Full Opinion (html_with_citations)

                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                             ________________________

                                 No. 07-22-00222-CV
                             ________________________


                       IN THE INTEREST OF G.M.S., A CHILD



                          On Appeal from the 84th District Court
                                 Ochiltree County, Texas
            Trial Court No. CV15,064, Honorable Curt W. Brancheau, Presiding


                                   December 22, 2022

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

      Appellant, the mother of one-year-old GMS, appeals the trial court’s order

terminating her parental rights. She raises six issues challenging the order. We affirm.

      Background

      GMS was removed from her mother’s care at the time of birth following the

mother’s positive drug tests revealing the presence of illegal substances. Her drug use

also caused GMS to suffer two in-utero heart attacks. The mother admitted she used

methamphetamine and marijuana while pregnant and also admitted to a long history of
abusing both drugs. The mother continued to use illegal substances during the pendency

of the case as evinced by positive drug tests and recurrent no-shows for drug testing,

including one just prior to the final hearing. She also failed to complete all services

requested for the successful return of GMS to her care.

         At the time of the final hearing, GMS was placed with her grandfather where she

was “doing good,” but the grandfather suffered medical issues that prevented him from

being a long-term placement for the child. However, GMS’s maternal aunt sought to

adopt her, pending successful completion of a home study.

         The mother did not appear at the final hearing, though her attorney did. At the

conclusion of the proceeding, the trial court terminated the mother’s rights pursuant to

several statutory grounds and determined that termination was in the best interest of the

child.

         Analysis

         Issue One—Pleadings

         Via her first issue, the mother argues the trial court committed reversible error

because it terminated her parental rights pursuant to the original, rather than amended,

petition. This purportedly violated Texas Rule of Civil Procedure 65. Assuming this

circumstance to be accurate, we overrule the issue for several reasons.

         First, the mother made no complaint about the trial court’s reference to paragraphs

in the original petition when announcing the statutory grounds warranting termination.

That utterance came at the end of trial while the court announced its decision. The lack

of a timely complaint, as required by Texas Rule of Appellate Procedure 33.1, results in

her waiver of the matter. See TEX. R. APP. P. 33.1.



                                              2
       Second, the Department’s live, amended pleading also encompassed the very

statutory grounds alluded to by the court at trial. Moreover, the trial court’s written

findings, which appear in its final order, specify the statutory grounds upon which it acted

without allusion to any particular pleading. Those grounds, as just said, appear in the

Department’s live pleading. Thus, the written findings of the trial court supersede any

oral pronouncement at trial. In re E.D., No. 02-20-00208-CR,
2022 Tex. App. LEXIS 87
,

at *28 (Tex. App.—Fort Worth Jan. 6, 2022, no pet.) (mem. op.). In other words, the trial

court found the existence of statutory grounds warranting termination, which grounds

were alleged in the Department’s live pleading.

       Issues Two through Six—Sufficiency of the Evidence

       In issues two through six, the mother attacks the sufficiency of the evidence

underlying both the findings of a statutory ground warranting termination and of

termination being in GMS’s best interest. The applicable standard of review is that

described in In re J.F.-G.,
627 S.W.3d 304
 (Tex. 2021). We apply it here. It requires us

to assess whether the record contained sufficient evidence permitting the factfinder to

form a firm conviction and belief of a predicate statutory ground for termination and that

the child’s best interest favored termination.

       Statutory Grounds

       The trial court found a myriad of predicate statutory grounds warranting

termination. We need only decide if one has the requisite evidentiary support. See In re

A.V.,
113 S.W.3d 355, 362
 (Tex. 2003) (stating that only one 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).



                                                3
        Given the record before us, we consider the evidence supporting 161.001(b)(1)(D)

of the Family Code. It permits termination upon clear and convincing proof that a parent

has “knowingly placed or knowingly allowed 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). “Conduct of a parent or another person in the home

can create an environment that endangers the physical and emotional well-being of a

child as required for termination under subsection (D).” In re J.D.B.,
435 S.W.3d 452, 463-64
 (Tex. App.—Dallas 2014, no pet.). “Inappropriate, abusive, or unlawful conduct

by persons who live in the child’s home is part of the ‘conditions or surroundings’ of the

child’s home under subsection (D).”
Id.
 (citing In re M.R.J.M.,
280 S.W.3d 494, 502
 (Tex.

App.—Fort Worth 2009, no pet.) (“A child is endangered when the environment creates

a potential for danger that the parent is aware of but disregards.”)). See also In re W.S.,
899 S.W.2d 772, 776
 (Tex. App.—Fort Worth 1995, no writ) (“environment” refers not only

to the acceptability of the living conditions but also to a parent’s conduct in the home).

Significantly, parental illegal drug use supports the conclusion that the child’s

surroundings endanger her physical or emotional well-being. In re A.M.A., No. 13-22-

00011-CV,
2022 Tex. App. LEXIS 2420
, at *11-12 (Tex. App.—Corpus Christi Apr. 14,

2022, no pet.) (mem. op.). And, “[d]rug abuse during pregnancy constitutes conduct that

endangers a child’s physical and emotional well-being.” In re B.R., No. 02-11-00146-CV,
2011 Tex. App. LEXIS 9033
, at *9 (Tex. App.—Fort Worth Nov. 10, 2011, no pet.) (mem.

op.).

        Here, a Department permanency specialist, Michele Slagle, testified that GMS was

removed from her mother’s care at the time of her birth because the mother tested positive



                                            4
for illegal substances.     The mother admitted to hospital staff that she used

methamphetamine and marijuana while pregnant. Also, it was discovered that GMS

suffered two in-utero heart attacks due to her mother’s drug use during pregnancy.

Additionally, the mother continued to test positive or did not appear for drug testing

throughout the pendency of the case. The court-appointed advocate agreed with Slagle’s

assessment, telling the court that ten months into the case, the mother was still testing

positive for illegal substances and had not worked her services. It was also noted during

the final hearing that the mother has two older children who resided with her brother

because she could not care for them as a result of her drug use.

       Slagle also told the court that contact with the mother during the case had been

difficult and that she was unreliable. While the mother did attend some visits with her

child and engaged well with GMS when she did so, she did not always attend and was

often unreachable. In fact, in the weeks prior to the final hearing, the mother’s phone had

been disconnected.

       The mother suggests termination was impermissible under (D) because she did

not know of the endangering environment. The endangering environment included her

drug use during pregnancy. She cites us to nothing of record suggesting that she was

unaware of her drug habit and use while pregnant.           Indeed, the record illustrates

otherwise.

       We find that the trial court could have reasonably formed a firm belief or conviction

that the elements of section 161.001(b)(1)(D) were met. And, our so holding relieves us

from assessing the sufficiency of the evidence underlying the trial court’s finding of other




                                             5
statutory grounds permitting termination. The mother’s issues regarding the sufficiency of

evidence establishing a predicate statutory ground are overruled.

        Best Interest

        We turn now to the mother’s final issue, that being whether sufficient evidence

supports the finding that termination was in GMS’s best interest. Because it does, the

issue is overruled.

        In analyzing the issue, we apply the multiple, though non-exclusive, factors

in Holley v. Adams,
544 S.W.2d 367
 (Tex. 1976) and in section 263.307(b) of the Texas

Family Code. 1 Their application to the evidence does not favor the mother’s position.

That evidence includes all we mentioned when considering the preceding sufficiency

issues. To it, we add the evidence that GMS is “doing good” with her grandfather.

Furthermore, her maternal aunt and uncle are willing to adopt her, pending completion of

a home study. Also, GMS’s siblings live with the mother’s brother within ten to fifteen

miles of the aunt. The caseworker opined that the home study of the aunt would be

successful and stated she had no concerns with GMS being placed there. Both the

caseworker and the court-appointed advocate testified that it was in GMS’s best interest

that the mother’s parental rights be terminated so that the adoption could proceed. 2

        On the other hand, the mother’s failure to attend trial is evidence of her interest (or

lack thereof) in maintaining a parental relationship with her child. Furthermore, counsel

articulated no plans of the mother concerning GMS. Of significant concern, again, was




        1
            TEX. FAM. CODE ANN. § 263.307(b).
        2
         At the final hearing, counsel repeatedly advocated that the aunt be named primary managing
conservator rather than terminating the mother’s parental rights. However, termination allows adoption to
proceed, and it was within the trial court’s discretion to find that termination was in GMS’s best interest.

                                                     6
the mother’s continued drug use during the pendency of the case and her failure to

complete her services to a satisfactory degree to secure the return of GMS to her care.

      In light of the foregoing, we again conclude that the evidence permitted the trial

court to form a firm conviction and belief that termination of the mother’s parental

relationship with GMS was in the child’s best interest. We resolve the mother’s final issue

against her.

      Conclusion

      Having overruled the mother’s issues on appeal, we affirm the trial court's

judgment.



                                                       Brian Quinn
                                                       Chief Justice




                                            7