Before Morriss, C.J., Stevens and Carter,* JJ. Opinion by Justice Stevens OPINION The Department of Family and Protective Services (the Department) filed a petition to terminate Mother’s parental rights to her child, Heidi.[1] The trial court terminated Mother’s parental rights after finding that (1) under Section 161.001(b)(M) of the Texas Family Code, her parent-child relationship to her other child, Rob, was terminated by an Arkansas court based on a finding that her conduct violated Arkansas provisions substantially equivalent to Section 161.001, subsections (b)(1)(D) or (b)(1)(E), of the Texas Family Code, and (2) termination of Mother’s parental rights was in Heidi’s best interests. See TEX. FAM. CODE ANN. § 161.001(b)(1)(M), (2) (Supp.). On appeal from the termination of her parental rights, Mother argues that the evidence is legally and factually insufficient to support the trial court’s Ground M finding.[2] Because we disagree with Mother, we affirm the trial court’s judgment. Standard of Review “The natural right existing between parents and their children is of constitutional dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates fundamental interests, a higher standard of proof—clear and convincing evidence—is required at trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). “This Court is therefore required to ‘engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights.’” Id. (quoting A.B., 437 S.W.3d at 500). “[I]nvoluntary termination statutes are strictly construed in favor of the parent.” Id. (quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick, 685 S.W.2d at 20)). “In order to terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child’s best interest.” Id. (citing TEX. FAM. CODE ANN. § 161.001; In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that ‘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. (quoting TEX. FAM. CODE ANN. § 101.007 (citing In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009))). “This standard of proof necessarily affects our review of the evidence.” Id. “In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920 (Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing J.P.B., 180 S.W.3d at 573). “In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine ‘whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the . . . allegations.’” Id. (quoting H.R.M., 209 S.W.3d at 109 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)) (citing In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002)). “If, in light of the entire record, the disputed evidence that a reasonable fact[-]finder could not have credited in favor of the finding is so significant that a fact[-]finder 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). In our analysis, “we must undertake ‘an exacting review of the entire record with a healthy regard for the constitutional interests at stake.’” Id. (quoting In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (quoting C.H., 89 S.W.3d at 26)). “Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, ‘the rights of natural parents are not absolute; protection of the child is paramount.’” Id. (quoting In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)) (citing In re M.S., 115 S.W.3d 534, 547 (Tex. 2003)). “A child’s emotional and physical interests must not be sacrificed merely to preserve parental rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26)). “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.” Id. at 923 (quoting In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (quoting A.V., 113 S.W.3d at 362) (citing In re K.W., 335 S.W.3d 767, 769 (Tex. App.— Texarkana 2011, no pet.)). Here, we determine whether the evidence is legally and factually sufficient to support the trial court’s Ground M finding. The Evidence at Trial Angela Polk, an investigator with the Department, testified that the Department removed Heidi from Mother after Mother tested positive for methamphetamine. Mother admitted that she had substance abuse issues, used narcotics during the pendency of the case, and would test positive at the time of trial. Even so, the main issue at trial was whether termination of Mother’s parental rights could be supported by a Ground M finding based on a prior termination of Mother’s parental rights to her son.[3] In support of the Ground M finding, the trial court judicially noticed and considered a certified copy of a 2013 judgment from the Circuit Court of Miller County, Arkansas (the Arkansas Judgment), which terminated Mother’s parental rights to her son, Rob.[4] The Arkansas Judgment contains the following relevant findings: The Court finds it to be contrary to the child’s best interests and welfare to return him/her to the parental care and custody of the parents, . . . and further finds that the Department of Human Services has proven by clear and convincing evidence that the minor child has resided outside the parental home of the mother in excess of twelve months, and despite a meaningful effort by the Department of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parents. Services provided by the Department include random drug screens on the parents, referral of the mother for drug treatment, parenting classes, counseling The mother HAS NOT complied with the case plan in that she has not successfully completed rehab, has not successfully completed parenting classes, has had positive drug screens, has not successfully completed counseling, has not obtained safe and stable housing or employment. . . . The Court finds that the Department of Human Services has shown by clear and convincing evidence that the minor child’s parents have willfully failed to provide significant material support in accordance with his means or maintained meaningful contact with the child and has not been prevented from visiting or having contact with the juvenile. The Court finds that the Department of Human Services has shown by clear and convincing evidence that the parents of the juvenile has [sic] abandoned the juvenile, as evidenced by failure to provide reasonable support and to maintain regular contact with the juvenile with the intent that the condition continue for an indefinite period of time. The courts [sic] finds that subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that return of the juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors, or rehabilitate the parent’s circumstances, which prevent return of the juvenile to the family home. The court notes that the testimony of LaShama Lee, DCFS Case Worker and Lisa Forte, Adoption Specialist was credible. . . . . . . . The Court finds by clear and convincing evidence that it is in the best interest of the juvenile to terminate parental rights. In making this finding. the court specifically considered . . . the potential harm on the health and safety of the juvenile caused by returning the juvenile to the custody of the parent(s). The Court finds the testimony of the LaShama Lee to be credible and that she stated that due to the parents non-compliance with the orders of the court that [Rob] would be at risk of potential harm if returned to the parents. The Arkansas Judgment gave the Arkansas Department of Human Services the power to consent to Rob’s adoption. Rob’s adoptive mother, Jane, testified that she adopted Rob when he was sixteen months old. According to Jane, Rob was removed from Mother at the hospital because there was cocaine in his system. Jane testified that Heidi had been placed with her since the removal and that she wished to adopt Heidi. Mother, who claimed that she had voluntarily relinquished her parental rights to Rob, also wished for Heidi to be placed with Jane if her parental rights were terminated.[5] Analysis Mother argues that the Arkansas Judgment failed to show that her parental rights to Rob were terminated based on a finding that she had violated a provision of Arkansas law that was substantially equivalent to Texas parental-rights termination Grounds D or E. After reviewing relevant provisions of the Arkansas Family Code, we disagree. In Texas, under Ground D, parental rights can be terminated if a parent “knowingly place[s] or knowingly allow[s] the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D) (Supp.). Under Ground E, a finding by clear and convincing evidence that a parent “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of the child” is sufficient to support termination of parental rights. TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (Supp.). Under Ground M, parental rights may be terminated when “clear and convincing evidence supports that the parent ‘had his or her parent-child relationship terminated with respect to another child based on a finding that the parent’s conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state.’” In re N.G., 577 S.W.3d 230, 234 (Tex. 2019) (per curiam) (quoting TEX. FAM. CODE ANN. § 161.001(b)(1)(M)). “Therefore, when parental rights have been terminated under either section 161.001(b)(1)(D) or (E), that ground becomes a basis to terminate that parent’s rights to other children.” Id. “Because only one ground is required to terminate parental rights[,] . . . a section 161.001(b)(1)(M) ground [finding] based on a prior termination would be sufficient to terminate parental rights to another child in another termination proceeding.” Id. A majority of Texas appellate courts addressing Ground M have ruled that “[e]vidence of a prior decree reflecting the requisite findings under subsection (D) or (E) satisfies the Department’s burden under subsection (M).” In re C.M.J., 573 S.W.3d 404, 411 (Tex. App.— Houston [1st Dist.] 2019, pet. denied) (citing In re A.C., 394 S.W.3d 633, 641 (Tex. App.— Houston [1st Dist.] 2012, no pet.)); see In re A.M., No. 09-19-00075-CV, 2019 WL 4064579, at *17 (Tex. App.—Beaumont Aug. 29, 2019, pet. denied) (mem. op.) (finding that a certified copy of a prior judgment terminating parental rights coupled with Mother’s testimony provided sufficient evidence to support the trial court’s Ground M finding); In re B.M., No. 12-18-00094- CV, 2018 WL 4767179, at *3 (Tex. App.—Tyler Oct. 3, 2018, no pet.) (mem. op.) (finding that certified copies of a prior judgment with evidence that the child tested positive for drugs provided undisputed conclusive evidence of a Ground M violation without further showing by the Department) (citing Harris v. Tex. Dep’t of Family & Protective Servs., 228 S.W.3d 819, 835 (Tex. App.—Austin 2007, no pet.) (Patterson, J., dissenting) (finding that certified copies of a prior judgment provided undisputed conclusive evidence of a Ground M violation without further showing by the Department)). Here, although the State introduced a certified copy of the Arkansas Judgment, Mother argues that the judgment itself does not contain findings that are substantially equivalent to the findings a Texas court would make under Grounds D or E. The Arkansas Judgment reflects four separate grounds of termination under the Arkansas Family Code. Under those Arkansas grounds “[a]n order forever terminating parental rights” requires, in relevant part, a finding by clear and convincing evidence: . . . . [(3)(b)](i)(a) That a juvenile has been adjudicated by the court to be dependent- neglected and . . . despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. . . . . (ii)(a) The . . . parent has willfully failed to provide significant material support in accordance with the parent’s means or to maintain meaningful contact with the juvenile. . . . . (iv) A parent has abandoned the juvenile; [or] . . . . (vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent. ARK. CODE ANN. § 9-27-341(b)(3)(B) (West 2020).[6] The Arkansas Judgment recited that the Department of Human Services had filed a “petition for dependency-neglect,” which required a separate adjudication hearing before trial to determine whether Rob was dependent-neglected under the Arkansas Family Code. See Salinas v. Ark. Dep’t of Human Servs., 572 S.W.3d 389, 394 (Ark. App. 2019) (citing ARK. CODE ANN. § 9-27-325(h)(1), (2)(A)(2)). A “[d]ependent-neglected juvenile” is “any juvenile who is at substantial risk of serious harm as a result of” neglect or parental unfitness, among other things. ARK. CODE ANN. § 9-27-303(18) (West 2020). Jane testified that Rob was removed from Mother at the hospital because there was cocaine in his system. The term “[n]eglect” includes “[c]ausing a child to be born with an illegal substance present in the child’s bodily fluids or bodily substances as a result of the pregnant mother’s knowingly using an illegal substance before the birth of the child.” ARK. CODE ANN. § 9-27-303(36)(B)(i)(a) (West 2020). Here, the Arkansas Judgment recited that the Department provided services to remedy the conditions causing Rob’s removal, but that Mother failed to comply because she did not successfully complete rehabilitation, parenting classes, or counseling and had positive drug screens. The Arkansas Judgment also showed that Mother failed to provide material support to Rob and had abandoned him, that Rob’s return was “contrary to the juvenile’s health, safety, or welfare,” and that Rob “would be at risk of potential harm if returned to the parents.” As we explain below, when examined as a whole in accordance with the Arkansas Family Code, which requires dependency-neglect findings prior to trial, the findings in the Arkansas Judgment were substantially equivalent to Ground D and E findings. “A child is endangered when the environment creates a potential for danger that the parent is aware of, but disregards.” In re A.R., No. 06-20-00013-CV, 2020 WL 3865372, at *4 (Tex. App.—Texarkana July 9, 2020, no pet.) (mem. op.) (quoting In re N.B., No. 06-12-00007- CV, 2013 WL 1605457, at *9 (Tex. App.—Texarkana May 8, 2012, no pet.) (mem. op.)). “[S]ubsection (D) permits termination [of parental rights] based on a single act or omission [by the parent].” Id. (quoting In re L.C., 145 S.W.3d 790, 797 (Tex. App.—Texarkana 2004, no pet.)). “Inappropriate, abusive, or unlawful conduct by a parent . . . can create an environment that endangers the physical and emotional well-being of a child as required for termination under subsection (D).” Id. (quoting In re C.J.B., No. 05-19-00165-CV, 2019 WL 3940987, at *6 (Tex. App.—Dallas Aug. 21, 2019, no pet.) (mem. op.)). Under Ground E, “[i]t is not necessary that the conduct be directed at the child or that the child actually suffer injury.” Id. (quoting L.E.S., 471 S.W.3d at 923). “[I]t is sufficient that the child’s well-being is jeopardized or exposed to loss or injury.” Id. (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re N.S.G., 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.)). “[T]ermination under subsection (E) must be based on more than a single act or omission. Instead, a ‘voluntary, deliberate, and conscious course of conduct by the parent is required.’” Id. (quoting Perez v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004, no pet.). “‘Endanger,’ as used in the definition of Grounds D and E ‘means to expose to loss or injury; to jeopardize.’” Id. (quoting Boyd, 727 S.W.2d at 533). “A mother’s drug use during pregnancy ‘may amount to conduct that endangers the physical and emotional well-being of the child.’” Id. (quoting In re E.J.P., No. 06-04-00131-CV, 2005 WL 2138573, at *3 (Tex. App.— Texarkana Sept. 7, 2005, no pet.) (mem. op.)). Also, “[a] parent’s failure to remain drug-free while under the Department’s supervision will support a finding of endangering conduct under subsection (E) even if there is no direct evidence that the parent’s drug use actually injured the child” “[b]ecause it exposes the child to the possibility that the parent may be impaired or imprisoned.” Id. at *4 (quoting Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)). “Moreover, illegal drug use by a parent likewise supports the conclusion that the children’s surroundings endanger their physical or emotional well-being.” Id. (quoting L.E.S., 471 S.W.3d at 925). Here, Jane testified about the reason for Rob’s removal, including that the hospital was “surprised, by the medical records, that [Rob had] made it.” This evidence, coupled with the “dependent-neglected” finding and the Arkansas Judgment showing that drugs played a role in Rob’s removal, showed that Mother’s drug use had endangered Rob’s physical health.[7] The Arkansas Judgment also found that Mother continued to use drugs during the pendency of the case and, as a result, showed that the Arkansas court terminated Mother’s parental rights based on findings substantially equivalent to Ground D findings. Also, the Arkansas court found that Mother failed to support Rob, had abandoned him, failed to remedy the home and correct the conditions causing removal and did not obtain “safe and stable” housing and that his return to Mother was contrary to his health, safety, or welfare. As a result, the findings in the Arkansas Judgment showing that Mother had engaged in a course of conduct that endangered Rob’s physical well-being were also substantially equivalent to Ground E findings. We conclude that the Department proved that the Arkansas Judgment terminated Mother’s parental rights based on findings that Mother’s conduct was in violation of Grounds D or E, or substantially equivalent provisions of Arkansas law. Next, in addition to proving the elements of Ground M listed in the Texas Family Code, the Houston Fourteenth Court of Appeals interpreted Ground M “to require . . . also that (1) the final termination order is final by appeal and (2) no court has deleted the finding or reversed or set aside the final order.” In re P.W., 579 S.W.3d 713, 723 (Tex. App.—Houston [14th Dist.] 2019, no pet.); but see In re A.D.M., No. 14-18-01088-CV, 2019 WL 2097922, at *3, *5 (Tex. App.—Houston [14th Dist.] May 14, 2019, pet. denied) (mem. op.) (failing to require the additional requirements discussed in P.W.). Mother argues that the Department failed to meet this burden because it did not show that the Arkansas Judgment was final and that no court had deleted or set the ruling aside. P.W. noted that its interpretation of Ground M “differ[ed] from that of courts that have concluded that a certified copy of a prior final termination order as to another child based on (D) or (E) is sufficient evidence to support an (M) finding.” P.W., 579 S.W.3d at 723 (citing A.C., 394 S.W.3d at 640–41); see B.M., 2018 WL 4767179, at *3 (citing Harris, 228 S.W.3d at 835); see also In re S.M., No. 07-16-00407-CV, 2017 WL 1449222, at *1 (Tex. App.—Amarillo Apr. 17, 2017, no pet.) (mem. op.); In re S.D.S., No. 11-13-00250-CV, 2014 WL 576401, at *1 (Tex. App.—Eastland Feb. 6, 2014, no pet.) (mem. op.); In re D.P., No. 10-09-00271-CV, 2010 WL 654525, at *1 (Tex. App.—Waco Feb. 24, 2010, no pet.) (mem. op.). Most Texas courts have determined that the Department meets its burden under Ground M by providing certified copies of prior termination judgments meeting the requirements of Ground M without any further showing. Even assuming, without deciding, that the Department was required to show that the Arkansas Judgment was final and was not reversed or set aside, we find that the Department met that burden by proving that the judgment was issued in 2013, Rob was adopted after the entry of the judgment, Mother did not oppose the adoption, and Jane was still Rob’s adoptive parent in 2020. After considering Mother’s arguments, we find that that the trial court’s Ground M finding was supported by legally and factually sufficient evidence. As a result, we overrule Mother’s points of error. Conclusion We affirm the trial court’s judgment. Scott E. Stevens Justice Date Submitted: September 18, 2020 Date Decided: September 25, 2020
