Date: 08-14-2022

Case Style:

IN THE INTEREST OF B.A.M., A Child

Case Number: 01-22-00048-CV

Judge: Sherry Radack

Court:

Court of Appeals For The First District of Texas

On appeal from The 25th District Court Colorado County, Texas

Plaintiff's Attorney: Longworth Law Firm, P.C

Defendant's Attorney: -

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Houston, TX – Child Custode lawyer represented defendant with appealing the Final Order terminating her parental rights to her child.

Mother and Father had one child, B.A.M., born on March 27, 2015, who is
the subject of this suit. This investigation of Mother1 began in December 2020 after
appellee, the Department of Family and Protective Services (the “Department”),
received an allegation of sexual abuse of B.A.M. As relevant here, the Department
sought termination of Mother’s and Father’s parental rights pursuant to Texas
Family Code section 161.001(b)(1)(D), (E), and (O).2 B.A.M. was removed from
Mother’s care on December 10, 2020.
The parties proceeded to trial on November 29 and December 15, 2021. The
following relevant evidence and testimony was heard:
Machelsea Thomas
Machelsea Thomas, a caseworker from Child Protective Services (“CPS”),
testified that she investigated allegations of sexual abuse that occurred while B.A.M.
visited her maternal grandmother, J.M. During a December 10, 2020 child forensic
interview, B.A.M. communicated that “her tee-tee was touched” and that “her pee
burned . . . when she peed.” B.A.M. identified the perpetrator as J.M.’s boyfriend,
W.M.S., and she tested positive for gonorrhea. Although Mother reacted with shock
1 Mother had been subject to previous investigations.
2 See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (O). Father was not present at trial
and is not a party to this appeal.
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about B.A.M.’s positive test, Mother told Thomas she already knew that B.A.M. was
touched by W.M.S. When asked if Mother contacted authorities concerning the
sexual abuse, Thomas answered “No,” and that Mother did not make a referral to
CPS.
After the forensic interview, CPS sought emergency removal due to B.A.M.’s
outcry of sexual abuse and the fact that “Mother knew of the abuse prior and she did
not make a report; and further, Mother’s decision to allow [B.A.M.] to be around . . .
[J.M.], when [J.M.] had an open CPS conservatorship case in which [Mother] was
told that she did not need to have the child around [J.M.], especially also due to
[J.M.’s] boyfriend living in the home and being a registered sex offender.” Thomas
also recalled that Mother had been involved in five or six previous CPS
investigations.
Debra Lee
Debra Lee, a CPS caseworker, testified that while she became involved in
Mother’s case in December 2020, she had already been working on a case against
J.M. for failing to provide a safe home and to complete a family plan for J.M.’s other
daughter, which ultimately resulted in the termination of J.M.’s parental rights in
2021. Lee testified that in J.M.’s termination proceeding, Mother provided
information about J.M.’s drug use and drug paraphernalia in J.M.’s home. Lee
further testified that Mother knew that W.M.S. was a registered sex offender who
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lived with J.M. and that even though Mother knew that J.M.’s and W.M.S.’s
relationship was abusive and that she was not to allow B.A.M. around J.M., Mother
still allowed B.A.M. to see J.M.
Lee testified that at the time of removal in December 2020, Mother was living
in a motel with R.S. and that she intended to remain in her relationship with R.S.
Lee stated that R.S. had a history of drugs and domestic violence, and although the
Department requested that he get tested for sexually transmitted diseases, R.S. did
not submit any proof of testing.
Lee opined that Mother had not provided B.A.M. with a safe environment
because B.A.M.stated that J.M. and R.S. were at Mother’s home during a September
2021 unsupervised visit, and Mother instructed B.A.M. to say they were not there.
Lee believed Mother did not have the ability to provide a safe and stable home for
B.A.M.
Lee further recalled a May 2021 parental visit when she saw R.S. in a pickup
truck and Mother taking B.A.M. to speak with him. Because R.S. was not supposed
to have contact with B.A.M. due to his refusal to drug test, Lee testified that this
event caused Lee to have concerns with trusting Mother.
Kim Wilgus
Kim Wilgus, a licensed professional counselor, testified that, starting in
January 2021, she counseled B.A.M. for sexual abuse. During the counseling
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sessions, B.A.M. stated that “she was not protected by [Mother] and [J.M].” Wilgus
also testified that B.A.M. told her that she wished Mother would give up R.S. for her
and that she did not want to be around J.M. because J.M. let W.M.S. hurt her.
B.A.M. told Wilgus that R.S. had been at Mother’s home during the
September 2021 unsupervised visit. When asked how she knew, B.A.M. said that
R.S.’s clothes were in the closet and his cologne and toothbrush were by the sink.
B.A.M. told Wilgus that J.M. was also present at the unsupervised visit and that she
did not respect B.A.M.’s privacy. Wilgus stated that B.A.M. had told her that
W.M.S. gave her magic medicine to sleep and that R.S. probably gave her some as
well. Wilgus clarified, “After her visit on September the 24th in the home is when
she told me that, that the magic medicine that [W.M.S.] gave her that [R.S.] gave
her, too, and could have done things to her. She did not go into details—.” When
asked if B.A.M. had previously told her that R.S. had ever molested her, Wilgus
responded that she had not.
Wilgus reviewed B.A.M.’s wishlist, which stated, “I wish my mom would
love me all the time and not [R.S.], especially because he used to hit her all the time,”
“I wish I didn’t have to be around [J.M.] because she let her boyfriend hurt me,” and
“Mommy never took me to the cops to tell on [W.M.S.].” Wilgus also recalled an
incident in which B.A.M. stated that while she and Mother were visiting one of
Mother’s friends, W.M.S. gave her and Mother medicine to sleep, and when she
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woke up, she found a wet spot, which she knew was not her pee in the bed. B.A.M.
was afraid to return to Mother because “[R.S.] would always be around and that she
would be harmed again.”
D.V.F.
D.V.F., J.M.’s sister, testified that she currently has possession of B.A.M. and
E.C.M., J.M.’s other daughter. D.V.F. agreed that B.A.M. made an outcry to her
regarding W.M.S. and that J.M. and Mother had not protected her. D.V.F. did not
believe that Mother had a positive relationship with B.A.M. because she felt that
Mother could not protect her. D.V.F. testified that even before B.A.M. tested
positive for gonorrhea, Mother said, “[B.A.M.] was making sex noises, like she was
having sex with someone, like, moaning and groaning. And she said she didn’t know
where she got that from, but she better not find out that anybody was molesting her
daughter.”
D.V.F. testified about an incident in which B.A.M. woke up in a wet spot,
without clothes, and that Mother did not take B.A.M. to the doctor after that incident.
D.V.F. also stated that B.A.M. told her that R.S. appeared at the house during an
unsupervised visit, Mother told her to lie about R.S. and J.M.’s appearance, and that
D.V.F. believed that Mother was still living with R.S. When asked if she thought
that Mother would protect B.A.M. from J.M., D.V.F. disagreed because Mother
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allowed J.M. and W.M.S. to have access to B.A.M. D.V.F. agreed with terminating
Mother’s parental rights because she wanted the best for B.A.M.
Tracie Howell
Tracie Howell, the guardian ad litem for B.A.M., testified that she did not
believe that Mother had learned from the service plan on how to protect B.A.M. from
physical or sexual abuse. She based her opinion on learning after the fact that J.M.
and R.S. had appeared at the September unsupervised visit.
Although Howell agreed that she initially recommended that Mother have
unsupervised visitation with B.A.M., Howell changed her mind after finding a man,
apparently hiding, in Mother’s bathroom on the morning of the unsupervised visit.
While Mother explained to her that a man named “Kevin” was in her bathroom,
Howell recalled that Mother had previously told her that she was not dating anyone
and that she was finished with relationships. Howell believed that Mother was still
in an ongoing relationship with R.S. because R.S. may have been the man in
Mother’s bathroom, and B.A.M. told her that R.S. was present during the September
unsupervised visit. Howell opined that Mother would not protect B.A.M., that it
would not be in B.A.M.’s best interest to return her to Mother, and that Mother’s
parental rights should be terminated.
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Mother
Mother, who was 23 at the time of trial, testified that she has one child, sixyear-old B.A.M. Mother testified that she lived with J.M. for a few weeks, but she
and B.A.M. moved out of her house and into a motel with R.S. toward the end of
November 2020. In early December 2020, while living in the motel with R.S. and
B.A.M, Mother explained that B.A.M had school and needed to take a shower but
that the motel’s hot water heater had stopped working. Because R.S. was not home
and Mother could not leave her cooking unattended, she asked J.M. to take B.A.M.
to her house to shower. Mother confirmed that W.M.S. was not around and thought
he may have been in jail because Mother had previously reported W.M.S.’s abuse
of J.M. to the police. Once R.S. returned home, Mother realized that B.A.M. had
been gone for 45 minutes and they left to get B.A.M. When they arrived at J.M.’s
house, W.M.S. “was there acting asleep on the couch” and B.A.M. looked “startled”
and “scared” when she opened the door. Later that night, B.A.M. went to the
restroom and started crying because her “tee-tee” hurt, and B.A.M. then told Mother
that W.M.S. had touched her.
The next day on December 2 or 3, 2020, Mother took B.A.M. to a doctor, and
B.A.M. tested positive for gonorrhea. Because the doctor said that he had to report
the incident to CPS, Mother did not report it to the police or CPS, but admitted it
was a mistake not to call CPS.
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Mother testified that she believed B.A.M.’s outcry against W.M.S. because
B.A.M. kept her distance from him and told him to leave her alone. Mother agreed
that she lived with J.M. for a few weeks, but she and B.A.M. would leave when
W.M.S. visited. Mother testified that W.M.S. did not live with J.M. and that he was
not around when she and B.A.M. were staying with J.M. Although she did not see
J.M. and W.M.S. use drugs, Mother did see them argue and fight. Mother agreed
that when she left B.A.M. with J.M., she knew J.M. had a drug problem, but she
thought J.M. was sober because she was trying to get Mother’s sister back. She also
testified that J.M. was in a relationship with W.M.S., a registered sex offender, but
she believed that he was not around at the time she left B.A.M. with J.M. Mother
agreed that she knew from previous investigations earlier in the year that she was
not to leave B.A.M. with J.M. or W.M.S., but J.M. told Mother that J.M. could have
unsupervised access to children under 18. Mother acknowledged that J.M.’s
statement turned out to be untrue. Mother testified that although she knew from a
prior CPS investigation that J.M.’s house was unsafe, she still allowed J.M. to take
B.A.M. for a shower at her house.
When B.A.M. tested positive for gonorrhea, Mother testified that she and R.S.
were in a relationship, but they did not engage in domestic violence. Mother
admitted that R.S. tested positive for marijuana and methamphetamine in December
2020. Mother also admitted that she tested positive for gonorrhea in January 2021,
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but she disagreed that R.S. could have sexually assaulted B.A.M. and given her
gonorrhea because she never left B.A.M. alone with R.S. and she took B.A.M.
everywhere. She agreed that because she and B.A.M. tested positive for gonorrhea,
she had some concerns about R.S., but she still remained in the relationship with
R.S. Mother said her relationship with R.S. lasted for about three years, but she had
no communication with R.S. at the time of trial. Although she initially testified that
she had not seen him since April 2021, Mother later agreed that he returned for his
belongings and drove Mother to a May 2021 visitation.
Mother acknowledged that, earlier in 2021, J.M.’s parental rights were
terminated to another daughter for abuse and neglect. Motherstated that she testified
about her parents’ domestic violence and substance abuse problems at the trial that
terminated J.M.’s parental rights to Mother’s sister.
Mother testified that no one told her that she could not have B.A.M. at J.M.’s
home or that J.M. could not have unsupervised visits with B.A.M. Mother testified
that it was not until after a court hearing that she was informed that she could not
have B.A.M. around J.M. unsupervised.
In 2016, Mother agreed that she was investigated for domestic violence and
drugs and that she had to take domestic violence and parenting classes. Mother also
agreed that although she had been diagnosed with ADHD, depression, and anxiety
and had been prescribed medications, she stopped taking her medications when she
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became pregnant. After B.A.M.’s birth, Mother decided that she no longer needed
the medications. Mother agreed that her assessments recommended that she get a
mental health referral and a psychiatric evaluation, but she had not taken either
because she did not know where to go or who to contact.
Mother admitted that she used marijuana in the past. She explained that she
did not complete drug testing in February, March, or April 2021 because she never
received the message to go. She admitted that her May 2021 hair-strand sample
tested positive for amphetamines, methamphetamines, and marijuana, but she
believed that her positive tests were caused by taking NyQuil and socializing with
friends who were smoking. She also had a hair-strand sample taken in July 2021
that tested positive for marijuana. When asked if she tested for drugs in August
2021, she initially said “no” but then clarified that she missed the August test because
of exposure to COVID. In September, a few months before trial, her hair-strand
sample was negative.
After the negative drug test, Mother had a September 2021 unsupervised visit
with B.A.M. Mother testified that J.M. visited her home, but that R.S. was not
present. Because she knew that J.M. could not have contact with B.A.M., Mother
had J.M. leave. Mother acknowledged that B.A.M. said that R.S. was at the
unsupervised visit, but Mother testified that R.S. was not around, no men’s clothes
were there, and R.S. had not been living with her since she moved out of the motel.
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Mother testified that she knew R.S. was not allowed around her or B.A.M. and that
she chose B.A.M. over R.S. because R.S. did not want to do services. When asked
why B.A.M. would lie about R.S.’s appearance at the September unsupervised visit,
Mother testified that B.A.M. may have been coached. Mother also recalled that, on
the night before the unsupervised visit, Kevin Utley came over to fix her vehicle.
When his ride home did not come, Kevin stayed the night.
Mother testified that while staying with a childhood friend’s mom, she
recalled playing “drunk bingo,” getting light-headed, and laying down next to
B.A.M., who was already asleep. When she awakened, B.A.M. did not have her
bottoms on and the bed was wet around her.
Kevin Utley
Utley, who was Mother’s high school friend, testified that he went to Mother’s
home to fix her vehicle and that he stayed the night because his ride did not arrive.
He recalled that he was not trying to hide from whoever came into the house and
that Mother did not tell him to hide.
Post-Trial Proceedings
On February 4, 2022, the trial court entered a revised final order, terminating
Mother and Father’s parental rights pursuant to subsections 161.001(b)(1)(D), (E)
(endangering physical or emotional well-being of child) and (O) (failing to comply
13
with court order), and finding that termination was in B.A.M.’s best interest. Mother
filed a timely notice of appeal.
Sufficiency of the Evidence
In her sole issue on appeal, Mother argues that the evidence is legally and
factually insufficient to support the trial court’s finding that she committed one of
the predicate acts under subsections 161.001(b)(1)(D), (E), and (O). Specifically,
Mother contends that she “didn’t know [J.M.] was on drugs at the time . . . and was
unaware of restrictions upon interactions with [J.M.].” Mother further argues that
“she didn’t know how she had contracted a particular infection . . . and she was
‘shocked’ to learn that [B.A.M.] had contracted the same infection, upon being
informed by [the Department].” Finally, Mother argues that she was “not aware of
any sexual abuse directed toward [B.A.M.] by [Mother’s] paramour.”
A. Standard of Review and Applicable Law
Protection of the best interest of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S.W.3d 355, 361 (Tex. 2003). A parent’s rights to the “companionship, care,
custody, and management” of his or her child is a constitutional interest “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59
(1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Accordingly, we strictly
14
scrutinize termination proceedings and strictly construe the involuntary termination
statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
In a case to terminate parental rights under Texas Family Code section
161.001, the Department must establish, by clear and convincing evidence, that
(1) the parent committed one or more of the enumerated acts or omissions justifying
termination and (2) termination is in the best interest of the child. TEX. FAM. CODE
§ 161.001(b). Clear and convincing evidence is “the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.” Id. § 101.007; In re J.F.C., 96 S.W.3d
256, 264 (Tex. 2002). Only one predicate finding under section 161.001(b)(1) is
necessary to support a judgment of termination when there is also a finding that
termination is in the child’s best interest. A.V., 113 S.W.3d at 362.
When reviewing the legal sufficiency of the evidence in a case involving
termination of parental rights, we determine whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction that there existed
grounds for termination under section 161.001(b)(1) and that termination was in the
best interest of the child. See TEX. FAM. CODE § 161.001(b)(1), (2); J.F.C., 96
S.W.3d at 266. In doing so, we examine all the evidence in the light most favorable
to the finding, assuming the “factfinder resolved disputed facts in favor of its finding
if a reasonable factfinder could do so.” J.F.C., 96 S.W.3d at 266. We must also
15
disregard all evidence that the factfinder could have reasonably disbelieved or found
to be incredible. Id.
When conducting a factual sufficiency review, we consider and weigh all the
evidence including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d 336,
345 (Tex. 2009). “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. (quoting J.F.C., 96 S.W.3d at 266). We
give due deference to the factfinder’s findings, and we cannot substitute our own
judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
Termination of the parent-child relationship may be ordered under subsection
(E) if clear and convincing evidence establishes that the parent has “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
§ 161.001(b)(1)(E). Subsection (E) focuses on the parent’s conduct and asks
whether the parent engaged in a voluntary, deliberate, and conscious course of
conduct that endangered the child. V.P. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-19-00531-CV, 2020 WL 544797, at *4 (Tex. App.—Austin Feb. 4, 2020, no
pet.) (mem. op.).
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As used in subsection (E), “‘endanger’ means more than a threat of
metaphysical injury or the possible ill effects of a less-than-ideal family
environment.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987). In this context, endanger means to expose a child to loss or injury or to
jeopardize a child’s emotional or physical well-being. Id.; see In re M.C., 917
S.W.2d 268, 269 (Tex. 1996). “Environment” refers to the acceptability of living
conditions, as well as a parent’s conduct in the home. In re S.R., 452 S.W.3d 351,
360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). A child is endangered
when the environment creates a potential for danger that the parent is aware of but
consciously disregards. Id. Under subsection (E), courts may consider conduct both
before and after the Department removed the child from the home. See Avery v.
State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no writ)
(considering persistence of endangering conduct up to time of trial).
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. S.R., 452 S.W.3d at 360. A court properly may consider
actions and inactions occurring both before and after a child’s birth to establish a
“course of conduct.” In re S.M., 389 S.W.3d 483, 491–92 (Tex. App.—El Paso
2012, no pet.). While endangerment often involves physical endangerment, the
statute does not require that conduct be directed at a child or that the child actually
17
suffers injury; rather, the specific danger to the child’s well-being may be inferred
from parents’ misconduct alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d
732, 738–39 (Tex. App.—Fort Worth 2004, pet. denied). A parent’s conduct that
subjects a child to a life of uncertainty and instability endangers the child’s physical
and emotional well-being. In re A.B., 412 S.W.3d 588, 599 (Tex. App.—Fort Worth
2013), aff’d, 437 S.W.3d 498 (Tex. 2014). The Department does not need to
establish that a parent intended to endanger a child to support termination based on
endangerment. See M.C., 917 S.W.2d at 270. Under subsection (E), the evidence
must show that the endangerment was the result of the parent’s conduct, including
acts, omissions, or a failure to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—
Fort Worth 2003, no pet.).
“[Se]xual abuse is conduct that endangers a child’s physical or emotional
well-being.” In re A.B., 125 S.W.3d 769, 775 (Tex. App.—Texarkana 2003, pet.
denied); see In the Interest of J.A., No. 05-19-01333-CV, 2020 WL 2029248, at *5
(Tex. App.—Dallas Apr. 28, 2020, pet. denied) (mem. op.) (stating, “[S]exual abuse
would be conduct that endangers a child’s physical or emotional well-being and that
the prospect of it may be taken into account as a general matter in any termination
proceeding”); In the Interest of K.K.D.B., No. 14-17-00302-CV, 2017 WL 4440546,
at *7 (Tex. App.—Houston [14th Dist.] Oct. 5, 2017, pet. denied) (mem. op.).
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“Domestic violence, want of self-control, and propensity for violence may be
considered as evidence of endangerment.” In re J.I.T.P., 99 S.W.3d 841, 845 (Tex.
App.—Houston [14th Dist.] 2003, no pet.); accord S.R., 452 S.W.3d at 361.
Violence does not have to be directed toward the child or result in a final
conviction—“Texas courts routinely consider evidence of parent-on-parent physical
abuse in termination cases without specifically requiring evidence that the conduct
resulted in a criminal conviction.” In re V.V., 349 S.W.3d 548, 556 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied). Conduct of a parent in the home can create
an environment that endangers the physical and emotional well-being of a child. In
re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ). For example,
abusive or violent conduct by a parent or other resident of a child’s home may
produce an environment that endangers the physical or emotional well-being of a
child. See id. at 776–77. Evidence that a person has engaged in abusive and violent
conduct in the past permits an inference that the person will continue to engage in
violent behavior in the future. Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied).
A parent’s continuing substance abuse can qualify as a voluntary, deliberate,
and conscious course of conduct endangering the child’s well-being. See J.O.A.,
283 S.W.3d at 345; In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied); S.R., 452 S.W.3d at 361–62. By using drugs, the parent
19
exposes the child to the possibility that the parent may be impaired or imprisoned
and, therefore, unable to care for the child. See Walker v. Tex. Dep’t of Family &
Protective Servs., 312 S.W.3d 608, 617–18 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied). Continued illegal drug use after a child’s removal is conduct that
jeopardizes parental rights and establishes an endangering course of conduct.
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.) (en banc).
B. Analysis
In her sole issue, Mother argues that insufficient evidence supports the trial
court’s findings on predicate acts to terminate her parental rights. The Department
responds that substantial evidence exists in the record to support the predicate acts.
We agree with the Department.
Allowing J.M. and W.M.S. Access to B.A.M.
The evidence establishes that Mother and B.A.M. lived with J.M. for at least
two weeks around November 2020. At the time, J.M. had an open investigation to
terminate her parental rights to Mother’s sister due to abuse and neglect. Mother
also admitted that she knew J.M.’s boyfriend, W.M.S., was a registered sex offender
that would visit J.M. Mother also knew that J.M. and W.M.S. had domestic violence
and substance abuse problems and that J.M.’s house was not a safe place. Mother
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also admitted that she knew from previous investigations that she was not to leave
B.A.M. with J.M. or W.M.S.
After Mother, R.S., and B.A.M. moved to a motel, and knowing of the various
dangers of J.M.’s house, Mother still chose to allow B.A.M. to shower,
unsupervised, at J.M.’s house. The evidence showed that B.A.M. made an outcry of
sexual abuse by W.M.S. after B.A.M.’s visit with J.M. Allowing a child to have
contact with a registered sex offender is endangering conduct by the parent. See
A.B., 125 S.W.3d at 775 (stating, “[S]exual abuse is conduct that endangers a child’s
physical or emotional well-being.”); Green v. Tex. Dep’t of Protective & Regulatory
Servs., 25 S.W.3d 213, 221 (Tex. App.—El Paso 2000, no pet.) (mother allowed
child to spend time with convicted child molester). Although Mother did not think
W.M.S. would be at J.M.’s house, she nevertheless had knowledge of the
endangering environment that J.M. and W.M.S. presented to B.A.M. See S.R., 452
S.W.3d at 360 (stating that child is endangered when environment creates potential
for danger that parent is aware of but consciously disregards).
Even after the Department removed B.A.M., the evidence showed that Mother
allowed J.M. access to B.A.M. during the September 2021 unsupervised visit.
Considering Mother’s knowledge of J.M.’s drug usage, domestic violence in J.M.’s
home, an open investigation to terminate J.M.’s parental rights to Mother’s sister,
and access by W.M.S.—a registered sex offender—the trial court could reasonably
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find that Mother’s decision to allow J.M. to take B.A.M. to her house endangered
B.A.M. See TEX. FAM. CODE § 161.001(b)(1)(E); see Jordan, 325 S.W.3d at 721
(“It is not necessary that the parent’s conduct be directed towards the child or that
the child actually be injured; rather, a child is endangered when the environment
creates a potential for danger which the parent is aware of but disregards.”); In re
B.B., No. 02-19-00250-CV & 02-19-00251-CV, 2020 WL 1057308, at *7 (Tex.
App.—Fort Worth Mar. 5, 2020, no pet.) (mem. op.) (finding that mother’s failure
to protect children from sexual abuse supported endangerment finding).
Domestic Violence
Further, the trial court heard evidence that, while living in the motel, B.A.M.
witnessed the violent relationship between Mother and R.S. See J.I.T.P., 99 S.W.3d
at 845 (stating, “Domestic violence, want of self-control, and propensity for violence
may be considered as evidence of endangerment”). Although Mother testified that
her relationship with R.S. was not violent, Lee testified that R.S. had a criminal
history of drugs and domestic violence and B.A.M. stated that “[R.S.] used to hit her
[Mother] all the time.” The trial court also heard that Mother had a previous
relationship that involved domestic violence. See Jordan, 325 S.W.3d at 724 (stating
that evidence that person engaged in abusive and violent conduct in past permits
inference that person will engage in violent behavior in future). Considering
Mother’s and R.S.’s domestic-violence history, and Mother’s history, the trial court
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could have reasonably concluded that Mother subjected B.A.M. to endangering
conduct. See id. (“Abusive and violent criminal conduct by a parent can produce an
environment that endangers the well-being of a child.”); see also In re E.N.C., 384
S.W.3d 796, 803 (Tex. 2012) (stating that endangering conduct need not be directed
toward child).
Allowing R.S. Access to B.A.M.
The record also shows that Mother remained in a relationship with R.S. and
allowed R.S. to be near B.A.M. even after removal and despite Mother’s knowledge
that (1) both Mother and B.A.M. tested positive for gonorrhea, (2) R.S. refused to
test for sexually transmitted diseases, and (3) R.S. tested positive for drugs. Mother
even admitted at trial that she had some concerns about R.S., and she had previously
told D.V.F. that B.A.M. had been “making sex noises, like she was having sex with
someone, like, moaning and groaning” and Mother “didn’t know where she got that
from, but she better not find out that anybody was molesting her daughter.” Though
Mother denied that she had a relationship with R.S. after April 2021, she later
admitted that R.S. was at a visit in May 2021, and multiple witnesses testified that
they believed that Mother continued her relationship with R.S.
Considering that both B.A.M. and Mother tested positive for gonorrhea, the
trial court could have reasonably believed that R.S. assaulted B.A.M. and that, by
permitting R.S. access to B.A.M., Mother engaged in conduct or knowingly placed
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B.A.M. with persons who engaged in conduct which endangered B.A.M.’s physical
or emotional well-being. See TEX. FAM. CODE § 161.001(b)(1)(E); see K.K.D.B.,
2017 WL 4440546, at *9 (stating that parent endangers her children by accepting
endangering conduct of other people).
Mother’s Drug Use
The trial court also heard that Mother admitted to drug use, both before and
after B.A.M.’s removal. After the Department removed B.A.M. in 2020, Mother
tested positive for various drugs on multiple occasions and did not provide drug tests
on other occasions. Mother also admitted that, in 2016, she was investigated for
domestic violence and drug use. Although Mother testified that she tested positive
for drugs due to using NyQuill and socializing with people who were smoking, the
trial court was free to disbelieve her testimony. See S.R., 452 S.W.3d at 365.
Considering Mother’s history of drug usage, the trial court could have reasonably
believed that this evidence supported its finding that Mother endangered B.A.M. See
J.O.A., 283 S.W.3d at 346 (stating that evidence of improved conduct does not
conclusively negate probative value of long history of drug use and irresponsible
choices); S.R., 452 S.W.3d at 361–62 (continued drug use after child’s removal may
be considered as establishing endangering course of conduct); see also In re C.A.B.,
289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“A factfinder
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reasonably could infer that [mother]’s failure to submit to the court-ordered drug
screening indicated she was avoiding testing because she was using drugs.”).
Mother’s Untreated Mental Illness
The record also contains evidence related to Mother’s mental health and her
failure to participate in services related to treatment. Mental illness alone is not
grounds for terminating the parent-child relationship. Maxwell v. Tex. Dep’t of
Family & Protective Servs., No. 03–11–00242–CV, 2012 WL 987787, at *9 (Tex.
App.—Austin Mar. 23, 2012, no pet.) (mem. op.). Untreated mental illness can
expose a child to endangerment, however, and is a factor the court may consider.
See id. at *10; In re L.L.F., No. 02–11–00485–CV, 2012 WL 2923291, at *15 (Tex.
App.—Fort Worth July 19, 2012, no pet.) (mem. op.) (considering parent’s failure
to take medication to treat mental health issues as factor in creating environment that
endangers child’s emotional or physical well-being).
The trial court heard Mother admit that she had been previously diagnosed
with ADHD, depression, and anxiety and had been on medications to treat her mental
illnesses. Mother agreed that she did not get a mental health referral, a psychiatric
exam, and that she had voluntarily stopped taking prescribed medications during
pregnancy. Instead of resuming her medications after pregnancy, Mother
determined that she no longer needed the medications. Although mental illness is
not a sole reason to terminate the parent-child relationship, the trial court could have
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considered the evidence that Mother had mental illnesses, refused a mental health
referral and a psychiatric exam, and stopped taking medications, in determining that
Mother endangered B.A.M. See TEX. FAM. CODE § 161.001(b)(1)(E); see In re
A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d)
(parent’s persistent and untreated mental illness viewed as evidence of
endangerment); L.L.F., 2012 WL 2923291, at *15 (considering parent’s failure to
take medication for mental illness as factor in creating environment that endangers
child’s emotional or physical well-being); J.I.T.P., 99 S.W.3d at 845 (considering
parent’s mental health and noncompliance with medication schedule as factors in
endangering child).
Viewing the evidence in the light most favorable to the trial court’s finding,
we conclude that the trial court could have formed a firm belief or conviction that
Mother had engaged in conduct or knowingly placed B.A.M. with persons who
engaged in conduct which endangered the physical or emotional well-being of
B.A.M. in violation of subsection 161.001(b)(1)(E). Moreover, in view of the entire
record, we conclude that the disputed evidence is not so significant as to prevent the
trial court from forming a firm belief or conviction that Mother engaged in conduct
or knowingly placed B.A.M. with persons who engaged in conduct which
endangered the physical or emotional well-being of B.A.M. in violation of
subsection 161.001(b)(1)(E).
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Because we conclude that the evidence is legally and factually sufficient to
support the trial court’s finding under section 161.001(b)(1)(E), we do not address
Mother’s arguments that the evidence is legally and factually insufficient to support
the trial court’s findings under subsection (D) and (O). See In re P.W., 579 S.W.3d
713, 728 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (declining to address
subsection (D) after finding legally and factually sufficient evidence of subsection
(E)).
We overrule Mother’s sole issue.

Outcome: We affirm the trial court’s Revised Final Order of Termination.

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