Michelle Lynn VASQUEZ, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE & REGULATORY SERVICES, Appellee, 190 S.W.3d 189

OPINION TIM TAFT, Justice. Appellant, Michelle Lynn Vasquez, appeals the trial court’s judgment terminating the parent-child relationship between her and her child, Z.M. We determine whether the evidence at trial was legally and factually sufficient to support the termination order’s finding that appellant endangered Z.M. and that the termination of appellant’s parental rights was in the best interest of Z.M. See Tex. Fam.Code Ann. § 161.001(1)(E), (2) (Vernon Supp.2005). We affirm. Facts Appellant is the mother of four children: M.F.M., M.R.M., M.D.V., and Z.M.

Appellant has a long history with the Texas Department of Protective and Regulatory Services (“TDPRS”). That history began in June of 2001, six months before M.D.V. was born with marijuana in her system, when TDPRS received a report that M.F.M. and M.R.M. had been exposed to drugs and left unsupervised while appellant slept and that M.F.M. had drunk lighter fluid. Between this time and April 1, 2002, TDPRS alleged four instances of neglectful or abusive conduct on the part of appellant with regard to her children.

In April 2002, a petition was filed against appellant on behalf of her three children as a result of continued drug use and several incidents of negligent supervision. This included an occasion on which M.R.M. wandered from home onto a sidewalk of a busy street and was brought to a nearby mall by persons who found M.R.M. and thought M.R.M. was missing and in danger. TDPRS took emergency custody of the children.

In response to the petition in April, appellant signed a family service plan on June 5, 2002, in which she agreed to participate in parenting classes, to submit to random urinalysis testing, and to obtain and to maintain appropriate housing and stable employment. Appellant agreed to temporary orders giving custody of her children to TDPRS. Even though appellant completed the parenting classes and counseling, she continued to use marijuana and prescription drugs for recreational use. After Z.M. was born, on July 9, 2003, appellant took a drug and alcohol assessment and was admitted for in-patient treatment.

Carrie Coleman, an in-home family-based case worker, was assigned to assist appellant upon her referral to Family-Based Safety Services with the goal of returning appellant’s other three children to her. Coleman met appellant for the first time on September 12, 2003, after numerous unsuccessful attempts to get together with appellant. Appellant was uncooperative with some of Coleman’s recommendations, including some of those concerning child-proofing her residence. Sometime in September 2003, appellant’s children were returned to her home. In October, appellant missed five appointments with Coleman.

On one appointment when Coleman went to appellant’s residence, Coleman observed M.D.V. opening the door to the outside by herself. On another appointment, Coleman observed appellant on the phone in the dining room while Z.M. was left untended in an infant seat next to a bathtub filled with water in which another child was bathing. During several appointments, Coleman was of the opinion that appellant was high. In November 2003, appellant missed three appointments. In December, appellant missed two more appointments vrith Coleman.

During this time, Turning Point Counseling Services made numerous attempts to call appellant to

schedule a random urinalysis test. For example, Turning Point left three messages before appellant appeared on November 14, 2003. On that date, appellant tested positive for marijuana. Turning Point left four messages before appellant appeared for another test in December 2003, which appellant passed. On January 15, 2004, Z.M. was taken into possession by TDPRS. Sufficiency of the Evidence In her first issue presented for review, appellant contends that the evidence was legally and factually insufficient to terminate parental rights to her child, Z.M.

Specifically, appellant contends that the evidence was legally and factually insufficient to prove by clear and convincing evidence that appellant engaged in conduct that endangered the physical or emotional well-being of Z.M. under

section 161.001(1)(

E) of the Texas Family Code. In her second issue presented for review, appellant contends that the evidence was legally and factually insufficient to prove by clear and convincing evidence that termination of appellant’s parental rights was in the best interest of Z.M. A. Standards of Review In termination-of-parental-rights cases, “Due Process requires that [TDPRS] support its allegations [of termination] by at least clear and convincing evidence” in order to reduce the risk of erroneous termination. Santosky v.

Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599 (1982); In re B.L.D. & B.R.D., 113 S.W.3d 340, 353-54 (Tex.2003). “Clear and convincing evidence” is defined as that 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. Tex. Fam.Code Ann. § 101.007 (Vernon 2002). 1.

Legal Sufficiency When an appellant attacks the legal sufficiency of an adverse judgment on an issue for which she did not have the burden of proof, that appellant must demonstrate that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In parental-rights-termination cases, the standard of review for legal sufficiency is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the matter on which TDPRS bears the burden of proof. In re J.F.C, 96 S.W.3d 256, 266 (Tex.2002).

In reviewing a no-evidence challenge, we consider the evidence in a light most favorable to the verdict, assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could have done so, and disregard all contrary evidence that a reasonable fact finder could have disbelieved or found to be incredible. Id.; In re Guardianship of Hinrichsen, 99 S.W.3d 773, 781 (Tex.App.-Houston [1st Dist.] 2003, no pet.). 2.

Factual Sufficiency When an appellant attacks the factual sufficiency of an adverse finding on an issue on which the opposing party had the burden of proof, that appellant must demonstrate that there is insufficient evidence to support the adverse finding. Croucher, 660 S.W.2d at 58. In analyzing factual sufficiency, we consider whether the disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 265.

A factual-sufficiency challenge will be overruled if, considering all of the evidence in the record — both that which supports and that which contradicts the trial court’s finding — the fact finder reasonably could form a firm conviction or belief that the parent committed one of the alleged grounds of termination and that the termination of parental rights is in the best interest of the child. In re C.H., 89 S.W.3d 17, 28-29 (Tex.2002). B. Findings Subject to Challenge A court may base a termination of parental rights upon a finding that a parent engaged in conduct described in any subsection of Family Code

section 161.001(1), plus a finding that the termination is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(1), (2); In re L.M., 104 S.W.3d 642, 647 (Tex.App.-Houston [1st Dist.] 2003, no pet.). The trial court’s termination order contains findings by the trial court that termination was in Z.M.’s best interest and that appellant had engaged in conduct or knowingly placed Z.M. with persons who engaged in conduct that endangered the physical or emotional well-being of Z.M. These findings satisfy the requirements of

section 161.001(1)(

E) and (2) and also conform to the oral findings made by the trial court at the conclusion of the termination hearing. TDPRS contends that the trial court’s judgment may be upheld upon proof supporting any subsection of 161.001 that was pleaded, even though some of those pleaded subsections were not found by the trial court. In particular, TDPRS argues that this Court must affirm the trial court’s judgment on the basis of subsection 161.001(1)(D), which was also pleaded and is supported by evidence, but which ground for termination appellant has not challenged on appeal. TDPRS’s argument would have had merit if the trial court had found both subsections (

D) and (

E) in its termination order. See Edwards v. Dep’t of Protective Servs., 946 S.W.2d 130, 135 (Tex.App.-El Paso 1997, no writ). Its argument would also have had merit if a jury had returned a broad-form verdict in a case in which several grounds for termination, including subsection (D), had been alleged. See In re C.H., 25 S.W.3d 38, 48 (Tex.App.-El Paso 2000), rev’d on other grounds, 89 S.W.3d 17 (Tex.2002). TDPRS appears to confuse the general rule in civil cases that findings should not be made in the judgment with the requirement that the findings in

section 161.001 of the Texas Family Code be made in a parental-rights-termination order. See In re A.I.G., 135 S.W.3d 687, 694 (Tex.App.-San Antonio 2003, no pet.). If the trial court’s findings could be disregarded, the general order of termination would be similar to a general verdict in a trial to the court that could be upheld upon sufficient evidence of any ground pleaded. We hold, however, that a parental-rights-termination order can be upheld only on grounds both pleaded by TDPRS and found by the trial court.

Therefore, we decline TDPRS’s invitation to uphold the trial court’s termination order on a ground different from that stated in the order. Accordingly, appellant must show that there is no or insufficient evidence either that she engaged in the conduct described in

section 161.001(1)(

E) of the Family Code or that termination was in the child’s best interest under

section 161.001(2). C.

Section 161.001(1)(

E) Section 161.001(1)(

E) of the Family Code provides that a court may terminate the parent-child relationship if the court finds by clear and convincing evidence that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child. Tex. Fam.Code Ann. § 161.001(1)(E). “Endanger” means to expose to loss or injury or to jeopardize. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987).

Although such endangerment requires 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 suffer injury. Id. Endangerment may be satisfied by showing that a parent engaged in a “course of conduct” that endangered the child’s physical or emotional well-being. In re U.P., 105 S.W.3d 222, 233 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); In re J.O.C., 47 S.W.3d 108, 113 (Tex.App.-Waco 2001, no pet.).

The manner in which a parent treats other children in the family can be considered in deciding whether that parent engaged in a course of conduct that endangered the physical or emotional well-being of a child. In re D.L.N., 958 S.W.2d 934, 939 (Tex.App.-Waco 1997, pet. denied). At the outset, appellant concedes that the evidence arguably supports termination for neglect under

section 161.001(1)(D). Tex. Fam.Code Ann. § 161.001(1)(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”). We agree with appellant that this finding was not made, however. In regard to the

section 161.001(1)(

E) finding, appellant acknowledges the existence of evidence showing her neglect of other children and of her drug use, but claims that there is no evidence that appellant’s conduct endangered Z.M. or that appellant placed Z.M. with others who engaged in conduct that endangered Z.M. TDPRS does not contend, nor does any evidence show, that appellant placed Z.M. with others who engaged in conduct , endangering Z.M.

TDPRS argues that the primary conduct at issue in this case is the evidence of appellant’s illegal drug use before and after the birth of Z.M., and after TDPRS had worked with appellant for over a year trying to reunite her with her children. TDPRS points to appellant’s marijuana use after pregnancies with her first two children and during her pregnancy with her third child, resulting in MJD.V.’s being born with marijuana in her system. TDPRS also relies on appellant’s relapse in November 2003, four months after Z.M. was born.

TDPRS argues that appellant’s deliberate and voluntary decision to continue to use illegal drugs was dangerous to Z.M. because it exposed Z.M. to the possibilities that her supervision would be impaired by drug use and that appellant would be arrested for using illegal drugs. We do not write on a blank slate in this case. The trial below was actually a joint trial at which appellant’s parental rights to both Z.M. and M.D.V. were terminated.

The appeal of the termination of appellant’s parental rights to M.D.V. was recently decided by our sister court in In re M.D.V., No. 14-04-00463-CV, 2005 WL 2787006 (Tex.App.-Houston [14th Dist.] Oct. 27, 2005, no pet.) (not designated for publication). Under the same evidence that is before us, the termination of appellant’s parental rights to M.D.V. was upheld, and we agree with the decision of our sister court.

Although the facts are more aggravated regarding appellant’s endangerment of M.D.V., who was born with marijuana in her system and who was the child left unattended in a bathtub full of water, we must consider appellant’s treatment of M.D.V. in considering whether appellant engaged in a course of conduct that endangered the physical or emotional well-being of Z.M.

We note that, although the court in In re M.D.V. relied partially on appellant’s having actually injured M.D V. by her use of marijuana during her pregnancy, resulting in marijuana’s being in M.D.V.’s system at her birth, the court went further to state: “The trial court could have formed a firm belief or conviction that any drug use while the children were in appellant’s care jeopardized or exposed them to loss or injury.” Id.

Moreover, although the court might have focused its holding only on appellant’s drug use, it squarely based its holding on both appellant’s drug use and appellant’s failure to adequately protect or to supervise her children. Id. Despite there being no direct evidence of appellant’s drug use or neglect actually injuring Z.M., TDPRS presented evidence that appellant engaged in a course of conduct that endangered Z.M.’s physical and emotional well-being.

The evidence at trial supporting this conclusion includes: (1) a continued pattern of drug use without regard for the effects that it had on the children, including one child’s having tested positive for drugs at birth and the appearance of appellant’s having been “high” while caring for the children, including Z.M., as noted by a case worker during visits to the home; (2) appellant’s failure to remain drug-free while under TDPRS’s supervision, knowing that such conduct could place her children, including Z.M., at risk; and (3) the case worker’s observation of incidents indicating appellant’s negligent supervision (Z.M.’s being left unattended near a filled bathtub with another child in the tub and M.R.M.’s exiting the home into high-traffic areas), without appellant’s showing a willingness to take corrective measures, such as childproofing the home.

We hold that the evidence, viewed in the light most favorable to the verdict, is such that a fact finder reasonably could have formed a firm belief or conviction about the truth of appellant’s endangerment of Z.M., which TDPRS had the burden of proving by clear and convincing evidence. Thus, we hold that the evidence is legally sufficient to show that appellant endangered Z.M. We also hold that, considering all of the evidence, including evidence on which appellant relies to contradict the jury’s verdict, a reasonable fact finder could have formed a conviction that appellant endangered Z.M.

Thus, we hold that the evidence is factually sufficient. Accordingly, we overrule appellant’s first issue presented for review. D. Best Interest of Z.M.

In determining whether termination is in the child’s best interest, we may consider several factors, including, but not limited to, (1) the child’s desires, (2) the current and future physical and emotional needs of the child, (3) the current and future physical danger to the child, (4) the parental abilities of the person seeking custody, (5) whether programs are available to assist the person seeking custody in promoting the best interests of the child, (6) plans for the child by the person seeking custody, (7) the stability of the home, (8) acts or omissions of the parent that may indicate that the parent-child relationship is not proper, and (9) any excuse for acts or omissions of the parent.

See In re L.M., 104 S.W.3d at 647; see also Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976). The burden is on TDPRS to rebut the presumption that the best interest of the child is served by keeping custody in the natural parents. In re K.C.M., 4 S.W.3d 392, 395 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). The Holley factors are not exhaustive, nor must all of the factors be proved as a condition precedent to parental termination. See In re C.H., 89 S.W.3d at 27.

The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child’s best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child. Id. 1. Child’s Desires The record fails to reflect the desires of Z.M. because Z.M. is an infant. 2. Child’s Current and Future Physical and Emotional Needs Appellant contends that the record shows that she had sufficient financial resources to meet the needs of Z.M.

However, appellant failed to provide evidence that she was able to support herself financially. Appellant testified that she was unable to work during her pregnancy with Z.M., but that her mother paid her rent during this time. Appellant testified that she supported herself at the time of trial and had done so for the past three months by cleaning apartments on a part-time basis. Appellant also testified that she had secured an additional job as a cafeteria worker. However, appellant failed to provide proof that she was employed cleaning apartments.

Appellant did provide a paycheck stub from her employment at the cafeteria. Appellant testified that if the children returned to her home, she would support them with earnings from her current job and with the help of her family. 3. Current and Future Physical Danger to Child Appellant contends that she did not engage in conduct that endangered Z.M. However, appellant admitted that she was a narcotics addict and that she had continued to use narcotics, most recently in November 2003, just months pri- or to the termination hearing in the trial court.

Appellant also admitted that one of her children, M.D.V., was born with marijuana in her system and that she used prescription drugs recreationally during her pregnancy. Appellant admitted that, prior to having her children taken into protective custody, there was a period in which she smoked marijuana on a daily basis after the children were put to sleep. Appellant testified that she quit using narcotics after M.D.V. was born.

However, while attempts were being made to place M.D.V. back into appellant’s care, and while Z.M. was approximately four to five months old, appellant relapsed and used narcotics in November 2003. Nonetheless, appellant testified that she did not believe that her use of narcotics endangered the children’s emotional and physical well-being. Evidence of pre-natal and post-natal drug abuse by a parent may be a ground for termination. In the Interest of R.D., 955 S.W.2d 364, 368 (Tex.App.-San Antonio 1997, pet. denied).

Appellant also contends that she provided a safe environment for her children and that she had a safety plan in place with friends. However, the record reflects that appellant endangered her children physically on several occasions. Coleman received appellant’s case in August 2003 and worked with appellant to bring three of her children back into the home and to keep Z.M. in the home with appellant. Coleman worked to identify appellant’s needs, to teach appellant parenting skills and child safety, to teach appellant anger management techniques, and to reunify the family.

Coleman testified that appellant failed to participate actively in the services that she offered to ensure the children’s safety by demonstrating a hostile attitude and by missing scheduled appointments. Coleman also stated that appellant endangered the safety of her children. For instance, Coleman observed that appellant’s two-year-old, M.D.Y., was prone to open doors and to leave the apartment. At one point, M.R.M. escaped from the home and was picked up and taken to a mall security center by passers-by.

Knowing this, Coleman instructed appellant regarding child safety, including teaching appellant how to childproof the home’s doors so that the children could not leave the home or enter dangerous areas. However, the record shows that appellant failed to heed Coleman’s recommendations because, at a later time, Coleman observed M.D.V. open the apartment door and walk outside after appellant had left the children alone while retrieving a cup from her car. During another visit, Coleman observed appellant’s children unattended in the bathroom.

On this occasion, Coleman observed appellant in the dining room talking on the phone, while M.D.V. was left alone in the bathtub filled with water and Z.M. was placed next to the tub in his infant seat. Coleman attempted to educate appellant about the dangers that her conduct posed for her children, but appellant became angry and defensive. Coleman also testified that, when she came to' appellant’s apartment on several occasions, she observed different men inside appellant’s home.

Coleman testified that, on one occasion, one of the men acted in a threatening manner toward her and asked whether she was scared of him. Finally, Coleman testified that, during several scheduled visits, appellant appeared to be high on drugs. 4. Parental Abilities As discussed previously, the record reflects that appellant’s parental abilities are questionable. Appellant persisted in engaging in conduct dangerous to her children, including leaving the children unsupervised and failing to childproof the home. 5.

Programs Available to Assist Person Seeking Custody Appellant actually completed parenting classes and counseling, but thereafter continued to use marijuana and prescription drugs for recreational purposes and failed to cooperate with her case worker to protect the children by, for example, childproofing her residence. 6. Plans for Child by Person Seeking Custody The only plan that appellant had was to try to support and to take care of Z.M., both by her own efforts and with help from her family. 7.

Stability of Home Although appellant maintained a residence for over a year at the same place, she found it necessary to rely on family to help pay the rent. 8 & 9. Parent’s Acts or Omissions, and Excuses Therefor, that May Indicate Improper Parent-Child Relationship The evidence relevant to these factors is discussed above, in our analysis of the endangerment issue. 10.

Summary Viewing the evidence in the light most favorable to the verdict, we hold that the trial court could have formed a firm belief or conviction that termination of appellant’s parental rights was in the best interest of Z.M., particularly because the un-controverted evidence shows that appellant endangered the physical and emotional well-being of Z.M. by engaging in a course of conduct involving the use of narcotics, and the failure to supervise him adequately. See Robinson v.

TDPRS, 89 S.W.3d 679, 688 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (finding pattern and practice of drug abuse, despite attending programs, to be sufficient evidence to support best-interest finding). We hold that the evidence was legally sufficient and, despite appellant’s having presented some evidence of completion of parenting classes and some evidence of establishing an employment history and stable home environment, factually sufficient to uphold the jury’s finding that termination of appellant’s parental rights was in the best interest of Z.M. We overrule appellant’s second issue presented for review.

Conclusion We affirm the termination order of the trial court. Justice JENNINGS, dissenting. . TDPRS is now known as the Department of Family and Protective Services. See Act of June 2, 2003, 78th Leg., R.S., ch. 198, § 1.27, 2003 Tex. Gen. Laws 611, 641.