Smith v. DFPS (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Hanks)(termination affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks  
Before Justices Keyes, Hanks and Bland    
01-09-00173-CV        Deshann Smith a/k/a Cajuanna Peterson v. Department of Family and Protective Services
01-09-00390-CV        Deshann Smith a/k/a Cajuanna Peterson v. Department of Family and Protective Services    
Appeal from 314th District Court of Harris County

MEMORANDUM OPINION

Following a bench trial, the trial court signed judgments terminating the parent-child relationship between
appellant, Deshann Smith, (1) a/k/a Cajuanna Peterson, and her children J.O., T.O., and N.S. (2) The trial court
also appointed the Texas Department of Family and Protective Services ("the Department") as sole managing
conservator of the three children. In this accelerated appeal, Smith challenges the legal and factual sufficiency of
the evidence supporting the trial court's findings under Section 161.001. See Tex. Fam. Code Ann. § 161.001
(Vernon Supp. 2009). We affirm.

Background

On September 12, 2007, the Department received a referral from the fire department regarding Smith's minor
children, J.O. and T.O., who were three-and-a-half and one-and-a-half years old at the time. The referral
indicated that the fire department was dispatched to Smith's apartment following a report that smoke was
emanating from the apartment unit. After getting no response from pounding on the door, the fire department
made a forced entry. Upon entering the apartment, the firefighters observed smoke coming from the stove. The
firefighters reported that the apartment was filled with smoke and the smoke detector alarm was sounding. Smith
was found sleeping on a mattress and the children, J.O. and T.O., were sleeping on the floor. The residence was
described as filthy with food and trash on the floor where the children were sleeping. There was no furniture in the
apartment other than the mattress on which the mother was sleeping and an air mattress in one of the bedrooms.
The fire department reported that the mother was taking Xanax at the time of the fire.

Atoya Eaden, an investigator from the Department, interviewed Smith later that day. Smith told Eaden that she
used Tofranil and Xanax for trouble with anxiety and sleeping but claimed she never used illegal drugs. Regarding
the kitchen fire, Smith told Eaden that she was cooking beans and rice and went to sleep with the children. Smith
stated she had not taken any of her medicines at the time. However, later she admitted she was under the
influence of Xanax at the time of the fire. When asked about a burn mark found on J.O.'s buttocks, Smith told
Eaden that J.O. got ahold of a curling iron when he got out of the bathtub but stated that she did not know about it
because he never cried.

The children were taken into the possession of the Department that same day pursuant to Texas Family Code
Section 262.104. See Tex. Fam. Code Ann. § 262.104 (Vernon 2008) ("Taking Possession of a Child in
Emergency Without a Court Order"). A hearing was held the next day, September 13, 2007, and the court issued
emergency temporary orders naming the Department temporary sole managing conservator of the children. On
September 27, 2007, the court held an adversary hearing and again issued orders naming the Department
temporary sole managing conservator of the children. Also on September 27, 2007, Smith was ordered to take a
hair follicle drug test. The results of the test were positive for the presence of benzoylecgonine (a metabolite of
cocaine) and cocaine.

Department caseworker, Montoya Hunter, was assigned to the case. Hunter testified at trial that the three children
were currently placed in foster care and that, in her opinion, it was in the best interest of the children to remain in
foster care. Hunter stated that a service plan was prepared for Smith. As part of the plan, Smith was asked to
complete parenting classes, drug testing, psychological and psychiatric evaluation, therapy, and random
urinalysis testing.

On November 14, 2007, Smith submitted to a substance abuse evaluation by Turning Point, a drug treatment
facility. During the screening, Smith indicated that in the past six months there had been instances when alcohol
or drugs had kept her from doing work, going to school, or caring for her children. Additionally, Smith indicated
that, in the past six months, her alcohol or drug use had caused an accident or danger to herself or others. Smith
told her interviewer that, at that time, she had stopped taking Xanax medication because it made her fall asleep.
Smith indicated that she was not pregnant at that time. Smith stated that she received the majority of her income
from someone else, and that no persons relied on her for the majority of their support.

The service plan was filed with the court on November 15, 2007, and a status hearing was held on November 20,
2007. At the status hearing, the court issued an order, entitled "Additional Temporary Orders to Obtain Return of
Children," which ordered, among other things, that Smith "remain drug free," "complete a drug and alcohol
assessment and follow all recommendations of the drug and alcohol assessment," "complete random drug tests,
which may include a hair follicle test," refrain from engaging in criminal activity, maintain stable housing, maintain
stable employment, and complete all services outlined in the Department's service plan filed with the court. At the
November 20, 2007 hearing, the judge made findings that Smith had reviewed and understood the service plan.

On December 17, 2007, Smith submitted to a psychological evaluation. Smith told psychologist, Mandi Norris, that
at the time of the kitchen fire, she had taken a prescribed sleeping pill for the first time while cooking and had
fallen asleep. Smith told the psychologist that she was prescribed Xanax and a sleeping medication but that she
stopped taking the medication after her children were removed from her care. Norris noted in her report that
Xanax is a potentially habit-forming anxiolytic. Smith reported that she was not employed at the time of her
evaluation because she had been laid off two or three weeks prior to the evaluation. During this evaluation she
told Norris that she was not pregnant at that time. Following the interview, Norris concluded that Smith "is at risk
for recurrent problems with substance abuse, and these concerns are heightened by Ms. Smith testing positive for
cocaine[.]" Norris noted that Smith denied any illicit drug use other than cocaine on one occasion in June or July
2007. However, Norris suggested the possibility that Smith minimizes her substance abuse. Norris also indicated
that Smith's results suggest that "Ms. Smith put forth a guarded effort on self-report measures," and as a result,
Smith's evaluation report may not fully capture her condition. Norris also concluded in her report that Smith had a
"history of inappropriately using prescription medication while her children were in her care."

Norris recommended that Smith undergo comprehensive substance abuse evaluation, including random drug
testing, to determine her need for substance abuse treatment. Also, Norris recommended that Smith receive a
psychiatric evaluation to determine the appropriateness of her prescribed medication. In addition, Norris
recommended individual therapy, and if reunification of the children with Smith was a goal, Norris also
recommended family therapy. Smith attended one session of individual therapy and did not attend her other
scheduled sessions. The therapist terminated Smith from services due to nonparticipation.

Smith participated in a psychiatric evaluation on January 29, 2008. The psychiatrist concluded that Smith met the
criteria for Major Depressive Disorder and suggested Smith be prescribed an antidepressant and medication to
help her sleep at night. However, the psychiatrist stated that Smith should not be prescribed hypnotics or
benzodiazepines.

On February 11, 2008, N.S. was born. On the same day the Department received a referral that both Smith and
her newborn, N.S., tested positive for benzodiazepines. (3) Smith did not receive any prenatal care during her
pregnancy. Hospital staff observed Smith taking pills not prescribed to her and sleeping for hours. Smith admitted
to using Xanax during her pregnancy, and she tested positive for cocaine four-and-a-half months prior to the birth
of N.S. The newborn, N.S., suffered mild withdrawal symptoms and mild shaking.

On February 15, 2008, the Department filed a suit affecting the parent-child relationship (SAPCR) relating to N.S.,
requesting protection of the child, conservatorship, and termination of parental rights. The court entered
temporary orders and appointed the Department as N.S's temporary managing conservator. The court ordered
that Smith comply with the Department's service plan to obtain the return of N.S. (4) The order included
requirements that Smith remain drug free, complete a drug and alcohol assessment and follow all
recommendations of the assessment, "complete random drug tests, which may include a hair follicle test," refrain
from engaging in criminal activity, maintain stable housing, maintain stable employment, and complete all services
outlined in the Department's service plan filed with the court.

Records from the drug treatment facility indicate that Smith was a "no-show" for scheduled urinalysis testing on
May 7, 2008 and June 11, 2008. On August 28, 2008, Smith was scheduled for a court ordered hair follicle and
urine drug test but refused to submit to either test. Smith refused the hair follicle test because she did not want a
bald spot but offered no explanation for her refusal to take the urine test. At trial, Smith claimed she was never
told about a urinalysis. The testing center reported the refusal to the court. Smith stated that she was aware that
the court had ordered her to submit to a drug test on that date.

On December 4, 2008, J.O., T.O., and N.S. were placed together in a foster home. Hunter, the Department
caseworker, reported that the children were doing well and bonding with their current caregiver. Hunter stated that
she was hopeful that the caregiver would adopt the children. Hunter opined that it would be in the children's best
interest to remain with the current placement because they were well cared for and were in a safe, stable
environment.

Smith waived trial by jury, and the Department's termination suit was tried to the bench. At trial, the Department
offered business records from the drug treatment facility, the psychologist and psychiatrist who evaluated Smith,
and the guardian ad litem assigned to the children. The Department also offered the petitions, affidavits,
pleadings, and orders from the cases. The Department offered an order from a prior case involving the
Department and Smith. The record showed that in 2002, before J.O., T.O., and N.S. were born, the Department
took custody of five of Smith's children, and the court ultimately issued an order appointing the paternal
grandmother as sole managing conservator of the five children.

The Department offered certified copies of three separate judgments of conviction for Smith. The records
reflected that Smith had two convictions for misdemeanor theft from May 2000 and June 2006, and a conviction
for unauthorized use of a motor vehicle from May 2002. Also, the Department offered certified copies of two
indictments, showing that at the time of trial, Smith was under indictment for two alleged offenses. On September
2, 2008, Smith was alleged to have committed the offense of theft of five bracelets. Approximately one week later,
on September 10, 2008, Smith was alleged to have committed a robbery. According to the robbery complaint,
Smith went into a nail salon, told the employees she had a firearm, and demanded money. Smith was incarcerated
in early October 2008, while awaiting trial on her criminal charges. At the time of the termination trial in February
2009, Smith was still in jail awaiting her criminal trial.

At the termination trial, held on February 5, 2009, Hunter testified that Smith did not complete her services that
were ordered in the service plans filed in both cases. Hunter said that Smith completed some parenting classes
and underwent psychological evaluation. However, following the psychological evaluation, the psychologist
recommended Smith participate in therapy. Smith only attended one session of therapy. Hunter stated that, to her
knowledge, Smith had not completed her drug treatment program. Hunter noted that Smith did not refrain from
engaging in criminal activity, which was required by the court order and service plan. Hunter stated that she did
not believe Smith was capable of providing a safe environment for the children because she was incarcerated, did
not have a stable housing environment, and did not have employment to provide for the children. Further, Hunter
believed terminating the parental rights of Smith was in the best interest of the children.

The guardian ad litem for the children, Amelia Binkley, testified before the court and recommended that it would
be in the children's best interest to terminate Smith's parental rights. Binkley submitted a report with her
recommendations to the court, which was admitted without objection. In her report, Binkley noted that Smith made
minimal progress with her service plans.

Following trial, the court signed a decree terminating the parent-child relationship between Smith and J.O., T.O.,
and N.S., and awarding the Department sole managing conservatorship of the three children. In support of
termination, the judgment recites that the trial court found by clear and convincing evidence that termination of the
parent-child relationship between Smith and the children was in the children's best interest. The judgment further
recites that the trial court found by clear and convincing evidence that Smith (1) engaged in conduct or knowingly
placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of
the children; and (2) failed to comply with the provisions of a court order that specifically established the actions
necessary for the mother to obtain the return of the children. No findings of fact or conclusions of law were
requested.

Sufficiency of the Evidence

In three issues, Smith challenges the trial court's termination of her parental rights on the grounds that the
evidence is legally and factually insufficient to support the trial court's finding that she engaged in conduct set out
as grounds for termination pursuant to Texas Family Code subsections 161.001(1)(E) and (O) and the trial court's
finding that termination was in the best interest of the children pursuant to subsection 161.001(2). See Tex. Fam.
Code Ann. § 161.001 (Vernon Supp. 2009).

Standard of Review

Due process compels the heightened standard of clear and convincing evidence to support decisions to terminate
a parent-child relationship, as terminating the parent-child relationship imposes permanent, irrevocable
consequences. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (citing Santosky v. Kramer, 455 U.S. 745, 759, 769-
70, 102 S. Ct. 1388 (1982)). "'Clear and convincing evidence' means 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 Ann. § 101.007 (Vernon 2008). This heightened burden of proof results in a
heightened standard of review. See In re J.A.J., 243 S.W.3d at 616 (stating that "finding[s] that must be based on
clear and convincing evidence cannot be viewed on appeal the same as one[s] that may be sustained on a mere
preponderance").

When determining legal sufficiency, we review "all the evidence 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). To give appropriate deference to the factfinder's conclusions, we
must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have
done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been
incredible. Id. This does not mean that we must disregard all evidence that does not support the finding. Id.
Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear
and convincing evidence. Id. Therefore, in conducting a legal-sufficiency review in a parental-rights-termination
case, we must consider all of the evidence, not only that which favors the verdict. City of Keller v. Wilson, 168 S.W.
3d 802, 817 (Tex. 2005).

In determining factual sufficiency under the clear-and-convincing burden, we must consider whether the evidence
is sufficient to produce a firm belief or conviction in the mind of the factfinder as to the truth of the allegation
sought to be established. In re J.A.J., 243 S.W.3d at 616 (citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). We
consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. "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, then the evidence is factually insufficient."
Id.

The natural rights that exist between parents and their children are of constitutional dimension. Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Therefore, termination proceedings should be strictly scrutinized, and the
involuntary termination statutes should be strictly construed in favor of the parent. Id. at 20-21. However, "[j]ust as
it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also
essential that emotional and physical interests of the child not be sacrificed merely to preserve that right." In re C.
H., 89 S.W.3d at 26. For parental rights to be involuntarily terminated, it must be found by clear and convincing
evidence that the parent engaged in conduct set out in subsection 161.001(1) and that termination would be in
the child's best interest pursuant to subsection 161.001(2). Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2009).
Both elements must be established, and termination may not be based solely on the factfinder's determination of
the best interest of the child. See Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re L.
M., 104 S.W.3d 642, 646 (Tex. App.--Houston [1st Dist.] 2003, no pet.).

Grounds for Termination

In terminating Smith's parental relationship with J.O., T.O., and N.S., the trial court expressly found:

  * • that Smith engaged in conduct or knowingly placed the children with persons who engaged in conduct which
endangers the physical or emotional well-being of the children, pursuant to Texas Family Code § 161.001(1)(E);


  * •that Smith failed to comply with the provisions of court orders that specifically established the actions
necessary for the mother to obtain the return of the children . . . pursuant to Texas Family Code § 161.001(1)(O);
and


  * •that termination of parental rights is in the best interest of the children.

In her first three issues, Smith challenges the legal and factual sufficiency of these findings.

A. Endangerment

1. Legal Sufficiency

We begin by considering the legal sufficiency of the trial court's finding of endangerment grounds under Section
161.001(1)(E). To terminate a parent-child relationship based on Section 161.001(1)(E), the trial court must find
by clear and convincing evidence that the parent "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." Tex. Fam. Code Ann.
§ 161.001(1)(E) (Vernon Supp. 2009). "To endanger" means to expose a child to loss or injury or to jeopardize a
child's emotional or physical health. Robinson v. Tex. Dep't of Prot. & Reg. Servs., 89 S.W.3d 679, 686 (Tex. App.
--Houston [1st Dist.] 2002, no pet.) (citing Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d at 533). The term
means "more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family
environment." Boyd, 727 S.W.2d at 533. However, danger to a child need not be established as an independent
proposition and may be inferred from parental misconduct even if the conduct is not directed at the child and the
child suffers no actual injury. Id. The relevant inquiry is whether evidence exists that a parental course of conduct
endangered the child's physical or emotional well-being. In re R.D., 955 S.W.2d 364, 368 (Tex. App.--San Antonio
1997, pet. denied). The conduct does not have to occur in the presence of the child. Dir. of Dallas County Child
Prot. Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex. App.--Dallas 1992, no writ). And the conduct may occur before
the child's birth and both before and after the child has been removed by the Department. See In re S.M.L.D., 150
S.W.3d 754, 757-58 (Tex. App.--Amarillo 2004, no pet.); Avery v. State, 963 S.W.2d 550, 553 (Tex. App.--Houston
[1st Dist.] 1997, no writ).

The failure to provide appropriate medical care for a child may also be considered conduct that endangers a
child. In re D.E., 761 S.W.2d 596, 600 (Tex. App.--Fort Worth 1988, no writ). This is true even if the parent did not
cause the condition that requires medical treatment. In re S.H.A., 728 S.W.2d 73, 88 (Tex. App.--Dallas 1987, writ
ref'd n.r.e.); Juan A___ v. Dallas County Child Welfare, 726 S.W.2d 241, 244 (Tex. App.--Dallas 1987, no writ)
(mother's failure to obtain medical treatment for child with severely burned feet constituted conduct endangering
child's physical well-being).

A parent's consistent failure to take advantage of many forms of assistance made available to her to help provide
safe and stable living conditions for her children may warrant termination of parental rights. Phillips v. Tex. Dep't of
Prot. & Reg. Servs., 25 S.W.3d 348, 352-55 (Tex. App.--Austin 2000, no pet.). Endangerment can be found where
a parent fails to make improvements to poor living conditions and fails to keep appointments designated to help
her improve the environment. In re M.H., 745 S.W.2d 424, 428-29 (Tex. App.--Houston [14th Dist.] 1988, no writ.).

Mere imprisonment will not, standing alone, constitute engaging in conduct that endangers the physical or
emotional well-being of a child. See Boyd, 727 S.W.2d at 533-34. However, when all of the evidence, including
imprisonment, shows a course of conduct that has the effect of endangering the physical or emotional well-being
of the child, a finding under Section 161.001(1)(E) is supportable. Id. at 533-34. If the imprisonment of the parent
displays a voluntary, deliberate and conscious course of conduct, it qualifies as conduct that endangers the child.
See Avery, 963 S.W.2d at 553.

In her appellate brief, Smith acknowledges that "the undisputed evidence established that on September 12,
2007, Appellant fell asleep with J.O. and T.O. while something was left on the stove." Further, she recognizes that
"[u]ndeniably, this act had the potential to expose the children to harm or injury." However, Smith argues that this
is merely one incident, and subsection (E) requires evidence that the parent is engaging in a course of conduct
which endangers the physical or emotional well-being of the child. With respect to N.S., Smith acknowledges that
the undisputed evidence establishes that Smith and N.S. tested positive for benzodiazepine at the time of N.S.'s
birth. Smith also claims in her brief that it was undisputed that Smith was prescribed this medication. Smith argues
that the record does not contain any expert evidence relating to how the drugs endangered N.S., and the
Department had the burden of proving by expert testimony that taking the drugs while pregnant is an endangering
act.

Smith's argument on appeal treats the above mentioned incidents as if they were isolated. However, Smith has a
pattern of endangering behavior. Smith's contention that "undisputed evidence establishes . . . that Appellant was
prescribed [benzodiazepine]" is a misstatement of the record. Rather, Smith's own statements and testimony are
the only evidence that indicates she was prescribed the medication. During Smith's evaluation at the drug
treatment facility and psychological evaluation, she told staff that she stopped taking Xanax after her children were
taken from her custody. Following a psychiatric evaluation, the psychiatrist concluded that Smith should not be
using benzodiazepine. And the treating physician who delivered N.S. stated that Smith was taking medicines not
prescribed to her. At trial, the caseworker assigned to the case, Montoya Hunter, testified that she was not aware
of any prescription for benzodiazepine written for Smith.

The physician who delivered N.S. noted that Smith received no prenatal care during her pregnancy. Although
Smith was evaluated by service providers several times between the months of September and N.S.'s birth in
February, Smith never indicated to any of the health care professionals that she was pregnant. On November 14,
2007, less than three months before the birth of N.S., Smith told her evaluator that she was not pregnant. Again,
on December 17, 2007, during her psychological evaluation with Mandi Norris, Smith told Norris that she was not
pregnant. That evaluation was less than two months before the birth of N.S. Despite the availability of free
treatment and care provided by the Department, the record shows no indication that Smith told anyone she was
pregnant. Rather, Smith affirmatively stated that she was not pregnant when she was evaluated by two service
providers less than three months before the birth of her child. Because she affirmatively concealed the fact that
she was pregnant during her substance abuse evaluation and psychological evaluation, she prevented the
evaluators from considering her pregnancy when making their recommendations. Smith's failure to disclose her
pregnancy and failure to receive any prenatal care indicate endangerment of N.S., particularly since Smith was
taking drugs during this time. See In re D.E., 761 S.W.2d 596, 600 (Tex. App.--Fort Worth 1988, no writ) (failure to
provide appropriate medical care may be considered conduct that endangers a child).

The record reflects Smith's incarceration on multiple occasions, including the four months preceding the
termination trial. Specifically, Smith was sentenced to 10 days in jail to begin May 8, 2000; 6 months in jail to begin
May 8, 2002; and 20 days in jail to begin June 22, 2006. Conduct that routinely subjects a child to the probability
that the child will be left alone because a parent is jailed endangers both the physical and emotional well-being of
the child. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.--San Antonio 1998, pet. denied).

The Department offered proof of Smith's prior convictions and two recent indictments, showing her ongoing
criminal history. The court ordered Smith to refrain from criminal activity as a condition to obtain the return of her
children. Even though Smith was aware that the return of her children was conditioned on refraining from criminal
activity, she was indicted for two offenses during the time she was supposed to be proving herself capable of
providing her children with a safe and stable home.

The trial court heard evidence that Smith tested positive for cocaine during a drug screening in September 2007.
Additionally, Smith was a "no show" to mandatory drug testing as part of her drug treatment program and also
refused to take at least one drug test ordered by the court. Smith testified that she was aware she was required to
take the drug test and that she was aware of the consequences. A court may infer from a refusal to take a court-
ordered drug test that parent was using drugs.

In re K.C.B., 280 S.W.3d 888, 895 (Tex. App.--Amarillo 2009, pet. denied). Because it exposes the child to the
possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under Section
161.001(1)(E). See Vasquez v. Tex. Dep't of Prot. & Reg. Servs., 190 S.W.3d 189, 195-96 (Tex. App.--Houston
[1st Dist.] 2005, pet. denied) (terminating parental rights despite there being no direct evidence of parent's
continued drug use actually injuring child). The evidence presented with respect to Smith's pattern of crime,
imprisonment, and drug use demonstrates a deliberate course of conduct from which a rational trier of fact could
have found that Smith endangered her children's emotional and physical well-being. When viewed in the light most
favorable to the judgment, we hold that the evidence was legally sufficient to support the trial court's finding that
Smith engaged in a deliberate course of conduct that endangered J.O., T.O., and N.S. under Section 161.001(1)
(E).


2. Factual Sufficiency

In conducting our factual-sufficiency review, we must ascertain what disputed evidence, if any, exists as to the
conduct in question. In re J.W., 152 S.W.3d 200, 206 (Tex. App.--Dallas 2004, pet. denied). Smith did not dispute
her prior convictions, that she was incarcerated at the time of trial, her cocaine use in 2007, her continuous use of
prescription drugs, or her history of involvement with the Department relating to her five older children.

While Smith admits that she and N.S. tested positive for benzodiazepine at N.S.'s birth, she argues on appeal that
it is undisputed that the drug was prescribed to her. Further, she argues that no testimony was offered or
adduced at trial to establish how much Xanax Smith took, whether that dosage was potentially harmful to N.S.,
whether N.S. did, in fact, suffer any harm, and whether Smith was warned that taking Xanax while pregnant could
expose N.S. to danger. Smith contends that "DFPS had the burden of providing such expert testimony to establish
that Appellant did intentionally expose N.S. to physical harm."

Again, Smith misstates the record. Evidence was adduced at trial that the drugs were not prescribed to her and
that she was misusing prescription medication. While her children were in her care, she slept through a smoke
alarm that alerted when she left a pot on a hot stove. The psychiatrist who evaluated Smith concluded that Smith
should not be prescribed benzodiazepines. In evaluations with a drug treatment center and a psychological
evaluation, Smith said that she stopped using Xanax after her children had been taken out of her custody in
September 2007. However, the doctor who delivered N.S. in February 2008, reported that Smith was seen taking
prescriptions that were not prescribed to her and sleeping for hours. The doctor also reported that N.S. was born
with symptoms of withdrawal and mildly shaking.

Furthermore, there is evidence that Smith denied being pregnant when she was evaluated by health care
professionals. Smith argues on appeal that the Department had the burden to produce evidence that "Appellant
was warned that taking Xanax while pregnant could expose N.S. to danger." However, there is evidence in the
record that Smith affirmatively denied being pregnant. Further, Smith's argument that the Department had the
burden of showing that she "intentionally expose N.S. to physical harm" misstates the law. Under the grounds for
termination under subsection (E), there must be clear and convincing evidence that the parent engaged in
conduct, or knowingly placed the child with persons who engaged in conduct, that endangered the child's physical
or emotional well-being. Tex. Fam. Code Ann. § 161.001(1)(E) (Vernon Supp. 2009). It is not necessary to
establish that a parent intended to endanger a child in order to support termination of the parent-child relationship
under subsection (E). See In re M.C., 917 S.W.2d 268, 270 (Tex. 1996) (holding that neglect, even in the absence
of physical abuse, may endanger a child's physical or emotional well-being); Carter v. Dallas County Child Welfare
Unit, 532 S.W.2d 140, 142 (Tex. Civ. App.--Dallas 1975, no writ) (terminating parental rights based on
endangering conduct resulting from the parent's mental incompetence and mental illness).

Smith maintains that she only used cocaine once in June or July of 2007. However, she was a "no show" to
scheduled appointments for drug testing at her drug treatment facility and refused to submit to a court-ordered
test on at least one occasion. Also, a psychologist who interviewed Smith indicated she felt Smith was minimizing
her drug usage. A rational trier of fact could have inferred from Smith's refusal to take a court-ordered drug test
that she was using drugs. See In re K.C.B., 280 S.W.3d at 895. Further, a rational trier of fact could have
disbelieved Smith's testimony that she only used illegal drugs once. Viewing the evidence as a whole, a rational
trier of fact could have reasonably formed a firm belief or conviction that Smith had engaged in conduct that
endangered the physical or emotional well-being of J.O., T.O., and N.S. Thus, the evidence is factually sufficient
to support the trial court's finding on the section 161.001(1)(E) ground.

We overrule Smith's first issue.

B. Failure to Comply with Court Order

In her second issue, Smith asserts that the evidence is legally and factually insufficient to support the trial court's
finding that Smith engaged in conduct pursuant to subsection 161.001(1)(O). Because we conclude that the
evidence is both legally and factually sufficient to support the trial court's finding under Section 161.001(1)(E),
and because a finding as to any one of the acts or omissions enumerated in Section 161.001(1) is sufficient to
support termination, we need not address Smith's second issue challenging the trial court's findings under Section
161.001(1)(O). See Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2009); Tex. R. App. P. 47.1.

We overrule Smith's second issue.

C. Best Interest of the Child

In her final issue, Smith challenges the legal and factual sufficiency of the trial court's finding, pursuant to Section
161.002(2), that termination was in J.O., T.O., and N.S.'s best interest. See Tex. Fam. Code Ann. § 161.001(2)
(Vernon Supp. 2009).

A strong presumption exists that a child's best interests are served by maintaining the parent-child relationship. In
re L.M., 104 S.W.3d 642, 647 (Tex. App.--Houston [1st Dist.] 2003, no pet.). However, while parental rights are of
constitutional magnitude, they are not absolute. See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). Just as it is
imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also
essential that emotional and physical interests of the child not be sacrificed merely to preserve that right. Id.

In Holley v. Adams, the Texas Supreme Court provided a nonexclusive list of factors that the trier of fact in a
termination case may use in determining the best interest of the child. 544 S.W.2d 367, 371-72 (Tex. 1976).
These factors include (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 that the existing parent-
child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. These factors
are not exhaustive, and there is no requirement that the Department prove all factors as a condition precedent to
parental termination. In re C.H., 89 S.W.3d at 27; Adams v. Tex. Dep't of Fam. & Prot. Servs., 236 S.W.3d 271,
280 (Tex. App.--Houston [1st Dist.] 2007, no pet.).

The same evidence of acts or omissions used to establish grounds for termination under section 161.001(1) may
be probative in determining the best interests of the child. In re C.H., 89 S.W.3d at 28; L.M., 104 S.W.3d at 647.
Evidence of just one factor may suffice as support of a finding that termination is in the best interest of the child.
See In re C.H., 89 S.W.3d at 27. However, termination of the parent-child relationship is not justified when the
evidence shows merely that a parent's failure to provide a more desirable degree of care and support of the child
is due solely to misfortune or the lack of intelligence or training, and not to indifference or malice. Clark v. Dearen,
715 S.W.2d 364, 367 (Tex. App.--Houston [1st Dist.] 1986, no writ).

1. The desires of the child

At trial, N.S. was less than a year old and, thus, too young to express her desires. However, there is no reason to
believe that N.S. has any conscious knowledge of Smith, because the Department took custody of her just after
she was born after she tested positive for drugs. Similarly, no evidence was presented at trial that J.O. or T.O.
desired to be with their mother. The guardian ad litem appointed for the children visited with the children on
several occasions and noted that the children appeared to be bonded with their foster parents.

2. The child's physical and emotional needs, now and in the future

The goal of establishing a stable, permanent home for a child is a compelling state interest. In re C.E.K., 214 S.W.
3d 492, 498 (Tex. App.--Dallas 2006, no pet.). While Smith testified at trial that she had a stable job, the evidence
adduced at trial showed that she told the drug treatment center and the psychologist she was unemployed and
gave different stories to each. Additionally, Smith testified at trial that she had been able to maintain stable
housing that she paid for on her own, but later on cross-examination, she admitted that she was living with a
fiancé who paid some of her expenses. Hunter, the caseworker, testified at trial that Smith told her she was living
with her boyfriend. Smith also gave a different story to the psychologist, who reported that Smith told her she
received the majority of her income from another person and lived in an apartment paid for by her mother. For the
four months leading up to trial, Smith maintained no housing or employment because she was incarcerated
awaiting trial on criminal charges. From the evidence, a rational trier of fact could conclude that Smith has not
shown the ability to maintain stable housing or employment. Additionally, evidence was presented at trial that
Smith did not comply with the Family Service Plan implemented by the Department. While Smith argues that she
was unable to complete the plan because it was unclear or the Department did not properly order the services,
other evidence suggests Smith understood the plan and had experience dealing with the Department.

Hunter, the Department casework, testified that T.O. had a speech problem, and T.O. was being evaluated and
treated by the Early Childhood Intervention program. Hunter testified that J.O. had anger problems and was very
aggressive towards strangers. At the time of trial, N.S. was about to be a year old, and Hunter testified N.S. was
not walking or talking yet.

Smith's inability to provide a stable home, to remain gainfully employed, or to comply with her court-ordered
service plan, taken together with Smith's drug use and criminal activity, supports the trial court's finding that Smith
has not been and would not be able to provide for J.O., T.O., or N.S.'s emotional or physical needs.

3. The emotional and physical danger to the child, now and in the future

The evidence regarding endangerment, discussed in support of the trial court's finding under section 161.001(1)
(E) above, is also probative of a finding as to danger in determining the child's best interest. See In re C.H., 89 S.
W.3d at 28.

While J.O. and T.O. were living with Smith, she caused a kitchen fire which could have killed the children. She
started cooking on the stove after taking sleeping medication. She was found asleep on a mattress, despite the
fire alarm that was sounding, the smoke that filled the apartment, and the fire department breaking down the door.
Smith argues that the medication was prescribed to her. But even if she was taking the medicine as prescribed,
she fails to explain why she took sleeping medication and lay down on a mattress, while she was cooking on the
stove, leaving her small children unsupervised in the apartment.

Additionally, the evidence showed that J.O. had a burn mark on his buttocks. Smith explained that he got the mark
when he got out of the bathtub and burned himself with her curling iron. Smith never provided an explanation for
why she left the child alone with a hot curling iron. Smith also never cared for or sought medical treatment for J.
O.'s burn.

Smith's failure to obtain prenatal care at any time during her pregnancy with N.S. demonstrates her complete
disregard for the health of her child. Smith told her drug evaluator on November 14, 2007, less than three months
before N.S.'s birth, that she was not pregnant. Similarly, she told Norris, the psychologist, she was not pregnant in
December 2007, less than two months before N.S.'s birth.

4. Programs available to assist parents in promoting the child's best interests


Individual therapy, group therapy, and family therapy were offered to Smith, but she only attended one individual
session. Smith attempts to excuse her failure to attend by saying that the order of the court was unclear. However,
the therapy was also an element of her service plan, which was ordered by the court. Additionally, status hearings
held periodically throughout the pendency of the case stated in bold print the services that Smith failed to
complete. While the Department designed a plan to help Smith make the necessary changes to be a suitable
parent to her children, she failed to take advantage of the services.

5. The stability of the home or proposed placement

When a prospective adoptive parent is standing in the wings, ready and willing to adopt the child, courts are more
likely to find that termination is in the child's best interest. See Taylor v. Tex. Dep't of Prot. & Reg. Servs., 160 S.W.
3d 641, 656 (Tex. App.--Austin 2005, pet. denied).

The Department caseworker, Hunter, testified that J.O., T.O., and N.S. were thriving in their current placement and
had bonded with their caregivers. Hunter stated she was hopeful that the children's caregiver would adopt the
children. Hunter said that the placement home seemed safe and appropriate and that all of the children's needs
were being met and would be met in the future.

Evidence was introduced at trial that Smith would not provide a stable home for the children. Hunter opined that
Smith would not be able to provide the children with a safe environment, explaining that Smith had been
incarcerated, did not have stable housing, and did not have employment to provide for the children.

6. Parent's acts or omissions that indicate the current parent-child relationship is improper


As discussed above, Smith put both J.O. and T.O. in danger when she caused a kitchen fire and her drug-induced
state prevented her from noticing the smoke filling the apartment or fire alarm sounding. Additionally, Smith used
cocaine and prescription drugs during her pregnancy with N.S., did not obtain prenatal care, and there is no
evidence that she disclosed that she was pregnant to any of the health care professionals she visited as part of
her family service plan. Despite the services offered by the Department to help Smith become a suitable parent for
the children, Smith continued her pattern of drug use and crime. Smith has eight biological children, none of which
she has parented.

7. Parent's excuses for those acts or omissions


A parent's lack of education, training, or misfortune is considered under this category of excuses, but does not
negate evidence tending to show that termination is in the child's best interest. In re S.H.A., 728 S.W.2d at 89-90.

Smith was ordered to comply with a service plan that was designed to provide her with the necessary assistance
to overcome her problems and enable her to provide her children with a safe, stable, nurturing environment.
Additionally, the court entered orders conditioning the return of her children on her compliance with the provisions
in the order. Smith did not comply with her service plan or the order. Although she alleges on appeal that the
service plan was unclear, the trial court made a finding that she reviewed and understood the service plan.
Further, prior to these cases, Smith had five children taken from her custody, so she is familiar with this process.

While Smith offers explanations for why she did not comply, none explain why she failed to make efforts to become
a suitable parent to her children. Smith was aware that the return of her children was conditioned on her
completing court ordered drug testing, and she refused to submit to the court ordered hair follicle drug test
because she did not want to have a "bald spot."

In light of all of the evidence, the trial court could have reasonably formed a firm belief or conviction that
termination of Smith's parental rights was in J.O., T.O., and N.S.'s best interest. Accordingly, we hold that the
evidence is both legally and factually sufficient to support the trial court's finding that termination of Smith's
parental rights was in the best interest of the children.

We overrule Smith's third issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice


Panel consists of Justices Keyes, Hanks, and Bland.

1. In appellant's brief, she lists her name as "Deshanna Smith." However, we note that all materials from the trial
court, including the decrees of termination, refer to her as "Deshann Smith." We refer to her as "Deshann" to be
consistent with the judgment of the trial court and notice of appeal.

2. The trial court also terminated the parental rights of Troy O'Neil and the unknown father of N.S. However, they
are not parties to the appeal.

3. At trial Smith stated that benzodiazepine was the drug used in Xanax.

4. The service plan contained essentially the same requirements as the service plan in the case involving J.O. and
T.O.