In the Interest of H. M.-W. J., E. R. J. AKA Baby Boy M., Child v. Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: November 21, 2024
• Docket: 01-24-00396-CV
• Status: Published

Opinion

Opinion issued November 21, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00396-CV ——————————— IN THE INTEREST OF H.M.-W.J. AND E.R.J. A/K/A BABY BOY M., CHILDREN

On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2023-00078J

MEMORANDUM OPINION

In this accelerated appeal,1 appellant, father, challenges the trial court’s order,

entered after a bench trial, terminating his parental rights to his minor children,

H.M.-W.J. (“H.J.”) and E.R.J., also known as Baby Boy M (“E.J.”) (collectively, the

1 See TEX. FAM. CODE ANN. § 263.405(a); TEX. R. APP. P. 28.4. “children”), and awarding appellee, the Department of Family and Protective

Services (“DFPS”), sole managing conservatorship of the children.2 In five issues,

father contends that the trial court erred in appointing DFPS as the sole managing

conservator of the children and the evidence is legally and factually insufficient to

support the trial court’s findings that he knowingly placed, or knowingly allowed

the children to remain, in conditions or surroundings which endangered their

physical or emotional well-being,3 he engaged, or knowingly placed the children

with persons who engaged, in conduct that endangered their physical or emotional

well-being,4 he failed to comply with the provisions of a court order that specifically

established the actions necessary for him to obtain the return of the children,5 and

termination of his parental rights was in the best interest of the children.6

We affirm.

2 H.J. was three years old and E.J. was one year old at the time the trial court signed its order terminating father’s parental rights. The trial court also terminated the parental rights of the mother of H.J. and E.J. (“mother”), but she is not a party to this appeal. 3 See TEX. FAM. CODE ANN. § 161.001(b)(1)(D). 4 See id. § 161.001(b)(1)(E). 5 See id. § 161.001(b)(1)(O). 6 See id. § 161.001(b)(2).

2 Background

On January 13, 2023, DFPS filed its original petition seeking termination of

father’s parental rights to H.J. and managing conservatorship of H.J.7 On January

23, 2023, DFPS filed its original petition seeking termination of father’s parental

rights to E.J. and managing conservatorship of E.J.8 Later, the trial court

consolidated the two cases into the underlying trial court cause number.

Removal Affidavit

At trial, the trial court admitted into evidence a redacted copy of the affidavit

of DFPS investigator Alexya Harrison. Harrison testified that DFPS started

investigating mother and father in December 2022 due to allegations of narcotics

use. While those allegations were being investigated, father refused to take a

narcotics-use test and refused to sign a safety plan.

Additionally, Harrison testified that on December 25, 2022, DFPS received a

referral alleging negligent supervision of H.J. by mother. The referral stated that

mother was engaging in narcotics use and was pregnant with E.J. It also stated that

mother was mentally unstable and her behaviors had become “irate, manic[,] and

confrontational.”

7 DFPS also sought termination of the parental rights of mother. 8 DFPS also sought termination of the parental rights of mother.

3 Further, according to Harrison, on January 12, 2023, a Child Protective

Services (“CPS”) investigator made an unannounced visit to the children’s maternal

grandmother’s apartment related to another case involving mother’s brother and his

child. During the visit, the CPS investigator saw narcotics paraphernalia “wax all

over the house including pin[n]ed to [the] walls.” (Internal quotations omitted).

There were also “open baggies of [m]arijuana” present. H.J. was found to be living

at the apartment with mother. While the CPS investigator was at the apartment,

father arrived and spoke to her. Father admitted to smoking marijuana. Mother’s

brother was arrested by law enforcement officers after admitting “to having dope”

in the home. (Internal quotations omitted.)

Harrison testified that she also went to the maternal grandmother’s apartment

on January 12, 2023. Upon arrival, the CPS investigator told Harrison that she had

seen “a drug called ‘wax’ in the living room and also in the bedroom of the home.”

Mother’s brother admitted to having narcotics in the home, and mother and father

admitted to using marijuana. While at the home, Harrison found “the home

environment to be deplorable.” “[T]here was a smell of [m]arijuana and animal

feces.” H.J. was wearing clothes that did not fit him. He had red marks on his face,

and his clothes were “filthy.” H.J. “had a foul smell emanating from his body[,] and

his diaper was soiled.” H.J.’s appearance provided “clear signs of neglect.” Mother

told Harrison that father knew she was not supposed have unsupervised possession

4 of H.J. Father then cursed at mother, telling her to “[s]hut the fuck up.” (Internal

quotations omitted.) And he told Harrison that he did not know he was supposed to

supervise mother’s contact with H.J. Harrison was concerned with H.J. having been

exposed to narcotics use.

Harrison further testified as to certain CPS history involving mother and

father. For instance, on August 10, 2022, law enforcement officers were dispatched

to a home due to a disturbance. Father had pushed his way into the home and

assaulted mother when she answered the door. Mother was holding H.J. at the time,

but H.J. did not sustain any injuries. Father was charged with the offense of criminal

trespass because of his actions.

DFPS Caseworker Lozano

Jeanette Lozano testified that she was the DFPS caseworker assigned to the

children’s case, and she had been involved in the case since March 2023. According

to Lozano, DFPS’s goal for the children was an unrelated adoption. DFPS was

requesting that the trial court terminate the parental rights of both mother and father.

As to father’s narcotics use, Lozano testified that one of DFPS’s primary

concerns with father was his narcotics use. Father had been given a Family Service

Plan (“FSP”) in March 2023, but father still needed to successfully complete his

substance abuse group counseling and individual counseling requirements. Lozano

agreed that father had stated that he had completed his counseling requirements, but

5 she had not received any certificates showing his successful completion of

counseling. Father’s progress reports from counseling showed that he had been

actively engaged in counseling.

Lozano further testified that father had not demonstrated consistent sobriety

throughout the pendency of the case. Lozano was concerned that father did not seem

to have “a plan in place to help him prevent any relapses,” and father had never

“articulate[d] any[] . . . plan to keep himself sober.” Lozano stated that father had

not consistently tested negative for narcotics use during the pendency of the case,

and he did not attend all the required narcotics-use testing. Further, at a test in

November 2023, the urine sample provided by father was found not to belong to

him. DFPS was concerned about returning the children to father’s care because he

had not provided proof of consistent sobriety. According to Lozano, father had

admitted to using narcotics during the pendency of the case; and he tested positive

for methamphetamine use “all the way up until October [2023].” Nevertheless,

Lozano acknowledged that father’s narcotic-use-testing results from February 2024

were negative. According to Lozano, if father were to relapse or engage in narcotics

use while the children were in his care, the children’s needs would go unmet. In

Lozano’s opinion, father needed to show that he was sober for at least six months

before the children could be returned to his care.

6 As to father’s home, Lozano explained that she had visited his trailer home in

February 2024. Father did give Lozano a copy of the lease agreement for the lot of

land where his trailer home was located, but the lease agreement was not signed by

the lessor and did not provide any information for the lessor. Lozano had requested

that father provide her with information so that DFPS could verify that his trailer

home was properly located on that lot of land, but father had not yet provided it.

Lozano also testified that father’s trailer home was clean and had electricity,

and she did not have any major concerns about the condition of the trailer home

itself. The condition of the trailer home was “adequate,” but she noted that the home

was setup for a single adult and did not appear to have any “accommodations or

provisions for the children.” Lozano further explained that father had been living in

the same trailer home since the beginning of the case; however, during the case, he

had been evicted from the property where his trailer home was previously located.

Lozano explained that father had more than a year to prove that he could provide a

safe and stable home for the children, and he had failed to do so.

As to father’s employment, Lozano stated that she was not satisfied with the

proof of employment provided by father. Father had provided her with a “pay stub”

in October 2023 when he was “working for a company.” But he then became

self-employed. Father then gave her “invoices of job sites” where he had been

working, but she was unable to verify the invoices that father had provided. In

7 Lozano’s opinion, father had not provided her with consistent pay records during the

pendency of the case.

Lozano was also concerned with father’s criminal history because it indicated

that he lacked an ability to refrain from criminal conduct. Lozano testified that father

“picked up” a new criminal charge in January 2023, but it was later dismissed. And

father did not have any other criminal cases pending for the remainder of the case.

However, Lozano noted that in 2021 father was “arrested for trespassing,” and he

went to jail “for [twenty-two] days.”

Further, Lozano explained that mother and father had an altercation after a

visit with the children during the case. “The visitation monitor was driving behind”

mother and father after a visit, and she saw “hands . . . going back and forth

between” mother and father. She also saw mother grab the steering wheel, which

made the car go “to the left side of [a] busy street.” Mother then got out of the car

and started walking down the street. Lozano later spoke to mother about the

incident, and she did not deny it occurring.9

9 As to that incident, mother testified at trial that she and father left a visit with the children in the same car. Mother had a ride waiting for her at a McDonald’s restaurant, so she “got out at the red light because it was more convenient than having to [do] a big U-turn because of all the rodeo traffic.” She stated that she did not “jump out of” father’s car.

8 As to father’s visits with the children, Lozano testified that they began in

March 2023,10 and father brought things for H.J. At other visits during the case,

Lozano noted that some clothes that were brought for H.J. were the wrong size.

Lozano did not see anything being brought for E.J. at visits. But since January 2024,

it seemed that father was trying to focus his attention more on E.J. Lozano had seen

that father was bonded with the children and that father was making an effort with

the children to try and get them returned to his care.

As to the children’s current placement, Lozano explained that the children

were placed together in a foster home, where they were doing well. The children

had been in the same foster home since they entered DFPS’s care. The children’s

foster home was the only home that E.J. had ever known.11 The children had never

expressed that they were unhappy in their foster home.

Lozano also noted that when H.J. was first placed in the foster home, he had

“a lot of redness and dry patches on his face” and on his back. There was “sort of

like an eczema texture on his skin,” and H.J. had “a lot of scars on his chest and on

10 Initially, father’s visits with the children were supervised and supposed to occur weekly for two hours each time. In July 2023, father’s visitation schedule was changed to twice a month for two hours each time. Father was ordered to confirm his attendance twenty-four hours before a scheduled visit with the children. Father was also supposed to notify DFPS when he was enroute to a visit. If father did not show up for a visit with the children without providing advanced notice, his visits with the children were to be suspended. 11 Lozano noted that it would have been more difficult to E.J. to be bonded with father because immediately following his birth, E.J. entered DFPS’s care.

9 his shoulders, possibly due to scratching” his dry skin. H.J.’s foster mother told

Lozano that she would put lotion on H.J. every day, and when Lozano saw H.J. about

a week or two later, the redness and dry patches were cleared up.

At the time of trial, H.J. was three years old, and he was able to say words.

He asked for what he wanted and what he needed. He had been fully potty trained,

and he knew his numbers and colors. E.J. was one year old at the time of trial, and

he could fully walk. The children had two foster siblings. When Lozano visited the

foster home, H.J. appeared to be very bonded with his foster siblings, and E.J.

appeared to be bonded with everyone. At visits, Lozano saw H.J. talking with his

foster siblings and E.J. H.J. would share his toys, and his foster siblings would share

their toys with him. The children’s foster siblings also assisted the children with

getting snacks or if they asked for something.

Lozano further testified that the children’s foster home was a single-story

home, with four bedrooms, an open living room, and a kitchen. The children shared

a bedroom. The home sat on a large property. Lozano did not have any concerns

about the foster parent’s ability to care for the children, and according to Lozano,

the foster home was the only safe and stable home that the children had ever known.

It would be detrimental to the children to remove them from their foster home.

As to the children’s foster parents, Lozano stated that they had not been

arrested during the pendency of the case, and they were able to meet the children’s

10 emotional, physical, and medical needs. There was no evidence of domestic

violence or narcotics use by the children’s foster parents, and the foster parents did

not have a criminal history.

Lozano noted that DFPS had considered the children’s paternal grandmother,

Tanya Stevens, as a possible placement for the children, but DFPS had concerns

about Stevens’s narcotics use. Stevens participated in narcotics-use testing, and the

testing by hair follicle was positive for narcotics use. Stevens had attended visits

with the children during the pendency of the case, and Lozano had seen her making

an effort with the children “[l]ike [she] care[d] about” them. Although it appeared

that father was making an effort to have the children returned to his care and that he

had family support, DFPS still recommended that father’s parental rights be

terminated.

Child Advocates Representative Smith

Child Advocates, Inc. (“Child Advocates”) representative Margaret Smith

testified that she had been assigned to the children’s case in March 2023. At the

time Smith was appointed by the trial court, the children had already been removed

from the care of mother and father. Smith had visited the children at their foster

home and monitored supervised visits between the children and mother and father.

As to the allegations that led to the children entering DFPS’s care, Smith

explained that it was the result of “meth use” by mother and “deplorable conditions.”

11 According to Smith, during the pendency of the case, mother had admitted using

methamphetamine while pregnant with E.J.

Smith also testified that based on her experience and knowledge of the case,

she believed it was in the children’s best interest to terminate the parental rights of

mother and father. In doing so, the children would have a “chance of permanency

and consistency in their future life.” Smith generally expressed concern about

non-specific narcotics use by both mother and father and noted that the children

needed a stable living environment. According to Smith, mother had “been at

multiple homes” during the pendency of the case, and although father “had a

residence” for most of the case, Smith recently “s[aw] an eviction notice.” Smith

agreed that father “own[ed] his own trailer” home, but she stated that, during the

pendency of the case, father’s employment had “ebb[ed] and flow[ed].” In her

opinion, he had not maintained stable, consistent employment during the case.

As to mother’s and father’s narcotics use, Smith testified that in “the last few

months of 2023,” mother and father had tested negative for narcotics use. As far as

Smith knew, mother had not used narcotics since September 2023.

Smith further stated that at visits with the children either mother or father

would bring food for H.J., but Smith could not recall which parent brought the food.

Smith also could not recall whether mother or father ever brought meals for E.J.—

who was an infant. At certain visits, mother and father brought clothes and shoes

12 for the children, a backpack for H.J., and art supplies. They also brought diapers for

E.J. Smith noted that there may have been other things that mother and father

brought for the children that she “could have missed.” At visits, father would

primarily interact with H.J. because he was older and not an infant. Father and H.J.

were bonded. Smith also noted that E.J. was never in father’s care because he was

placed in DFPS’s custody after his birth. E.J. never lived with father, but father and

H.J. had a life together before DFPS’s took custody of H.J. Father would sometimes

bring Stevens, the children’s paternal grandmother, to visits with the children.

Neither mother nor father ever interacted inappropriately with the children at visits.

And father participated in his visits with the children and showed up for his visits

with the children.

As to the children’s current placement, Smith testified that the children were

placed together in a foster home, and they are doing well in the home. The children

had been in their placement for about one year. The children’s foster parents were

planning birthday celebrations for the children’s birthdays. H.J. had been enrolled

in a daycare program while in the foster parents’ care. The foster parents planned

on taking trips with the children, and H.J. received a bike and a helmet from his

foster parents for a Christmas present. Smith also noted that the foster parents had

two additional children—a girl and a boy who were approximately five years old

and ten years old. They had a sibling-like relationship with the children.

13 According to Smith, the children’s physical and emotional needs were being

met in their placement, and the children did not have any specialized needs. The

children shared a bedroom in their foster home. E.J. slept in a crib with no pillows

for his safety. H.J. had a toy chest in the bedroom, and E.J. also had baby toys and

chewing toys because his teeth were coming in. In Smith’s opinion, the children

were bonded with their foster parents and their foster siblings. The children’s foster

parents had expressed an intention to adopt the children. Smith stated that to her

knowledge no one in the children’s placement was using narcotics or “going to jail.”

The children’s current placement was the only safe and stable home that they had

ever known, and Smith believed it would be determinantal to the children if they

were removed from their foster parents’ care.

Father

Father testified that he was the children’s father. He was twenty-eight years

old, and the children were his only children. When the case began, E.J. had not yet

been born. But after his birth, he immediately went into the care of DFPS. E.J. had

never lived with father.

Father also explained that H.J. was two years old when he entered DFPS’s

care. Before entering DFPS’s care, H.J. lived with father in father’s trailer home.

When father was working, H.J. would spend time with Stevens, his parental

grandmother; H.J. never lived with Stevens though. Father did not allow H.J. to be

14 around mother a lot during that time because she was in a “custody battle” with the

father of her other children, and father was worried about H.J.’s safety if he was

around mother or the father of mother’s other children.

Father further testified that H.J. entered DFPS’s care in January 2023 after

father “dropped [H.J.] off to visit . . . mother,” and according to DFPS, father had

put H.J. in danger by doing so. Father stated that before he left H.J. with mother for

a visit at the children’s maternal grandmother’s apartment, he went inside and

inspected the home. It was clean; there were child locks on the cabinets and locks

on the doors. At the time, mother was pregnant with E.J., and as far as father was

aware, “everything was fine.” Mother, the children’s maternal grandmother, and

mother’s fifteen-year-old brother were at the apartment when father dropped H.J.

off. Mother had told father that her other brother, whose background father was

concerned about, would not be at the apartment while H.J. was there. During H.J.’s

visit, mother sent father a videotaped recording of H.J. playing with his cousin. In

the recording, H.J. was happy and dressed well. Father felt like H.J. was safe, and

he knew that mother had not seen H.J. in a long time. Father was later told that

“there w[ere] drugs everywhere [in the apartment] and [they were] stapled to the

wall or something.”

Father explained that he returned to the maternal grandmother’s apartment

once mother called him to pick up H.J. When father got to the apartment, mother’s

15 brother was there as well as mother, Stevens, an investigator from CPS, and law

enforcement officers. The CPS investigator and officers were present because of

mother’s brother’s child. Ultimately, H.J. was taken out of father’s and mother’s

care that day. At that time, father did not know that mother was using narcotics.

Additionally, father testified that he received an FSP, and he had completed

its requirements. Based on his FSP, the biggest issue that father needed to address

was his narcotics use. Father participated in narcotics-use testing during the

pendency of the case, but he noted that he did not show up for all required

narcotics-use tests. Father also stated that he had participated in a substance abuse

assessment, and because of the substance abuse assessment, father was required to

engage in group counseling and individual counseling. Father began participating

in counseling, which, according to father, he had completed. He had been

successfully discharged from individual counseling, and as to group counseling,

father stated that had completed his counseling sessions and he would be

successfully discharged as soon as his latest narcotics-use-testing results were

received. He expected that to occur within the next week.

Father also stated that he attended church to “seek [his] sobriety,” and he had

a support group at church. He did not have an Alcoholics Anonymous (“AA”) or

Narcotics Anonymous (“NA”) sponsor, though he had been ordered to attend AA

and NA meetings. Father stated that he had attended a few AA meetings with

16 Stevens, the children’s paternal grandmother, but it was “not for [him].” Father

acknowledged that during the pendency of the case, he had tested positive for

narcotics use,12 but his last narcotics-use-testing results had been negative for

narcotics use. According to father, he had not used methamphetamine since October

2023. Through counseling, father had learned tools to stay sober. He knew that he

needed to keep himself away from certain people, and he needed a good environment

for the children. Father stated that he had a “relapse prevention plan,” but it was not

written down. At trial, father stated that he was sober.

Father further testified that he had engaged in criminal conduct in the past.

For instance, in 2022 he “spent four days in jail for a felony theft.” And in 2021,

father spent twenty-two days in jail related to “another misdemeanor.”

As to his housing, father testified that he owned a trailer home, and he

“rent[ed] a lot” from a man. He had provided DFPS with a lease agreement, and a

DFPS caseworker and a Child Advocates representative had a home visit at father’s

trailer home. Father also “provide[d] [to DFPS] statements of the payments” that he

had made for renting the lot. Father noted that he had previously lived at a

recreational vehicle (“RV”) park, named “Palms RV.” Father was not evicted from

his trailer home ever, but the Palms RV park told him, he had to move his trailer

12 Father also acknowledged that using methamphetamine constituted engaging in criminal conduct.

17 home because he had not paid rent. Father then moved his trailer home to its current

lot.

As to his employment, father stated that he was self-employed as an

electrician. He had provided DFPS with “[r]eceipts of payments,” meaning receipts

that he had written to customers. According to father, he earned about $3,000 per

month. Father reported that he did electrical work for the Palms RV park, and he

was on good terms with them.

As to his visits with the children, father testified he attended joint visits with

mother because the children’s “foster parents had requested that the visits be at the

same time to be less disruptive on the [children].” The children’s paternal

grandmother, Stevens, also attended the visits with father every other week. Father

stated that he had not had any altercations with mother at their joint visits with the

children. There were instances during the visits where father “had to step away”

though. Father noted that he had completed his required parenting classes, and his

visits with the children went well. Father acknowledged that he had been late to

three visits with the children during the pendency of the case.

As to H.J., father stated that he was father’s “little buddy.” He was very close

with H.J., and he was working on his bond with E.J. Father had made sure to spend

more time with E.J. at visits to build a bond with the child. Father had visits with

the children every other week, and he had only missed one visit. According to father,

18 that visit was scheduled outside of the normal visitation schedule, and he did not

receive a text message about the visit. Ultimately, the visit was canceled because

father did not respond soon enough. Father was disappointed to have missed a visit

with the children because he “enjoy[ed] every moment” with the children, and he

did not want the cancellation to be held against him. Father wanted the children

returned to his care.

As to the children’s best interest, father stated that it was in their best interest

to be returned to father’s care because he “c[ould] give them the life that they

need[ed].” He did not want “someone else [to] raise” his children. If the children

were returned to his care, father planned on getting a larger home. Father was not

opposed to the children’s foster parents remaining in the children’s lives if the

children were returned to father’s care.

Finally, father explained that he was no longer in a relationship with mother,

and there was no chance that they would be in a romantic relationship in the future.

But if the children were returned to the care of mother and father, they would

co-parent together. Father believed that mother had been sober since September

2023, and he did not think that she had used narcotics recently or relapsed. Father

understood that it would be difficult to parent the children if he was using narcotics,

and he knew that he needed to stay narcotics free.

19 Paternal Grandmother

Stevens testified that she was the children’s paternal grandmother and father’s

mother. Stevens explained that before entering DFPS’s care, H.J. visited her a lot,

but he never lived with her. According to Stevens, in the three months before he

entered DFPS’s care, H.J. “stayed with [her] a lot of times.”

Stevens further explained that on the day that H.J. entered DFPS’s care, she

went to the children’s maternal grandmother’s apartment where H.J. was visiting

mother. Mother called Stevens after a CPS investigator arrived at the apartment to

perform a welfare check on mother’s niece. H.J. was not living at the maternal

grandmother’s apartment; he was living with father. According to Stevens, the

apartment was not “deplorable.” “[I]t was a little bit untidy,” but the living room

and the kitchen “looked decent to [her].” Stevens did not see any narcotics

paraphernalia in the apartment. H.J. looked like “he had been playing.” Father also

came to the maternal grandmother’s apartment after the CPS investigator arrived.

According to Stevens, as soon as mother “knew that something was wrong,” she

called father and Stevens to come get H.J.

As to father, Stevens testified that father had “a substance abuse problem,”

which she learned about in 2019. And father had a “criminal history involving

20 substance abuse[].”13 However, Stevens explained that father had “straightened up

his life,” and she believed that he no longer used narcotics. Father attended a few

AA and NA meetings with her. Stevens noticed that father had started making

changes in his life a few months before trial.

Stevens further testified that father was working hard. Father was

self-employed doing electrical work, and he owned a trailer home. He had moved

his trailer home to a new property “to get . . . a better environment” for the children.

The trailer home now had a fenced-in yard. He loved the children, and his “attitude

ha[d] changed.” Father lived by himself and was not in a relationship with mother.

Stevens stated that she was not aware “of a default judgment that was entered against

[father] in December of 2023 for not paying rent at [the] Palms RV Trailer Park.”

As to the children, Stevens agreed that they needed to be “parented by parents

who [were] sober,” and they needed “parents who c[ould] provide a safe and stable

home environment for them.” Stevens believed that H.J. should be returned to the

care of father. Stevens had attended visits with the children during the pendency of

the case.

13 Stevens also testified that she had used methamphetamine in the past and she tested positive for methamphetamine use during the pendency of the case.

21 Mother

Mother testified that she was the children’s mother. At the time H.J. entered

DFPS’s care, mother was living with her mother—the children’s maternal

grandmother—along with mother’s two brothers. On the day H.J. entered DFPS’s

care, a CPS investigator came to the maternal grandmother’s apartment to perform

“an unannounced visit” related to mother’s brother and his daughter—mother’s

niece—because of concerns about narcotics use by mother’s brother. At the

maternal grandmother’s apartment, the CPS investigator found narcotics

paraphernalia in mother’s brother’s room. Mother thought that either “baggies of

marijuana” were found or that her brother had admitted to having methamphetamine

in the apartment. Mother disputed that the condition of the apartment was

“deplorable” and that “there were drugs all over the place.” But she noted that her

brother had “paper wrappers stapled to the walls [of his room] that he [would]

buy[] . . . to roll [marijuana] in” “[a]s decoration.” Mother stated that she called

father to come get H.J. after narcotics paraphernalia was found.

According to mother, H.J. was simply with her at the maternal grandmother’s

apartment at the time the CPS investigator visited; he was not living there. He had

stayed with her at the apartment the previous night and during that day because father

had to work, and the children’s paternal grandmother was in the hospital. Father had

22 dropped H.J. off the night before because he had to go to work in the morning. H.J.

did not live with mother at the time he entered DFPS’s care.

Mother further noted that, at the time that H.J. entered DFPS’s care, she

denied that she was using narcotics, and she did not submit to narcotics-use testing

until E.J. was born in January 2023. E.J. entered DFPS’s care a couple days after he

was born. As to her narcotics use, mother testified that she had used

methamphetamine in December 2022 while she was pregnant with E.J.

As to father, mother stated that they were not in a romantic relationship, but

they got along. They had a co-parenting relationship. During the pendency of the

case, mother and father had joint visits with the children because DFPS requested

joint visits as it was more convenient for the children. According to mother, father

was “an amazing father.” He loved the children, and the children adored him. Father

played with the children, and at the last visit, E.J. “could not stop clinging onto him.”

Mother noted that she had seen a positive change in father. She believed that he was

committed to maintaining his sobriety. Mother was not scared for her physical safety

when she was with father.

Father’s FSP

The trial court admitted into evidence a copy of father’s FSP dated February

29, 2023. The FSP lists “[f]amily [r]eunification” as DFPS’s primary permanency

goal as well as “[r]elative/[f]ictive [k]in[] [c]onservatorship” as a concurrent

23 permanency goal. As to “hopes and dreams” for the children, the FSP states “[f]or

the children to be able to achieve stability and have the skills to achieve what they

desire.”

As to H.J., the FSP states that he had no developmental concerns or emotional

or behavioral health issues. H.J. did not display any delinquent behavior. He was

living in a foster home and was not yet old enough to attend school.

As to E.J., the FSP states that he had no developmental concerns or emotional

or behavioral health issues. E.J. did not display any delinquent behavior. E.J. tested

positive for methamphetamine at birth and was living in a foster home. He was not

old enough to attend school.

As to father, the FSP states that he appeared to be in overall good health and

did not display any cognitive or developmental disabilities. Whether father had a

support system was unknown.

In discussing the concerns that father needed to address, the FSP notes that

the children lacked proper supervision while in mother’s care and mother tested

positive for methamphetamine while pregnant with E.J. On January 12, 2023, H.J.

was found to be living with mother and mother’s brother with “visible drug

paraphernalia and baggies of marijuana inside the ho[me].” On January 19, 2023,

E.J. tested positive for methamphetamine at birth. According to the FSP, father was

not protective of H.J. because he left the child unsupervised with mother.

24 The FSP also notes that father had “not displayed the ability to provide basic

needs and care for the children” and he had displayed “patterns that prohibit[ed] him

[from] effectively support[ing] his children’s learning, growth and development.”

Father’s FSP required father to “maintain stable housing that [was] sanitary

and free from any drugs and hazardous objects” and “provide proof of housing with

a lease agreement to” the DFPS caseworker. Father was also required to “maintain

legal employment and provide [the DFPS] caseworker with proof of stable and

consistent [employment] documentation such as paycheck stubs” and “provide any

proof of documentation of any additional sources of income, such as governmental

assistance.” Additionally, the FSP required father to “participate in a[n]

[eight-]week parenting course that w[ould] assist him with understanding [the]

children’s growth and development” and he was required to “provide proof of [a]

certificate of completion once he ha[d] received it.” Further, father was required to

“maintain monthly contact with [the DFPS] caseworker and provide [his] most up

to date method of contact”; if his contact information changed, father was to “notify

[the DFPS] caseworker with his updated information within [twenty-four hours]” of

the change. Father was also required to “participate in all case related events[,] such

as court hearings, meetings, conferences and visitation appointments with the

children” and he was to “refrain from any illegal and criminal activity.” And father’s

FSP required him to “participate in a substance abuse assessment and follow all

25 recommendations,” “participate in random hair follicle and urine analysis drug

testing throughout the duration of the case,” and “participate in a psychological

assessment and follow all recommendations from the assessment.”

Father’s Narcotics-Use-Testing Records

The trial court admitted into evidence a copy of father’s narcotics-use testing

results. The testing results show that on February 6, 2023, father, by hair-follicle

testing, tested positive for methamphetamine and marijuana, and father, by

urinalysis, tested positive for amphetamine, methamphetamine, and marijuana.

Further, on July 12, 2023, father, by hair-follicle testing and urinalysis, tested

positive for amphetamine, methamphetamine, and marijuana.

The testing results also show that father failed to participate in narcotics-use

testing on March 7, 2023, and on November 1, 2023, father substituted his urine

sample with a urine sample from another person, which resulted in a positive test

result.

Father’s Criminal History

The trial court admitted into evidence of a copy of a judgment of conviction,

entered on June 8, 2017, showing that father pleaded guilty to the felony offense of

possession of a controlled substance, namely methamphetamine, weighing less than

26 one gram,14 and the trial court, in accord with the agreed punishment

recommendation from the State, assessed father’s punishment at confinement for

180 days. Father received a jail time credit of seventy-six days.

Further, the trial court admitted into evidence a copy of a judgment of

conviction, entered on April 3, 2018, showing that father pleaded guilty to the

misdemeanor offense of theft,15 and the trial court, in accord with the agreed

punishment recommendation from the State, assessed father’s punishment at

confinement for thirty days. Father received a jail time credit of seven days.

The trial court also admitted into evidence a copy of a judgment of conviction,

entered on October 26, 2018, showing that father pleaded guilty to the misdemeanor

offense of burglary of a vehicle,16 and the trial court, in accord with the agreed

punishment recommendation from the State, assessed father’s punishment at

confinement for sixty-nine days. Father received a jail time credit of twenty-three

days.

14 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115(a), (b) (offense constitutes state jail felony). 15 See TEX. PENAL CODE ANN. § 31.03(a), (e)(2). 16 See id. § 30.04(a), (d).

27 November 1, 2023 Permanency Hearing

The trial court admitted into evidence a copy of the transcript from the

November 1, 2023 permanency hearing in this case.17 At the hearing, DFPS

caseworker Lozano testified that the children were placed in the same foster home,

where they were doing great. The children were “meeting their milestones and

achieving any goals that their age would require.” At the time, H.J. was two years

old and did not have any special needs. He attended a daycare program during the

week. On the weekend, H.J. attended church with his foster family. On weekends

or holiday breaks, the foster family would go to the lake, to the beach, to the pool,

or to the park. The foster parents involved H.J. in recreational activities that were

appropriate for his age.

Lozano further testified that E.J. was about nine-months old at the time of the

permanency hearing, and he did not have any special needs. His teeth were starting

to come in, and he was standing on his own with the assistance of furniture. E.J.

could crawl very fast, and the foster parents believed that E.J. would be walking

soon.

According to Lozano, the children’s foster parents were able to meet the

children’s medical, physical, and emotional needs. The children were bonded with

their foster siblings, and Lozano did not have any concerns about the foster home.

17 Father did not attend the November 1, 2023 permanency hearing.

28 As to father, Lozano testified that father had not consistently participated in

the required narcotics-use testing during the pendency of the case. In July 2023, the

trial court ordered father to participate in narcotics-use testing, and he tested positive

for amphetamine, methamphetamine, and marijuana. Further, after being ordered in

July 2023 to participate in narcotics-use testing, father did not do so consistently.

The first time that he reengaged in narcotics-use testing after July 2023 was on

October 25, 2023. At that time, father tested positive, by hair-follicle testing, for

amphetamine, methamphetamine, and marijuana.

As to visits with the children, Lozano stated that mother and father’s visits

with the children were going well, but mother and father did not arrive on time to

their visits. Father showed up thirty-minutes late to visits.

Child Advocates representative Smith testified that she had met with the

children “[m]any times.” E.J. had become a fast crawler and had “spunk.” He could

“get smiles out of anyone.” H.J. loved E.J. and was very helpful to E.J. H.J. called

his foster siblings by their names and seemed to enjoy his foster siblings. Smith did

not have any concerns about the children in their foster home.

Stevens, the children’s paternal grandmother, testified that before entering

DFPS care, H.J. lived with her for three months. But when Stevens had to go to the

hospital, H.J. went to live with father. At that time, Stevens was aware that father

29 had been abusing narcotics “for many years” and that father was actively using

narcotics when she sent H.J. went to live with him.

Mother testified that the last time she used narcotics was on September 10,

2023. That was also the date that mother and father ended their romantic

relationship. Mother admitted that she used methamphetamine while pregnant with

E.J.

Father’s Friend

Lacey Farrow testified that she had known father since “late 2018,” and they

had been friends since then. However, recently, in February 2024, they decided to

start dating. According to Farrow, father had been “working on his sobriety” and

was “sober now.” Farrow believed that father was sober because “for the last two

months” they had spent time together “nonstop.” Farrow had never used narcotics.

Farrow also explained that she had observed father participating in substance abuse

counseling, and father had been “discharged from both counseling sessions.”

Farrow believed that father was committed to his sobriety.

Additionally, Farrow noted that she had an eight-year-old daughter, and father

spent time with Farrow’s child. Father was “great” with the child. Before H.J.

entered DFPS’s care, Farrow had seen father interact with H.J. Farrow described

father as “a great father.” He was “very interactive” and made sure that H.J. was fed

30 and clothed. Father loved the children, and he would be devasted if his parental

rights to the children were terminated.

As to the future, Farrow explained that she and father had discussed “getting

a bigger trailer [home] on his lot or possibly moving to a bigger trailer [home]” so

that they could move in together. They had also discussed “future plans of moving

and renting houses and . . . flipping houses and stuff like that.” They planned to

have a safe and stable environment for the children.

Foster Dad

The children’s foster dad testified that the children had been living in their

foster home for about fourteen months. The children were doing well in their foster

home. The children called their foster parents “Mom and Dad,” and the foster

parents loved the children.

As to H.J., the foster dad testified that when H.J. entered the foster parents’

care, he had minor rashes on his face and body, so the foster parents took him to the

doctor, and the children’s foster mother used “lotions and other things” to heal the

rashes. H.J. also had anger issues when he first entered the foster parents’ care; he

would throw himself down, bang his head, and hit stuff. H.J. still did that “a little

bit here and there,” but “for the most part, he[] [was] doing really, really well” in the

home. The foster dad stated that H.J. was an intelligent child.

31 As to E.J., the foster dad testified that E.J. entered the foster parents’ care as

a newborn, and the foster home was the only home that E.J. had ever known. E.J.

was a happy child.

While the children had been in the foster parents’ care, the foster parents had

attended all court hearings and family group conferences. The foster parents had

also taken the children to their scheduled visits with mother and father. The

children’s foster dad noted that he was employed “build[ing] process control

systems,” and his income was sufficient to support the family. The foster parents

owned their home, which sat on a couple acres of land.

The children’s foster dad also noted that he and the foster mother had two

biological children, who were bonded with the children. They were the children’s

siblings. If mother’s and father’s parental rights were terminated, the foster parents

wanted to adopt the children, which the foster dad believed was in the children’s best

interest. The foster parents planned on raising the children and loving them. They

hoped to start contributing to a college fund for the children once they were adopted.

Termination of Father’s Parental Rights

In his second and fourth issues, father argues that the trial court erred in

terminating his parental rights to the children because the evidence is legally and

factually insufficient to support the trial court’s finding that he engaged, or

knowingly placed the children with persons who engaged, in conduct that

32 endangered their physical or emotional well-being and termination of his parental

rights was in the best interest of the children. See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(E), (b)(2).

A parent’s right to “the companionship, care, custody, and management” of

his children is a constitutional interest “far more precious than any property right.”

Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (internal quotations omitted). The

United States Supreme Court has emphasized that “the interest of [a] parent[] in the

care, custody, and control of [his] 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). Consequently, “[w]e strictly construe involuntary

termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d 796, 802 (Tex.

2012).

Because termination of parental rights is “complete, final, irrevocable and

divests for all time that natural right . . . , the evidence in support of termination must

be clear and convincing before a court may involuntarily terminate a parent’s rights.”

Holick, 685 S.W.2d at 20. 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

33 as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.

§ 101.007; see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the

standard of proof is “clear and convincing evidence,” the Texas Supreme Court has

held that the traditional legal and factual standards of review are inadequate. In re

J.F.C., 96 S.W.3d at 264–68.

In conducting a legal-sufficiency review in a termination-of-parental-rights

case, we must determine whether the evidence, viewed in the light most favorable

to the finding, is such that the fact finder could reasonably have formed a firm belief

or conviction about the truth of the matter on which DFPS bore the burden of proof.

Id. at 266. In viewing the evidence in the light most favorable to the finding, we

“must assume that the factfinder resolved disputed facts in favor of its finding if a

reasonable factfinder could do so,” and we “should disregard all evidence that a

reasonable factfinder could have disbelieved or found to have been incredible.” In

re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). However,

this does not mean that we must disregard all evidence that does not support the

finding. In re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, 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

34 must hold the evidence to be legally insufficient and render judgment in favor of the

parent. Id.

In conducting a factual-sufficiency review in a termination-of-parental-rights

case, we must determine whether, considering the entire record, including evidence

both supporting and contradicting the finding, a fact finder reasonably could have

formed a firm conviction or belief about the truth of the matter on which DFPS bore

the burden of proof. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We should

consider whether the disputed evidence is such that a reasonable fact finder could

not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96

S.W.3d at 266. “If, in light of the entire record, the disputed evidence that a

reasonable factfinder could not have credited in favor of the finding is so significant

that a factfinder could not reasonably have formed a firm belief or conviction, then

the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex.

2006) (internal quotations omitted).

In order to terminate the parent-child relationship, DFPS must establish, by

clear and convincing evidence, one or more of the acts or omissions enumerated in

Texas Family Code section 161.001(b)(1) and that termination of parental rights is

in the best interest of the children. See TEX. FAM. CODE ANN. § 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. See id.; Tex. Dep’t of

35 Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Notably though, “[o]nly

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[ren’s] best interest.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

A. Endangerment

In his second issue, father argues that the evidence is legally and factually

insufficient to support the trial court’s finding that he engaged, or knowingly placed

the children with persons who engaged, in conduct that endangered their physical or

emotional well-being because the trial court’s finding “was undoubtedly based on

appellant’s alleged drug use and criminal history” and there was no “evidence that

such alleged conduct endangered [the] children.” See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(E).

A trial court may order termination of the parent-child relationship if it finds

by clear and convincing evidence that a parent has “engaged in conduct or knowingly

placed the child[ren] with persons who engaged in conduct which endanger[ed]

the[ir] physical or emotional well-being.” Id. Within this context, endangerment

encompasses “more than a threat of metaphysical injury or the possible ill effects of

a less-than-ideal family environment.” Boyd, 727 S.W.2d at 533. Instead, to

“endanger” means to expose the children to loss or injury or to jeopardize their

emotional or physical health. Id. (internal quotations omitted); see also Walker v.

36 Tex. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608, 616 (Tex. App.—Houston

[1st Dist.] 2009, pet. denied).

We must look at a parent’s conduct standing alone, including his actions and

omissions. In re J.W., 152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied).

It is not necessary to establish that a parent intended to endanger the children. See

In re M.C., 917 S.W.2d 268, 270 (Tex. 1996); In re L.M.N., No. 01-18-00413-CV,

2018 WL 5831672, at *14 (Tex. App.—Houston [1st Dist.] Nov. 8, 2018, pet.

denied) (mem. op.). But termination of parental rights 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.); see also In re L.M.N., 2018 WL 5831672, at *14; In re J.W., 152

S.W.3d at 205. The specific danger to the children’s well-being may be inferred

from parental misconduct, even if the conduct is not directed at the children and the

children suffer no actual injury. See Boyd, 727 S.W.2d at 533; In re L.M.N., 2018

WL 5831672, at *14; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth

2004, pet. denied). Courts may consider parental conduct that did not occur in the

children’s presence, including conduct that occurred after the children were removed

by DFPS. In re L.M.N., 2018 WL 5831672, at *14; In re A.A.M., 464 S.W.3d 421,

426 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

37 A parent’s narcotics use can qualify as a voluntary, deliberate, and conscious

course of conduct that endangers the children’s well-being. In re D.J.G., No.

01-22-00870-CV, 2023 WL 3513143, at *12 (Tex. App.—Houston [1st Dist.] May

18, 2023, no pet.) (mem. op.); In re T.S., No. 01-22-00054-CV, 2022 WL 4474277,

at *30 (Tex. App.—Houston [1st Dist.] Sept. 27, 2022, no pet.) (mem. op.); In re

C.V.L., 591 S.W.3d 734, 751 (Tex. App.—Dallas 2019, pet. denied); In re S.R., 452

S.W.3d 351, 361–62 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). And

continued narcotics use after the children’s removal from the parent’s care is conduct

that jeopardizes a parent’s parental rights and may be considered as establishing an

endangering course of conduct. In re D.J.G., 2023 WL 3513143, at *12; In re T.S.,

2022 WL 4474277, at *30; In re C.V.L., 591 S.W.3d at 751; In re S.R., 452 S.W.3d

at 361–62; see also Cervantes-Peterson v. Tex. Dep’t of Fam. & Protective Servs.,

221 S.W.3d 244, 253 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (considering

conduct jeopardizing parental rights as part of course of conduct endangering

well-being of child). When “a parent engages in [narcotics] use during the pendency

of a [termination-of-parental-rights case], when he knows he is at risk of losing his

children, the evidence is legally sufficient to support a [trial court’s] finding of

endangerment.” In re D.D.M., No. 01-18-01033-CV, 2019 WL 2939259, at *4 (Tex.

App.—Houston [1st Dist.] July 9, 2019, no pet.) (mem. op.); see also In re D.J.G.,

2023 WL 3513143, at *12; In re T.S., 2022 WL 4474277, at *30; In re R.S., No.

38 01-20-00126-CV, 2020 WL 4289978, at *7 (Tex. App.—Houston [1st Dist.] July

28, 2020, no pet.) (mem. op.) (“Parental [narcotics] use remains endangering

conduct even if the child was not in the parent’s custody when the [narcotics] use

occurred.”); In re A.M., 495 S.W.3d 573, 580 (Tex. App.—Houston [1st Dist.] 2016,

pet. denied) (“Because the evidence showed that the [parent] engaged in illegal

[narcotics] use during the pendency of the termination suit, when he knew he was at

risk of losing his children, we hold that the evidence is legally sufficient to support

a finding of endangerment.”). Further, when the evidence shows that the parent

engaged in narcotics use during the pendency of the termination-of-parental-rights

case, and no evidence directly contradicts that, the evidence is factually sufficient to

support the trial court’s endangerment finding. See In re D.J.G., 2023 WL 3513143,

at *12; In re A.M., 495 S.W.3d at 580; see also In re D.D.M., 2019 WL 2939259, at

*5.

DFPS caseworker Lozano testified that DFPS’s primary concern with father

was his use of narcotics. Lozano stated that father had not consistently tested

negative for narcotics use during the pendency of the case, and he did not attend all

required narcotics-use testing while the case was pending. See In re W.E.C., 110

S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (fact finder could

reasonably infer parent’s failure to complete scheduled narcotics-use screenings

indicated she avoided testing because she had used narcotics); see also In re D.J.G.,

39 2023 WL 3513143, at *12–13 (parent’s failure to submit to all required narcotics-use

testing relevant to whether evidence was sufficient to support finding parent engaged

in endangering course of conduct); In re A.K.T., No. 01-18-00647-CV, 2018 WL

6423381, at *13 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, pet. denied) (mem.

op.) (considering parent’s failure to submit to narcotics-use testing during course of

case when holding evidence legally and factually sufficient to support finding parent

engaged in conduct that endangered child’s physical and emotional well-being).

According to Lozano, father also admitted to using narcotics during the pendency of

the case, and he tested positive for methamphetamine “all the way up until October

[2023].”18 Further, at a narcotics-use test in November 2023, father provided a urine

sample that was determined not to have belonged to him, resulting in a positive

testing result. See In re A.L.S., 660 S.W.3d 257, 274 (Tex. App.—San Antonio 2022,

pet. denied) (considering parent “used fake urine to falsify drug tests” in holding

evidence legally and factually sufficient to support finding parent engaged in

conduct that endangered children). Although Lozano acknowledged that father had

tested negative for narcotics use in February 2024, she stated that father did not seem

to have “a plan in place to help him prevent any relapses” and he had never

“articulate[d] any[] . . . plan to keep himself sober.”19

18 The children entered DFPS’s care in January 2023. 19 Father testified that he had been ordered to attend AA and NA meetings, but they were “not for [him],” and he did not have an AA or NA sponsor. Instead, he 40 The copy of the transcript from the November 1, 2023 permanency hearing,

which the trial court admitted into evidence, also indicates that father did not

consistently participate in narcotics-use testing during the pendency of the case.

Lozano testified at that hearing that father was ordered to participate in narcotics-use

testing in July 2023, and he tested positive for amphetamine, methamphetamine, and

marijuana. After being ordered in July 2023 to participate in narcotics-use testing,

father failed to do so consistently. According to Lozano, the first time that father

reengaged in narcotics-use testing after July 2023 was on October 25, 2023. At that

time, father tested positive for amphetamine, methamphetamine, and marijuana.

At trial, father testified that the biggest issue he needed to address was his

narcotics use. Although father stated that he had participated in narcotics-use testing

during the pendency of the case, he noted that he did not show up for all the required

narcotics-use testing. See In re I.W., No. 14-15-00910-CV, 2016 WL 1533972, at

*6 (Tex. App.—Houston [14th Dist.] Apr. 14, 2016, no pet.) (mem. op.) (parent’s

“refusal to submit to the drug test may be treated by the [fact finder] as if he had

tested positive for drugs”); see also In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—

Houston [14th Dist.] 2009, no pet.) (fact finder could infer parent’s failure to submit

to court-ordered narcotics-use testing indicated she was avoiding testing because she

attended church to “seek [his] sobriety.” According to father, he had a “relapse prevention plan,” but it was not written down.

41 was using narcotics). Further, father agreed that he had tested positive for narcotics

use during the pendency of the case, but he asserted that his last test result was

negative for narcotics use. According to father, he stopped using methamphetamine

in October 2023, yet that means that father was using methamphetamine prior to

October 2023 and during the pendency of the case, which began in January 2023.

The copies of father’s narcotics-use testing results, which were admitted into

evidence at trial, showed that on February 6, 2023, father, by hair-follicle testing,

tested positive for methamphetamine and marijuana, and father, by urinalysis, tested

positive for amphetamine, methamphetamine, and marijuana.20 Further, on July 12,

2023, father, by hair-follicle testing and urinalysis, tested positive for amphetamine,

methamphetamine, and marijuana. The testing results also showed that father failed

to participate in narcotics-use testing on March 7, 2023, and on November 1, 2023,

father provided a urine sample that did not belong to him, which was then deemed a

positive test result. See In re A.L.S., 660 S.W.3d at 274.

From the evidence admitted at trial, the trial court could have reasonably

inferred that father engaged in narcotics use during the pendency of the

termination-of-parental-rights case. See In re D.J.G., 2023 WL 3513143, at *13; In

re D.D.M., 2019 WL 2939259, at *4–5; In re A.M., 495 S.W.3d at 580; see also In

20 DFPS Investigator Harrison also testified that on the day H.J. entered DFPS’s care in January 2023, father admitted to smoking marijuana.

42 re D.L.W.W., 617 S.W.3d 64, 78–79 (Tex. App.—Houston [1st Dist.] 2020, no pet.)

(“[W]e have [previously] concluded that illegal narcotics use may support

termination under Texas Family Code section 161.001(b)(1)(E).”); In re N.J.H., 575

S.W.3d 822, 831–32 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (“[A]

parent’s decision to engage in illegal drug use during the pendency of a termination

suit, when the parent is at risk of losing a child, may support a finding that the parent

engaged in conduct that endangered the child’s physical or emotional well-being.”

(alteration in original) (internal quotations omitted)).

Thus, viewing the evidence in the light most favorable to the trial court’s

findings, we conclude that the trial court could have formed a firm belief or

conviction that father engaged, or knowingly placed the children with persons who

engaged, in conduct that endangered their physical or emotional well-being. See

TEX. FAM. CODE ANN. § 161.001(b)(1)(E). And, viewing the evidence in a neutral

light, we conclude that a reasonable fact finder could have formed a firm belief or

conviction that father engaged, or knowingly placed the children with persons who

engaged, in conduct that endangered their physical or emotional well-being. See id.

Further, we conclude that the trial court could have reconciled any disputed

evidence in favor of finding that father engaged, or knowingly placed the children

with persons who engaged, in conduct that endangered their physical or emotional

well-being. And any disputed evidence was not so significant that a fact finder could

43 not have reasonably formed a firm belief or conviction that father engaged, or

knowingly placed the children with persons who engaged, in conduct that

endangered their physical or emotional well-being. See id.

Accordingly, we hold that the evidence is legally and factually21 sufficient to

support the trial court’s finding that father engaged, or knowingly placed the children

with persons who engaged, in conduct that endangered their physical or emotional

well-being. See id. see also In re D.J.G., 2023 WL 3513143, at *12–16.

We overrule father’s second issue.

Having held that the evidence is legally and factually sufficient to support the

trial court’s finding that father engaged, or knowingly placed the children with

persons who engaged, in conduct that endangered their physical or emotional

21 Regarding factual sufficiency, we are aware of some cases holding that limited evidence of narcotics use is not factually sufficient evidence to terminate parental rights under Texas Family Code section 161.001(b)(1)(E). See, e.g., In re C.V.L., 591 S.W.3d 734, 752 (Tex. App.—Dallas 2019, pet. denied). But this is not a case involving limited narcotics use. In addition to the evidence discussed above, Stevens, the children’s paternal grandmother, testified that she had known about father’s narcotics use since 2019. Further, at the November 1, 2023 permanency hearing, Stevens testified that father had abused narcotics “for many years,” including when H.J. was living with him. Further, the evidence at trial showed that father was convicted of the felony offense of possession of a controlled substance, namely methamphetamine, weighing less than one gram, in 2017. And father continued testing positive for methamphetamine during the pendency of the case. See In re J.C.K.H., No. 01-22-00283-CV, 2022 WL 4540807, at *7–8 (Tex. App.— Houston [1st Dist.] Sept. 29, 2022, pet. denied) (mem. op.) (holding evidence of parent’s narcotics use was factually sufficient to support trial court’s finding that parent had engaged in conduct that endangered child’s physical and emotional well-being).

44 well-being, we need not address the father’s first and third issues in which he asserts

that the evidence was legally and factually insufficient to support the trial court’s

findings that he knowingly placed, or knowingly allowed the children to remain, in

conditions or surroundings which endangered their physical or emotional well-being

or that he failed to comply with the provisions of a court order that specifically

established the actions necessary for him to obtain the return of the children. See

TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (O); In re A.V., 113 S.W.3d at 362 (only

one predicate finding under Texas Family Code section 161.001(b)(1) necessary to

support judgment of termination); see also TEX. R. APP. P. 47.1.

B. Best Interest of Children

In his fourth issue, father argues that the evidence is legally and factually

insufficient to support the trial court’s finding that termination of his parental rights

was in the best interest of the children because there was no testimony about the

children’s desires, evidence regarding the children’s present and future physical and

emotional needs was scant, there was no evidence that father ever acted aggressively

or violently toward the children, the condition of father’s home was acceptable,

father successfully completed certain requirements of his FSP, there was limited

evidence of the foster parents’ parental abilities, father testified that it was in the

children’s best interest to be returned to his care, father owned a trailer home and

45 was employed, and there was no evidence that father’s narcotics use and criminal

history endangered the children.

The best-interest analysis evaluates the best interest of the children. See In re

M.A.A., No. 01-20-00709-CV, 2021 WL 1134308, at *20 (Tex. App.—Houston [1st

Dist.] Mar. 25, 2021, no pet.) (mem. op.); In re D.S., 333 S.W.3d 379, 384 (Tex.

App.—Amarillo 2011, no pet.). It is presumed that the prompt and permanent

placement of the children in a safe environment is in their best interest. See TEX.

FAM. CODE ANN. § 263.307(a); In re D.S., 333 S.W.3d at 383.

There is also a strong presumption that the children’s best interest is served

by maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.

App.—Houston [1st Dist.] 2003, no pet.). Thus, we strictly scrutinize termination

proceedings in favor of the parent. See In re M.A.A., 2021 WL 1134308, at *20; In

re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.).

In determining whether the termination of father’s parental rights was in the

best interest of the children, we may consider several factors, including: (1) the

desires of the children; (2) the current and future physical and emotional needs of

the children; (3) the current and future emotional and physical danger to the children;

(4) the parental abilities of the parties seeking custody; (5) whether programs are

available to assist those parties; (6) plans for the children by the parties seeking

custody; (7) the stability of the proposed placement; (8) the parent’s acts or

46 omissions that may indicate that the parent-child relationship is not proper; and

(9) any excuse for the parent’s acts or omissions.22 See Holley v. Adams, 544 S.W.2d

367, 371–72 (Tex. 1976); In re L.M., 104 S.W.3d at 647. We may also consider the

statutory factors set forth in Texas Family Code section 263.307. See TEX. FAM.

CODE ANN. § 263.307; In re A.C., 560 S.W.3d 624, 631 n.29 (Tex. 2018); In re

C.A.G., No. 01-11-01094-CV, 2012 WL 2922544, at *6 & n.4 (Tex. App.—Houston

[1st Dist.] June 12, 2012, no pet.) (mem. op.).

We note that the above listed factors are not exhaustive, and there is no

requirement that DFPS prove all factors as a condition precedent to the termination

of parental rights. See In re C.H., 89 S.W.3d at 27; see also In re C.L.C., 119 S.W.3d

382, 399 (Tex. App.—Tyler 2003, no pet.) (“[T]he best interest of the child does not

require proof of any unique set of factors nor limit proof to any specific factors.”).

The absence of evidence about some of the factors does not preclude a fact finder

from reasonably forming a strong conviction or belief that termination is in the

children’s best interest. In re C.H., 89 S.W.3d at 27; In re J. G. S., 574 S.W.3d 101,

122 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). In some cases, undisputed

evidence of only one factor may be sufficient to support a finding that termination

is in the children’s best interest. See In re C.H., 89 S.W.3d at 27; see also In re

J. G. S., 574 S.W.3d at 122.

22 We noted that much of the evidence discussed below applies to multiple factors.

47 The same evidence of acts and omissions used to establish grounds for

termination under Texas Family Code section 161.001(b)(1) may also be relevant to

determining the best interest of the children. See In re C.H., 89 S.W.3d at 28; In re

L.M., 104 S.W.3d at 647. The trial court is given wide latitude in determining the

best interest of the children. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982);

see also Cuellar v. Flores, 238 S.W.2d 991, 992 (Tex. App.—San Antonio 1951, no

writ) (trial court “faces the parties and the witnesses, observes their demeanor and

personality, and feels the forces, powers, and influences that cannot be discerned by

merely reading the record”).

1. Children’s Desires

When father’s parental rights were terminated, H.J. was three years old and

E.J. was one year old. Neither child directly expressed a desire as to whether he

wished to be returned to father’s care or remain in the current placement.

When there is no specific evidence of the children’s desires or the children are

too young to express those desires, a fact finder may consider evidence that the

children are bonded with their foster family and receive good care in their current

placement. See In re L.W., No. 01-18-01025-CV, 2019 WL 1523124, at *18 (Tex.

App.—Houston [1st Dist.] Apr. 9, 2019, pet. denied) (mem. op.); In re L.M.N., 2018

WL 5831672, at *20.

48 DFPS caseworker Lozano testified that the children were doing well in their

foster home, and it was the only home that E.J. had ever known. The children had

never expressed that they were unhappy in their foster home. Both children were

bonded with their foster siblings and foster parents. H.J. interacted with his foster

siblings and the children’s foster siblings helped the children with getting snacks or

if they asked for something.

Child Advocates representative Smith similarly testified that the children were

doing well in their foster home where they had been for more than one year. The

children and their foster siblings had a true sibling relationship, and the children

were bonded with their foster parents and foster siblings. The children’s foster home

was safe and stable, and their physical and emotional needs were being met in the

home.

We note that Smith also testified that father and H.J. were bonded and father

interacted with H.J. at visits. Father also testified about his bond with H.J. and his

attempts to build a bond with E.J. during his visits with the child. However, father

acknowledged that he was late to certain visits with the children, and the transcript

from the November 1, 2023 permanency hearing, which was admitted into evidence

at trial, also indicates that father had shown up thirty-minutes late to visits. See In

re J.H., No. 01-22-00629-CV, 2023 WL 2169952, at *18 (Tex. App.—Houston [1st

Dist.] Feb. 23, 2023, pet. denied) (mem. op.) (considering parent either missed visits

49 with child or was late to visits with child in determining whether evidence sufficient

to support trial court’s best-interest finding).

Additionally, we note that although “[a] child’s love for [his] natural parent is

an important consideration in the best interest determination,” “[e]ven where a child

is attached to a parent, . . . [a] child’s desire to be returned to the parent [is]

not . . . dispositive of the best interest analysis,” especially “if the parent has engaged

in conduct dangerous to the child’s well-being.” In re M.S.L., No. 14-14-00382-CV,

2014 WL 5148157, at *9 (Tex. App.—Houston [14th Dist.] Oct. 14, 2014, no pet.)

(mem. op.); see also In re K.S.O.B., No. 01-18-00860-CV, 2019 WL 1246348, at

*19 (Tex. App.—Houston [1st Dist.] Mar. 19, 2019, no pet.) (mem. op.) (even

though children appeared happy to see parent at visits, that was not dispositive of

best-interest analysis).

2. Current and Future Physical and Emotional Danger

a. Criminal Conduct

A parent’s criminal history is relevant in analyzing the present and future

emotional and physical danger to the children and whether a parent can provide a

safe and stable home for the children. See In re D.J.G., 2023 WL 3513143, at *20;

see also In re J.S.B., Nos. 01-17-00480-CV, 01-17-00481-CV, 01-17-00484-CV,

2017 WL 6520437, at *18–19 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet.

denied) (mem. op.); In re T.L.S., No. 01-12-00434-CV, 2012 WL 6213515, at *6

50 (Tex. App.—Houston [1st Dist.] Dec. 13, 2012, no pet.) (mem. op.) (evidence of

parent’s criminal history may support trial court’s finding termination of parental

rights in children’s best interest). And “[a]s a general rule, conduct that subjects a

child to a life of uncertainty and instability endangers the physical and emotional

well-being of [the] child[ren].” In re R.W., 129 S.W.3d at 739.

Father admitted that he had engaged in criminal conduct in the past. For

instance, according to father, in 2022, he “spent four days in jail for a felony theft,”

and in 2021, he spent twenty-two days in jail related to “another misdemeanor.” In

re A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco 2012, pet. denied) (“Evidence of

past misconduct . . . can be used to measure a parent’s future conduct.”). Further,

father acknowledged that using narcotics, including methamphetamine, which he did

before and during the pendency of this case, constituted criminal conduct. See In re

J.J.O., No. 04-18-00425-CV, 2018 WL 5621881, at *2 (Tex. App.—San Antonio

Oct. 31, 2018, no pet.) (mem. op.) (“A parent’s criminal activities . . . are relevant

to a best interest analysis.”). And Stevens, the children’s paternal grandmother,

testified that father had a ”criminal history involving substance abuse[].”

Additionally, the trial court admitted into evidence several copies of

judgments of conviction related to father. One judgment of conviction, entered on

June 8, 2017, showed that father pleaded guilty to the felony offense of possession

51 of a controlled substance, namely methamphetamine, weighing less than one gram,23

and the trial court, in accord with the agreed punishment recommendation from the

State, assessed father’s punishment at confinement for 180 days. Further, another

judgment of conviction, entered on April 3, 2018, showed that father had pleaded

guilty to the misdemeanor offense of theft,24 and the trial court, in accord with the

agreed punishment recommendation from the State, assessed father’s punishment at

confinement for thirty days. And a third judgment of conviction, entered on October

26, 2018, showed that father pleaded guilty to the misdemeanor offense of burglary

of a vehicle,25 and the trial court, in accord with the agreed punishment

recommendation from the State, assessed father’s punishment at confinement for

sixty-nine days. In re Z.L.W., No. 01-12-00736-CV, 2013 WL 396270, at *5 (Tex.

App.—Houston [1st Dist.] Jan. 31, 2013, no pet.) (mem. op.) (parent’s pattern of

committing criminal offenses constituted evidence of current and future danger to

child); In re A.M., 385 S.W.3d at 82 (“Evidence of past misconduct . . . can be used

to measure a parent’s future conduct.”).

Still yet, we note that DFPS investigator Harrison testified that in August

2022, law enforcement officers were dispatched to a home due to a disturbance. At

23 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115(a), (b) (offense constitutes state jail felony). 24 See TEX. PENAL CODE ANN. § 31.03(a), (e)(2). 25 See id. § 30.04(a), (d).

52 the time, father had pushed his way into the home and assaulted mother, who was

holding H.J., when she answered the door. Father was charged with the offense of

criminal trespass because of his actions. See In re D.L.R., No. 04-22-00811-CV,

2023 WL 3856732, at *3 (Tex. App.—San Antonio June 7, 2023, pet. denied) (mem.

op.) (trial court may consider whether there has been assaultive conduct in

determining best interest of child); see also In re J.B.M., No. 04-18-00717-CV, 2019

WL 1139858, at *2 (Tex. App.—San Antonio Mar. 13, 2019, pet. denied) (mem.

op.) (“Domestic violence and a propensity for violence may be considered evidence

of endangerment, even if the endangering acts did not occur in the children’s

presence, were not directed at the children, or did not cause actual injury to the

children.”). Additionally, on the day that H.J. was placed in DFPS’s care, father

admitted to Harrison that he used narcotics.

DFPS caseworker Lozano also testified that she was concerned about father’s

criminal history because it indicated that he lacked the ability to refrain from

criminal conduct, and she noted that father had “picked up” a new criminal case in

January 2023, but it was eventually dismissed. In 2021, father was “arrested for

trespassing” and he went to jail “for [twenty-two] days.”

b. Narcotics Use

Illegal narcotics use by a parent may constitute evidence of current and future

danger to a child. See In re D.J.G., 2023 WL 3513143, at *23; In re O.J.P., No.

53 01-21-00163-CV, 2021 WL 4269175, at *19–21 (Tex. App.—Houston [1st Dist.]

Sept. 21, 2021, no pet.) (mem. op.) (considering evidence of parent’s narcotics use

in determining current and future danger to child); see also In re J.O.A., 283 S.W.3d

336, 345 (Tex. 2009) (stating “a parent’s use of narcotics and its effect on his or her

ability to parent may qualify as an endangering course of conduct”); In re S.R.H.,

No. 01-15-0714-CV, 2016 WL 430462, at *10–11 (Tex. App.—Houston [1st Dist.]

Feb. 4, 2016, no pet.) (mem. op.) (parent’s past narcotics use is indicative of

instability in home environment); Cervantes-Peterson, 221 S.W.3d at 254–55

(illegal narcotics use while parental rights are in jeopardy may be considered

endangering course of conduct critical to finding that termination is in child’s best

interest).

As previously noted, DFPS caseworker Lozano testified that DFPS’s primary

concern with father was his use of narcotics. Lozano stated that father had not

consistently tested negative for narcotics use during the pendency of the case, and

he did not attend all required narcotics-use testing while the case was pending. See

In re W.E.C., 110 S.W.3d at 239 (fact finder could reasonably infer parent’s failure

to complete scheduled narcotics-use screenings indicated she avoided testing

because she had used narcotics). According to Lozano, father also admitted to using

narcotics during the pendency of the case, and he tested positive for

54 methamphetamine “all the way up until October [2023].”26 Further, at a

narcotics-use test in November 2023, father provided a urine sample that was

determined not to belong to him, resulting in a positive test result. See In re A.L.S.,

660 S.W.3d at 276 (considering parent’s attempt to “falsify drug tests” in holding

evidence legally and factually sufficient to support finding termination in child’s

best interest); see also In re E.A.R., 672 S.W.3d 716, 723 (Tex. App.—San Antonio

2023, pet. denied) (same). Although Lozano acknowledged that father had tested

negative for narcotics use in February 2024, she stated that father did not seem to

have “a plan in place to help him prevent any relapses” and he had never

“articulate[d] any[] . . . plan to keep himself sober.”27 See In re E.A.R., 672 S.W.3d

at 723 (considering evidence parent had not successfully addressed his substance

abuse issues in holding evidence sufficient to support trial court’s best-interest

finding).

The copy of the transcript from the November 1, 2023 permanency hearing,

which the trial court admitted into evidence, also indicates that father did not

consistently participate in narcotics-use testing during the pendency of the case.

Lozano testified at that hearing that father was ordered to participate in narcotics-use

26 The children entered DFPS’s care in January 2023. 27 Father testified that he had been ordered to attend AA and NA meetings, but they were “not for [him],” and he did not have an AA or NA sponsor. Instead, he attended church to “seek [his] sobriety.” According to father, he had a “relapse prevention plan,” but it was not written down.

55 testing in July 2023, and at that time, he tested positive for amphetamine,

methamphetamine, and marijuana. After being ordered in July 2023 to participate

in narcotics-use testing, father failed to do so consistently. According to Lozano,

the first time that father reengaged in narcotics-use testing after July 2023 was on

October 25, 2023. At that time, father tested positive for amphetamine,

methamphetamine, and marijuana.

At trial, father testified that the biggest issue he needed to address was his

narcotics use. Although father stated that he participated in narcotics-use testing

during the pendency of the case, he noted that he did not show up for all the required

narcotics-use testing. See In re Z.J.B., No. 14-18-00759-CV, 2019 WL 347474, at

*7 (Tex. App.—Houston [14th Dist.] Jan. 29, 2019, pet. denied) (mem. op.) (parent’s

positive narcotics-use tests and failure to appear for other narcotics-use tests

weighed in favor of trial court’s best-interest finding); In re I.W., 2016 WL 1533972,

at *6 (parent’s “refusal to submit to the drug test may be treated by the [fact finder]

as if he had tested positive for drugs”); see also In re C.A.B., 289 S.W.3d at 885 (fact

finder could infer parent’s failure to submit to court-ordered narcotics-use testing

indicated she was avoiding testing because she was using narcotics). Further, father

agreed that he had tested positive for narcotics use during the pendency of the case,

but he stated that his last test result was negative for narcotics use. But see In re

J.H.G., No. 01-16-01006-CV, 2017 WL 2378141, at *9 (Tex. App.—Houston [1st

56 Dist.] June 1, 2017, pet. denied) (mem. op.) (trial court “is not required to ignore a

history of narcotics use merely because it abates as trial approaches”); In re M.G.D.,

108 S.W.3d 508, 514 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)

(“[E]vidence of a recent turnaround should be determinative only if it is reasonable

to conclude that rehabilitation, once begun, will surely continue.”). According to

father, he stopped using methamphetamine in October 2023, but that would mean

that father was using methamphetamine prior to October 2023 and during the

The copies of father’s narcotics-use testing results, which were admitted into

evidence at trial, showed that on February 6, 2023, father, by hair-follicle testing,

tested positive for methamphetamine and marijuana, and father, by urinalysis, tested

positive for amphetamine, methamphetamine, and marijuana.28 Further, on July 12,

2023, father, by hair-follicle testing and urinalysis, tested positive for amphetamine,

methamphetamine, and marijuana. The testing results also showed that father failed

to participate in narcotics-use testing on March 7, 2023, and on November 1, 2023,

father provided a urine sample to be tested that did not belong to him, which was

then deemed a positive test result. See In re A.L.S., 660 S.W.3d at 274, 276; see also

In re E.A.R., 672 S.W.3d at 723.

28 DFPS Investigator Harrison also testified that on the day H.J. entered DFPS’s care in January 2023, father admitted to smoking marijuana.

57 3. Current and Future Physical and Emotional Needs, Parental Abilities, Plans for Children, and Stability of Proposed Placement

a. Children’s Needs

There is nothing in the trial record to establish that the children’s physical and

emotional needs differ in any respect to those of other children their ages. See In re

E.N.C., 384 S.W.3d at 808 (noting no evidence that children’s needs differed from

other children). However, the children need a safe and stable home. See TEX. FAM.

CODE ANN. § 263.307(a) (prompt and permanent placement of child in safe

environment presumed to be in child’s best interest); In re G.M.G., 444 S.W.3d 46,

60 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (parent who lacks ability to

provide child with safe and stable home is unable to provide for child’s emotional

and physical needs).

DFPS caseworker Lozano testified that father lived in a trailer home.

Although father gave Lozano a copy of a lease agreement purportedly for the lot of

land where his trailer home was located, the lease agreement was not signed, and it

did not provide any information for the lessor. Lozano had requested that father

provided her with information so that DFPS could verify that his trailer home was

properly located on the lot of land, but father had not provided it.

58 Lozano also noted that during the pendency of the case, father was evicted

from the property where his trailer home was located previously.29 And although

father had more than a year to establish that he could provide a safe and stable home

for the children, in Lozano’s opinion, he had failed to do so.

As to the condition of father’s trailer home, Lozano described it as “adequate,”

and she explained that it was clean and had electricity. But it was setup for a single

adult and did not appear to have any “accommodations or provisions for the

children.”

Lozano further explained that father had not provided adequate proof of

consistent employment during the pendency of the case. Father had provided her

with one “pay stub” in October 2023 when he was “working for a company.” But

the father had purportedly become self-employed.30 Father had provided Lozano

with “invoices of job sites” where he had been working, but she was unable to verify

the invoices provided. Child Advocates representative Smith similarly testified that

during the pendency of the case, father had not maintained stable, consistent

employment; rather, his employment seemed to “ebb and flow.” See In re B.M.S.,

581 S.W.3d 911, 918–19 (Tex. App.—El Paso 2019, no pet.) (parent’s employment

29 Father testified that he had not been evicted from the RV park named “Palms RV,” where he previously parked his trailer home. But Palms RV did tell him that he had to move his trailer home because he had not been paying rent. Father then moved his trailer home to its current lot. 30 Father testified that he was self-employed as an electrician.

59 relevant to whether parent can provide stable and safe living situation); In re B.J.,

No. 01-15-00886-CV, 2016 WL 1389054, at *12 (Tex. App.—Houston [1st Dist.]

Apr. 7, 2016, no pet.) (mem. op.) (considering parent’s lack of stable employment

and lack of “verifiable income” in conducting best-interest analysis (internal

quotations omitted)). Father’s FSP required him to “maintain legal employment and

provide [the DFPS] caseworker with proof of stable and consistent [employment]

documentation such as paycheck stubs.”

b. Father’s Supervision

DFPS investigator Harrison testified that on January 12, 2023, a CPS

investigator visited the children’s maternal grandmother’s apartment and saw

narcotics paraphernalia “wax all over the house including pin[n]ed to [the] walls.”

(Internal quotations omitted.) There were also “open baggies of [m]arijuana”

present.31 Harrison then arrived at the apartment and found “the home environment

to be deplorable.” According to Harrison, “there was a smell of [m]arijuana and

animal feces.” H.J. was in the apartment with mother. Harrison stated that H.J. was

wearing clothes that did not fit him. He had red marks on his face, and his clothes

were “filthy.” H.J. “had a foul smell emanating from his body[,] and his diaper was

soiled.”

31 Mother’s brother was arrested by law enforcement officers that day after admitting “to having dope” in the home. (Internal quotations omitted.)

60 Mother told Harrison that father knew that she was supposed to be supervised

when having possession of H.J. In response, father, who had come to the apartment

after mother called him, cursed at mother, telling her to “[s]hut the fuck up.”

(Internal quotations omitted.)

Father’s FSP similarly stated that on January 12, 2023, H.J. was found to be

living with mother in a home with “visible drug paraphernalia and baggies of

marijuana inside.” According to the FSP, father was not protective of H.J. because

he left the child unsupervised with mother. See TEX. FAM. CODE ANN.

§ 263.307(b)(12)(C) (in determining whether parent willing and able to provide

child with safe environment, considering whether parent demonstrates adequate

parenting skills, such as “supervision consistent with the child’s safety”); In re

A.J.B., No. 10-18-00274-CV, 2018 WL 6684808, at *3 (Tex. App.—Waco Dec. 19,

2018, no pet.) (mem. op.) (“[Y]oung children are particularly vulnerable if left in the

custody of a parent who is unable or unwilling to protect them or attend to their

needs because they have no ability to protect themselves.”); In re S.B., 207 S.W.3d

877, 886 (Tex. App.—Fort Worth 2006, no pet.) (parent’s inability to provide

adequate care for child, lack of parenting skills, and poor judgment may be

considered when determining child’s best interest); In re C.M.W., No.

01-02-00474-CV, 2003 WL 579794, at *5 (Tex. App.—Houston [1st Dist.] Feb. 27,

2003, no pet.) (mem. op.) (children’s basic needs include appropriate supervision).

61 As to the January 12, 2023 incident, father testified that he had “dropped [H.J.]

off to visit” mother at the maternal grandmother’s apartment. According to father,

at drop off, he went inside and inspected the apartment. He felt that it was clean,

and there were child locks on the cabinets and locks on the door. Mother confirmed

in her testimony that father had dropped H.J. off at the maternal grandmother’s

apartment but stated that he had done so the night before so that mother could watch

H.J. while father was at work on January 12, 2023—indicating that mother’s visit

with H.J. was not short and H.J. was with mother at the apartment for an extended

period.

c. Father’s Acts or Omissions

A parent’s failure to comply with his FSP supports a finding that termination

of his parental rights is in the best interest of the children. See In re J.S.B., 2017 WL

6520437, at *22; In re E.A.F., 424 S.W.3d 742, 752 (Tex. App.—Houston [14th

Dist.] 2014, pet. denied). Here, father’s FSP required him to “maintain stable

housing that [was] sanitary and free from any drugs and hazardous objects” and

“provide proof of housing with a lease agreement to” the DFPS caseworker. Father

was also required to “maintain legal employment and provide [the DFPS]

caseworker with proof of stable and consistent [employment] documentation such

as paycheck stubs” and “provide any proof of documentation of any additional

sources of income, such as governmental assistance.” Additionally, the FSP

62 required father to “participate in a[n] [eight-]week parenting course that w[ould]

assist him with understanding [the] children’s growth and development” and he was

required to “provide proof of [a] certificate of completion once he ha[d] received it.”

Further, father was required to “maintain monthly contact with [the DFPS]

caseworker and provide [his] most up to date method of contact”; if his contact

information changed, father was to “notify [the DFPS] caseworker with his updated

information within [twenty-four hours]” of the change. Father was also required to

“participate in all case related events[,] such as court hearings, meetings, conferences

and visitation appointments with the children” and he was to “refrain from any illegal

and criminal activity.” And father’s FSP required him to “participate in a substance

abuse assessment and follow all recommendations,” “participate in random hair

follicle and urine analysis drug testing throughout the duration of the case,” and

“participate in a psychological assessment and follow all recommendations from the

assessment.”

Father testified that he had received his FSP, but he failed to participate in all

required narcotics-use testing. And DFPS caseworker Lozano testified that father

had not established a safe and stable home for the children or provided “proof of

stable and consistent [employment].” Further, the transcript for the November 1,

2023 permanency hearing, which the trial court admitted into evidence, showed that

father failed to attend that hearing. See In re M.L.H., No. 04-21-00408-CV, 2022

63 WL 526501, at *4 (Tex. App.—San Antonio Feb. 23, 2022, pet. denied) (mem. op.)

(holding evidence legally and factually sufficient to support trial court’s best-interest

finding where parent “engaged in her service plan, [but] failed to successfully

complete it”).

d. Current Placement

DFPS caseworker Lozano testified that the children were placed together in a

foster home, where they were doing well. The children had been in the same foster

home since they entered DFPS’s care in January 2023. The children had never

As to H.J., Lozano testified that when he was first placed in the foster home,

he had “a lot of redness and dry patches on his face” and on his back. There was

“sort of like an eczema texture on his skin,” and H.J. had “a lot of scars on his chest

and on his shoulders, possibly due to scratching” his dry skin. H.J.’s foster mother

told Lozano that she would put lotion on H.J. every day, and when Lozano saw H.J.

about a week or two later, the redness and dry patches were cleared up.

Lozano further testified that at the time of trial, H.J. was three years old, and

he was able to say words. He asked for what he wanted and what he needed. He

had been fully potty trained, and he knew his numbers and colors. When Lozano

visited the foster home, H.J. appeared very bonded with his foster siblings. At visits,

64 Lozano saw H.J. talking with his foster siblings and E.J. H.J. would share his toys,

and his foster siblings would share their toys with him.

As to E.J., Lozano testified that the children’s foster home was the only home

that E.J. had ever known. E.J. was one year old at the time of trial and could walk.

E.J. appeared bonded with everyone in the foster home.

As to the children’s foster parents and home, Lozano explained that the

children’s foster parents did not have a criminal history and there was no evidence

of domestic violence or narcotics use by the children’s foster parents. The foster

home where the children lived was a single-story home, with four bedrooms, an open

living room, and a kitchen. According to Lozano, the foster home was the only safe

and stable home that the children had ever known, and it would be detrimental to the

children to remove them from their foster home.32

Child Advocates representative Smith also testified that the children were

doing well in their foster home. The children’s foster parents were planning birthday

celebrations for the children’s birthdays. H.J. had been enrolled in a daycare

32 The transcript from the November 1, 2023 permanency hearing, which the trial court admitted into evidence, also indicates that they children were doing well in their foster home. The children were “meeting their milestones and achieving any goals that their age would require.” At the time of the permanency hearing, H.J. was two years old, and he was attending a daycare program during the week. On weekends or holiday breaks, the children’s foster parents would take the family to the lake, to the beach, to the pool, or to the park. The foster parents involved H.J. in recreational activities that were appropriate for his age.

65 program. H.J. received a bike and a helmet from his foster parents as a Christmas

present, and the foster parents planned on taking trips with the children. According

to Smith, the children’s emotional and physical needs were being met in their

placement.

Smith also explained that in their foster home, the children shared a bedroom.

E.J. slept in a crib with no pillows for his safety. H.J. had a toy chest in the bedroom,

and E.J. had baby toys and chewing toys because his teeth were coming in.

According to Smith, the children were bonded with their foster parents and

foster siblings, and the children’s foster parents intended to adopt the children. See

In re S.H., No. 01-22-00255-CV, 2022 WL 17254956, at *14 (Tex. App.—Houston

[1st Dist.] Nov. 29, 2022, pet. denied) (mem. op.) (“A child’s bond with his

placement family implies that the child’s desires would be fulfilled by adoption by

the placement family.”). In Smith’s opinion, the children’s foster home was the only

safe and stable home that they had ever known, and Smith believed that it would be

detrimental to the children if they were removed from the foster parents’ care.

The children’s foster dad testified that, at the time of trial, the children had

been living in their foster home for about fourteen months. The children called their

foster parents “Mom and Dad,” and the foster parents loved the children. See id. at

*21 (child referred to placement family as “[m]om” and “[d]ad” (internal quotations

omitted)); In re G.J.A., No. 13-22-00209-CV, 2022 WL 3092177, at *8 (Tex.

66 App.—Corpus Christi–Edinburg Aug. 4, 2022, no pet.) (mem. op.) (in holding

sufficient evidence to support trial court’s finding termination of parental rights in

children’s best interest, considering evidence showed that children were thriving in

current placement, placement was meeting all the children’s needs, children called

their foster parents “mom and dad,” and children were bonded with foster family

(internal quotations omitted)).

As to H.J., the foster dad testified that when H.J. entered the foster parents’

care, he had minor rashes on his face and body, so the foster parents took him to the

doctor, and the children’s foster mother used “lotions and other things” to heal the

rashes. H.J. also had anger issues when he first entered the foster parents’ care; he

would throw himself down, bang his head, and hit stuff. H.J. still did that “a little

bit here and there,” but “for the most part, he[] [was] doing really, really well” in the

home. The foster dad stated that H.J. was an intelligent child.

As to E.J., the foster dad testified that E.J. entered the foster parents’ care as

a newborn, and the foster home was the only home that E.J. had ever known. E.J.

While the children had been in the foster parents’ care, the foster parents had

attended all court hearings and family group conferences. The foster parents had

also taken the children to their scheduled visits with mother and father. The

children’s foster dad noted that he was employed “build[ing] process control

67 systems,” and his income was sufficient to support the family. See In re M.R.H.,

No. 07-15-00089-CV, 2015 WL 3463025, at *4 (Tex. App.—Amarillo May 26,

2015, pet. denied) (mem. op.) (considering as evidence of foster family’s ability to

care for child that foster parent was gainfully employed). The foster parents owned

their home, which sat on a couple acres of land.

The children’s foster dad also noted that he and the foster mother had two

biological children, who were bonded with the children. They were the children’s

siblings. If mother’s and father’s parental rights were terminated, the foster parents

wanted to adopt the children, which the foster dad believed was in the children’s best

interest. The foster parents planned on raising the children and loving them. They

hoped to start contributing to a college fund for the children once they were adopted.

See In re T.M.R., No. 13-21-00144-CV, 2021 WL 4998438, at *7 (Tex. App.—

Corpus Christi–Edinburg Oct. 28, 2021, no pet.) (mem. op.) (“A factfinder may

consider the consequences of [the] failure to terminate parental rights and may also

consider that the child’s best interest may be served by termination so that adoption

may occur.”); In re L.W., 2019 WL 1523124, at *23 (in holding evidence sufficient

to support trial court’s best-interest finding, considering children were placed in

adoptive home with foster parents who wanted children to continue living with

them); see also In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.]

68 2014, no pet.) (“The goal of establishing a stable, permanent home for a child is a

compelling . . . interest.”)

Viewing the evidence in the light most favorable to the trial court’s finding,

we conclude that the trial court could have formed a firm belief or conviction that

termination of father’s parental rights was in the best interest of the children. See

TEX. FAM. CODE ANN. § 161.001(b)(2). Viewing the evidence in a neutral light, we

conclude that a reasonable fact finder could have formed a firm belief or conviction

that termination of father’s parental rights was in the best interest of the children.

See id. We further conclude that the trial court could have reconciled any disputed

evidence in favor of finding that termination of father’s parental rights was in the

children’s best interest, or any disputed evidence was not so significant that a fact

finder could not have reasonably formed a firm belief or conviction that termination

is in the best interest of the children. See id.

Accordingly, we hold that the evidence is legally and factually sufficient to

support the trial court’s finding that termination of father’s parental rights was in the

best interest of the children. See id.

We overrule father’s fourth issue.

Managing Conservatorship

In his fifth issue, father argues that the trial court erred in appointing DFPS as

the sole managing conservator of the children because DFPS “failed to introduce

69 sufficient evidence at trial that demonstrated any specific, identifiable behavior[s]

on [father’s] part that would significantly impair the children’s physical health or

emotional development” and “there was legally and factually insufficient evidence

introduced at trial to support naming DFPS as managing conservator.”

The Texas Family Code provides that “[i]f the court terminates the

parent-child relationship with respect to both parents or to the only living parent, the

court shall appoint a suitable, competent adult, [DFPS], or a licensed child-placing

agency as managing conservator of the child.” TEX. FAM. CODE ANN. § 161.207(a);

see also In re S.M.G., No. 01-17-00056-CV, 2017 WL 2806332, at *8 (Tex. App.—

Houston [1st Dist.] June 29, 2017, pet. denied) (mem. op.) (“When the parents’

parental rights have been terminated, [Texas] Family Code section 161.207 governs

the appointment of a managing conservator.”). Generally, we review a trial court’s

conservatorship determination for an abuse of discretion. In re J.A.J., 243 S.W.3d

611, 616 (Tex. 2007).

Importantly, an order terminating the parent-child relationship divests the

parent of all legal rights and duties with respect to his children. See TEX. FAM. CODE

ANN. § 161.206(b); In re A.L.J., No. 01-19-00251-CV, 2019 WL 4615826, at *9

(Tex. App.—Houston [1st Dist.] Sept. 24, 2019, no pet.) (mem. op.). A parent with

no legal rights with respect to his children lacks standing to attack the portion of the

70 trial court’s order appointing DFPS as the sole managing conservator of the children.

See In re A.L.J., 2019 WL 4615826, at *9.

Here, we have overruled father’s complaint that the trial court erred in

terminating his parental rights to the children. See In re J.H., 2023 WL 2169952, at

*27; see also In re A.L.J., 2019 WL 4615826, at *9 (“Once we overrule a parent’s

challenge to the termination order, the trial court’s appointment of [DFPS] as sole

managing conservator may be considered a ‘consequence of the termination’ . . . .”);

In re S.R., 452 S.W.3d 351, 359 n.3 (Tex. App.—Houston [14th Dist.] 2014, pet.

denied) (“A trial court does not abuse its discretion in appointing [DFPS] as

conservator of the children where the evidence is sufficient to support termination

of parental rights.”); Quiroz v. Dep’t of Fam. & Protective Servs., No.

01-08-00548-CV, 2009 WL 961935, at *11 (Tex. App.—Houston [1st Dist.] Apr. 9,

2009, no pet.) (mem. op.) (refusing to address parent’s complaint evidence

insufficient to support DFPS’s appointment as sole managing conservator where

evidence sufficient to support termination of parent’s rights). Thus, the trial court’s

order terminating father’s parental rights divested him of his legal rights and duties

to the children. See TEX. FAM. CODE ANN. § 161.206(b); In re J.H., 2023 WL

2169952, at *27; see also In re A.L.J., 2019 WL 4615826, at *9 (“Because we have

overruled [parent’s] challenge to the portion of the trial court’s order terminating her

71 parental rights, the order has divested [her] of her legal rights and duties related to

[the children].”).

Having no legal rights with respect to the children, we hold that father lacks

standing to challenge the portion of the trial court’s order appointing DFPS as sole

managing conservator of the children. See In re J.H., 2023 WL 2169952, at *27; In

re A.L.J., 2019 WL 4615826, at *9 (“[Parent] d[id] not have standing to challenge

the portion of the order appointing [DFPS] as permanent managing conservator of

the children because any alleged error could not injuriously affect her rights.”).

We overrule father’s fifth issue.

Conclusion

We affirm the order of the trial court.33

Julie Countiss Justice

Panel consists of Chief Justice Adams and Justices Hightower and Countiss.

33 On October 25, 2024, father filed a motion to strike the appellee’s brief filed by DFPS because it “was filed past the time allotted by the Texas Rules of Appellate Procedure.” The result of this appeal is the same whether or not this Court considers DFPS’s brief. Accordingly, we dismiss father’s motion to strike as moot.