In the Interest of E.N.T. a Child v. Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: November 5, 2025
• Docket: 01-25-00346-CV
• Status: Published

Opinion

Opinion issued November 5, 2025.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-25-00346-CV ——————————— IN THE INTEREST OF E.N.T., A CHILD

On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2023-00732J

MEMORANDUM OPINION

D.R. (“Mother”) and W.T. (“Father”) challenge the trial court’s final decree

terminating their parental rights to their minor child E.N.T. (“Eva”) based on the

court’s findings that Mother and Father each committed the predicate acts under Texas Family Code Sections 161.001(b)(1)(D), (E), and (O),1 and that termination

of their rights was in Eva’s best interest.2

We affirm the decree of termination.

Background

On March 26, 2023, the Department of Family and Protective Services

(“Department”)3 received a referral of neglectful supervision by Mother and Father

after an Ulta Beauty store employee called 9-1-1 to report that an infant had been

left alone in a parked car in the Ulta Beauty parking lot for a prolonged period of

time. Police arrived at the scene and removed ten-month-old Eva from the car.

After conducting an investigation from March 26 through April 3, 2023,

including interviews with Mother, Father, Eva’s paternal grandmother, and the

person who called 9-1-1 to report the car incident, the Department became concerned

about Mother’s and Father’s unaddressed and continued use of illegal narcotics and

1 The legislature has repealed subsection (O) effective September 1, 2025. H.B. 116, Act of May 28, 2025, 89th Leg., R.S., ch. 211, 2025 Tex. Sess. Law Serv. The repeal applies to suits affecting parent-child relationships pending in the trial court on the effective date of September 1, 2025. Because the notice of appeal in this matter was filed prior to the effective date, subsection (O) remains in effect for the purpose of this appeal. See In re G.A.H., No. 05-25-00421-CV, 2025 WL 2697297, at *1 n.2 (Tex. App.—Dallas Sept. 22, 2025, no pet. h.) (mem. op.). 2 To protect the identity of the minor child, we refer to her and her grandparents by pseudonyms and we refer to her biological parents as Mother and Father. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 3 For purposes of this appeal, the term “Department” also includes Harris County Child Protective Services.

2 its potential endangering impact on Eva. The Department filed a petition seeking

managing conservatorship over Eva, seeking termination of Mother’s and Father’s

parental rights to Eva and requesting temporary managing conservatorship over Eva

on an emergency basis. In the removal affidavit attached to the Department’s

petition, Department investigator Briana Watson stated the Department was

requesting temporary managing conservatorship of Eva because of the “ongoing

danger” to Eva posed by Mother’s and Father’s unaddressed substance abuse. She

stated that

Both [Mother] and [Father] admitted [to leaving Eva] in the car for over an hour while inside of Ulta stealing merchandise. [Mother] . . . fled the scene due to not wanting to deal with the police and left [Father] to deal with law enforcement. Both parents willingly admitted to using heroin and abusing pills while actively []caring for [Eva] and stated they [had] recently used [drugs] two days prior to the intake coming in. There was an attempt to place a safety plan in place with paternal grandparents [Brad] and [Charlotte]. However, the safety plan fell through due to paternal grandparents stating that both parents still participate in active drug use. The child is at a vulnerable age and unable to self-protect. There is a continuing danger to the physical health or safety of the child, The Department believes it is in the best interest of the child to be in the care of the agency.

Trial Testimony

The court conducted a bench trial over nine non-consecutive days between

September 11, 2024 and April 2, 2025.4

4 Mother, who had been represented by counsel during part of the termination proceedings, proceeded pro se at trial, and she is represented by appointed counsel

3 A. Dishaunda Gabriel

Caseworker Dishaunda Gabriel was assigned to the case from May 2023 until

August 2024. She testified that Eva initially was removed from Mother’s and

Father’s care because Mother and Father had left Eva alone in their car while they

were inside an Ulta store and when it became involved, the Department became

increasingly concerned about Mother’s and Father’s unresolved substance abuse

issues because of repeated “positive drug testing.” Mother and Father tested positive

for fentanyl, norfentanyl, and amphetamines multiple times during the pendency of

the case, and Father also tested positive for oxycodone, oxymorphone and

methamphetamine. Mother provided prescriptions for two drugs for which she

tested positive, but the Department was only concerned about the drugs for which

Mother did not have a prescription—fentanyl, cocaine, marijuana, and

methamphetamine.

Before Gabriel was assigned to the case, another caseworker had reviewed

Mother’s and Father’s Family Service Plans (“FSPs”) with them and made referrals

for services. Gabriel reviewed Mother’s and Father’s FSPs with them when she

visited their home in October 2023, and she provided each a copy of their FSP.

Mother’s and Father’s FSPs required them to, among other things, complete

on appeal. There is no indication in the record as to why Mother appeared pro se during trial.

4 parenting classes, participate in a substance abuse assessment, participate in a

psychological evaluation, submit to drug testing, and attend court hearings and

parent-child visits. Because of the parents’ repeated positive drug tests, she stated

that “completing substance abuse services” was an integral part of the case.

When Gabriel visited Mother’s and Father’s home in October 2023, Mother

and Father had completed their parenting skills classes, submitted to substance abuse

assessments and psychological evaluations, and they had been submitting to monthly

drug testing as required by their FSPs. Mother and Father were ordered to complete

a second psychological evaluation and substance abuse assessment, however,

because they had not been truthful. According to Gabriel, Mother and Father

completed the additional psychological evaluations and substance abuse

assessments.

Referring to a permanency report prepared by the Department, Gabriel

testified that Mother’s first substance abuse assessment recommended that she

receive outpatient substance abuse therapy and take parenting classes, and her

second substance abuse assessment recommended that she attend Alcoholic

Anonymous and Narcotics Anonymous meetings, take parenting classes, receive

individual substance abuse counseling, and receive outpatient substance abuse

treatment. Mother did not report attending AA or NA meetings, nor did she provide

documentation confirming she had completed outpatient treatment. Gabriel did not

5 recall referring Mother to outpatient therapy, but she referred Mother to individual

counseling. Mother completed her parenting classes, but she was unsuccessfully

discharged from substance abuse counseling on March 2, 2024, because she did not

keep regular attendance, address all her treatment goals and objectives, and she

failed to maintain her sobriety throughout treatment.

Mother’s psychological evaluation recommended that she submit to a

psychiatric assessment, receive individual therapy, attend parenting classes, receive

substance abuse treatment, receive outpatient treatment, and submit to random drug

screenings. According to Gabriel, Mother completed the psychiatric assessment and

therapy but she did not complete the outpatient treatment.

Although Gabriel did not have any concerns about Mother’s and Father’s

home in October 2023, she was concerned about returning Eva to Mother’s and

Father’s care because both parents had continued to test positive for drugs. Gabriel

testified that as a result of the parents’ ongoing drug use, she could not ensure that

their home was drug-free, which is important for a child as young as Eva. Although

Gabriel made several subsequent attempts to visit Mother’s and Father’s home when

they were both present, they were unable to agree on a time for the visit. The

Department was concerned about Mother’s and Father’s parenting skills, and after a

November 30, 2023 hearing, the trial court amended Mother’s and Father’s FSPs to

include a requirement that they work with a parenting coach through the Nurturing

6 Parents Program (“NPP”) until successfully discharged. Although she referred

Mother and Father to NPP in January 2024 and she provided the referral information

to Mother, Father, and their attorneys, neither parent completed the program or

provided documentation to the Department establishing they had worked with a

parenting coach.

When asked about Mother’s and Father’s drug testing, Gabriel testified that

the Department initially required Mother and Father to submit to weekly drug tests,

but it reduced the frequency of testing to twice a month after October 9, 2023, when

the court ordered Mother and Father to submit to weekly testing for fentanyl through

National Screening Center’s (“NSC”) random drug testing program. She testified

that Mother did “[n]ot often” comply with these drug testing requirements.

Mother tested positive for fentanyl, amphetamines, cocaine, marijuana, and

methamphetamine throughout the pendency of the case. Mother’s drug tests were

admitted into evidence over Mother’s and Father’s objections.5 Gabriel testified

over Father’s objections that Mother’s March 29, 2023 urine sample tested positive

for amphetamines, cocaine, and marijuana, that her April 28, 2023 hair sample tested

positive for amphetamines, cocaine metabolites, and marijuana, and that her May

30, 2023 urine sample tested positive for methamphetamines and fentanyl. On

5 Although Gabriel testified to Mother’s positive tests results for benzodiazepines, we have not included them in our discussion because Mother provided the Department with verified prescriptions for alprazolam (Xanax) and lorazepam.

7 October 18, 2023, Mother’s urine sample was negative, but her hair sample tested

positive for amphetamines. On October 24, 2023, Mother’s urine sample tested

positive for fentanyl and norfentanyl, and her hair sample tested positive for

amphetamines. On November 6, 2023, Mother’s urine sample tested positive for

fentanyl. On November 9, 2023, Mother’s urine sample was negative, but her hair

sample tested positive for amphetamine and fentanyl. Although her November 21,

2023 urine sample was negative, Mother’s November 29, 2023 urine sample tested

positive for amphetamine and fentanyl. Mother’s December 7, 2023 urine sample

was negative, but her December 11, 2023 urine sample tested positive for fentanyl,

and her December 14, 2023 urine sample tested positive for amphetamine. On

December 20, 2023, Mother’s urine sample tested positive for fentanyl, and her

December 28, 2023 urine sample was negative. Mother’s January 4, 2024 urine

sample tested positive for amphetamine and norfentanyl. Mother’s January 8,

January 9, January 12, January 26, February 9, and February 16, 2024 urine samples

were negative. Mother did not submit to drug testing by NSC on February 21, 2024,

and the urine sample she provided on February 22, 2024 for the Department-ordered

drug test was negative.

Gabriel testified that Mother’s most recent drug test was on March 8, 2024,

and Mother’s hair sample tested positive for amphetamines, methamphetamines, and

8 fentanyl. Although Mother was sent for drug testing in April, May, June, and July

2024, the Department did not receive drug test results for those months.

During a July 2024 hearing, the court ordered Mother to take a drug test and

restricted Mother’s visitations with Eva until Mother provided a clean test result.

Gabriel did not know if Mother submitted to the court-ordered drug test in July 2024,

and she did not know if Mother submitted for regular drug testing in August 2024,

because Gabriel left the Department on August 5, 2024.

Gabriel testified that Father’s FSP required him to attend parenting classes,

submit to a substance abuse assessment and a psychological evaluation, submit to

random urinalysis, and attend court hearings and parent-child visits. According to

Gabriel, Father completed his parenting classes and substance abuse assessment.

Father’s substance abuse assessment recommended that he receive inpatient

services, continue with random drug testing, and receive substance abuse

counseling. Gabriel testified that Father did not provide her with documentation

demonstrating that he completed inpatient treatment and Father’s closure summary

from Monarch Family Services stated that although he completed twelve

recommended substance abuse therapy sessions, he continued to test positive

throughout treatment, and “he did not meet his therapeutic goals.”

Father’s psychological evaluation recommended that he receive individual

counseling and “continue [a] psychoactive medication regimen.” Father’s closure

9 summary from Monarch stated that he “did not meet his treatment plan goals due

to lack of attendance” and he was unsuccessfully discharged from individual

counseling. Gabriel did not know if Father continued to take his medications and

although she had asked Father to provide her with a copy of his prescriptions, he did

not do so or explain why he did not provide the requested information.

Father’s drug test results were admitted into evidence over Mother’s and

Father’s objections. Over Father’s objections, Gabriel testified that Father’s March

29 and April 28, 2023 urine samples tested positive for amphetamines, that his April

28, 2023 hair sample was negative, and that his May 30, 2023 urine sample tested

positive for amphetamines, fentanyl, and norfentanyl. On October 18, 2023,

Father’s hair sample tested positive for oxycodone and his urine sample tested

positive for oxycodone and oxymorphone. Father did not appear for fentanyl testing

with NSC on October 24, 2023. On October 26, 2023, Father’s urine sample tested

positive for norfentanyl and amphetamine and his October 30, 2023 urine sample

tested positive for norfentanyl. On November 9, 2023, Father’s hair sample tested

positive for fentanyl and amphetamine and his urine sample tested positive for

norfentanyl. Father’s November 20, 2023 urine sample tested negative, but his

November 21, 2023 urine sample tested positive for norfentanyl. Father’s

November 29, 2023 urine sample tested positive for amphetamines and norfentanyl

and his December 7, 2023 urine sample tested positive for norfentanyl. Father’s

10 December 11, December 20, and December 21, 2023 urine samples were negative.

Father’s December 28, 2023 urine sample tested positive for amphetamines, his

December 29, 2023 urine sample was negative, and his January 9, 2024 urine sample

tested positive for norfentanyl. Father’s February 9, 2024 urine sample tested

positive for amphetamines and norfentanyl, his February 22, 2024 urine sample

tested positive for amphetamines, and his February 28, 2024 urine sample tested

positive for amphetamines and methamphetamines. Father did not appear for

fentanyl testing on March 14, 2024, and his March 19, 2024 urine sample tested

positive for amphetamines and methamphetamines. Father did not appear for

fentanyl testing with NSC on February 16 and 26, 2024, March 14, 2024, April 3,

11, 16, 23 and 30, 2024, and May 17, 2024.6

Gabriel testified that the Department had safety concerns for Eva due to

Father’s continued substance abuse. The Department was concerned that Father had

tested positive for amphetamines throughout the pendency of the case and, although

the Department requested the information several times, Father did not provide the

Department with proof that he had a prescription for Adderall, which could have

explained his positive amphetamines results. The Department also was concerned

that Father had tested positive for fentanyl and methamphetamines on more than one

6 Although NSC terminated Father’s participation in the fentanyl testing program on April 23, 2024, the Department requested that NSC keep Father in the program until the next court date.

11 occasion after Eva was taken into the Department’s care. Gabriel testified that

Father’s records reflected he had stopped drug testing in March 2024, and although

the Department continued to send Father for drug testing, Gabriel did not receive

any other drug test results for Father. The Department was concerned because

Father’s refusal to submit to further testing during trial indicated that he was

continuing to use drugs.

Gabriel testified that Mother and Father had scheduled visits with Eva every

first, third, and fifth Wednesday and every second and fourth Friday at the

Department’s office from 11:30 a.m. to 1 p.m. Over the course of fifteen months—

between May 2023 and August 2024—Father visited Eva only twice at the

Department’s offices. Gabriel, who did not supervise Father’s visits with Eva,

testified that the Department did not have any concerns about Father’s visits, and

she did not have an opinion on Father’s parenting skills.

According to Gabriel, Mother attended most of her scheduled visits between

May 2023 and August 2024 and she supervised Mother’s visits. Gabriel testified

she was concerned about Mother’s parenting abilities, which Gabriel described as

an integral part of the case. Mother, who often arrived late for her visits, was often

distracted during the visits, she “seemed a little dazed,” and not completely focused

on Eva. She would spend time on her phone, and she would try to discuss the case

with Gabriel instead of focusing her attention on Eva. Mother would also miss

12 feeding cues from Eva and would try to feed her anyway. According to Gabriel,

reading Eva’s cues is something that Mother should have learned during her

parenting classes.

In addition to visiting Eva at the Department’s offices, Mother, Father, and

the Department had entered into a mediated settlement agreement that allowed

Mother and Father to visit Eva twice a month on the weekends with her caregivers.

According to Gabriel, Brad and Charlotte supervised the weekend visits that began

in February or March 2024. One of the stipulations in the agreement was that Mother

and Father had to be sober when they visited with Eva.

On July 24, 2024, the trial court held a special status hearing to address the

Department’s request that Mother’s visits with Eva be changed from in-person to

virtual. According to Gabriel, the Department made the request because of “the

inconsistent drug testing and because of [Mother’s] behavior towards the

Department.” Gabriel testified that Mother was disrespectful, aggressive, and

argumentative towards Gabriel during some visits when Eva was present.

The trial court suspended Mother’s visitation in July 2024, and the court

indicated it would resume visitations when Mother provided a negative drug test and

could act civilly when she visited Eva. The court ordered Mother and Father to test

for fentanyl, but Gabriel never received documentation demonstrating that Mother

and Father complied with the trial court’s order for drug testing. According to

13 Gabriel, Mother’s visitations were still suspended when Gabriel left the Department

in August 2024.

Gabriel stated the Department was concerned about Mother’s and Father’s

financial abilities and Mother’s lack of employment because one of the reasons Eva

had come into their care was that Mother and Father had been shoplifting at Ulta

when they left Eva alone in the car. Mother was employed for one week, but she

never provided proof of employment through paycheck stubs or showed proof of

income through disability checks, unemployment payments, or anything else. Father

gave Gabriel pay stubs in August 2023 and although she asked Father multiple times

to provide new pay stubs, she never received additional documentation of income

from Father.

B. Psychological Evaluations and Substance Abuse Assessments

Father’s August 9 and October 19, 2023 psychological evaluations and his

October 25, 2023 substance abuse assessment were admitted into evidence without

objection. Mother’s August 11, 2023 psychological evaluation and July 20 and

October 23, 2023 substance abuse assessments were also admitted without objection.

1. Father’s Psychological Evaluations

In his August 9, 2023 psychological evaluation, Father reported that Mother

went into the Ulta store to shop while he waited with Eva in the car. At one point,

“he ran into the Ulta twice to rush [Mother], leaving [Eva] in the car both times with

14 the car running and AC on,” and the car was locked. According to Father, the second

time he went into the store to rush Mother, store employees accused him and Mother

of stealing, and the store manager called the police to report that Eva was in the car

alone. Father told the evaluator that the “police alleged that there was a powdered

substance in the[] car which they tested and said was fentanyl.” He denied that the

powdered substance belonged to either him or Mother and he told the evaluator that

the removal affidavit included many untrue statements.

With respect to his past substance use, Father reported that he used marijuana

in the past and he was physically dependent on hydrocodone when he was in college,

and he had “admitted himself into a detox facility for it.” Father reported that he had

“fully detoxed and never relapsed on hydrocodone after his treatment.” The

evaluator noted that Father had made conflicting reports about his hydrocodone use

in his July 18, 2023 substance abuse evaluation in which he reported that he had

“last used opiates just before the [car] incident with [the Department]” in March

2023.

Father told the evaluator he had taken drug tests for the Department and “they

have all been negative,” but Mother had tested positive for marijuana. He stated that

he, Mother, and Eva had been living with Brad and Charlotte until they kicked

Mother and Father out, and that Charlotte had falsely testified during a status hearing

she had seen him and Mother “passed out with their eyes rolled back.”

15 In her evaluation, the evaluator noted that Brad and Charlotte had agreed to

serve as safety monitors for Mother and Father, and that Mother, Father, and Eva

had lived with Brad and Charlotte until Charlotte told the Department in April 2023

that she did not want Mother and Father in her home “due to their ongoing drug use.”

According to the evaluator, Father had a “notable substance abuse history involving

primarily opiates” and although he went through suboxone treatment when he

stopped using in college, Father “recently relapsed just prior to the [Department’s]

case by using an opiate.” She stated that Father “may have even used after the

[Department’s] case due to reports from [Charlotte] that he continued to use in her

home and his report to [the Department] that he and [Mother] were going through

detox around that same time.” Father was diagnosed with opioid use disorder.

In his October 19, 2023 psychological evaluation, Father stated he had self-

initiated seven days of inpatient treatment in 2016 to address his hydrocodone

dependence, but that he had “recently relapsed” and used hydrocodone one to two

weeks earlier (in early October 2023) when he found a pill in his car. He stated that

prior to his relapse, he had not used hydrocodone in years. He also reported that he

had tried cocaine in college and last used the drug in 2016.

Father’s psychological evaluation recommended that he receive substance

abuse outpatient treatment, participate in individual therapy, and submit to random

drug screenings. The February 22, 2025 permanency report states that Father had

16 not complied with the recommendations because he had been unsuccessfully

discharged from outpatient treatment, he was not drug testing through the

Department, and he had been unsuccessfully discharged from individual therapy.

With regard to Father’s drug testing requirement, the report states that Father was

not drug testing through the Department, he was “dropped from [NSC’s] [f]entanyl

program twice due to several no shows,” and he refused to submit to court-ordered

drug testing with NSC.

2. Father’s Substance Abuse Assessments

During his October 25, 2023 substance abuse assessment, Father stated that

Mother shopped at Ulta and he waited in the car with Eva because she was sleeping.

Father stated that he wanted to “speed things up” and he “went back and forth from

the store and car,” before a store employee accused him and Mother of stealing and

called the police. After the police found Eva in the car alone, they searched the car

and “found prescription medication not in the bottle and opiates.” According to

Father, he was allowed to leave with Eva and Mother was arrested.

Father reported using “an assortment of opiates throughout college” and “he

had a slip up after his kid got removed, he had a slip up” at the end of September

2023 or beginning of October 2023. Father stated that “he took half a Xanax because

he had a lot of anxiety, so he took 2 more” and he “didn’t know they were

pressed/blanks laced with fentanyl.” He stated that the “last time he used [Xanax]

17 was a day after his kid was removed.” The evaluator noted that Father “appeared to

be very guarded with his information [regarding drug use], [his reported] timelines

of use appeared to be inconsistent, [because] he [first] reported that [he last]

consumed opiates in 2016 however [he] later reported that he used one opiate before

the incident with [the Department] occurred.” Father also told the evaluator that the

Department “administer[s] a drug analysis on him, they have all been negative

however they went back and re-tested the initial test and it came back positive for

opiates.” Father was diagnosed with opioid use disorder, moderate.

Father’s substance abuse assessment recommended that he participate in

outpatient substance abuse therapy, receive substance abuse education, and be

reassessed if he tested positive for drugs. The February 22, 2025 permanency report

states that Father had not complied with the recommendations because he had been

“unsuccessfully discharged from substance abuse therapy due to not meeting his

therapeutic goals.”

3. Mother’s Psychological Assessment

During her August 11, 2023 psychological assessment, Mother stated that the

Department became involved after Mother and Father “went into an Ulta Beauty

store while [Eva] was asleep in the car.” Mother stated that she “was gone for 45

minutes in the store while the baby was locked in the car with air conditioning

running.”

18 Mother reported that “she ha[d] a history of substance abuse,” and that she

had used cocaine “about three times throughout college.” The last time she used

cocaine was on March 18, 2023, one week before Eva was found alone in the car.

Mother stated that the last time she used marijuana was in March 2023, and she used

marijuana socially about twice a month. She also reported that her “drug use may

be the source of some problems in her life,” her problems with “strained

interpersonal relationships, vocational and/or legal problems, and use of drugs to

manage stress.” The evaluator observed that Mother’s “level of treatment

motivation is somewhat lower than is typical of individuals being seen in treatment

settings” and her “responses suggest that she is satisfied with herself as she is, that

she is not experiencing marked distress, and that, as a result, she sees little need for

changes in her behavior.”

The evaluator recommended that Mother participate in individual therapy,

attend parenting classes, receive ongoing outpatient substance abuse treatment, and

submit to random drug screenings. The February 22, 2025 permanency report states

that Mother had not complied with the recommendations because although she had

completed parenting classes, she had not begun services with NPP, she was not

participating in therapy sessions, she was not drug testing through the Department,

she had been “dropped from [NSC’s] [f]entanyl program due to several no shows,”

and she refused to submit to court-ordered drug testing with NSC.

19 4. Mother’s Substance Abuse Assessment

During her October 23, 2023 substance abuse assessment, Mother reported

that the Department became involved after she went shopping at Ulta and Father ran

into the store to check on her and tell her to check out, leaving Eva in the car alone.

Mother stated that “she didn’t feel like it was a big deal to leave [Eva] in the car for

a short bit” when it happened. According to Mother, Father was just checking on

her and wanting her to finish up her shopping. Mother stated that they could see the

car from inside the store and it was running with the air conditioning on, and its

doors were locked.

Mother reported that she started using fentanyl in powder form “last year,”

that she snorted a line of fentanyl once a month on the weekends, and that the last

time she used fentanyl was in May 2023. She denied that she and Father had ever

used fentanyl in the home and instead, they would “take turns going out and having

fun, or, they would have someone babysit so they could both go out.” Mother stated

that she did not know there was fentanyl in the car, and she noted that criminal

charges were never filed against her or Father with regard to the fentanyl.

Mother submitted to a drug test in March 2023 and she tested positive for

marijuana and cocaine. She claimed that she had smoked marijuana with a friend,

and she believed that the “weed was laced with cocaine” because she had not used

cocaine. Mother stated that she had smoked marijuana “about 5 times” and as

20 recently as May or June 2023. She reported that she had smoked or snorted a bump

of cocaine three times during college, and she had used cocaine most recently on

March 18, 2023. Mother was diagnosed with Stimulant Use Disorder, Mild, cocaine.

Mother’s substance abuse assessment recommended that she participate in

outpatient treatment, receive individual substance abuse counseling, and attend

parenting classes, AA/NA meetings, and mental health counseling. Mother was

diagnosed with opioid use disorder, moderate/severe, in early remission, alcohol use

disorder, mild, in early remission, cannabis use disorder, mild, and in early

remission, and stimulant use disorder, mild.

The February 22, 2025 permanency report states that Mother had not

complied with the recommendations because although she had participated in

outpatient treatment, her attendance was inconsistent and she was not successfully

discharged, she had not provided the Department with proof that she was attending

NA/AA meetings, she had not provided proof that she was attending individual

therapy to address her mental health, and Mother was not complying with the

Department’s monthly requests for drug testing.

C. Lorena Nava

Lorena Nava, a licensed chemical dependency counselor with Monarch

Family Services, testified that she completed two substance abuse assessments for

Father and diagnosed him with opioid use disorder. Father received substance abuse

21 counseling from Monarch and although he attended the required number of weekly

sessions, he received an unsuccessful discharge because he continued to test positive

for drugs.

Nava testified that Father admitted to using drugs when he was first referred,

but since then he had repeatedly denied using drugs and he never admitted to

relapsing. Nava had discussed Father’s positive drug tests with him during therapy,

and she was concerned that Father denied using drugs while testing positive for

drugs because denial of substance use is a barrier to a client being able to address

his substance. Although he was cooperative, he appeared angry and accused the

Department of “trying to set him up” and claimed that his drug tests were being

manipulated. Nava testified that Father’s attitude interfered with his counseling

sessions because she had a hard time redirecting him to the substance abuse therapy

itself.

D. Bruce Jefferies

Bruce Jefferies, the owner of National Screening Center, discussed the

process of collecting hair and urine samples and sending the samples to different

laboratories for testing. Jefferies testified that amphetamine and fentanyl are

prescription medications and norfentanyl is a metabolite of fentanyl. According to

Jefferies, a positive test for norfentanyl means that the person previously used

fentanyl. Jefferies testified that amphetamines and fentanyl generally are detectable

22 in a person’s urine for one to three days after use, but they have been detected as

many as five days after use. Amphetamines and fentanyl can be detected in a hair

follicle taken from the person’s head for ninety to 100 days after use and in a follicle

removed from elsewhere on the body as long as six months after use. When asked

why a person might have a positive test result for norfentanyl, but a negative result

for fentanyl, Jefferies testified that a positive test for norfentanyl means that the

metabolite is present in the person’s body and “that is a positive for fentanyl.”

Jefferies testified that if someone tests positive for methamphetamine, “they either

used the illegal street drug meth” or the medication Desoxyn, which requires a

prescription.

When asked if it was unusual for a person to have multiple tests with different

results, Jefferies testified that hair is not homogeneous and “[n]ot every hair contains

a metabolite of any type of drug that we're looking for.” According to Jefferies,

“there’s no such thing as a false positive.”

E. Ronald Zapata

Deputy Ronald Zapata with the Harris County Sheriff’s Office was dispatched

to the Ulta Beauty store parking lot on March 25, 2023. He observed Eva sitting

alone in the back seat of a car with its engine running. Eva was awake and calm,

and although she did not appear to be in distress, Deputy Zapata was concerned

23 about her wellbeing because it was a hot day, and she could have been dehydrated.

Eva was uninjured when EMS removed her from the car.

Based on his investigation, Deputy Zapata determined that Eva had been left

alone in the car for at least fifteen to twenty minutes, and no one had checked on her

during that time. EMS personnel treating Eva had searched the car for diapers and

formula and discovered a small cylinder containing what appeared to be illegal

substances. Deputy Zapata collected the cylinder and submitted its contents for

forensic testing. He also found a prescription bottle with Father’s name on it

containing pills that did not match the prescription. Father told him that the pills

belonged to Mother. When asked about his interactions with Mother, Deputy Zapata

testified that Mother seemed “numb” and “careless,” and she did not appear to be

concerned about Eva. Deputy Zapata testified that he contacted the Department due

to the presence of drugs in the car.

F. Leonard Pecot

Deputy Leonard Pecot with the Harris County Sheriff’s Office testified that

when he arrived at the scene, he saw Eva in the backseat of the car and he was

concerned for her safety because she was screaming loudly, sweating, and appeared

to be in distress. He did not recall if the car’s engine was running, or if the air

conditioning was on.

24 Deputy Pecot found Mother approximately fifteen to twenty minutes after Eva

was removed from the car. Mother was near a Smoothie King, approximately three

quarters of a mile from the scene, and she was walking in the opposite direction of

Ulta. According to Deputy Pecot, Mother was “nonchalant” and appeared to be

“unconcerned about what had just happened.” He detained Mother for suspicion of

child endangerment and brought her back to the scene where she was arrested by

Deputy Zapata for possession of a controlled substance—the Xanax found in

Father’s prescription bottle. Deputy Pecot testified that he had received training in

field sobriety testing but could not state whether either parent was impaired.

G. Brad

Brad is Eva’s paternal grandfather. He and his wife Charlotte have been

together for twenty-seven years and they have lived in the same home for eighteen

years. The Department told Brad that it had opened an investigation because Eva

had been left alone in a car. The Department implemented a safety plan that required

Mother, Father, and Eva to live with him and Charlotte and they would monitor

Mother and Father.

When asked if he observed any concerning events when Mother and Father

were living with them, Brad testified “they would just have bizarre behavior at

times.” Mother was incoherent sometimes and spoke nonsensically and Brad did

not see Father often because Father worked a lot and came home late. According to

25 Brad, Mother did not seem “rational,” and she seemed a “little loopy” in the

evenings, but he chalked her odd behavior up to stress. Mother “sometimes in the

evenings would hold the baby kind of wildly or not considered safe” and one night

Mother and Father went to their apartment to get something, and they did not return

to Brad’s home until 1 a.m. According to Brad, Mother and Father were “sluggish”

when they arrived. Brad testified that Father had a history of substance abuse.

According to Brad, Father had been prescribed suboxone to assist with his

withdrawal symptoms. Brad, a pharmacist, testified that suboxone is used to treat

opioid addictions.

Brad testified that Mother and Father initially visited Eva at the Department’s

offices, and he and Charlotte arranged for extra visits on the weekends. According

to Brad, Mother and Father visited with Eva for a few hours almost every weekend.

He testified they were late to their weekend visits 70% of the time. Mother and

Father entered into a mediated settlement agreement with the Department in

February 2024 that included safety measures for Brad and Charlotte and required

Mother and Father to fulfill certain criteria to visit with Eva, including being sober.

Brad testified that that the weekend visits became more “hostile” after the

agreement was signed. According to Brad, Mother “would have words” with

Charlotte that “sounded somewhat threatening” and “did not sound safe” to Brad.

Brad, who worked every other weekend, testified that he was concerned for

26 Charlotte because of Mother’s “unfriendly” tone and demeanor and, based on his

conversations with Charlotte, Brad was concerned about Charlotte supervising visits

between Mother and Eva without him present. Brad testified that they stopped

weekend visits because he was not going to put Charlotte or Eva in “jeopardy.”

When asked if it was “a fair assessment that [he] stopped the plan due to safety

concerns,” Brad testified, “Predominately yes.” Since that time, Brad had not

received any information or indication that made him feel more comfortable about

scheduling new visits with Mother.

Brad was concerned that Mother and Father were not completing their

services or drug testing, and this was part of the reason that he decided to stop

supervising visits between Eva and Mother and Father. According to Brad, he and

Charlotte did not “know [Father’s or Mother’s] state of mind” or “what’s going on,”

and they had a responsibility to Eva and did not want to “take that chance.” Brad

denied that he and Charlotte were trying to prevent Mother and Father from seeing

Eva and testified that Mother and Father were still able to visit with Eva at the

Department’s offices.

Brad testified that Father met with Eva on November 6, 2024, and the visit

went “great.” According to Brad, Eva was still well-bonded with Father, and he did

not have any concerns about the visit, and he was willing to facilitate and supervise

future visits between Eva and Father. Brad testified that he loved Father, and he

27 wanted Father to be a parent to Eva even if Father’s parental rights were terminated.

He was also willing to allow Mother to visit Eva if he was present.

Brad testified that he and Charlotte have cared for Eva since the Department

was appointed as Eva’s temporary managing conservator and Eva has been doing

“fantastic” in their care, and they had been able to meet all her needs. He believed

that Eva deserved stability and permanency in her life, and he was willing to provide

that to her and he was willing to adopt Eva if Mother’s and Father’s parental rights

were terminated. Eva, who is a happy child, was attending gymnastics and he

intended for Eva to participate in sports and attend college like his teenaged

daughter. Brad testified that Father had been working for seven years, and he had

worked for his current employer for four or five years, and although it was not

necessary, it would be helpful if Father contributed financially to Eva’s care.

Brad testified that it was in Eva’s best interest for her to have a stable lifestyle,

including stable caregivers, and he was concerned about Mother’s and Father’s

decision-making skills because that is why they were in court to begin with, and

Brad did not believe “they make good quality decisions as a good parent should

have.”

Brad testified that Mother and Father had been together and living as a couple

the entire time the case was pending. Brad testified that he wanted Mother and

Father to remain in contact with Eva, but he was concerned that they had not been

28 able to maintain sobriety and complete services while Eva was in the Department’s

care, and he testified that based on their past behavior “it doesn’t look promising”

that Mother and Father would remain drug-free if the Department was not involved

in their lives. He would do whatever he needed to do to keep Eva safe and he was

willing to allow Eva to have a relationship with Mother and Father once he and

Charlotte felt that Mother and Father were “stable” and “clean.”

Brad was not willing to share custody of Eva with Mother and Father because

he had not seen any indication of improvement by Mother and Father since Eva had

moved into his home. According to Brad, Mother and Father had not “trended in

the right direction with everybody looking after them” and there was no reason to

think they would change.

Before Charlotte, Brad had been married to Naomi, Father’s mother, and Brad

has a good relationship with Naomi. According to Brad, they have been able to

facilitate visits between Eva and Naomi and the visits are going well. He does not

have any concerns about Eva while she is around Naomi, and he was never

concerned about Father when Father lived with Naomi.

H. Charlotte

Charlotte is Father’s stepmother. When asked how the Department became

involved with the family, Charlote testified that Father told her that he and Mother

were shopping at Ulta, and they left Eva alone in the car because she was asleep.

29 Father told Charlotte that Mother was charged with possession of “tablets or

medication or something like that.” When asked if anyone said anything to her about

“about any other drugs that were found in the vehicle,” Charlotte testified that Father

told her that the police found “opioids” in the car and “they were his.”

Father, Mother, and Eva stayed with Charlotte and Brad for about a week

under the terms of a safety plan prepared by the Department which, according to

Charlotte, required “one of the parents [] to stay with [Eva] in [Brad and Charlotte’s]

house.” When asked if she had any concerns about Mother and Father staying in her

home, Charlotte testified that most of her concerns were “drug related, just not—

odd behavior. . . Maybe not drug related, just odd behavior.”

Charlotte testified that Mother had exhibited a lot of “odd behavior” while she

stayed in Charlotte’s home, including one day when Mother “just acted really

confused” and she was not focused on Eva. When asked to describe Mother’s odd

behavior, Charlotte testified that Mother “was kind of all over the place” and

“[m]aybe a little manic.” Instead of focusing on Eva, Mother was more concerned

about contacting the families of “two girls [Mother claimed] were killed or died” in

jail, and Charlotte found this to be extremely odd. According to Charlotte, Father

appeared to be concerned about Mother’s behavior as well, and he told Charlotte that

Mother “was in some sort of psychosis type” and Father had “never seen [Mother]

like that” before.

30 When asked if Mother exhibited any other concerning behavior, Charlotte

testified that she saw Mother and Eva in the living room and Mother was “kind of

slumped over in the chair” while Eva was “kind of crawling all over.” Charlotte

testified that she was concerned that Eva might get hurt, so she grabbed Eva and

took her to another room. Charlotte, who was getting ready for work, woke up Brad

and asked him to watch Eva because she was concerned about Mother’s ability to

care for the young child.

With respect to Father, Charlotte testified that he worked during the day and

he “came over in the evenings, not every evening.” According to Charlotte, when

Father came home from work, Mother and Father would leave Eva with Brad and

Charlotte and go “do something at their house.” Charlotte testified that Father’s

conduct was concerning to her because Mother and Father would return a few hours

later than they said they would. When asked if she was concerned by any of Father’s

other conduct, Charlotte testified that “[t]here was just a lot of napping and sleeping

on the weekends but other than that, no.”

According to Charlotte, Mother and Father left one evening and did not return

until 6 p.m. the next day when they were scheduled to meet with a Department

caseworker. Charlotte told the Department that she believed that Mother and Father

had violated the safety plan by not always having at least one parent in the home

31 with Eva. Charlotte, who wanted Mother and Father to move out of her home, told

the Department that she was willing to continue to care for Eva as needed.

Charlotte testified that when the case began, she only wanted to “help [Mother

and Father] get better and to have [Eva] safe,” but she became concerned that Mother

and Father had substance abuse issues. According to Charlotte, Father told her that

he had “some opioid problems before” and he had been to rehab and his drug of

choice at that time was “heroin or opioid or something to that form.” Father had

talked to Charlotte about going through withdrawal and about Mother going through

withdrawal. Charlotte did not know if Mother and Father went through withdrawal

when they were living in her home.

Charlotte testified that Mother and Father were able to visit Eva at the

Department’s office throughout this case and the Department and parents had signed

the agreement that allowed Mother and Father to visit with Eva twice a month on

the weekend for two hours and Brad and Charlotte would supervise the weekend

visits. According to Charlotte, the weekend visits generally lasted for two hours

unless Mother and Father left early, and it was “fairly common” for Mother and

Father to be late to the visits. Charlotte and Brad had been willing to supervise the

visits because they had hoped that Mother’s and Father’s circumstances would

improve.

32 Charlotte testified that she and Brad supervised twenty-four visits between

Eva and Mother and Father before the agreement was signed in February 2024 and

eleven visits afterwards. Brad and Charlotte stopped allowing Mother and Father to

visit with Eva in June or July 2024 because Mother and Father were not doing their

services or submitting to drug testing, and Mother had been hostile and “nasty”

towards Charlotte in Eva’s presence during two visits and Charlotte worried about

the impact witnessing these encounters had on Eva.

When asked why Father had not been attending visits with Eva that were

supervised by Charlotte and Brad, Charlotte testified that Mother and Father are

“together and a unit and this is family reunification” and she and Brad were

concerned because Father “hadn’t tested.” Charlotte testified that she and Brad had

not seen any progress on Father’s part, and it would have made a “big difference” to

her if Father had “completed services and been testing negative for the Department.”

When asked if she was concerned that Mother and Father “were not taking the case

seriously,” Charlotte testified that there “hasn’t been any change it doesn’t seem.”

Although they had stopped having weekend visits, Father was still able to visit Eva

during weekly visits supervised by the Department. A Department caseworker told

Charlotte that Father had been scheduled to visit Eva on October 30, 2024, but Father

canceled the visit.

33 On November 6, 2024, after trial began, Brad and Charlotte supervised a

weekend visit between Father and Eva that Mother was not allowed to attend.

According to Charlotte, Eva is bonded with Father, he behaved appropriately during

the last visit, and she and Brad were open to supervising future visits between Father

and Eva.

Charlotte testified that Eva is currently in gymnastics and if she and Brad

adopt Eva, they intend to enroll her in pre-K and they plan to keep Mother and Father

involved in Eva’s life if it is safe to do so. According to Charlotte, Eva was “up-to-

date with all of her medical” and they were following up on the doctor’s

recommendations with regard to some of Eva’s ongoing issues. Charlotte testified

that she had kept Mother and Father informed about Charlotte’s medical issues,

daycare reports, and sent photographs, and she included the Department caseworker

in these communications. She testified that it would be helpful if Father were to

contribute some money towards Eva’s care, but she and Brad were able to provide

for Eva without Father’s assistance.

Charlotte testified that she had a good relationship with Father’s mother,

Naomi, and she and Brad are in regular contact with her. Charlotte believes that it

is important for Eva to have a relationship with Naomi, and she does not have any

concerns about Naomi’s ability to care for Eva.

34 Charlotte stated that she was able to meet all of Eva’s needs and was willing

to adopt Eva if Mother’s and Father’s parental rights were terminated. She testified

that she wanted Eva to have a relationship with Mother and Father, but she was

concerned that it might be difficult to do because it was not in Eva’s best interest to

witness Mother acting hostilely towards anyone and Charlotte wanted to ensure that

Eva was “not in the middle of all that.”

Charlotte testified that she did not want to share conservatorship with Mother

and Father because they had threatened to sue Charlotte and Brad and Charlotte did

not believe a future custody battle was in Eva’s best interest. She was also concerned

for her safety because of Mother’s past threats and hostility towards her and she was

concerned for Eva’s safety. According to Charlotte, Mother had also accused

Charlotte and Brad of committing identity theft, insurance fraud, obstruction of

justice, and perjury. Charlotte denied ever being in an inappropriate sexual

relationship with Father, as Mother had alleged, or making any sexual advances

towards Father. Charlotte was also concerned about sharing conservatorship with

Father because he continued to be in a relationship with Mother throughout the

entirety of this case.

During a June 13, 2023 show cause hearing, Charlotte testified that Mother

appeared intoxicated when she was living with them and supposed to be caring for

Eva. According to Charlotte, Mother would be “unsteady, unbalanced, sluggish,

35 sleepy, and then in a few hours, she would be very happy and joyful. So it was a lot

of back and forth.”

Charlotte testified that she became concerned when she saw Mother sitting in

a chair “with her head cocked back, eyes wide open while [Eva] was climbing on

her.” She testified that Father told her that he, Mother, and Eva needed to stay with

them because he and Mother had been using drugs and they “needed to get clean.”

According to Charlotte, the plan was for one parent to “detox” first and then the

other, so that way they were not going through withdrawal symptoms at the same

time.

Based on Father’s statements, Charlotte understood that Father had known

that Mother had been using drugs before the Department became involved with the

family, and he nevertheless left Eva with Mother while he was at work. Charlotte

testified that Father told her he had been to rehabilitation for substance abuse

problems, but he left early and did not finish the program.

I. Joy Franklin

Joy Franklin, Eva’s guardian ad litem, testified that Child Advocates was

appointed to the case in July 2023. A Child Advocates volunteer visits with Eva and

Brad and Charlotte in their home at least once a month and Eva is “thriving” and

“doing outstanding” in her current placement. Brad and Charlotte are bonded with

Eva, they have excellent parenting skills, they have been able to meet all her needs,

36 and they are willing to adopt Eva if Mother’s and Father’s parental rights are

terminated. Franklin testified that it is a protective placement and Child Advocates

trusted Brad and Charlotte “to be a gatekeeper to contact with the parents.”

Franklin testified that Child Advocates believed that termination of Mother’s

and Father’s parental rights was in Eva’s best interest because neither Mother nor

Father successfully completed their service program, they both “tested positive for

fentanyl, which is a very dangerous drug, on multiple occasions,” neither parent had

demonstrated the “ability to understand the seriousness of [fentanyl],” nor had they

demonstrated “the willingness to get sober and have a safe, healthy lifestyle for their

child.” According to Franklin, neither Mother nor Father “seem[ed] to take any

responsibility for the situations that they’ve been in and the drugs that they are

using.” When asked why she believed Mother and Father refused to take

responsibility, Franklin testified that Child Advocates had “talked to them many

occasions since the very beginning of the case” about the seriousness of fentanyl use

and offered to help Mother and Father.7 According to Franklin, Mother and Father

did not admit to “any substance abuse at all,” including fentanyl, and reported they

“had no problems,” even though they continued to test positive for drugs. Mother

77 Franklin did not specify the type of help Child Advocates offered to Mother and Father. 37 and Father claimed they were testing positive for drugs because “people [were]

switching their tests in National Screening.”

Mother and Father stopped meeting monthly with Child Advocates in

December 2023, and they only communicated with Child Advocates through “text

message or very short phone calls.”

Franklin testified that she observed one visit with Mother and Eva in

December 2023 or January 2024, and she was concerned that Mother did not “fully

understand[] how to engage with [Eva], how to properly play with her or to notice

the cues of the child when the child is sleepy or, you know, need[s] something

different or is hungry.” Franklin had not observed a visit between Father and Eva,

and she noted that Father had not been visiting with Eva “for quite some time.”

Franklin testified that Child Advocates supported termination of the parents’

rights over conservatorship because Mother and Father had consistently tested

positive for drugs, including fentanyl, which is “a very serious drug,” and Child

Advocates was concerned that Eva would be exposed to Mother’s and Father’s drug

use if Mother and Father were appointed as Eva’s possessory conservators.

According to Franklin, it was not in Eva’s best interest to appoint Brad and Charlotte

as Eva’s conservators and Mother and Father as Eva’s possessory conservators

because Mother and Father had been “very. . . argumentative” with Brad and

Charlotte, and Mother had been “very aggressive” towards Charlotte. Franklin

38 testified that it would have a detrimental effect on Eva if she were exposed to a

“combative relationship” between her parents and grandparents. According to

Franklin, Mother had harassed and made “threatening allegations” against Brad and

Charlotte and Child Advocates, and she had repeatedly accused Brad and Charlotte

of hurting Eva, and “not treating [Eva] right” even though there had been no

indication of abuse.

Franklin testified that it is in a child’s best interest for a parent who uses drugs

to address the issue through drug treatment or services. Franklin was not aware that

Mother or Father had addressed their drug use through any type of services even

though they had an opportunity to do so during the pendency of the case. Franklin

received the drug tests during the case. She was aware that the parents had tested

positive for substances other than fentanyl, and Child Advocates was concerned

about these positive drug tests as well. Even if Mother and Father tested negative

for drugs that day, she indicated she would still be concerned about Eva’s safety if

she were returned to them because Mother and Father had not successfully

completed a substance abuse program, they stopped drug testing, and they had not

been “working with all of us to help them get sober and clean to be a parent.”

According to Franklin, “a negative drug test right now doesn’t help because we don’t

have consistent drug tests during the case” and it “does not that tell you that they’ve

been negative all year.”

39 J. Kedrick Thorn

Kedrick Thorn took over as Eva’s caseworker after Gabriel departed. He

exchanged email and text messages with Mother and Father, but he had not been

able to meet with them in person or visit with them in their home. Father did not see

the point of a face-to-face meeting and did not allow him to visit their home even

after Thorn explained that he needed to visit the home to determine whether it was

a safe and appropriate environment for Eva. Thorn sent Mother and Father to drug

testing once a month since August 2024 and neither parent had complied.

During a special hearing held while trial was in recess, the trial court informed

Mother that she would be allowed to visit with Eva only if she took a drug test, even

if the test result was positive for an illegal substance. The court instructed the

Department to schedule a visitation as soon as possible, but Mother did not take a

drug test. Mother notified the trial court and the parties that she would not take a

drug test because she was in litigation with NSC, and she did not know that she had

to go to a particular location to test.

Thorn testified that the Department was requesting the trial court to terminate

Mother’s and Father’s parental rights based on Sections 161.001(b)(1)(D), (E), and

(O) of the Family Code because Mother and Father had endangered Eva and because

neither parent had successfully completed their court-ordered services. The

Department believed that termination of Mother’s and Father’s parental rights was

40 in Eva’s best interest because although their FSPs required them to maintain sobriety

and submit to random drug testing, Mother and Father had tested positive for illegal

substances in this case, and neither parent complied with their drug testing

requirements. As a result of their failure to submit to drug testing, the Department

could not verify whether Mother and Father were still using illegal substances, and

it was concerned that Mother and Father would continue to use drugs if Eva was

returned to their care because they had tested positive for drugs repeatedly

throughout the pendency of the case.

When asked what other services Mother still needed to complete, Thorn

testified that Mother had completed her psychological assessment, but not the

assessment’s recommendations, she had not started working with NPP, she had not

completed individual therapy, she failed to provide the Department with proof of

medication management, stable housing, and income, and although she had

completed a substance abuse assessment, her attendance was inconsistent.

As to Father, Thorn testified that Father completed a psychological

evaluation, and substance abuse assessment and although he had attended the

recommended number of substance abuse therapy sessions, Father’s therapeutic

goals were not met, and thus Father did not successfully complete this requirement.

Father also tested positive for illegal drugs after he was discharged from substance

abuse counseling in February 2024, and although he was required to attend substance

41 abuse community-based programs such as NA, he had not provided the Department

with proof of attendance. Father had also been unsuccessfully discharged from

therapeutic services for missing three or more consecutive sessions.

Thorn testified that although Father’s FSP required him to provide the

Department with a copy of his lease or mortgage agreement, the Department only

had a lease agreement from 2023 and Father no longer lived at that address, and he

had not provided the Department with documentation of his current address.

Although Father’s FSP required him to maintain legal employment and provide the

Department with a copy of his check stubs, Father had only provided pay stubs at

the beginning of the case and thus the Department did not have documentation that

Father had maintained employment during the pendency of the case.

Thorn testified that Father had provided gifts to Eva during his weekend visits

that were supervised by Charlotte and Brad, but he did not participate in supervised

visitation by the Department even though Father knew that it was important for the

Department to witness his interactions with Eva. Mother and Father had not shared

with him their plans for Eva.

Thorn testified that if the parents’ rights were terminated, the Department

intended to place Eva for adoption with Brad and Charlotte. He had visited Brad’s

and Charlotte’s home, and he believed that they could provide Eva with the safe and

stable environment she needed. Thorn testified that Eva felt safe in Brad’s and

42 Charlotte’s home, and they had provided Eva with a loving and nurturing

environment and demonstrated they could meet all of Eva’s needs. According to

Thorn, Eva is happy and has a “great relationship” with Charlotte and Brad, whom

she refers to as “Lollipop.” Thorn testified that whenever he visits, Brad and

Charlotte are always playing with Eva and Eva loves to play with Brad’s and

Charlotte’s dogs. Brad and Charlotte told him that their plan is for Eva to grow up

in a safe and loving environment, and they will support her whether she chooses to

attend college or follow another career path. The Department believed that Brad and

Charlotte would facilitate contact between Eva and Father but only if it was safe and

appropriate to do so.

The Department did not believe that Father’s request to appoint Brad and

Charlotte as Eva’s permanent managing conservators and Father as a possessory

conservator was in Eva’s best interest because of the past hostility between the

couples, and the Department did not believe that Mother or Father would submit to

drug tests required by any visitation plan because they had failed to complete their

services successfully and submit to drug testing. Thorn testified that it also was not

in Eva’s best interest for Father to be named as Eva’s possessory conservator because

although he was not aware of any issues between Brad and Father, Mother had a

contentious relationship with Brad and Charlotte, and Mother and Father are a

43 “united front.” Thorn testified that Father expressed during the case that he would

not visit with Eva unless Mother was present.

K. Mother

Mother testified that she and Father were running errands with Eva on March

25, 2023. She denied that she and Father left Eva in the car alone while they were

inside Ulta for an hour. According to Mother, she left Eva in the car with Father

while she shopped, and Father left Eva alone when he walked into the store to give

Mother a debit card. The car was idling in the parking lot, with its doors locked, and

the air conditioning on.

Mother testified that she realized that Eva was alone in the car when she saw

Father in the store, but she did not immediately go to check on Eva because she knew

Father “was going to go immediately back” to the car, which was secure and air

conditioned, and “we were right there.” Mother testified that the store manager had

also accused her and Father of shoplifting, detained them, and asked them not to

leave. Although Mother gave inconsistent testimony regarding the length of time

she was in the store, how long Father was in the store, and how long store employees

detained them, Mother testified that Eva had been alone in the car for a maximum

of ten minutes.8 Mother admitted that it was not “a great idea” to leave Eva alone in

8 She also made conflicting statements with respect to other circumstances, including whether she told the police that she and Father had been detained by store

44 the car for ten minutes and testified that she “didn’t choose to leave her there but. . .

[she did not] think it’s safe.”

When asked what she did wrong that day, Mother testified the that she “really

didn’t see like this huge risk” because Eva was “secure” and “asleep,” and Father

was “coming in and out.” Mother denied endangering Eva because Eva “was not

hurt.” According to Mother, this was a “one-time event” and her only mistake was

not immediately pushing past the Ulta employees.

With respect to the drugs found in the car, Mother testified that she was

keeping her pills in Father’s pill bottle because her pill bottle was inside her truck,

which had recently been stolen. She testified that although she was arrested and

charged with possession of a controlled substance—the Xanax found in Father’s pill

bottle—the case was dismissed. Although Mother denied that a white powdery

substance was found inside the car, she also testified that she reviewed the offense

report and chemical testing report reflecting that an officer had retrieved a white

powdery substance from the car later determined to be fentanyl. When asked why

she had fentanyl in her car, Mother denied knowing that the drugs were in the car.

Mother disputed the accuracy of many statements in the removal affidavit and

claimed the affidavit omitted important information. Among other things, Mother

employees, and whether the told the police that she walked away because she was having a panic attack. 45 denied telling Department investigator Watson that she used heroin, she left Eva in

the car while she shopped at Ulta because she did not want to wake up Eva, or that

she walked away from the store when she saw the police because she thought it had

“something to do with stealing,” and she denied stealing anything from Ulta. She

also denied that Father told Watson that he and Mother left Eva with Brad and

Charlotte while they “went through detox” or that he did not know why Mother

walked off and he had “assumed that [Mother] had a warrant.”

Mother acknowledged that twice during trial, the court had ordered her to take

a drug test and told her that if she took a drug test through NSC, she would be

allowed to visit Eva. Mother testified that she refused to test because she did not

trust NSC, and she had a pending lawsuit against them. She testified that if the court

had ordered her to test somewhere other than NSC she would have complied with

the order. She did not take a private drug test after the trial court offered to reinstate

her visitation during trial.

When asked what prevented her from seeing Eva before the court suspended

her visits in July 2024, Mother testified that she visited Eva as much as possible

before her visitation was suspended. According to Mother, she attended the weekly

two-hour visits at the Department’s office, and she visited with Eva on the weekends

when Charlotte and Brad would allow her to visit. Mother testified that when she

and Father visited Eva at the Department’s office, they would bring Eva food and

46 play with her and Eva would always get sleepy at the end of the visit when it would

be time for Mother and Father to leave. She testified that although she did not get

to see Eva very often, Eva would beg her not to leave, and she felt like she had a

strong bond with her daughter. Mother testified that she had not given Brad and

Charlotte any items for Eva within the previous six months.

Mother did not understand why the Department was involved in her life.

When asked if she understood that the Department became involved in her life in

part because Eva had been left alone in the car, Mother testified that she “suppose[d]

so.” She denied that the Department took custody of Eva because Mother and Father

violated the safety plan, and the Department was concerned about Mother’s and

Father’s drug use. Mother testified that Brad and Charlotte misled the court about

their income and whether they initially wanted to adopt Eva, and she did not believe

that Charlotte saw her slumped over in a chair when she was supposed to be watching

Eva.

According to Mother, she completed parenting classes, the psychological

evaluation and its recommendations, and the substance abuse assessment and its

recommendations. Although she initially denied knowing she had been ordered to

participate in NPP, she admitted that her attorney attended the status hearing when

the court ordered her to attend NPP. She testified that she had successfully

completed the FSP’s requirement that she participate in substance abuse counseling

47 because she attended more than fourteen sessions, and no one told her she had been

unsuccessfully discharged from counseling.

With respect to the requirement that she provided the Department with proof

of employment, income, and a safe and stable home, Mother testified that Father had

worked with his current employer for five years, and for the past two years, she and

Father had lived in a three-bedroom house with a big backyard and a room for Eva

and clothes. Mother, who was unemployed, testified that she did not earn enough

from her small furniture renovation business, and she was looking for full-time

employment. She testified that she did not need to work because Father earned

enough to pay the bills, but she liked to work, and it would make things easier if they

had additional income.

When asked about her future plans for Eva, Mother testified that she wanted

to be reunified with Eva. If Eva were returned to her care, she would enroll Eva in

a daycare near their home and in tumbling classes. She also envisioned Eva going

to college.

Mother testified that it was not in Eva’s best interest for her rights to be

terminated because Eva would miss out on a life with her family, and she did not

want Eva to “experience the pain of not having a mother around.” Mother testified

that if the court terminated her rights or restricted her from visiting with Eva, she

48 would not interfere with Father’s ability to visit Eva, and she would follow any court

orders except for an order to test with NSC.

L. Father

Father testified that on March 25, 2023, he and Eva had been waiting in the

car while Mother shopped at Ulta, and he got out of the car once to bring Mother his

debit card. Father testified that it was a beautiful day and there was no one around

the car, and before he left, he “scanned [the] surroundings,” made sure the car’s

windows and doors were locked and the air conditioning was running. According

to Father, Ulta employees detained him and Mother because the employees thought

they were shoplifting. He was inside the store for only five to ten minutes, and he

did not take Eva with him because he planned to run in and give Mother the debit

card and immediately return to the car.

When he and Mother walked out of the store, Father noticed that Mother was

“like on the verge of having a panic attack” and he told her to “take a stroll to get

some fresh air” while he checked on Eva. Father testified that Eva was in “great

condition” when he saw her, and she had not suffered any harm from being left alone

in the car for a short period of time. He denied that he endangered Eva by leaving

her alone in the car because she was not injured. Father agreed, however, that

someone could have broken into the car while he was in the store.

49 Father testified that the police asked him about a prescription bottle with his

name on it that they found in the car, and he told them that the pills inside belonged

to Mother. He denied knowing that police found fentanyl in his car.

Father testified that the Department placed Eva with Brad and Charlotte, and

they had arranged for him to visit with Eva on the weekends on several occasions.

After the mediated settlement agreement was signed in February 2024, Brad and

Charlotte allowed him to have two or three weekend visits with Eva, but they later

refused to supervise any additional visits. He did not know why Brad and Charlotte

had stopped the weekend visits. He denied that he and Mother were late for several

of their weekend visits, and he testified that he was not aware that Mother had been

hostile towards Brad and Charlotte, and he did not believe that Brad’s and

Charlotte’s characterization of Mother was accurate.

When Father testified on November 4, 2024, he confirmed that he had not

seen Eva for three months because he had had limited contact with Brad and

Charlotte. After Father’s testimony that day, Brad and Charlotte arranged for Father

to visit with Eva that weekend. When he testified again on March 24, 2025, Father

stated that he had asked Brad and Charlotte multiple times to allow him to see Eva

after they stopped the regular weekend visits, but they only allowed him to visit Eva

twice and he could not remember when the last visit occurred.

50 Father testified he had not been able to attend any weekday visits with Eva at

the Department’s office because he had a demanding job, and the visits conflicted

with his work schedule. Father testified that he had scheduled a visit with Eva on

October 30, 2024, but he cancelled the visit when he realized that he would not be

able to bring Mother. He confirmed the Department had never suspended his

visitation with Eva.

Father acknowledged that he was required to complete the tasks and services

outlined in his FSP to be reunified with Eva and he understood that the required

services were intended to address the reasons why Eva was removed, but he denied

that the Department became involved in this case because of his and Mother’s

substance abuse. Father testified that he completed his psychological evaluations,

substance abuse assessments, individual substance abuse counseling, attended the

visits he was allowed to attend, and completed parenting classes, except for NPP.

Father, who did not have documentation demonstrating that he had successfully

completed substance abuse counseling, testified that no one told him he had been

unsuccessfully discharged. He testified that his FSP did not state he was required to

complete counseling successfully or provide a certificate; it only required him to

attend a specific number of sessions. According to Father, he complied with the

individual substance abuse counseling requirement because he attended the number

of recommended therapy sessions.

51 Although he acknowledged he had tested positive for several illegal

substances since March 2023, including fentanyl, amphetamines,

methamphetamines, and hydrocodone, Father disputed the accuracy of the test

results and he denied using amphetamines, methamphetamines, fentanyl and

hydrocodone after Eva’s birth in June 2022. He also denied ever using heroin or

seeking treatment for heroin abuse. Father testified he had attended a drug

rehabilitation program for suboxone, which is used to treat opioid addictions, and

although he had a physical dependence on hydrocodone during his freshman year in

college, he had not used hydrocodone since then and he did not recall telling the

substance abuse assessor that he had relapsed.

Father testified that Thorn sent him an email or a text message twice a month,

but he had stopped testing at NSC because “the results started coming back positive”

and he did not trust the accuracy of the testing. Father testified that several of the

Department’s test results had been negative for fentanyl and all other substances,

and he was not challenging the accuracy of those tests. According to Father, the

negative test results were accurate, but all the positive test results were inaccurate.

Although he stopped drug testing for the Department, he took multiple private drug

tests while the case was pending, and he was not concerned about the accuracy of

those tests. The last time he took a private drug test was in September 2024.

52 According to Father, he submitted to drug testing on January 9, 2024, and a

portion of the sample was sent to NSC and the other to a laboratory chosen by Father.

Father testified that the NSC test was positive for fentanyl, but his private test was

negative for fentanyl. The test results of Father’s private January 9, 2024 test were

admitted into evidence.

Father testified that he had worked for his current employer since 2018 and

has an annual salary of $60,000. He lives in the home he bought in July 2023.

According to Father, he earns enough money to meet his, Mother’s, and Eva’s needs,

and although it would helpful if Mother worked, it was not necessary.

When asked about his future plans for Eva, Father testified that he plans to

enroll Eva in one of the daycare programs near his home as soon as there is

availability. Father testified that he wanted to be reunified with Eva and if that was

not possible, he wanted the court to appoint him as a possessory conservator and

Brad as Eva’s permanent managing conservator.

Father expressed concerns about the appropriateness of Brad’s and Charlotte’s

home. According to Father, he was concerned about Brad and Charlotte raising Eva

because they were not nurturing and loving towards Eva, they had been hostile or

violent towards Mother in front of Eva, they had lied to him, and they allowed

Father’s mother—Naomi—to watch Eva. Father testified that, when he was a year

old, he was injured while in Naomi’s care and he did not believe that she should

53 have unsupervised contact with Eva. He also claimed that Charlotte had made sexual

advances towards him when he was a young adult, but he admitted he had not

mentioned this until trial. Father was also concerned about Brad’s ability to care for

Eva long-term because Brad was almost seventy years old and although he did not

know if Brad had any health problems, Father suspected that Brad might be

predisposed to develop dementia.

When asked if he believed that Brad and Charlotte had met all of Eva’s basic

needs, Father testified he had no way of knowing because he had not had much

contact with Brad and Charlotte over the last several months. He admitted, however,

that whenever he saw Eva, she appeared to be healthy, and she was dressed

appropriately.

Father testified that termination of his parental rights was not in Eva’s best

interest because if his rights are not terminated, “she would get to be with her family,

her mother and father, which is where she belongs,” and Mother and Father are

young and want to “grow a family.” He also testified that if his rights were not

terminated and he was appointed as Eva’s possessory conservator, he would be

required to pay child support and would be able to visit with Eva often. Father

testified that if the court required his visits with Eva to be supervised and subject to

drug testing, he would comply with those orders because he would not have to test

through NSC.

54 After hearing the parties’ closing arguments, the trial court took the case under

advisement. On April 21, 2025, the trial court rendered judgment terminating

Mother’s and Father’s parental rights. This appeal followed.

Summary of Issues

Mother and Father raise five issues on appeal. In four issues, Mother and

Father argue there was legally and factually insufficient evidence to support

termination under Sections 161.001(b)(1)(D), (E), or (O), or to support a finding that

termination of their parental rights was in the best interest of the child. In a separate

issue, Father and Mother argue that the Department’s failure to comply with the

Indian Child Welfare Act constitutes error. Applying a holistic approach to the

evidence of endangerment under Section 161.001(b)(1)(E), we conclude there is

legally and factually sufficient evidence from which the trial court could have

formed a firm belief or conviction that Mother and Father each engaged in conduct

or knowingly placed Eva with persons who engaged in conduct which endangered

Eva’s physical or emotional well-being. Applying the required deference to the trial

court’s credibility determinations and findings, there is evidence of Mother’s and

Father’s ongoing substance abuse, including fentanyl and other illegal narcotics,

both before Eva came into the Department’s care and throughout the pendency of

the case, and the impact such use had on Eva’s physical and emotional well-being.

There is evidence that Mother’s and Father’s drug-use and behavior resulted in their

55 inability to visit with Eva, resulted in Brad and Charlotte asking Mother and Father

to move out of their house given their concerns about drug use and odd behavior,

and resulted in the dissolution of the Department’s safety plan, which would have

allowed Mother and Father to continue living with Eva under Brad and Charlotte’s

supervision. There is also evidence that fentanyl belonging to Father and pills

belonging to Mother were found in the car after the police secured Eva from the car,

that Mother and Father refused to acknowledge their ongoing positive test results,

that at some point they refused to continue drug testing all together, jeopardizing

their ability to visit Eva, and that Mother and Father failed to complete substance

abuse counseling successfully.

We also conclude there is legally and factually sufficient evidence from which

the trial court could have formed a firm belief or conviction that termination of

Mother’s and Father’s parental rights was in the child’s best interest.

And based on the record before us, we conclude the trial court did not err by

applying the clear and convincing evidence standard applicable to most parental

termination proceedings, as opposed to the ICWA’s more stringent standard,

because the Department complied with the ICWA’s notice requirements and the trial

court implicitly found that Eva was not an Indian child.

56 Indian Child Welfare Act

Mother and Father argue that the trial court erred by failing to comply strictly

with the requirements of the Indian Child Welfare Act (“ICWA”). According to

Mother, the trial court erred by failing to apply the ICWA’s heightened procedural

and evidentiary burdens to this parental-termination proceeding because the court

had “reason to know” that Eva may be an Indian child, as defined by the ICWA, Eva

is presumed to be an Indian child unless and until the court determined on the record

that she was not an Indian child, and the trial court did not make such a determination

prior to trial. Thus, Mother and Father argue, the court was required to proceed

under the ICWA.

According to Father, the trial court erred by failing to “provide proper notice

to the Cherokee Tribe as required when there is a pending court proceeding seeking

termination of the parent-child relationship” and the “failure to strictly comply with

ICWA mandatory provisions requires a new trial.”

A. Applicable Law

The ICWA is a federal law that applies in state court termination cases when

a court knows or has reason to know that an Indian child is involved in a child

custody proceeding. See 25 U.S.C. § 1912(f); M.Y. v. Tex. Dep’t of Family &

Protective Servs., 667 S.W.3d 502, 506 (Tex. App.—Austin 2023, no pet.). An

“Indian child” is any unmarried person who is under the age of eighteen and is either

57 (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe and

is the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4); M.Y.,

667 S.W.3d at 506.

An Indian tribe for ICWA purposes means any Indian tribe, band, nation, or

other organized group or community of Indians recognized as eligible for the

services provided to Indians by the Secretary of the Interior because of their status

as Indians. 25 U.S.C. § 1903(8). The ICWA does not establish which persons are

members of a tribe or eligible for membership in a tribe; that determination lies

solely with the tribe itself based on the tribe’s internal laws and criteria. In re S.J.H.,

594 S.W.3d 682, 687 (Tex. App.—El Paso 2019, no pet.); In re J.C.C., 302 S.W.3d

896, 900 (Tex. App.—Waco 2009, no pet.).

The ICWA provides several procedural and substantive protections in child

custody proceedings involving an Indian child, including setting the “minimum

requirements with which a state court must comply before terminating parental

rights in a case involving an Indian child.” In re R.R. Jr., 294 S.W.3d 213, 217 (Tex.

App.—Fort Worth 2009, no pet.). An Indian tribe is entitled to notice of a custody

proceeding involving an Indian child and has the right to intervene at any stage of

the proceedings. The notice must be sent by registered mail with return receipt

requested and it must include certain information. 25 U.S.C. § 1912(a). No

58 termination of parental rights proceeding shall be held until at least ten days after

receipt of notice. Id.

If a trial court has reason to know that a child is an Indian child, the trial court

must “[t]reat the child as an Indian child, unless and until it is determined on the

record that the child does not meet the definition of an ‘Indian child’ in this part.”

25 C.F.R. § 23.107(b)(2). The trial court’s finding on this point may be either

express or implied. See In re Levi U., 78 Cal. App. 4th 191, 199 (2000); In re E.W.,

170 Cal. App. 4th 396, 404–05 (2009).

B. Analysis

During a July 14, 2023 show cause hearing, Mother informed the trial court

that she had Cherokee heritage on her grandmother’s side. Subsequent permanency

reports dated October 2023, January 2024, and June 2024, however, indicate that

Father and Mother both “denied” any “possible American Indian status.”

Notwithstanding, pursuant to the ICWA, on June 7, 2024, the Department sent

notices of the pending proceeding to the Cherokee Nation, the Eastern Band of

Cherokee Indians, and the United Keetoowah Band of Cherokee Indians in

Oklahoma. The notices were delivered on August 2, July 30, and August 5, 2024,

respectively. The Department received correspondence from the Cherokee Nation

(October 22, 2024) and the Eastern Band of Cherokee Indians’ tribal registry

(August 8, 2024) stating that Eva was not determined to be an Indian Child as

59 defined by the ICWA. The United Keetoowah Band of Cherokee Indians in

Oklahoma did not respond to the Department’s notice or otherwise intervene in the

proceedings.

Trial began on September 11, 2024—three months after the ICWA notices

were sent—and it ended on April 2, 2025. On April 3, 2025, the trial court rendered

judgment terminating Mother’s and Father’s parental rights, without making an

express finding concerning Eva’s status under the ICWA. Mother filed a timely

motion for new trial arguing that the trial court had not complied with the ICWA.9

During the hearing on the motion for new trial on June 4, 2025, the Department

argued that the trial court had not erred by applying the clear and convincing

evidence standard applicable to most parental termination proceedings, as opposed

to the more stringent standard under the ICWA, because the tribes were timely

notified of the proceedings, no tribe had indicated that Eva was an Indian child or

chosen to intervene, and at least two of the tribes had determined that Eva was not

considered an Indian child under their standards.10 According to the Department,

“[i]f the tribe had responded in the affirmative, then we would have been bound by

the ICWA standards; however, they have denied this child being of—an Indian child

9 Father filed an identical motion for new trial and although his counsel attended the hearing on the motion for new trial, his counsel did not present any arguments. 10 The ICWA notices the Department sent to the tribes were filed in the trial court on June 10, 2025, and the tribes’ responses and return receipts for all three tribes were filed on June 3, 2025, the day before the hearing on the motion for new trial.

60 as determined by statute.” The Department and the attorney at litem argued that

even if the trial court had erred by not making a finding prior to trial as to whether

the ICWA applied, a new trial was not necessary because the trial court could make

a finding at the motion for new trial stage. The trial court took the motion under

advisement, and on June 4, 2025, it issued an order denying Mother’s motion for

new trial.11

The record reflects that (1) the Department sent the required ICWA notices to

the Cherokee Nation, the Eastern Band of Cherokee Indians, and the United

Keetoowah Band of Cherokee Indians in Oklahoma by certified mail return receipt

requested, as required, (2) the notices contained the information required by 25

C.F.R. § 23.111(d),12 (3) trial commenced more than ten days after the tribes

received the notices, (4) no tribe intervened in the proceeding and two tribes

expressly disclaimed that Eva was an Indian child. Although the trial court did not

make an express finding prior to trial as to whether Eva was an Indian child, the

transcript of the hearing on the motion for new trial reflects that the trial court

considered this issue and the trial court implicitly found that Eva was not an Indian

child, as defined by the ICWA, when it denied Mother’s motion for new trial. See

11 There is no order ruling on Father’s motion for new trial, and thus the motion was overruled by operation of law. 12 Mother and Father do not dispute that the notices included the required information.

61 In re Levi U., 78 Cal. App. 4th at 199 (holding determination of applicability of

ICWA can be either express or implied).

Given the record before us—including an extensive discussion between the

parties and the trial court concerning this issue during the hearing on the motion for

new trial, and the filed ICWA notices, return receipts and tribe responses—we

conclude the trial court considered the issue and implicitly denied the application of

the ICWA. See In re E.W., 170 Cal. App. 4th at 404–05 (stating implicit finding

sufficient “at least as long as the reviewing court can be confident that the [trial]

court considered the issue and there is no question but that an explicit ruling would

conform to the implicit one”).

Mother argues there is no competent evidence demonstrating the Department

complied with the ICWA notice requirements because the ICWA notices, tribe

responses, and return receipts were not admitted into evidence at trial, the

evidentiary record was closed at judgment, and the Department cannot cure its

evidentiary failure by supplementing the record post-judgment. The ICWA does not

require that evidence of a notice be formally admitted at trial or during an evidentiary

hearing. We further note that appellate courts have abated termination appeals and

remanded the cases to the trial court to allow the department and the trial court to

comply with ICWA’s notice requirements and determine whether a child is an Indian

child under the ICWA. See In re E.S.S., No. 05-23-00031-CV, 2023 WL 4782682,

62 at *15–16 (Tex. App.—Dallas July 27, 2023, pet. denied) (mem. op.); In re J.J.C.,

302 S.W.3d at 902; In re R.R., Jr., 294 S.W.3d at 237–38.13 Courts thus have

allowed trial courts to comply with ICWA requirements post-judgment and relied

on those post-judgment proceedings to demonstrate compliance with ICWA.

Here, we need not abate or remand, because the ICWA notices were sent as

required under the ICWA, the trial court considered the application of the ICWA

during the motion for new trial hearing, and by denying the motion for new trial, it

implicitly denied the application of the ICWA. See In re E.W., 170 Cal. App. 4th at

404–05 (stating implicit finding was sufficient if “the [trial] court considered the

issue and there is no question but that an explicit ruling would conform to the implicit

one”).

Based on the record before us, we conclude the trial court did not err by

applying the clear and convincing evidence standard applicable to most parental

termination proceedings, as opposed to the ICWA’s more stringent standard,

because there is evidence in the trial court record reflecting that the Department

complied with the ICWA’s notice requirements, and the trial court implicitly found

that Eva was not an Indian child.

13 The requirements that the trial courts hold evidentiary hearings are requirements imposed by the appellate courts.

63 We overrule Mother’s and Father’s challenges to the decree of termination

based on the ICWA.

Evidentiary Issues

Father argues that the trial court abused its discretion by overruling Father’s

hearsay objection to the admissibility of his drug test results (Petitioner’s Exhibit

35) arguing “there is no business record affidavit on file allowing for the admissibly

of these records.” Father argues that “[a]lthough [the Department] claims the drug

test results were filed with affidavits, the court noted this does not make the affidavits

part of the exhibit or evidence.”

Mother argues that the trial court abused its discretion by admitting

Petitioner’s Exhibits 30 (drug chemistry report), 34 (Mother’s drug test results), 35

(Father’s drug test results), 36 (Mother’s closure summary report for individual

substance abuse counseling), 37 (Father’s closure summary report for individual

counseling), 38 (Father’s closure summary report for individual substance abuse

counseling), and 43 (Mother’s private drug test results) because no business records

affidavit was attached to the records submitted into evidence at trial, and thus none

of the exhibits had been properly authenticated.

A. Standard of Review and Applicable Law

We review a trial court’s rulings admitting or excluding evidence for an abuse

of discretion. A.B. v. Tex. Dep’t of Family & Protective Servs., No. 03-17-00658-

64 CV, 2018 WL 1220894 at *3 (Tex. App.—Austin Mar. 9, 2018, no pet.) (mem. op.)

(citing In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005)). “A trial court abuses its

discretion when it acts in an arbitrary or unreasonable manner ‘without reference to

any guiding rules or principles.’” Id. (quoting Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). We will uphold the trial court's ruling

if there is any legitimate basis for the ruling. In re G.B., No. 06-20-00031-CV, 2020

WL 4589761, at *3 (Tex. App.—Texarkana Aug. 11, 2020, no pet.) (mem. op.).

Texas Rule of Evidence 803(6) allows, as an exception to the rule against

hearsay, the admission of records kept in the course of regularly conducted business

activities. TEX. R. EVID. 803(6); see In re K.C.P., 142 S.W.3d 574, 578 (Tex. App.—

Texarkana 2004, no pet.). The proponent must prove that the document was made

at or near the time of the events recorded, from information transmitted by a person

with knowledge of the events, and made or kept in the course of a regularly

conducted business activity, unless the opponent demonstrates the source of

information or the method or circumstances of preparation indicate a lack of

trustworthiness. TEX. R. EVID. 803(6); see In re K.C.P., 142 S.W.3d at 578. The

predicate for admission of a business record may be established by an affidavit that

complies with Texas Rule of Evidence 902(10). TEX. R. EVID. 803(6)(d); In re

K.C.P., 142 S.W.3d at 578; TEX. R. EVID. 902(10).

65 A party must object each time the inadmissible evidence is offered or make a

running objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). To

preserve error for appeal, the party must have made a timely, specific objection at

the earliest possible opportunity. Tryco Enters., Inc. v. Robinson, 390 S.W.3d 497,

505 (Tex. App.—Houston [1st Dist.] 2012, pet. dism’d).

B. Mother’s Drug Test Results and Father’s Drug Test Results

When Mother’s drug test results and Father’s drug test results were first

offered into evidence as Petitioner’s Exhibits 34 and 35, Father objected that the

records were hearsay, and they had not been authenticated because there were no

business record affidavits attached to the exhibits and the Department had not

established chain of custody. Mother joined Father’s objections. The Department

and attorney ad litem argued that the records were admissible under the business

records exception to hearsay because the records and accompanying business record

affidavits had been filed in the trial court and produced to the attorneys more than

fourteen days before trial and it was not necessary to attach the affidavits to the

evidence offered at trial to authenticate the records. 14 The trial court overruled the

objections.

14 Although Mother and Father objected to the admission of their drug test results on the ground that the Department had not established chain of custody, chain of custody goes to the weight of the evidence and not its admissibility. See Powers v. Tex. Mut. Ins. Co., No. 11-08-00088-CV, 2010 WL 337144, at *4 (Tex. App.— Eastland Jan. 29, 2010, pet. denied) (mem. op.) (“Texas civil and criminal cases

66 Later during trial, Father objected to Gabriel’s reading the results of Mother’s

drug tests into the record because there was no business record affidavit attached to

the records, “there is no chain of custody to authenticate” the drug test results, and

Gabriel was “not qualified to read what the drug tests mean.” The trial court

overruled the objections.

Under Texas Rule of Appellate Procedure 902(10), a business record is self-

authenticating if the record meets the requirements of Rule 803(6), the record is

accompanied by an affidavit that complies with Rule 902(10)(B), and the record and

accompanying affidavit are served “on each other party to the case at least 14 days

before trial.” TEX. R. EVID. 902(10)(A). The rule does not require that the affidavit

be admitted into evidence along with the business record for the record to be self-

authenticating. See In re N.C.M., 66 S.W.3d 417, 419 (Tex. App.—Tyler 2001, no

pet.) (“The plain language of Rule 902(10)(a) does not require that the affidavit be

attached to a business record when the exhibit is offered into evidence.”).15 Neither

hold that, to the extent that there are any gaps in the chain of custody, they go to the weight of the evidence rather than to its admissibility.”). Furthermore, neither Mother nor Father argues on appeal that the trial court erred in overruling their chain of custody objection. 15 Father relies on Freeman v. American Motorist Inc., 53 S.W.3d 710 (Tex. App.— Houston [1st Dist.] 2001, no pet.) and Brooks v. Housing Auth., 926 S.W.2d 316 (Tex. App.—El Paso1996, no writ) but neither supports his position. The issue in Freeman was the admissibility of a letter from a doctor as a business record. 53 S.W.3d at 714. The court concluded that the letter was not admissible as a business record because the letter did not qualify as a routine entry by the doctor

67 Mother nor Father dispute that they were properly served with copies of the business

records and their accompanying affidavits at least fourteen days before trial, nor do

they argue that any of the affidavits fail to comply with the requirements of Rule

902(10)(B). See TEX. R. EVID. 902(10)(A)–(B). Neither Mother nor Father disputed

in the trial court that the drug test results qualified as business records under Rule

803(6). See TEX. R. EVID. 803(6). The trial court thus did not abuse its discretion

by overruling Mother’s and Father’s hearsay and lack of authentication objections

to the admission of their drug tests results.

Mother also argues on appeal that the lack of business records affidavits

“render the drug test results and service provider records as inadmissible hearsay

that required exclusion” because the “effect of [the Department’s] failure to put the

affidavits in the record is that there was no evidence offered to verify the reliability

or trustworthiness of the results.” Mother did not object to admission of any drug

test results or “service provider records” based on insufficient indicia of reliability

or trustworthiness, and she thus failed to preserve this argument for appeal. See

Benson v. Chalk, 536 S.W.3d 886, 895 (Tex. App.—Houston [1st Dist.] 2017, pet.

in the patient’s medical history. See id. at 715. And in Brooks, the appellant argued the trial court abused its discretion by admitting service reports as business records because the reports “were not backed by Affidavits as per Rule of Evidence 902(10),” and thus had not been authenticated. 926 S.W.2d at 322. The court held that the trial court had not abused its discretion by overruling the objection because a witness had testified in person concerning the business records, and thus an affidavit was not necessary to authenticate the records. See id.

68 denied) (stating complaint on appeal must comport with objection in trial court); In

re C.K.H., No. 01-22-00603-CV, 2023 WL 2026550, at *15 (Tex. App.—Houston

[1st Dist.] Feb. 15, 2023, pet. denied) (mem. op.) (“Mother’s complaints on appeal

must comport with her complaints in the trial court; otherwise, they present nothing

for appellate review.”); see also TEX. R. APP. P. 33.1(a).

Furthermore, although Mother joined Father’s objections to the admission of

her drug test results and Father’s drug test results on grounds of lack of

authentication and hearsay, unlike Father, Mother did not reassert her objections

when Gabriel testified about the results of Mother’s and Father’s drug tests. See In

re M.S., No. 02-20-00147-CV, 2020 WL 6066400, at *5 (Tex. App.—Fort Worth

Oct. 15, 2020, no pet.) (mem. op.) (stating “any error in admitting evidence is

deemed harmless and is waived if the objecting party later permits the same or

similar evidence to be introduced without objection”). Mother thus waived her

objections to the admission of the admission of her drug test results and Father’s

drug test results.

We conclude the trial court did not abuse its discretion by admitting Mother’s

and Father’s drug test results into evidence.

C. Drug Chemistry Report and Closure Summary Reports

Mother argues that the trial court also abused its discretion by admitting

Petitioner’s Exhibits 30, 36, 37, and 38 because no business-records affidavit was

69 attached to the records submitted into evidence at trial, and thus none of the exhibits

had been properly authenticated.

Exhibit 30 is a drug chemistry report containing the results of forensic testing

performed on the white, rock-like substance Deputy Zapata recovered from Mother

and Father’s car. Contrary to Mother’s assertion on appeal, the drug chemistry report

was offered into evidence with an attached business records affidavit. Mother did

not object to the admission of the report based on improper authentication and thus

she has not preserved this issue for appellate review. See Benson, 536 S.W.3d at

895; In re C.K.H., 2023 WL 2026550, at *15. Furthermore, Mother testified,

without objection, that she reviewed the offense report which stated that law

enforcement had retrieved a white substance from the car that was submitted for

testing, and the drug chemistry report (PX-30) indicated that the substance recovered

from the car was fentanyl. See In re M.S., 2020 WL 6066400, at *5 (stating error in

admission of evidence “deemed harmless and is waived” when same or similar

evidence is introduced without objection).

Exhibit 36 is Mother’s closure summary report for individual substance abuse

counseling, Exhibit 37 is Father’s closure summary report for individual counseling,

and Exhibit 38 is Father’s closure summary report for individual substance abuse

counseling. Mother did not object when Gabriel and Nava testified about the

contents of Father’s closure summary report for individual counseling. See id.

70 When Mother was questioned about Exhibit 36, Mother only objected based on

hearsay. Mother’s argument on appeal, however, is that the trial court erred in

admitting Exhibit 36 into evidence because no business records affidavit was

attached to the exhibit itself. Mother’s argument is waived because she did not

object to the admission of the evidence on this basis when she testified about it at

trial, and her general hearsay objection did not preserve an objection to the admission

of the exhibit based on lack of an attached business record affidavit. See id.; see

also Foster v. Nat’l Collegiate Student Loan Tr. 2007-4, No. 01-17-00253-CV, 2018

WL 1095760, at *6 (Tex. App.—Houston [1st Dist.] Mar. 1, 2018, no pet.) (mem.

op.) (holding general hearsay objection did not preserve for appeal challenge to

predicate being made to admit business records). Mother did not object to the

admission of Exhibit 38 on any grounds. She thus preserved nothing for our review

with regard to this exhibit. See TEX. R. APP. P. 33.1(a).

We thus overrule Mother’s challenges to the admission of Petitioner’s

Exhibits 30, 36, 37, and 38 because Mother either waived or failed to preserve the

issue for appellate review.

D. Mother’s Private Drug Test Results

Mother argues the trial court abused its discretion by admitting the results of

the drug tests she obtained through a private laboratory (Petitioner’s Exhibit 43)

because a business records affidavit was not attached to the exhibit, the records are

71 privileged under the Health Insurance Portability and Accountability Act of 1996

(“HIPAA”) and the Department did not give Mother notice of its intent to subpoena

her medical records as required by HIPAA.16 According to Mother, the Department

“did not show that its subpoena complied with 45 C.F.R. § 164.512(e)(1), making

Ex. 43 protected health information illegally obtained and inadmissible.” A business

records affidavit was included with Exhibit 43 and Mother did not argue that the

affidavit did not comply with the requirements of Texas Rule of Evidence 902(10)(b)

or was otherwise insufficient to authenticate the drug test results.

“In civil cases, even illegally obtained evidence may be admissible at trial.”

In re Strategic Impact Corp., 214 S.W.3d 484, 488 (Tex. App.—Houston [14th

Dist.] 2006, no pet.); see also Collins v. Collins, 904 S.W.2d 792, 799 (Tex. App.—

Houston [1st Dist.] 1995), writ denied, 923 S.W.2d 569 (Tex. 1996) (“Illegally

obtained evidence has been held admissible in civil lawsuits.”). Generally, all

relevant evidence that is not privileged is discoverable. See TEX. R. CIV. P. 192.3.

Mother has not directed us to, nor have we found, any authority holding that

evidence obtained in violation of 45 C.F.R. § 164.512(e)(1) is per se inadmissible.

See generally In re Jarvis, 431 S.W.3d 129, 135 (Tex. App.—Houston [14th Dist.]

2013, no pet.) (“The HIPAA provisions do not create a privilege against production

16 On appeal, Father incorrectly stated that Petitioner’s Exhibit 43 is Father’s drug test results from the private facility. The only record of Father’s private drug test results is a January 9, 2024 drug test that was admitted into evidence as Father’s Exhibit 1.

72 or admission of evidence; they merely create a procedure for obtaining protected

medical records in litigation.”). We thus cannot say that the trial court abused its

discretion by overruling Mother’s objection to the admission of Exhibit 43.

Termination of Parental Rights

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) (quoting Lassiter v. Dep’t

of Soc. Servs., 452 U.S. 18, 27 (1981)); see In re M.S., 115 S.W.3d 534, 547 (Tex.

2003). The United States Supreme Court has emphasized that “the interest of [a]

parent[ ] in the care, custody, and control of [her] children . . . is perhaps the oldest

of the fundamental liberty interests recognized by th[e] Court.” Troxel v. Granville,

530 U.S. 57, 65 (2000). Likewise, the Texas Supreme Court has concluded that

“[t]his natural parental right” is “essential,” “a basic civil right of man,” and “far

more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)

(internal quotations omitted); see also In re R.J.G., 681 S.W.3d 370, 373 (Tex. 2023)

(“Both this Court and the Supreme Court of the United States have long recognized

the fundamental right of parents to make decisions concerning the care, custody, and

control of their children.”). Consequently, we strictly scrutinize termination

proceedings and strictly construe the involuntary termination statutes in favor of the

parent. Holick, 685 S.W.2d at 20.

73 A court may terminate the parent-child relationship under Section 161.001 of

the Family Code if the Department establishes, by clear and convincing evidence,

that (1) the parent has engaged in one or more of the enumerated predicate acts or

omissions under Section 161.001(b)(1), and (2) termination is in the best interest of

the child. See TEX. FAM. CODE § 161.001(b). “Both elements must be established,

and termination may not be based solely on the best interest of the children as

determined by the trier of fact.” In re M.A.J., 612 S.W.3d 398, 406 (Tex. App.—

Houston [1st Dist.] 2020, pet denied). 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.” In re A.V., 113

S.W.3d 355, 362 (Tex. 2003).

Clear and convincing evidence is “the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” TEX. FAM. CODE § 101.007. 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 id. § 161.001(b)(1), (2); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

74 We look at 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 A.C., 560 S.W.3d 624, 631 (Tex. 2018)

(citing In re J.F.C., 96 S.W.3d at 266); see also In re J.O.A., 283 S.W.3d 336, 344–

45 (Tex. 2009). We assume the “factfinder resolved disputed facts in favor of its

finding if a reasonable factfinder could do so.” In re J.F.C., 96 S.W.3d at 266; see

also In re A.C., 560 S.W.3d at 630–31. We must disregard all evidence that a

reasonable factfinder could have disbelieved or found not to be credible. In re

J.F.C., 96 S.W.3d at 266. But this does not mean we must disregard all evidence

that does not support the finding. Id. Because of the heightened standard in

termination cases, we must also be mindful of any undisputed evidence contrary to

the finding and consider that evidence in our analysis. Id. If we determine that no

reasonable trier of fact could form a firm belief or conviction that the matter that

must be proven is true, we must hold the evidence to be legally insufficient and

render judgment in favor of the parent. Id.

When conducting a factual sufficiency review in a termination case, we must

consider the entire record. In re A.C., 560 S.W.3d at 631; In re J.F.C., 96 S.W.3d at

266. Unlike in a legal sufficiency review, when assessing the factual sufficiency of

the evidence we cannot disregard disputed evidence that a reasonable factfinder

could not have credited in favor of the finding. In re J.F.C., 96 S.W.3d at 266; see

75 also In re A.C., 560 S.W.3d at 630 (“The distinction between legal and factual

sufficiency lies in the extent to which disputed evidence contrary to a finding may

be considered.”). “Evidence is factually insufficient if, in light of the entire record,

the disputed evidence a reasonable factfinder could not have credited in favor of a

finding is so significant that the factfinder could not have formed a firm belief or

conviction that the finding was true.” Id. at 631 (citing In re J.F.C., 96 S.W.3d at

266).

Under both legal and factual sufficiency standards, the trial court is the “the

sole arbiter of the witnesses’ credibility and demeanor.” In re J.F.-G., 627 S.W.3d

304, 312 (Tex. 2021) (quoting In re J.O.A., 283 S.W.3d at 346). As the sole

factfinder in a bench trial, it is the trial court’s province to weigh the evidence and

resolve any evidentiary conflicts. See In re R.J., 579 S.W.3d 97, 117 (Tex. App.—

Houston [1st Dist.] 2019, pet. denied). Because of the fact-intensive nature of

reviewing parental termination cases, appellate courts afford great deference to the

factfinder on issues of credibility and demeanor because the factfinder “faced the

parties and their witnesses, observed their demeanor, and had the opportunity to

evaluate the claims made by each parent.” In re J.J.G., 540 S.W.3d at 56 (quoting

In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet. denied)); see also

In re R.R.A., 687 S.W.3d 269, 279 n.50 (Tex. 2024) (“Reviewing courts . . . must

defer to the factfinder’s judgment as to the credibility of the witnesses and the weight

76 to give their testimony, including reasonable and logical inferences from the

evidence.”). Although “the trier of fact may draw inferences,” those inferences must

be “reasonable and logical ones.” In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020)

(quoting In re E.N.C., 384 S.W.3d 796, 804 (Tex. 2012)).

Predicate Findings

Mother and Father argue there is legally and factually insufficient evidence

supporting the trial court’s findings that they committed the predicate acts under

Section 161.001(b)(1)(D), (E), and (O) of the Family Code.

A. Endangerment Findings Under Subsection 161.001(b)(1)(E)

Section 161.001(b)(1)(E) authorizes the termination of a parent’s rights to a

child when the parent has endangered the child’s physical or emotional well-being.

The term “endanger” as used in Section 161.001(b)(1)(E) encompasses a broad

“array of conduct that ‘expose[s a child] to loss or injury’ or ‘jeopardize[s]’ the

child.” In re R.R.A., 687 S.W.3d at 277 (quoting Tex. Dep’t of Human Servs. v.

Boyd, 727 S.W.2d 531, 533 (Tex. 1987)); see also In re S.R., 452 S.W.3d 351, 360

(Tex. App.—Houston [14th Dist.] 2014, pet. denied) (stating parent’s conduct which

subjects child to life of uncertainty and instability endangers child’s physical and

emotional well-being). “[E]ndangering conduct is not limited to actions directed

towards the child.” In re J.O.A., 283 S.W.3d at 345; see also In re T.G.R.-M., 404

S.W.3d 7, 13 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The danger to the

77 child may be inferred from parental misconduct, even if the conduct is not directed

at the child and the child suffered no actual injury. See Boyd, 727 S.W.2d at 533

(stating although endanger means “more than a threat of metaphysical injury or the

possible ill effects,” “it is not necessary that the conduct be directed at the child or

that the child actually suffers injury”).

Evidence of a parent’s illegal drug use may support a finding of endangerment

under Subsection (E). See In re J.O.A., 283 S.W.3d at 345; Walker v. Tex. Dep’t of

Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.]

2009, pet. denied) (stating evidence of parent’s use of illegal drugs may support

finding of endangerment under Subsection (E) because illegal drug use “exposes the

child to the possibility that the parent may be impaired or imprisoned”). In In re

R.R.A. the Supreme Court of Texas clarified the connection between a parent’s

illegal drug use and endangerment of a child. The court confirmed that

endangerment does not require a parent’s drug use to directly harm the child.

Instead, “a pattern of parental behavior that presents a substantial risk of harm to the

child permits a factfinder to reasonably find endangerment.” In re R.R.A., 687

S.W.3d at 278. It explained:

While illegal drug use alone may not be sufficient to show endangerment, a pattern of drug use accompanied by circumstances that indicate related dangers to the child can establish a substantial risk of harm. A reviewing court should not evaluate drug-use evidence in isolation; rather, it should consider additional evidence that a factfinder

78 could reasonably credit that demonstrates that illegal drug use presents a risk to the parent’s “ability to parent.”

Id. (quoting In re J.O.A., 283 S.W.3d at 345) (emphasis in original); see also In re

A.V., 697 S.W.3d 657, 659 (Tex. 2024) (stating In re R.R.A. requires “holistic

endangerment review”). For example, “[w]hen a pattern of drug use is coupled with

credible evidence of attendant risks to employment, housing, and prolonged absence

from the children, a factfinder reasonably can find endangerment to the child’s

physical or emotional well-being under (D) and (E).” In re R.R.A., 687 S.W.3d at

281; see id. (“Father’s positive drug tests in 2020 and across-the-board refusal to

undergo service-plan tests from November 2020 to September 2021 sufficiently

develop Father’s continued pattern of drug use.”). The court held in In re R.R.A.

that the lower court “should not have ignored the aggregate weight of Father’s

ongoing drug use, homelessness, employment instability, and near-complete

abandonment of his children for the six months preceding trial,” and the court

“reasonably could have inferred that this conduct, in the aggregate, endangered the

children’s physical and emotional well-being.” Id.

Under Section 161.001(b)(1)(E), a parent’s rights may be terminated if clear

and convincing evidence establishes 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 § 161.001(b)(1)(E). Unlike

Subsection (D), termination under Subsection (E) focuses on the parent’s conduct

79 and requires “more than a single act or omission; a voluntary, deliberate, and

conscious course of conduct by the parent is required.” In re J.T.G., 121 S.W.3d

117, 125 (Tex. App.—Fort Worth 2003, no pet.). Thus, the relevant inquiry under

Section 161.001(b)(1)(E) is whether there is evidence the parent engaged in a course

of conduct that endangered the child’s physical or emotional well-being. Jordan v.

Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

B. Mother: Endangerment Under Subsection 161.001(b)(1)(E)

In her third issue, Mother argues there is legally and factually insufficient

evidence that she endangered Eva by engaging in conduct or knowingly placing Eva

with persons who engaged in conduct that endangered Eva’s physical or emotional

well-being because (1) Mother did not leave Eva alone in the car—she left Eva with

Father, (2) there is no evidence Mother “deliberately chose to leave [Eva in the car

alone] or intended to keep [Eva] in the car after she learned of it,” (3) there is no

evidence connecting Mother to the fentanyl found in the car, (4) although she was

arrested and charged with possession of a controlled substance found in the car

(Xanax), the charge was dismissed when she demonstrated that she had a

prescription for the medication, and (5) there is no admissible evidence that she used

illegal drugs. See TEX. FAM. CODE § 161.001(b)(1)(E).

As previously discussed, Mother’s drug test results were properly admitted.

The results of the drug tests Mother took through the Department reflect that during

80 the two years the case had been open, Mother tested positive for fentanyl (ten times),

norfentanyl (three times), methamphetamine (two times), cocaine or cocaine

metabolites (two times), amphetamines (nine times), and marijuana (two times).

Mother’s private drug testing results from LabCorp, also reflect that her November

6, 2023 hair follicle tested positive for fentanyl and that her December 20, 2023 hair

follicle tested positive for fentanyl and norfentanyl. Mother also failed to appear for

multiple drug tests throughout the pendency of the case, and she refused to take any

drug tests after March 2024. Mother also refused to submit to drug tests despite

being ordered to do so by the court, and while knowing that each failure to test could

be considered a positive result. See In re J.M.T., 519 S.W.3d 258, 269 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied) (stating refusal to provide hair sample

permitted court to infer parent refused testing because it would be positive); In re

C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.)

(same). This evidence demonstrates that Mother repeatedly tested positive for

multiple illegal drugs while Eva was in the Department’s care, despite knowing that

her parental rights were at stake and that she was required to stop using drugs before

Eva could be returned to her care, and thus supports the trial court’s endangerment

finding under Subsection (E). See In re K.A.C., 594 S.W.3d 364, 373 (Tex. App.—

El Paso 2019, no pet.) (“[E]vidence that the parent continued to use illegal drugs

even though the parent knew her parental rights were in jeopardy is conduct showing

81 a voluntary, deliberate, and conscious course of conduct, which by its nature,

endangers a child’s well-being.”); see also In re R.R.A., 687 S.W.3d at 281

(recognizing parent’s “positive drug tests in 2020 and across-the-board refusal to

undergo service-plan tests from November 2020 to September 2021 sufficiently

develop[ed] [his] continued pattern of drug use”); In re M.T.W., 01-11-00162-CV,

2011 WL 6938542, at *13 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, no pet.)

(mem. op.) (“A parent’s engaging in illegal drug activity after agreeing not to do so

in a service plan for reunification with [his] children is sufficient to establish clear

and convincing proof of voluntary, deliberate, and conscious conduct that

endangered the well-being of [his child].”) (quotation omitted).

In addition to Mother’s drug test results, there is other evidence in the record

demonstrating that Mother used illegal drugs before and after Eva was taken into the

Department’s care, including Mother’s own admissions of illegal drug use. Mother

told Watson that she had used marijuana and heroin in the past, she usually used

heroin on the weekends, and the last time she used heroin was the day before Eva

was left alone in the car. Mother also told Watson that she used drugs in the car

when Eva was not around and, according to Watson, Mother and Father “willingly

admitted to using heroin and abusing pills while actively caring for [Eva] and stated

they recently used [on March 24, 2023,] two days prior to the intake coming in.”

82 Mother reported that she had last used cocaine on March 18, 2023—one week

before Eva was found alone in the car, the last time she used marijuana was in March

2023, she started using fentanyl in powder form “last year [2022],” she snorted a

line of fentanyl once a month on the weekends, and the last time she used fentanyl

was in May 2023. She denied that she and Father had ever used fentanyl in their

home and instead, they would “take turns going out and having fun, or, they would

have someone babysit so they could both go out.”

Prior to Eva’s removal, the Department developed a safety plan for Eva that

required Mother, Father, and Eva to live with Brad and Charlotte, who had agreed

to be Mother’s and Father’s safety monitors. When asked if there were any issues

with the safety plan, Brad testified that Mother was incoherent sometimes, spoke

nonsensically, and she did not see “rational.” Mother also seemed a “little loopy” in

the evenings and she would “hold [Eva] kind of wildly or not considered safe.” Brad

testified that he was also concerned when Mother and Father went to their apartment

one night and they were “sluggish” when they returned to Brad’s home at 1 a.m.

Charlotte also testified that Mother, who was responsible for caring for Eva,

appeared intoxicated when she lived with them days after the car incident in the

parking lot. According to Charlotte, Mother would be “unsteady, unbalanced,

sluggish, sleepy, and then in a few hours, she would be very happy and joyful.” One

day Mother “acted really confused” and she “was kind of all over the place” and

83 “[m]aybe a little manic.” She was concerned for Eva’s safety when she saw Mother

sitting in a chair “with her head cocked back, eyes wide open while [Eva] was

climbing on her.” Charlotte testified that most evenings Mother and Father would

leave Eva with them and go “do something at their house” and they would return

much later than they said they would return. Father told Charlotte they needed to

stay with Eva because he and Mother had been using drugs and they “needed to get

clean.” Father also told the Department that he and Mother were detoxing while

they were living with Brad and Charlotte and Eva. Mother and Father moved out

when Brad and Charlotte informed the Department that Mother and Father were

“still participat[ing] in active drug use” and they did not want them in their home.

Mother also admitted that she had tested positive for cocaine and marijuana while

living with Charlotte and Brad.

Although Mother repeatedly denied using illegal drugs—disputing the

accuracy of the drug test results, the testimony of multiple witnesses on this point,

the statements contained in the removal affidavit, her psychological evaluation, and

her substance abuse assessment—the trial court, as the sole factfinder, could have

credited the positive drug test results and witness testimony regarding Mother’s

illegal drug use and testing record over Mother’s testimony to the contrary. See In

re J.P.B., 180 S.W.3d at 574 (noting it is within factfinder’s province to judge

parent’s demeanor and to disbelieve parent’s testimony); In re S.C.F., 522 S.W.3d

84 693, 703 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (holding trial court

sitting as factfinder could credit lab reports and witness testimony over father’s

denial of drug use and his claim that positive drug test result was false).

There is also evidence from which the trial court could have reasonably

inferred that Mother’s pattern of ongoing illegal drug use adversely affected her

ability to parent, thus presenting a substantial risk to Eva’s physical or emotional

well-being. See In re R.R.A., 687 S.W.3d at 278 (explaining that parent’s use of

narcotics and its effect on his or her ability to parent may qualify as endangering

course of conduct). Although Mother denied that she used drugs around Eva or that

she and Father had ever used fentanyl in the home, the trial court could have

disbelieved Mother’s testimony and credited Mother’s statement to Watson that she

and Father had used “heroin and [were] abusing pills while actively []caring for

[Eva],” and Charlotte’s testimony that Mother was intoxicated when she cared for

Eva at her home. See Jordan, 325 S.W.3d at 713 (stating “[w]hen there is conflicting

evidence [in a parental termination case], it is the province of the trier of fact to

resolve such conflicts”).

The trial court also could have reasonably inferred from the evidence that

Mother was intoxicated when Charlotte saw Eva crawling on Mother, thus placing

ten-month-old Eva’s physical safety at risk. See In re R.R.A., 687 S.W.3d at 279

n.50 (“Reviewing courts . . . must defer to the factfinder’s judgment as to the

85 credibility of the witnesses and the weight to give their testimony, including

reasonable and logical inferences from the evidence.”).

Furthermore, Brad testified that he and Charlotte stopped supervising visits

between Eva and Mother and Father in June or July 2024 in part because Mother and

Father had stopped drug testing and were not completing their services. According

to Brad, he and Charlotte did not “know [Mother’s or Father’s] state of mind” or

“what’s going on,” and they did not want to “take that chance” with Eva. After a

hearing on July 23, 2024, the trial court ordered Mother to take a drug test and

suspended her visits with Eva until she could provide a negative drug test and act

civilly during visits. Not only did Mother fail to comply with the trial court’s order

for drug testing, she also rejected the trial court’s subsequent offers during trial on

November 4, 2024 and in March 2025 to bring NSC to the courthouse to administer

a drug test to Mother so that her visitation with Eva could be immediately reinstated.

As a result of Mother’s refusals to submit to drug testing, Mother’s visitation was

never reinstated, and she had not seen Eva for nine months prior to April 2, 2025—

the last day of trial.

The trial court could have reasonably inferred from this evidence that Mother

prioritized her drug usage over being able to maintain her parental relationship with

her young daughter and Mother’s willingness and ability to parent Eva was adversely

affected by her pattern of ongoing illegal drug use because it prevented Mother from

86 visiting with Eva from July 2024 until the conclusion of trial on April 2, 2025. See

In re R.R.A., 687 S.W.3d at 278 (stating endangerment analysis includes assessment

of whether parent’s “illegal drug use present[ed] a risk to the parent’s ‘ability to

parent’”); see also In re J.G., No. 02-21-00257-CV, 2022 WL 187983, at *9 (Tex.

App.—Fort Worth Jan. 20, 2022, no pet.) (mem. op.) (stating parent’s failure to visit

can endanger child’s emotional well-being and supports finding of endangerment

under Subsection (E)).

After Mother and Father moved out of Brad and Charlotte’s home, Brad and

Charlotte agreed to supervise weekend visits between Mother, Father, and Eva. Brad

and Charlotte testified that Mother was combative and aggressive towards Charlotte

during these visits, which became more “hostile” after February 2024. Brad testified

that he and Charlotte stopped supervising visits between Eva and Mother and Father

because they were concerned for Charlotte’s safety, and Charlotte was worried about

the impact witnessing these encounters had on Eva. See In re N.T., No. 02-24-

00067-CV, 2024 WL 2066375, at *5 (Tex. App.—Fort Worth May 9, 2024, no pet.)

(mem. op.) (holding evidence parent was “very aggressive,” “hostile,” “combative,”

and “belligerent” towards Department investigators, caseworkers, and guardian ad

litem and parent had exhibited such behavior in child’s presence supported

endangerment finding under Subsection (E)).

87 Mother’s decision to leave Eva in the car alone together with evidence she

had used drugs the day before and that the pills found in the car were hers also

supports the trial court’s finding that Mother engaged in conduct or knowingly

placed Eva with persons who engaged in conduct that endangered Eva’s physical or

emotional well-being. While there is conflicting evidence regarding the

circumstances in which Eva was left alone in the car, including who left Eva alone

in the car and for how long, as the sole factfinder, it was the trial court’s role to

determine the witnesses’ credibility and the weight to give their testimony and to

resolve any inconsistencies or conflicts in the evidence. See In re J.F.-G., 627

S.W.3d at 312; In re R.J., 579 S.W.3d at 117. The trial court, as the sole factfinder,

could have disbelieved Mother’s and Father’s testimony and, instead, credited the

evidence and testimony reflecting that Mother and Father left Eva alone in the car

for an hour while they shopped or shoplifted at Ulta, and further could have

reasonably inferred that the presence of drugs in the car and Mother’s admission to

using drugs the day before may have contributed to their decision to leave Eva in the

car.17 See In re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005) (stating it is within

factfinder’s province to judge parent’s demeanor and to disbelieve parent’s

17 Our opinion should not be read to suggest that leaving a child alone in a car for a brief period while the car is locked, and the air conditioning is on constitutes endangerment per se. It is merely some evidence that the trial court could consider together with all evidence presented to it when determining whether there was clear and convincing evidence under Subsection (E). 88 testimony); Jordan, 325 S.W.3d at 713 (stating “[w]hen there is conflicting evidence

[in a parental termination case], it is the province of the trier of fact to resolve such

conflicts”).

In light of the evidence that Mother had used drugs the day before Eva was

left alone in the car, Mother was intoxicated and tested positive for cocaine and

marijuana when she lived with Brad and Charlotte, and Father’s statements that he

and Mother had been using drugs, they needed to “get clean” and they were detoxing

while they stayed with Brad and Charlotte, the trial court could have disbelieved

Mother’s testimony that she was not using drugs the day of the parking lot incident,

and reasonably inferred that Mother was under the influence of drugs and her

judgment had been at least somewhat impaired when she decided to leave Eva alone

in the car for an hour while she and Father shopped. See In re R.R.A., 687 S.W.3d

at 278 (stating endangerment analysis includes assessment of whether parent’s

“illegal drug use present[ed] a risk to the parent’s ‘ability to parent’”); id. at 279 n.50

(“Reviewing courts . . . must defer to the factfinder’s judgment as to the credibility

of the witnesses and the weight to give their testimony, including reasonable and

logical inferences from the evidence.”).

Mother’s failure to successfully complete substance abuse counseling also

supports the trial court’s finding of endangerment under Subsection (E). The record

reflects that Mother failed to maintain her sobriety throughout treatment, and she

89 was unsuccessfully discharged from substance abuse counseling because she did not

keep regular attendance and address all her treatment goals and objectives. See In

re C.D.G., No. 14-17-00261-CV, 2017 WL 4320176, at *6 (Tex. App.—Houston

[14th Dist.] Sept. 28, 2017, pet. denied) (mem. op.) (considering evidence parent

failed to complete substance abuse treatment when analyzing sufficiency of evidence

for finding of endangerment under Subsection (E)).

Viewing the evidence in the light most favorable to trial court’s finding, we

conclude the trial court could have formed a firm belief or conviction that Mother

engaged in conduct or knowingly placed Eva with persons who engaged in conduct

that endangered Eva’s physical or emotional well-being. TEX. FAM. CODE

§ 161.001(b)(1)(E); In re J.F.C., 96 S.W.3d at 266.

Further, 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 Eva with persons

who engaged in conduct that endangered Eva’s physical or emotional well-being.

TEX. FAM. CODE § 161.001(b)(1)(E); In re J.F.C., 96 S.W.3d at 266

We overrule Mother’s third issue.18

18 Because there was clear and convincing evidence supporting the trial court’s findings under Section 161.001(b)(1)(E), it is not necessary for us to decide whether there was also sufficient evidence supporting the trial court’s findings that Mother committed the predicate acts under Section 161.001(b)(1)(D) and (O). See In re

90 C. Father: Endangerment Under Subsection 161.001(b)(1)(E)

In his second issue, Father argues there is legally and factually insufficient

evidence that he endangered Eva by engaging in conduct or knowingly placing Eva

with persons who engaged in conduct that endangered Eva’s physical or emotional

well-being. Father argues that the evidence is insufficient to prove endangerment

under Subsection (E) because there is no evidence that Eva was exposed to loss,

injury, or otherwise placed in jeopardy when she was left unattended in the car, there

is no admissible evidence that he tested positive for drugs or was in possession of

illegal drugs during the pendency of the case, and there is no evidence that he

engaged in criminal activity while Eva has been in the Department’s care.

Although Eva was not harmed, a child does not need to suffer actual physical

injury for a trial court to make a finding of endangerment. In re N.R., 101 S.W.3d

771, 775 (Tex. App.—Texarkana 2003, no pet.) (citing Boyd, 727 S.W.2d at 533).

Rather, a child is endangered when the child is placed or allowed to remain in an

environment that “pose[s] a real threat of injury or harm to the child.” In re N.R.,

101 S.W.3d at 776 (emphasis added).

The evidence reflects that Father engaged in illicit drug use before and after

Eva came into the Department’s care and that his continued illegal drug use

A.V., 113 S.W.3d 355, 362 (Tex. 2003) (stating only one predicate finding under Section 161.001(b)(1) is necessary to support decree of termination when there is also finding that termination is in child’s best interest).

91 endangered Eva’s physical and emotional well-being and impacted his ability to care

for Eva. Father’s drug test results reflect that, while the case was pending, he tested

positive for fentynal and norfentanyl multiple times before he stopped testing

altogether because he believed NSC was manipulating the results. He also tested

positive for oxycodone, oxymorphone, and methamphetamine and he did not appear

for drug testing at least four times before he stopped testing in March 2024. This is

some evidence that Father repeatedly tested positive for multiple illegal drugs while

Eva was in the Department’s care, despite knowing that his parental rights were at

stake and that he was required to stop using drugs before Eva could be returned to

his care, and thus supports the trial court’s endangerment finding under Subsection

(E). See In re K.A.C., 594 S.W.3d at 373 (“[E]vidence that the parent continued to

use illegal drugs even though the parent knew her parental rights were in jeopardy

is conduct showing a voluntary, deliberate, and conscious course of conduct, which

by its nature, endangers a child’s well-being.”); see also In re R.R.A., 687 S.W.3d at

281 (recognizing parent’s “positive drug tests in 2020 and across-the-board refusal

to undergo service-plan tests from November 2020 to September 2021 sufficiently

develop[ed] [his] continued pattern of drug use”); In re J.M.T., 519 S.W.3d at 269

(stating refusal to provide hair sample permitted court to infer father refused testing

because it would be positive); In re M.T.W., 2011 WL 6938542, at *13 (stating

evidence parent engaged in illegal drug activity after agreeing not to do so in service

92 plan for reunification with his child supports endangerment finding under Subsection

(E)).

Even though Father denied using illegal drugs and disputed the accuracy of

the drug test results, the trial court, as the sole factfinder, could have credited

testimony regarding the accuracy and reliability of the drug test results over Father’s

testimony. See In re S.C.F., 522 S.W.3d at 703 (holding trial court sitting as

factfinder could credit laboratory reports and witness testimony over parent’s denial

of drug use and his claim that positive drug test result was false).

Even setting aside the results of Father’s drug tests, there is other evidence in

the record that Father used drugs before and after Eva was taken into the

Department’s care, including Father’s admissions of drug use. The removal affidavit

states that Mother and Father “willingly admitted to using heroin and abusing pills

while actively []caring for [Eva] and stated they recently used two days prior to the

intake coming in.” Brad and Charlotte told the Department that Mother and Father

were “still participat[ing] in active drug use” when they stayed with Brad and

Charlotte for a week after the incident in the Ulta parking lot. Father also told the

Department that he and Mother left Eva with Brad and Charlotte while he and

Mother “went through detox” and he told Charlotte that he and Mother had been

using drugs, and they needed to stay with Charlotte because they needed to “get

clean.”

93 Brad testified that Father had a history of substance abuse, and he had been

prescribed suboxone, which is used to treat opioid addictions to assist with

withdrawal symptoms. Charlotte testified that Father told her that he had “some

opioid problems before” and he had attended rehab to treat his addiction to “heroin

or opioid or something to that form,” but he did not complete the program. Father

told Charlotte about his and Mother’s experiences going through withdrawal and

stated that the “opioids” found in the car that were determined to be fentanyl “were

his.”

Father also admitted in his psychological evaluations and substance abuse

assessment that he had used drugs before and after Eva came into the Department’s

care in March 2023. During his August 9, 2023 psychological evaluation, Father

reported that he used marijuana in the past and he had been physically dependent

upon hydrocodone when he was in college. Father stated that he had “admitted

himself into a detox facility” to address his hydrocodone addiction. Although Father

reported that he had “fully detoxed and never relapsed on hydrocodone after his

treatment,” he stated during his substance abuse assessment that he had “last used

opiates just before the incident with [the Department] occurred” in March 2023. In

his October 19, 2023 psychological evaluation, Father stated that he had “recently

relapsed” and used hydrocodone one to two weeks earlier. In his October 25, 2023

substance abuse assessment, Father stated that he had used “an assortment of opiates

94 throughout college” and “he had a slip up after his kid got removed, he had a slip

up” at the end of September 2023 or beginning of October 2023. Gabriel also

testified without objection that Father tested positive for fentanyl, norfentanyl, and

amphetamines multiple times during the pendency of the case and he also tested

positive for oxycodone, oxymorphone and methamphetamine.

“While illegal drug use alone may not be sufficient to show endangerment, a

pattern of drug use accompanied by circumstances that indicate related dangers to

the child can establish a substantial risk of harm.” In re R.R.A., 687 S.W.3d at 278

(emphasis in original). Drug-use evidence should not be evaluated in isolation;

rather, it should be considered alongside evidence showing that the parent’s “illegal

drug use presents a risk to [their] ‘ability to parent.’” Id. (quoting In re J.O.A., 283

S.W.3d at 345).

There is evidence from which the trial court could have reasonably inferred

that Father’s pattern of illegal drug use adversely affected his ability to parent Eva,

thus presenting a substantial risk to Eva’s emotional well-being. See In re R.R.A.,

687 S.W.3d at 278 (stating courts should consider “aggregate weight” of evidence

of drug use and surrounding circumstances when evaluating endangerment finding);

see also In re A.V., 697 S.W.3d at 659 (characterizing In re R.R.A. standard as

“holistic endangerment review”); In re C.C., 720 S.W.3d 41, 58 (Tex. App.—

Texarkana 2025, no pet.) (stating “we review endangerment findings considering the

95 ‘aggregate weight’ of factors supported by the evidence”) (citing In re R.R.A., 687

S.W.3d at 281). Brad testified that he was aware that Mother and Father were not

drug testing or completing their services, and this was one of the reasons why he and

Charlotte stopped supervising visits between Eva and Mother and Father in June or

July 2024. According to Brad, he and Charlotte did not “know [Mother’s or

Father’s] state of mind” or “what’s going on,” and they did not want to “take that

chance” with Eva. Father’s inability to visit with Eva on the weekends due in part

to his continued drug use is particularly significant because he had visited with Eva

only twice at the Department’s offices in the span of fifteen months since the case

began in April 2023, even though the Department had never suspended his visits,

and he had relied on the weekend visits supervised by Brad and Charlotte to maintain

a relationship with Eva. There is no evidence that Father made an effort to allay

Brad’s and Charlotte’s concerns that he was continuing to use drugs until at least

November 2024, when Brad agreed to supervise a visit between Father and Eva. The

trial court could have reasonably inferred from this evidence that, like Mother,

Father prioritized his drug usage over being able to maintain a parental relationship

with Eva, and his willingness and ability to parent Eva was thus adversely affected

by his pattern of ongoing illegal drug use. See In re R.R.A., 687 S.W.3d at 278

(stating endangerment analysis includes assessment of whether parent’s “illegal drug

use present[ed] a risk to the parent’s ‘ability to parent’”); see also In re J.G., 2022

96 WL 187983, at *9 (stating parent’s failure to visit can endanger child’s emotional

well-being and supports finding of endangerment under Subsection (E)).

Given the evidence that Father had admitted to using heroin and abusing pills

while actively caring for Eva, using heroin and pills the day before Eva was left

alone in the car for an hour, that he and Mother had been using drugs before they

moved in with Brad and Charlotte and they needed to get clean, that the fentanyl in

the car belonged to him, and the evidence that Mother and Father had to move out

of Brad’s house because they were continuing to use drugs, the trial court could have

reasonably inferred from this evidence that Father was under the influence of drugs

and his judgment had been at least somewhat impaired when he left Eva in the car

unattended,19 and thus, that his drug use negatively impacted his parenting abilities.20

See In re R.R.A., 687 S.W.3d at 278 (stating endangerment analysis includes

assessment of whether parent’s “illegal drug use present[ed] a risk to the parent’s

‘ability to parent’” and courts should consider “aggregate weight” of evidence of

19 As with Mother, there is conflicting evidence regarding the circumstances in which Eva was left alone in the car, including who left Eva alone in the car and for how long. As the sole factfinder, it was the trial court’s role to determine the witnesses’ credibility and the weight to give their testimony and to resolves any inconsistencies or conflicts in the evidence. See In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021); In re R.J., 579 S.W.3d 97, 117 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). 20 As previously mentioned, our opinion should not be read to suggest that leaving a child alone in a car for a brief period while the car is locked, and the air conditioning is on constitutes endangerment per se. It is merely some evidence that the trial court could consider when determining whether there was clear and convincing evidence under Subsection (E).

97 drug use and surrounding circumstances when evaluating endangerment finding);

see also In re J.M.T., 519 S.W.3d at 269 (“A parent’s exercise of poor judgment

currently and in the past demonstrates an inability to provide adequate care for the

child.”).21

The February 22, 2025 permanency report states that Father had not complied

with his substance abuse assessment’s recommendations because he had been

“unsuccessfully discharged from substance abuse therapy due to not meeting his

therapeutic goals,” and Father had not complied with his psychological evaluation’s

recommendations because he had been unsuccessfully discharged from outpatient

treatment, he was not drug testing through the Department, and he had been

unsuccessfully discharged from individual therapy. Father’s failure to successfully

complete substance abuse counseling also supports the trial court’s finding of

endangerment under Subsection (E). See In re C.D.G., 2017 WL 4320176, at *6

(considering evidence parent failed to complete substance abuse treatment when

analyzing sufficiency of evidence for finding of endangerment under Subsection

21 While there was no direct testimony that Mother or Father were under the influence when the car incident took place, there is evidence from which the trial court reasonably could have concluded that Father’s drug use had a detrimental impact on his judgment and may have led in part to Eva being placed in a situation that exposed her to some risk of harm.

98 Mother had been Eva’s primary caregiver, and according to Charlotte, Father

knew that Mother had been using drugs before the Department became involved

with the family, and he nevertheless left Eva with Mother while he was at work.

Father’s decision to leave his infant daughter in the sole care of someone he knew

used drugs also supports a finding of endangerment under Subsection (E). See

generally In re I.R., No. 13-24-00632-CV, 2025 WL 1261430, at *7 (Tex. App.—

Corpus Christi–Edinburg May 1, 2025, no pet.) (mem. op.) (“Drug use may also

create a dangerous environment for the children.”).

Viewing the evidence in the light most favorable to trial court’s finding, we

conclude the trial court could have formed a firm belief or conviction that Father

endangered Eva by engaging in conduct or knowingly placing Eva with persons who

engaged in conduct that endangered Eva’s physical or emotional well-being. TEX.

FAM. CODE § 161.001(b)(1)(E); In re J.F.C., 96 S.W.3d at 266.

Further, 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 Father endangered Eva by engaging in conduct or knowingly placing

Eva with persons who engaged in conduct that endangered Eva’s physical or

emotional well-being. TEX. FAM. CODE § 161.001(b)(1)(E); In re J.F.C., 96 S.W.3d

at 266.

99 We overrule Father’s second issue.22

Best Interest

Mother and Father argue there is legally and factually insufficient evidence

supporting the trial court’s findings that termination of Mother’s and Father’s

parental rights was in Eva’s best interest.

The purpose of the State’s intervention in the parent-child relationship is to

protect the best interests of the children, not to punish parents for their conduct. See

In re A.V., 113 S.W.3d at 361. There is a strong presumption that the best interest

of a child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112,

116 (Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th

Dist.] 2012, no pet.). But there is also a presumption that the “prompt and permanent

placement of the child in a safe environment is presumed to be in the child’s best

interest.” TEX. FAM. CODE § 263.307(a); see also In re B.J.C., 495 S.W.3d 29, 39

(Tex. App.—Houston [14th Dist.] 2016, no pet.) (noting child’s need for

22 Because there was clear and convincing evidence supporting the trial court’s findings under Section 161.001(b)(1)(E), it is not necessary for us to decide whether there was also sufficient evidence supporting the trial court’s findings that Father committed the predicate acts under Section 161.001(b)(1)(D) and (O). See In re A.V., 113 S.W.3d at 362 (stating only one predicate finding under Section 161.001(b)(1) is necessary to support decree of termination when there is also finding that termination is in child’s best interest).

100 permanence through establishment of stable, permanent home is paramount

consideration in best-interest determination).

To determine whether parental termination is in a child’s best interest, courts

may consider the following non-exclusive factors: (1) the desires of the child; (2) the

present and future physical and emotional needs of the child; (3) the present and

future emotional and physical danger to the child; (4) the parental abilities of the

persons seeking custody; (5) the programs available to assist those persons seeking

custody in promoting the best interest of the child; (6) the plans for the child by the

individuals or agency seeking custody; (7) the stability of the home or proposed

placement; (8) acts or omissions of the parent that may indicate the existing parent-

child relationship is not appropriate; and (9) any excuse for the parent’s acts or

omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors

are not exhaustive, and evidence is not required on every factor to support a finding

that termination of parental rights is in the child’s best interest. Id.; In re D.R.A.,

374 S.W.3d at 533. Courts may consider circumstantial evidence, subjective factors,

and the totality of the evidence as well as direct evidence when conducting a best-

interest analysis. See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio

2013, pet. denied).

We may also consider the statutory factors under Texas Family Code Section

263.307, including (1) the child’s age and physical and mental vulnerabilities;

101 (2) whether there is a history of abusive or assaultive conduct by the child’s family

or others who have access to the child’s home; (3) the willingness and ability of the

child’s family to seek out, accept, and complete counseling services and to cooperate

with and facilitate an appropriate agency’s close supervision; (4) the willingness and

ability of the child’s family to effect positive environmental and personal changes

within a reasonable period of time; (5) whether the child’s family demonstrates

adequate parenting skills, including providing the child with minimally adequate

health and nutritional care, a safe physical home environment, and an understanding

of the child’s needs and capabilities; and (6) whether an adequate social support

system consisting of an extended family and friends is available to the child. TEX.

FAM. CODE § 263.307(b); In re R.R., 209 S.W.3d at 116.

A parent’s past conduct is probative of his future conduct when evaluating the

child’s best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San

Antonio 2013, no pet.); see also Jordan, 325 S.W.3d at 724. A factfinder may also

infer that past conduct endangering the well-being of a child may recur in the future

if the child is returned to the parent when assessing the best interest of the child. See

In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.).

Evidence supporting termination under one of the predicate grounds listed in

Section 161.001(b)(1) may also be considered in support of a finding that

termination is in the best interest of the child. See In re C.H., 89 S.W.3d 17, 28 (Tex.

102 2002) (holding same evidence may be probative of both Section 161.001(b)(1)

grounds and best interest).

B. Analysis - Mother

Multiple factors support the trial court’s finding that termination of Mother’s

parental rights was in Eva’s best interest, the first of which is Mother’s ongoing use

of multiple illegal narcotics throughout the pendency of the case. See In re E.D.,

682 S.W.3d 595, 607 (Tex. App.—Houston [1st Dist.] 2023, pet. denied) (“A

continuing pattern of illegal drug use. . . implicates most of the Holley factors and

will support a finding that termination of parental rights is in a child’s best interest.”).

The record reflects that during the two years the case has been pending, beginning

on March 29, 2023, Mother tested positive multiple times for fentanyl, norfentanyl,

methamphetamine, cocaine or cocaine metabolites, amphetamines, and marijuana.

She also failed to appear for multiple drug tests and refused to take any drug tests

after March 2024, despite being ordered to do so by the court or requested to take a

test by the Department and even thought she was not able to visit with Eva unless

she submitted to drug testing.

Brad and Charlotte were concerned about Mother’s ability to care for Eva

based on their observations of Mother’s behavior when she lived with them for a

week after the police found Eva alone in the car. Charlotte was concerned for Eva’s

safety when she saw Mother sitting in a chair “with her head cocked back, eyes wide

103 open” while Eva was “kind of crawling all over” her. Charlotte also believed that

Mother was intoxicated when she lived in her home for a week because Mother

would be “unsteady, unbalanced, sluggish, sleepy, and then in a few hours, she

would be very happy and joyful.” Mother had also “acted really confused,” “was

kind of all over the place,” and “[m]aybe a little manic,” when she should have been

focused on Eva.

According to Brad, Mother was incoherent sometimes, spoke nonsensically,

and she did not see “rational.” She also seemed a “little loopy” in the evenings and

she would “hold [Eva] kind of wildly.” Brad and Charlotte were also concerned

because Mother and Father would go to their home most evenings and leave Eva in

their care even though the safety plan required either Mother or Father to remain in

Brad and Charlotte’s home with Eva at all times. One evening, Mother and Father

did not return to Brad and Charlotte’s home until 6 p.m. the next day and another

evening Mother and Father were “sluggish” when they returned to Brad’s home at 1

a.m. Father told the Department that he and Mother left Eva with Brad and Charlotte

because he and Mother were going through detox, and he told Charlotte that he and

Mother had been using drugs and “needed to get clean” while they were living in

Charlotte’s home.

This evidence demonstrates a two-year pattern of ongoing illegal drug use

during the pendency of the case when Mother knew her parental rights to Eva were

104 in jeopardy, and when she knew that she was required to stop using drugs before Eva

could be returned to her care. The evidence thus supports the trial court’s finding

that termination of Mother’s parental rights was in Eva’s best interest. See id.; see

also In re N.J.H., 575 S.W.3d 822, 834–36 (Tex. App.—Houston [1st Dist.] 2018,

pet. denied) (holding father’s history of drug use and continued drug use during case

implicated second, third, fourth, and seventh Holley factors—child’s emotional and

physical needs, emotional and physical danger to child, father’s parental abilities,

and stability of home—and supported best-interest finding); In re K.P., 498 S.W.3d

157, 174–75 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (holding mother’s

continuing drug use, evidenced by repeatedly testing positive for drugs, implicated

third, fourth, and eighth Holley factors—emotional and physical danger to child,

mother’s parental abilities, and parental acts or omissions indicating improper

parent-child relationship—and supported best-interest finding).

Although Mother denied that she used illegal drugs around Eva, a parent’s use

of illegal drugs can constitute endangerment even if it occurs outside of the child’s

presence. See In re J.O.A., 283 S.W.3d at 345 (stating “endangering conduct is not

limited to actions directed towards the child”); In re A.M., 495 S.W.3d 573, 579

(Tex. App.—Houston [1st Dist.] 2016, pet. denied) (“Because it significantly harms

the parenting relationship, drug activity can constitute endangerment even if it

transpires outside the child’s presence.”). The trial court could have also reasonably

105 credited Charlotte’s testimony that Mother was intoxicated when she cared for Eva

while at Charlotte’s home, and disbelieved Mother’s testimony to the contrary. See

In re J.P.B., 180 S.W.3d at 574 (stating it is within factfinder’s province to access

parent’s demeanor and to disbelieve parent’s testimony).

The trial court could also infer from this evidence and Mother’s repeated

denials of using any illegal drugs, despite a host of positive drug test results, that

such endangering conduct could reoccur in the future if Eva was returned to

Mother’s care. See In re B.K.D., 131 S.W.3d at 17 (stating factfinder may infer that

past conduct endangering child’s well-being may recur in future if child returned to

parent). This endangering conduct is also an indication of Mother’s parenting

abilities. See In re H.M.O.L., No. 01-17-00775-CV, 2018 WL 1659981, at *18 (Tex.

App.—Houston [1st Dist.] Apr. 6, 2018, pet. denied) (mem. op.); Holley, 544

S.W.2d at 372 (identifying parental abilities as best interest factor).

Mother’s unwillingness to acknowledge her substance abuse problems and

insistence that she only tested positive for illegal narcotics in the past because the

laboratory was fabricating or manipulating the results also supports the trial court’s

finding that termination of Mother’s parental rights is in Eva’s best interest. See In

re A.J.W., No. 04-19-00346-CV, 2019 WL 6333468, at *6 (Tex. App.—San Antonio

Nov. 27, 2019, no pet.) (mem. op.) (“The [trial] court could have rationally

concluded that [the mother] is unable to protect her children or to provide them a

106 safe and stable environment because she minimizes her drug problem.”); In re A.E.,

No. 05-14-01340-CV, 2015 WL 1184179, at *7 (Tex. App.—Dallas Mar. 16, 2015,

pet. denied) (mem. op.) (stating mother’s “choice to minimize her past drug use”

was factor of “particular significance” in best-interest analysis); see also In re L.M.,

572 S.W.3d 823, 835 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (stating

parent’s unwillingness to admit he has substance-abuse problem suggests parent will

continue to engage in same endangering behavior).

The evidence that Mother left Eva alone in the car while she shopped for an

hour also provides some support for the trial court’s best interest finding. See In re

C.H., 89 S.W.3d at 28 (holding same evidence may be probative of both Section

161.001(b)(1) grounds and best interest).

Mother argues that termination of her parental rights is not in Eva’s best

interest because Eva and Mother are bonded, Mother visited with Eva for many

months while the case has been pending, and the visits were safe, appropriate, and

affectionate. Mother, who is described in a permanency report as “attentive and

loving” and “very gentle,” also brought food, toys, and gifts, and was actively

engaged with Eva throughout the visits.

Eva, who was almost three years old when the trial ended in April 2025, was

too young to express her desires. See In re A.J.D.-J., 667 S.W.3d 813, 833 (Tex.

App.—Houston [1st Dist.] 2023, no pet.) (stating “the general rule is that when a

107 child is too young to express herself, her desires are neutral as to the trial court’s

best-interest finding, unless there is circumstantial evidence from which the

factfinder could infer her desires by proxy”). The record reflects that Eva was

bonded with Mother before Mother’s visits were suspended in July 2024, and Eva

was bonded with Brad and Charlotte, with whom she had lived for the two years

before Mother’s and Father’s rights were terminated in April 2025. Although

Mother had not seen Eva during the nine months prior to the trial court’s terminating

her rights, we conclude that this factor is neutral as to whether termination of

Mother’s rights is in Eva’s best interest. See In re J.C.P.L., No. 01-24-00723-CV,

2025 WL 757159, at *9 (Tex. App.—Houston [1st Dist.] Mar. 11, 2025, pet. denied)

(mem. op.) (holding first Holley factor—child’s desires—neutral when caseworker

testified that child was bonded with foster family and happy to see parents during

visits and enjoyed spending time with them).

With regard to Mother’s visits with Eva, Gabriel, Charlotte, and Brad testified

that Mother was hostile and aggressive towards Gabriel and Charlotte during visits

while Eva was present. According to Gabriel, Mother was disrespectful, aggressive,

and argumentative when she visited Eva at the Department’s office, and Mother’s

behavior and her inconsistent drug testing prompted the Department to request that

Mother’s visits with Eva be changed from in-person to virtual. Brad testified that

during some of the weekend visits supervised by Charlotte, Mother “would have

108 words” with Charlotte that “sounded somewhat threatening” and unsafe and the

visits became more “hostile” after the agreement was signed in February 2024. Brad

and Charlotte stopped the weekend visits in June or July 2024 because they were

concerned for Charlotte’s safety and Charlotte was worried about the impact

witnessing these encounters had on Eva. See generally In re D.E.M., No. 04-17-

00757-CV, 2018 WL 1831622, at *3 (Tex. App.—San Antonio Apr. 18, 2018, no

pet.) (mem. op.) (considering parent’s angry and emotional outbursts during visits

in best-interest determination).

Although the permanency reports reflect that Mother was “attentive and

loving” and actively engaged with Eva throughout some of their visits, Gabriel

testified that she was concerned about Mother’s parenting abilities because Mother

was often distracted during her visits with Eva, would miss feeding cues from Eva,

“seemed a little dazed,” and would spend time on her phone instead of focusing her

attention on Eva. Similarly, Franklin, Eva’s guardian ad litem, testified that she

observed one visit with Mother and Eva in December 2023 or January 2024 and she

was concerned that Mother did not “fully understand[] how to engage with [Eva],

how to properly play with her or to notice the cues of the child when the child is

sleepy or, you know, need[s] something different or is hungry.” Eva, who was three

years old at the time of trial, would not be able to protect herself from the dangers

of an unstable living situation created by Mother’s ongoing drug use and her young

109 age thus renders her vulnerable if she was rendered to Mother’s care. Eva’s young

age thus also supports the trial court’s finding that termination of Mother’s rights

was in her best interest. See TEX. FAM. CODE § 263.307(b)(1) (identifying child’s

age and physical and mental vulnerabilities as best interest factors); In re J.M.T., 519

S.W.3d at 270 (noting that young age of child—fourteen months at time of trial—

weighed in favor of trial court’s finding that termination was in child’s best interest);

see also In re A.L.B., No. 01-17-00547-CV, 2017 WL 6519969, *5 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied) (mem. op.) (stating children’s young ages—

five and six years old—rendered them vulnerable if left with parent unable or

unwilling to protect them or attend to their needs).

Furthermore, the positive, successful visits Mother references occurred

between June 2023 and March 2024. The same permanency reports Mother relies

on also reflect that Mother began missing visits and stopped providing support for

Eva in April 2024. According to the reports, Mother missed three of four scheduled

visits in April 2024 and although she appeared for two visits in May 2024, one of

those visits was cancelled because Mother was thirty minutes late. Although Mother

regularly visited Eva in June and July 2024, there is no indication that she provided

support for Eva during that time and Mother admitted that she had not given Brad

and Charlotte anything for Eva since May 2024. See In re L.M., 572 S.W.3d at 836

(stating parent’s “lack of all contact with a child without any proffered excuse and

110 no effort to ensure [the child’s] wellbeing” supports endangerment finding); see also

In re R.R., 711 S.W.3d 126, 140 (Tex. App.—Houston [1st Dist.] 2024, no pet.)

(noting that missed visitations and failure to complete court-ordered services “may

constitute evidence supporting endangerment finding because such conduct subjects

children to instability and uncertainty, which endangers them”). More importantly,

after a hearing on July 23, 2024, the trial court ordered Mother to take a drug test

and suspended her visits with Eva until she could provide a negative drug test and

act civilly during her visits with Eva. Mother failed to comply with the trial court’s

order and she also rejected the trial court’s subsequent offers during trial to bring

NSC to the courthouse to administer a drug test to Mother so that her visitation with

Eva could be immediately reinstated, even if the test was positive. As a result,

Mother’s visitation was never reinstated, and she had not seen Eva for nine months

when trial concluded on April 2, 2025. Mother’s failure to contact Eva after July

23, 2024 also supports the trial court’s best interest finding. See In re J.G., 2022

WL 187983, at *9 (stating parent’s failure to visit child can endanger child’s

emotional well-being).

Although she completed parenting classes, Mother did not comply with her

substance abuse assessment’s other recommendations because she did not provide

the Department with proof that she was attending NA/AA, and she had not been

attending individual therapy. Although she had participated in outpatient treatment,

111 she was not successfully discharged because her attendance was inconsistent, she

did not address all her treatment goals and objectives, and she failed to maintain her

sobriety throughout treatment. This evidence also supports the trial court’s best-

interest finding. See In re M.L.G.J., No. 14-14-00800-CV, 2015 WL 1402652, at

*11 (Tex. App.—Houston [14th Dist.] Mar. 24, 2015, no pet.) (mem. op.) (holding

parent’s “failure to make use of the rehabilitative services offered by the Department

supports the trial court’s best-interest finding” when parent had “opportunity to

address her drug use and parenting through her family service plan [and] she failed

to do so”); In re D.R., 631 S.W.3d at 835 (“Mother’s use of methamphetamine during

the pendency of the case, even after being released from inpatient treatment, showed

that she lacked the parental abilities necessary to care for the children, that she failed

to learn from the programs available to assist her, and that the existing parent-child

relationship was not a proper one.”); see also In re R.R.A., 687 S.W.3d at 283

(Blacklock, J., dissenting) (“Drug addiction obviously is incompatible with good

parenting . . . .”) (emphasis added).

Multiple witnesses expressed concerns about Mother’s and Father’s

commitment to achieving and maintaining sobriety. Franklin testified that neither

Mother nor Father successfully completed their required services, they both “tested

positive for fentanyl, which is a very dangerous drug, on multiple occasions,” neither

parent had demonstrated the “ability to understand the seriousness of [fentanyl],” or

112 demonstrated “the willingness to get sober and have a safe, healthy lifestyle for their

child.” Brad testified that he was concerned that Mother and Father had not been

able to maintain sobriety and complete services while Eva was in the Department’s

care, and he was skeptical of whether they would be able to remain drug-free if the

Department was not involved in their lives.

Mother’s psychological evaluation states that her “level of treatment

motivation is somewhat lower than is typical of individuals being seen in treatment

settings” and her “responses suggest that she is satisfied with herself as she is, that

she is not experiencing marked distress, and that, as a result, she sees little need for

changes in her behavior.” Franklin testified that neither Mother nor Father

“seem[ed] to take any responsibility for the situations that they’ve been in and the

drugs that they are using.” According to Franklin, Mother and Father repeatedly

denied using fentanyl, they did not admit to “any substance abuse at all,” and they

reported to Child Advocates that they “had no problems while still testing positive

for the drug” and claimed that test results were positive because “people [were]

This evidence of Mother’s and Father’s inability or unwillingness to

effectuate positive changes in their lives by addressing their substance abuse issues

supports the trial court’s findings that termination of their parental rights is in Eva’s

best interest. See TEX. FAM. CODE § 263.307(b)(11) (identifying parent’s

113 “willingness and ability . . . to effect positive environmental and personal changes

within a reasonable period of time” as best interest factor).

Mother argues that the fact that she maintained suitable housing during the

pendency of the case, as evidenced by the lease or mortgage agreement she and

Father provided to the Department August 30, 2023, demonstrates the termination

of her rights was not in Eva’s best interest. Although Gabriel did not have any

concerns about Mother’s home when she visited in October 2023, no one from the

Department or Child Advocates had visited Mother’s home since that time. Thorn,

Eva’s current caseworker, testified that he went to Mother’s and Father’s home twice

after he was assigned to the case in August 2024, but no one answered, and Mother

and Father had not allowed him to visit their home even after he explained that he

needed to visit the home to determine whether it was a safe and appropriate

environment for Eva. Even assuming the lease/mortgage agreement provided to the

Department in August 2023 demonstrates that Mother and Father maintained stable

housing during the pendency of the case, there is no evidence the home was clean,

free of safety hazards and suitable for a child.

By most accounts, Brad and Charlotte, who are Eva’s paternal grandparents,

have provided Eva with a loving, safe, stable, and drug-free home and they are able

to meet her present and future physical and emotional needs. Franklin testified that

Eva is bonded with Brad and Charlotte, and she is “thriving” and “doing

114 outstanding” in their home. According to Franklin, Brad and Charlotte have

excellent parenting skills, their home is a protective placement for Eva, and Child

Advocates trusts them “to be a gatekeeper to contact with the parents.” Thorn, Eva’s

caseworker, testified that Brad and Charlotte have provided Eva with a loving and

nurturing environment where she is happy and feels safe, and the Department

believes that Brad and Charlotte will facilitate contact between Eva and Mother and

Father but only if it is safe and appropriate to do so.

Brad and Charlotte, who have been married for twenty-one years and lived in

the same home for eighteen years, want to adopt Eva and provide her the stability

and permanence that she needs in her life if Mother’s and Father’s rights are

terminated. They have also expressed a willingness to restart visitation and allow

Eva to have a relationship with Mother and Father in the future if Mother and Father

are “stable” and “clean.” See Holley, 544 S.W.2d at 372 (recognizing child’s present

and future physical and emotional needs, present and future emotional and physical

dangers to child, parental abilities of persons seeking custody, plans for child by

individuals seeking custody, and stability of home or proposed placement as best

interest factors).

Although Father testified that he does not believe that Brad and Charlotte are

nurturing and loving towards Eva and he was concerned about their ability to parent

Eva, the trial court, as the sole factfinder, could have disbelieved Father’s testimony

115 and instead credited Thorn’s and Franklin’s testimony that Brad and Charlotte had

provided Eva with a safe, stable, loving, and protective home and they were able to

meet Eva’s present and future physical and emotional needs. See In re J.F.-G., 627

S.W.3d at 311–12 (stating appellate courts should defer to factfinder’s

determinations regarding witness credibility); see also In re J.P.B., 180 S.W.3d at

574 (noting it is within factfinder’s province to access parent’s demeanor and to

disbelieve parent’s testimony).

Viewing the evidence in the light most favorable to the trial court’s finding,

we conclude the trial court could have formed a firm belief or conviction that

termination of Mother’s parental rights was in Eva’s best interest. See In re J.F.C.,

96 S.W.3d at 266.

Further, 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 termination of Mother’s parental rights was in Eva’s best interest.

Id.; see also In re A.C., 560 S.W.3d at 631.

We overrule Mother’s challenge to the legal and factual sufficiency of the

evidence supporting the trial court’s best interest finding.

C. Analysis – Father

Multiple factors support the trial court’s finding that termination of Father’s

parental rights was in Eva’s best interest, the first of which is Father’s endangering

116 conduct. In addition to supporting the trial court’s finding under Subsection (E) that

Father endangered Eva by engaging in conduct or knowingly placing Eva with

persons who engaged in conduct that endangered Eva’s physical or emotional well-

being, the evidence that Father repeatedly tested positive for multiple illegal drugs

while Eva was in the Department’s care, despite knowing that his parental rights

were at stake and that he was required to stop using drugs before Eva could be

returned to his care, and his failure to successfully complete substance abuse

counseling also support the trial court’s best interest finding. See In re M.L.G.J.,

2015 WL 1402652, at *11 (holding parent’s “failure to make use of the rehabilitative

services offered by the Department supports the trial court’s best-interest finding”

when parent had “opportunity to address her drug use and parenting through her

family service plan [and] she failed to do so”); In re M.T.W., 2011 WL 6938542, at

*13 (stating evidence parent engaged in illegal drug activity after agreeing not to do

so in service plan for reunification with his child supports endangerment finding

The trial court could infer from this evidence and Father’s repeated denials of

using any illegal drugs, despite a host of positive drug test results, that such

endangering conduct could reoccur in the future if Eva was returned to Father’s care.

See In re B.K.D., 131 S.W.3d at 17 (stating factfinder may infer that past conduct

endangering child’s well-being may recur in future if child returned to parent).

117 Father’s past endangering conduct is also an indication of his parenting abilities. See

In re H.M.O.L., 2018 WL 1659981 at *18; Holley, 544 S.W.2d at 372 (identifying

parental abilities as best interest factor).

Eva’s young age also supports the trial court’s finding that termination of

Father’s rights was in her best interest because she would not be able to protect

herself from the dangers of an unstable living situation created by Father’s ongoing

drug use. See TEX. FAM. CODE § 263.307(b)(1) (identifying child’s age and physical

and mental vulnerabilities as best interest factors); In re J.M.T., 519 S.W.3d at 270

(noting that young age of child—fourteen months at time of trial—weighed in favor

of trial court’s finding that termination was in child’s best interest); see also In re

A.L.B., 2017 WL 6519969 *5 (stating children’s young ages—five and six years

old—rendered them vulnerable if left with parent unable or unwilling to protect them

or attend to their needs).

Father’s unwillingness to acknowledge his substance abuse problems and

insistence that he only tested positive for illegal narcotics in the past because the

laboratory was fabricating or manipulating the results also supports the trial court’s

finding that termination of his parental rights is in Eva’s best interest. See In re

A.J.W., 2019 WL 6333468, at *6 (“The [trial] court could have rationally concluded

that [the mother] is unable to protect her children or to provide them a safe and stable

environment because she minimizes her drug problem.”); In re A.E., 2015 WL

118 1184179, at *7 (stating mother’s “choice to minimize her past drug use” was factor

of “particular significance” in best-interest analysis.); see also In re L.M., 572

S.W.3d at 835 (stating parent’s unwillingness to admit he has substance-abuse

problem suggests parent will continue to engage in same endangering behavior).

Multiple witnesses expressed concerns about Father’s commitment to

achieving and maintaining sobriety. Franklin testified that Father had “tested

positive for fentanyl, which is a very dangerous drug, on multiple occasions,” and

he had not demonstrated the “ability to understand the seriousness of [fentanyl],” or

“the willingness to get sober and have a safe, healthy lifestyle for [his] child.”

According to Franklin, Father had repeatedly denied using fentanyl and other illegal

substances despite testing positive for the narcotics and he blamed the positive test

results on the laboratory. Charlotte testified that she and Brad had not seen any

progress on Father’s part, and it would have made a “big difference” to her if Father

had “completed services and been testing negative for the Department.” Brad also

expressed concern that Father had continued to use illegal drugs while the case was

pending, and he questioned whether Father will be able to maintain his sobriety if

the Department is no longer involve. This evidence of Father’s inability or

unwillingness to effectuate positive changes in his life by addressing his substance

abuse issues supports the trial court’s findings that termination of his parental rights

is in Eva’s best interest. See TEX. FAM. CODE § 263.307(b)(11) (identifying parent’s

119 “willingness and ability . . . to effect positive environmental and personal changes

within a reasonable period of time” as best interest factor).

Father argues that termination of his parental rights is not in Eva’s best interest

because he has had steady, long-term employment and he can provide a safe and

suitable home for Eva. Father has worked for his current employer since 2018, and

he has an annual salary of $60,000, which is sufficient to meet his, Mother’s, and

Eva’s needs. He and Mother live together in the home he purchased in July 2023.

Although Gabriel did not have any concerns about the suitability of Father’s home

when she visited in October 2023, no one from the Department or Child Advocates

has been able to visit Father’s home since that time to access whether it is a safe and

appropriate environment for Eva and thus there is no evidence that the home was

clean, free of safety hazards and suitable for Eva as of the time of trial.

A parent’s failure to visit their child can endanger the child’s emotional well-

being and thus supports a finding that termination of the parent’s rights is in the

child’s best interest. See In re J.G., 2022 WL 187983, at *9 (“[A] trial court may

consider in its analysis a parent’s failure to visit, which can endanger the child’s

emotional well-being.”). When he testified on November 4, 2024, the third day of

trial, Father confirmed that he had not seen Eva in three months because he had

limited contact with Brad and Charlotte, and he had not been able to attend any

weekday visits with Eva at the Department’s office because the visits conflicted with

120 his work schedule. Although he had scheduled a visit with Eva on October 30, 2024,

he cancelled the visit when he realized that he would not be able to bring Mother.

Father last visited with Eva on November 9, 2024. Brad testified that the visit

went “great,” he did not have any concerns about the visit, and he was willing to

facilitate and supervise future visits between Eva and Father. Charlotte testified that

Eva is bonded with Father, and Father behaved appropriately during his most recent

visit, and she was willing to supervise future visits between Father and Eva based on

Father’s conduct during the previous visit. While evidence that a parent has

improved their circumstances weighs against a best interest finding, such

improvements, particularly those made on the eve of trial, cannot conclusively

negate past endangering behavior. See In re J.O.A., 283 S.W.3d at 346 (stating

“[w]hile the recent improvements made by [the parent] are significant, evidence of

improved conduct, especially of short-duration, does not conclusively negate the

probative value” of past behavior). The trial court reasonably could have concluded

that the improvement in Father’s circumstances during trial was too recent and of

too short a duration to negate Father’s past history and impact the best-interest

determination. See In re S.R., 452 S.W.3d at 368 (stating “factfinder may conclude

that a parent’s changes shortly before trial are too late to have an impact on the best-

interest determination”).

121 Father argues that Brad’s and Charlotte’s home is not appropriate for Eva, and

he is concerned about their raising Eva because Brad is elderly and predisposed to

dementia, Brad and Charlotte have lied to him, they have been hostile or violent

towards Mother in front of Eva, Charlotte made sexual advances towards Father

when he was a young adult, and they are allowing Father’s mother Naomi to have

unsupervised visits with Eva even though Father, who was one-years-old, fell from

a second-story building while he was in Naomi’s care. Father also doubts that Brad

and Charlotte are nurturing and loving towards Eva.

Franklin, Eva’s guardian ad litem, and Thorn, Eva’s caseworker, visit Eva at

Brad and Charlotte’s home once a month and Franklin and Thorn agree that Brad

and Charlotte have provided Eva with a safe, stable, loving, and protective home

where Eva is thriving, and Brad and Charlotte can meet Eva’s present and future

physical and emotional needs. See Holley, 544 S.W.2d at 372 (recognizing child’s

present and future physical and emotional needs, present and future emotional and

physical dangers to child, parental abilities of persons seeking custody, plans for

child by individuals seeking custody, and stability of home or proposed placement

as best interest factors). As the sole factfinder and judge of witness credibility, the

trial court could have disbelieved Father’s testimony and credited Thorn’s and

Franklin’s testimony that Brad and Charlotte had provided Eva with a safe, stable,

and suitable home and they were able to meet Eva’s present and future physical and

122 emotional needs. See In re J.F.-G., 627 S.W.3d at 311–12 (stating appellate courts

should defer to factfinder’s determinations regarding witness credibility); see also

In re J.P.B., 180 S.W.3d at 574 (stating it is within factfinder’s province to access

“[W]hen a child is too young to express herself, her desires are neutral as to

the trial court’s best-interest finding, unless there is circumstantial evidence from

which the factfinder could infer her desires by proxy.” In re A.J.D.-J., 667 S.W.3d

at 833. The record reflects that Eva, who was too young to express her desires, was

bonded with Father and bonded with Brad and Charlotte. We conclude that this

factor is neutral as to whether termination of Father’s rights is in Eva’s best interest.

See In re J.C.P.L., 2025 WL 757159, at *9 (holding first Holley factor—child’s

desires—neutral when caseworker testified that child was bonded with foster family

and happy to parents during visits and enjoyed spending time with them).

Viewing the evidence in the light most favorable to the trial court’s finding,

we conclude the trial court could have formed a firm belief or conviction that

termination of Father’s parental rights was in Eva’s best interest. See In re J.F.C.,

Further, 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

123 conviction that termination of Father’s parental rights was in Eva’s best interest. Id.;

see also In re A.C., 560 S.W.3d at 631.

We overrule Father’s challenge to the legal and factual sufficiency of the

evidence supporting the trial court’s finding that the termination of Father’s parental

rights was in Eva’s best interest.

Conclusion

We affirm the trial court’s decree of termination.

Veronica Rivas-Molloy Justice

Panel consists of Justices Rivas-Molloy, Gunn, and Caughey.