D).
Accordingly, we overrule Appellant’s first issue. In light thereof, we need not
address Appellant’s second issue in which she challenges the trial court’s finding
under subsection (O). See TEX. R. APP. P. 47.1; J.S., 687 S.W.3d at 551.
Best Interest of the Child
In her third issue Appellant 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 R.F. “‘[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). We reiterate that 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 factfinder 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
the requisite due deference to the trial court, we hold that, based on the evidence in
the record and the application of the Holley factors, the trial court could have formed
a firm belief or conviction that termination of Appellant’s parental rights was in the
best interest of the child. See Holley, 544 S.W.2d at 371–72.
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,
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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.). In other words, the absence of
evidence regarding 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
2015, no pet.). Consequently, “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.” J.S., 687 S.W.3d at 552 (quoting In re K.S., 420 S.W.3d 852,
855 (Tex. App.—Texarkana 2014, no pet.)).
Evidence that is relevant to Section 161.001(b)(1) termination grounds may
be probative of the child’s best interest. See In re E.C.R., 402 S.W.3d 239, 249–50
(Tex. 2013) (citing C.H., 89 S.W.3d at 28). In this regard, the trial court could
properly consider Appellant’s multiple positive drug tests, continuing to surround
herself with others who engage in drug use, and her failure to comply with her court-
ordered service plan in assessing whether the termination of her parental rights was
in the best interest of R.F. See E.C.R., 402 S.W.3d at 249–50; C.H., 89 S.W.3d at
28; C.J.O., 325 S.W.3d at 266.
Appellant’s unapologetic marihuana use during pregnancy, and before and
after removal, supports the trial court’s finding that terminating her parental rights
was in R.F.’s best interest. See R.R.A., 687 S.W.3d at 281 (A parent’s continuing
pattern of drug use can support a best interest finding due to the “attendant risks to
employment, housing, and prolonged absence from the children.”). That is because
persistent drug use by parents poses infinite potential dangers to their children, and
“implicates most of the Holley factors.” See In re E.D., 682 S.W.3d 595, 607 (Tex.
App.—Houston [1st Dist.] 2023, pet. denied); 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 his family service plan support a finding
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that termination is in the best interest of the child.”); E.C.R., 638 S.W.3d at 768 (“A
parent’s drug use supports a finding that termination of parental rights is in the best
interest of the child.”).
Although Appellant claims that she complied with her service plan
requirements, “other than being ‘sober,’” the evidence reveals that she failed to
complete several required tasks and services. See E.C.R., 402 S.W.3d at 249 (a
parent’s failure to complete court-ordered services can support best interest finding).
For instance, Appellant failed to maintain a stable home environment with sober
caregivers, which supports the rational inference that Appellant would continue to
expose R.F. to drug-related danger, other criminal activity, and instability were he
returned to her care. See E.D., 682 S.W.3d at 607; see also N.J.H., 575 S.W.3d at
834–36 (father’s history of drug use and continued drug use during case bore on
second, third, fourth, and seventh Holley factors—child’s emotional and physical
needs, emotional and physical danger to the child, father’s parental abilities, and
stability of the home—thus supporting the best interest finding). This is especially
true in light of A.L. testing positive a month after he was born, and again several
months later. Rather than showing any remorse, Appellant exhibits indignance that
the drug use of her household members is being held against her. Such “significant
evidence of parental indifference” and flouting of the parental responsibility to
protect one’s child weighs heavily in favor of the trial court’s finding that
termination is in the child’s best interest. See In re A.J.D.-J., 667 S.W.3d 813, 823
(Tex. App.—Houston [1st Dist.] 2023, no pet.); 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 [the 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
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mother’s “choice to minimize her past drug use” was a factor of “particular
significance” in the best interest analysis.).
Additionally, Appellant refused to complete her substance abuse assessment,
notwithstanding consecutive referrals to four separate providers, and failed to prove
she was maintaining employment after May 2024. More importantly, Appellant
missed at least a dozen visits with R.F., which can “adversely impact[] the parent-
child bond.” See A.J.D.-J., 667 S.W.3d at 824. “A fact finder may infer from a
parent’s failure to take the initiative to complete the services required to regain
possession of [her] child that [she] does not have the ability to motivate [herself] to
seek out available resources needed now or in the future.” In re J.M.T., 519 S.W.3d
258, 270 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). Appellant’s continued
failure to utilize the available programs or regularly visit R.F. demonstrates that she
lacked the motivation or willingness to promote the well-being of the child. See
Holley, 544 S.W.2d at 372. The record is thus replete with evidence of Appellant’s
inability to adequately parent R.F. or provide him with a safe, drug-free home
environment, which supports the conclusion that the parent-child relationship is not
an appropriate one. See id.
Given the child-centered focus of the best interest inquiry, we may not
discount R.F.’s improvement in his safe and stable placement with his grandmother,
who hopes to adopt him. See J.W., 645 S.W.3d at 746–47. “When children are too
young to express their desires, the factfinder may consider that the children have
bonded with the foster family, are well-cared for by them, and have spent minimal
time with [their] parent.” In re Y.G., No. 01-22-00181-CV, 2022 WL 3362953, at
*16 (Tex. App.—Houston [1st Dist.] Aug. 16, 2022, pet. denied) (mem. op.)
(quoting J.D., 436 S.W.3d at 118); see also N.J.H., 575 S.W.3d at 834 (stating that
evidence showing that a young child had bonded with foster family supported best
interest finding). R.F. formed a bond with E.F., who provided a safe, stable, sober
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home environment for him. She took R.F. to all of his appointments, was meeting
his needs, and he “appear[ed] to be happy. See M.C.L., 2022 WL 219002, at *6 (in
child’s best interest to be with a foster family that “has been attentive to meet [the
child’s] needs,” including the child’s “participat[ion] in early childhood intervention
services to address an issue with his foot”).
We therefore conclude 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 the child. See J.W., 645 S.W.3d at 741; Holley, 544 S.W.2d at
371–72.
Accordingly, we overrule Appellant’s third issue.
This Court’s Ruling
We affirm the order of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE

April 3, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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