Court of Appeals of Texas, Ninth District, Beaumont
IN THE INTEREST OF J.O. AND I.O.
Submitted on April 17, 2017
Appeal from the 279th District Court Jefferson County, Texas
Trial Cause No. C-226, 242
McKeithen, C.J., Horton and Johnson, JJ.
a parental rights termination case. Following a bench trial,
the trial court terminated the parent-child relationships
between J.O. and I.O. and their mother, and between J.O. and
I.O. and their respective fathers. By clear and convincing
evidence, the trial court found that statutory grounds
existed to terminate the relationships between the children
and their parents, and it found that terminating the parental
relationship between J.O. and I.O. and their parents would be
in J.O.'s and I.O.'s best interests. See
Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (P),
(b)(2) (West Supp. 2016). J.O.'s and I.O.'s
respective fathers did not appeal from the order terminating
their parental rights, but Mother timely appealed from the
order terminating her rights. In five issues, Mother
challenges the legal and factual sufficiency of the evidence
supporting the four statutory grounds on which the court
terminated her rights, and she challenges the legal and
factual sufficiency of the evidence supporting the trial
court's best-interest findings. We overrule Mother's
appellate issues and affirm the judgment.
legal sufficiency review of an order terminating a
parent's rights, the evidence from the trial is reviewed
"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." In
re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In reviewing
a factual sufficiency challenge to an order terminating a
parent's rights, the appeals court gives "due
consideration to evidence that the factfinder could
reasonably have found to be clear and convincing."
Id. In a factual sufficiency review, the factual
sufficiency standard requires the appellate court to be
highly deferential to the factfinder's role in evaluating
and weighing the evidence. Id. Additionally, the
findings made by the factfinder will be deemed to be
supported by sufficient evidence unless the evidence that
cannot be credited in favor of the findings is so significant
that the factfinder could not have reasonably formed a firm
belief or conviction that the challenged findings are true.
convenience, we discuss issue two before discussing the other
issues in Mother's brief since resolving that issue
against Mother would dispose of four of Mother's five
appellate issues. See Tex. R. App. P. 47.1
(requiring the appellate court to issue a written opinion
that is as brief as practicable but that addresses all issues
necessary to a final disposition of the case being appealed).
In issue two, Mother challenges the trial court's finding
that she engaged in conduct or knowingly placed J.O. and I.O.
with persons who engaged in conduct that endangered their
physical or emotional well-being. See Tex. Fam. Code
Ann. § 161.001(b)(1)(E). Under section 161.001(b)(1)(E),
the term "'[e]ndanger' means 'to expose to
loss or injury; to jeopardize.'" In re
M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam)
(quoting Tex. Dep't of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987)). "Although
'endanger' means more than a threat of metaphysical
injury or the possible ill effects of a less-than-ideal
family environment, it is not necessary that the conduct be
directed at the child or that the child actually suffers
injury." Id. (citing Boyd, 727 S.W.2d
challenge to the trial court's endangerment finding
requires that we determine whether the evidence before the
trial court demonstrates that the endangerment to J.O.
and to I.O. was the direct result of Mother's conduct,
which includes Mother's acts, omissions, or Mother's
failure to act. See In re J.T.G., 121 S.W.3d 117,
125 (Tex. App.-Fort Worth 2003, no pet.). In this case, there
was substantial evidence showing that Mother used illegal
drugs, mainly cocaine. To support an endangerment finding,
the testimony must establish more than a parent's single
act or omission, as section 161.001(b)(1)(E) of the Family
Code requires proof showing that the parent engaged in a
voluntary, deliberate, and conscious course of conduct that
endangered the child's well-being. Id. Evidence
showing that a parent uses illegal drugs, including evidence
that the parent engaged in such conduct even though the
parent knew her parental rights were in jeopardy, together
with evidence showing the effect of using drugs on the
parent's ability to parent, may justify a
factfinder's conclusion that the parent endangered the
child. See In re J.O.A., 283 S.W.3d 336, 345 (Tex.
2009); In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex.
App.- Fort Worth 2011, pet denied).
evidence in the trial pertinent to the Department's
claims against Mother shows that J.O. and I.O. were removed
in an emergency removal in March 2016 after the Department of
Family and Protective Services was notified that the children
were in an apartment without adult supervision. In the
investigation that followed, the Department learned that
Mother was homeless, that Mother was living in Houston, and
that Mother voluntarily placed J.O. and I.O. with her mother,
who was their grandmother. The Department also learned that
Mother was using cocaine and other drugs. Testimony in the
trial indicates that Mother continued to use cocaine and
other illegal drugs in the nine-month period in which J.O.
and I.O. were in the Department's custody. When Mother
testified during the trial, Mother admitted that she had been
using cocaine and other drugs since 2011, and that she began
using drugs shortly after J.O. was born. Mother explained
that she placed J.O. and I.O. with her mother because she was
using cocaine. Additionally, Mother admitted that she had
never passed a drug test. Mother also testified in the trial
that she last used cocaine and other drugs two weeks before
the trial. There was no testimony in the trial showing that
Mother had successfully completed a drug abuse treatment
the consistent use of illegal drugs exposes a child to the
possibility that the parent may be impaired or imprisoned,
evidence of the prolonged and continued use of illegal drugs
is evidence that supports a trial court's finding of
endangerment under section 161.001(b)(1)(E). Walker v.
Tex. Dep't of Family & Protective Servs., 312
S.W.3d 608, 617-18 (Tex. App.-Houston [1st Dist.] 2009, pet.
denied); see also In re J.O.A., 283 S.W.3d at 345.
Additionally, continued illegal drug use in face of a
parent's loss of her parental rights is conduct showing a
voluntary, deliberate, and conscious course of conduct, which
by its nature, endangers a child's well-being. See
Cervantes-Peterson v. Tex. Dep't of Family &
Protective Servs., 221 S.W.3d 244, 253-54 (Tex.
App.-Houston [1st Dist.] 2006, no pet.) (upholding
termination based on parent's continued use of drugs).
Mother testified in the trial that she was drug-free and
could control her drug use, as the factfinder, the trial
court was not required to believe that Mother had acquired
control over her desire to use illegal drugs. See In re
J.F.C., 96 S.W.3d at 266. Evidence of ongoing use of
illegal substances allows the factfinder in a termination
case to form a firm belief that a parent's drug use was
voluntary, deliberate, and the result of the parent's
conscious choice. See In re J.T.G., 121 S.W.3d at
125. Given the relatively short duration of the period Mother
claimed she was drug-free, and the evidence showing that
Mother's use of illegal substances had gone on for years,
the trial court could reasonably conclude that Mother would
continue to use illegal drugs. See In re J.O.A., 283
S.W.3d at 346.
argues that the evidence is factually insufficient to support
the trial court's endangerment finding. In our opinion,
the evidence about Mother's prolonged use of illegal
drugs allowed the trial court to reasonably form a firm
belief that Mother's conduct endangered J.O.'s and
I.O.'s physical and emotional well-being. See
id. We conclude the evidence admitted during the trial
was legally and factually sufficient to allow the trial court
to form a firm belief or conviction that ...