KEN WISE, JUSTICE

On Appeal from the 315th District Court Harris County, Texas Trial Court Cause No. 2020-01188J

Panel consists of Chief Justice Christopher and Justices Wise and Hassan.

MEMORANDUM OPINION

KEN WISE, JUSTICE

In this appeal from the termination of parental rights to Z.K.S. (the Child), Mother contends that, although there is no non-frivolous ground for reversing the trial court's judgment, the evidence is legally and factually insufficient to support the trial court's findings under Section 161.001(b)(1)(D) and (E) of the Family Code. We affirm.

I. Standards of Review

A court may terminate the parent-child relationship if the court finds by clear and convincing evidence that (1) the parent has engaged in at least one statutory predicate act and (2) termination is in the best interest of the child. See In re N.G., 577 S.W.3d 230, 230 (Tex. 2019); In re L.C.L., 599 S.W.3d 79, 83 (Tex. App.-Houston [14th Dist.] 2020) (en banc), pet. denied, 629 S.W.3d 909 (Tex. 2021); see also Tex. Fam. Code § 161.001(b).

Termination of the parent-child relationship is a drastic remedy and is of such weight and gravity that due process requires the state to justify termination by clear and convincing evidence. In re C.H., 89 S.W.3d 17, 23 (Tex. 2002); see also In re L.G.R., 498 S.W.3d 195, 201 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). 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. Tex. Fam. Code § 101.007. This heightened burden of proof results in a heightened standard of review when evaluating the sufficiency of the evidence. In re L.G.R., 498 S.W.3d at 202.

Under a legal sufficiency review, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible, but we do not disregard undisputed facts. Id.

Evidence is factually insufficient if, in light of the entire record, "the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction." Id. We do not disregard disputed evidence. See In re Commitment of Stoddard, 619 S.W.3d 665, 674 (Tex. 2020).

II. Background

The Child was born in September 2018. The Department of Family and Protective Services was named the Child's temporary managing conservator in May 2020 and took custody of the Child. The final hearing was held over two days in January 2021 and March 2022.

A. Mother's Prior Children

The trial court admitted as an exhibit an affidavit from the Department's employee. The employee testified by affidavit about Mother's history with the Department. In April 2009, a referral was made regarding Mother leaving her two children, both under the age of two, alone for extended periods of time. Mother failed to seek medical treatment for the children, and they lacked proper hygiene. There was a lack of food in the home for the children. The five-month-old baby suffered a seizure due to a lack of formula. Mother was using drugs around this time and appeared high. While the children were in the Department's care, Mother was evicted from her home and lived "in and out" of shelters and friends' homes. Mother failed to participate in a substance abuse assessment and psychological assessment. Ultimately, she voluntarily relinquished her rights to the children, and the children were adopted by others.

Another investigation began in March 2012. The referral alleged that Mother was homeless and using cocaine and marijuana while pregnant and caring for her then-eight-month-old child. Mother would spank the child for not eating cereal. Mother did not have a stable living environment. During the investigation, Mother denied any prior involvement with the Department and denied having two other children at all. Mother gave birth during the investigation. She voluntarily relinquished her rights to both children in 2013, and the children were adopted by others.

B. Referrals Regarding the Child

The Department received a referral regarding neglectful supervision of the Child in February 2020. A police officer observed that Mother was unaware the Child was about to walk into a parking lot. When the officer informed Mother about what they saw, Mother sat on the ground and began crying. During the investigation, Mother declined drug testing and denied having any mental health issues. Before legal intervention could occur, Mother stopped cooperating with the Department and became unlocatable.

The Department received another referral regarding sexual abuse of the Child in May 2020. Mother had been living with an acquaintance for about a week. Mother reported to the acquaintance that the Child recently had been sexually abused by a man who "jammed his hand up in there." During the investigation, Mother denied that the Child was sexually abused and denied telling anyone that he was sexually abused. A caseworker testified that the Department was not able to establish whether the Child was sexually abused.

The acquaintance told the Department employee that Mother "has beat the child before and will yell at him." Mother "beats the child whenever he gets too comfortable with other people or wants to play." One time when the Child ran to the acquaintance, Mother "took the child into another room and she could be heard 'straight hitting' him." Mother would feed the Child seaweed or not feed the Child at all. She left the Child in soiled diapers for long periods of time. When Mother talked to the Child, he would shut down and run away. A caseworker testified similarly that there were "reports throughout the investigation that [the Child] was afraid of her, that she would beat him." According to the acquaintance, the Child also experienced "behavioral issues," such as trying to "go into [the acquaintance's] pants" and touching himself "in the front and back a lot."

The acquaintance reported that Mother "only leaves the home when she is going to meet with men." Mother has come home at 5:00 a.m. "high." One time Mother took the Child to meet a man whom she met online, and the Child wasn't wearing any clothes. The men who Mother would meet online asked her more questions about the Child than they asked about Mother.

C. Mother's Criminal History, Drug Use, and Mental Health

According to the affidavit, before the Child was born, Mother had been arrested twice for theft, a traffic offense, criminal trespass, and resisting arrest. On the first day of trial, Mother was incarcerated for a pending charge of assaulting a public servant. On the second day of trial, Mother resided at medical center due to her being found incompetent to stand trial in the criminal case.

A caseworker testified that during the investigation, Mother was "delusional," either from drug use or mental health issues. When the caseworker tried to speak with Mother when she had been arrested, Mother became irate and refused to speak with the caseworker. Mother did not appear coherent and was confused about time frames. Mother's guardian ad litem testified that Mother had been agitated, very disoriented, and had "disordered communications" about the length of time the Child had been in the Department's care.

Mother was drug tested at the beginning of the case in May 2020 and tested positive for cocaine, methamphetamine, and marijuana. She had been ordered three times subsequently to take drugs tests, but she failed to appear.

D. Mother's Absence and Failure to Begin Services

Although a bench warrant issued for Mother's attendance at the final hearing, she refused to attend. The caseworker testified that Mother was not locatable for a great portion of the case. The Department tried unsuccessfully to locate Mother at prior addresses and places that Mother was known to frequent, such as a local park. Mother's attorney informed the caseworker in October or November 2021 that Mother had been arrested, and the caseworker was then able to speak with Mother for the first time since the Child's removal from Mother's care.

Although the Department had allowed Mother to have video contact with the Child, she had not seen or spoken to him since June 2020. The caseworker testified that Mother and the Child hadn't had "any contact or a bond."

The caseworker testified that a family service plan was ordered for Mother. However, Mother failed to start any of the services. She provided no documentation of parenting classes or any other services. Although the Department had concerns about Mother's mental health, the concerns could not be addressed because Mother did not attempt any of the services. The caseworker testified that Mother has never demonstrated that she could provide a safe and stable home for the Child.

E. Trial Court's Decree of Termination

The trial court signed a judgment terminating Mother's parental rights to the Child. The court found that termination was in the Child's best interest, and the court made findings pursuant to subsections (D), (E), (N), and (O) of the termination statute. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (O).

III. Sufficiency of the Evidence: Endangerment Finding

Mother contends that the evidence is legally and factually insufficient to support the trial court's predicate endangerment findings under subsections (D) and (E) of the termination statute. See Tex. Fam. Code § 161.001(b)(1)(D), (E). Even when this court affirms the termination on another ground, it must consider the sufficiency of the evidence of these two predicate findings when raised on appeal due to the significant collateral consequences that may result. See In re N.G., 577 S.W.3d 230, 234-37 (Tex. 2019); In re M.T., No. 14-22-00198-CV, 2022 WL 3204819, at *6 (Tex. App.-Houston [14th Dist.] Aug. 9, 2022, no pet. h.) (mem. op.). If the evidence is sufficient to support one of these findings, we need not address the sufficiency of the evidence to support the other finding. See In re P.W., 579 S.W.3d 713, 728 (Tex. App.-Houston [14th Dist.] 2019, no pet.).

A. Legal Principles Regarding Endangerment

Under subsection (E), a court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent engaged in conduct which endangers the physical or emotional well-being of the child. Tex. Fam Code § 161.001(b)(1)(E). The term "endanger" means the child was exposed to loss or injury or jeopardized. In re C.A.B., 289 S.W.3d 874, 882 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (citing Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Endangerment encompasses more than a threat of metaphysical injury or possible ill effects of a less-than-ideal environment. Id. (citing Boyd, 727 S.W.2d at 533). The statute does not require that conduct be directed at a child or cause actual harm; rather, it is sufficient if the conduct endangers the emotional well-being of the child. Id. at 883.

Termination under subsection (E) must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. In re V.A., 598 S.W.3d 317, 331 (Tex. App.-Houston [14th Dist] 2020, pet. denied). In determining whether there is a sufficient course of conduct, a court may consider the parent's actions and inactions occurring both before and after a child's birth, and before and after the child was removed from the parent's home. In re F.M.E.A.F., 572 S.W.3d 716, 736 (Tex. App.-Houston [14th Dist.] 2019, pet. denied). As a general rule, subjecting a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).

B. Analysis of Endangerment Finding

Mother takes a divide-and-conquer approach to the Department's evidence about endangerment, advancing the following arguments: (1) homelessness, alone, does not indicate endangerment; (2) mental illness, alone, does not indicate endangerment, and the Department adduced no evidence of Mother's noncompliance with treatment recommendations; (3) the allegation of sexual abuse was not substantiated, and the Department was not able to determine if it actually happened; (4) the reports that Mother was beating and not feeding the Child were not substantiated; and (5) no testimony or evidence explains the May 2020 drug test results to indicate the frequency or amount of use, and Mother's failure to take additional tests should be excused because Mother could not have known she was supposed to take additional tests.

Viewed holistically, however, the Department's evidence shows:

• Mother demonstrated a history and pattern of drug abuse and criminal conduct, thus subjecting the Child to a life of uncertainty. See In re J.O.A., 283 S.W.3d at 345 & n.5 (use of narcotics and effect on ability to parent may qualify as endangering course of conduct); In re Z.J.B., No. 14-18-00759-CV, 2019 WL 347474, at *5-6 (Tex. App.-Houston [14th Dist.] Jan. 29, 2019, pet. denied) (mem. op.) (criminal behavior, lack of concern for child, and

testing positive for illegal drugs once and failing to attend three additional drug screenings, supporting inference of continued drug use); In re C.A.B., 289 S.W.3d at 887 (abuse towards family members, past and continued criminal activities, and imprisonment); In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.- Houston [14th Dist] 2005, no pet.) (twice being incarcerated for for assaulting a police officer, once before child's birth and once after, demonstrated a propensity for violence and evidence of endangerment).

• Mother demonstrated a history and pattern of neglectful supervision and physical abuse of the Child and her other children. See In re P.N.T., 580 S.W.3d 331, 356 (Tex. App.-Houston [14th Dist.] 2019, pet. denied) (physical abuse of the subject child and other children); In re C.A.B., 289 S.W.3d at 886 (parent's abuse of other children can support endangerment finding even against a child who was not yet born at the time of the conduct).

• Mother voluntarily absented herself from the case, failed to attempt any services, and failed to maintain contact with the Child during the case. See In re L.M., 572 S.W.3d 823, 836 (Tex. App.- Houston [14th Dist.] 2019, no pet.) (failure to maintain contact with the Department and lack of contact with Child, coupled with multiple episodes of incarceration, drug-related activity, and violence against family member); In re Z.J.B., 2019 WL 347474, at *5 (failure to maintain contact with the Department and attend hearings without excuse); In re S.R., 452 S.W.3d 351, 362 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) (failure to participate in court-ordered services); In re S.M.L., 171 S.W.3d at 479-80 (failure to contact the Department or maintain contact with the child for eight months).

• Mother failed to participate in services that could help treat any mental health issues. See In re S.R., 452 S.W.3d at 363-65 (failure to participate in services related to treatment of mental illness).

Considering all of the evidence, a reasonable factfinder could have formed a firm belief or conviction that Mother engaged in conduct that endangers the physical or emotional well-being of the Child. Although much of the evidence was admitted through the Department employee's affidavit, Mother lodged no objection to its admissibility, and it is probative evidence as a matter of law. See In re R.H.W. III, 542 S.W.3d 724, 734 (Tex. App.-Houston [14th Dist] 2018, no pet.) (affidavits included with criminal complaints supplied direct evidence to support endangerment finding) (citing Tex. R. Evid. 802). Thus, we reject Mother's contention that the evidence of endangerment is insufficient because some of the evidence was not "substantiated"-namely, her physical abuse and neglect of the Child and other children.

The evidence is legally and factually sufficient to support the trial court's finding under subsection (E).

IV. Best-Interest Finding

Mother's counsel contends that there isn't a non-frivolous ground to challenge the trial court's termination of Mother's parental rights to the Child because there is legally and factually sufficient evidence to support at least one ground for termination and that termination is in the Child's best interest.

The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See In re D.E.S, 135 S.W.3d 326, 329 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (Anders procedures apply to an appeal from termination of parental rights). This court and Mother's counsel notified Mother that counsel filed an Anders brief, and this court informed her about how to obtain a copy of the record and her right to file a pro se response. See id. at 329-30. No pro se response has been filed.

We have reviewed the record and counsel's brief and agree that there isn't a non-frivolous ground to challenge the trial court's termination of Mother's parental rights because the evidence is legally and factually sufficient to support the trial court's best-interest finding and at least one predicate finding. Counsel thoroughly analyzed the sufficiency of the evidence supporting the trial court's best-interest finding. A detailed discussion of this issue would add nothing to the jurisprudence of the state. See id. at 330.

V. Conclusion

Mother's issue challenging the sufficiency of the evidence to support the trial court's endangerment findings is overruled. The trial court's judgment is affirmed.