Opinion issued March 11, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00723-CV ——————————— IN THE INTEREST OF J.C.P.L., JR., A CHILD
On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2023-00769J
MEMORANDUM OPINION
Appellant J.C.P.L. (“Father”) appeals the trial court’s judgment terminating
the parent-child relationship with his son, J.C.P.L., Jr. (“Jack”).1 Father contends
the evidence was legally and factually insufficient to support the trial court’s
findings that termination of his parental rights was (1) appropriate on endangerment
1 We refer to the child by a pseudonym. grounds and for failing to complete the court-ordered service plan, and (2) in Jack’s
best interest. See TEX. FAM. CODE § 161.001(b)(1)(D)–(E), (O)–(P), (b)(2). Father
also contends the trial court abused its discretion by appointing the Department of
Family and Protective Services (“Department”) as Jack’s sole managing
conservator.
We find no reversible error and affirm.
I. Background
A concerned citizen called police after finding three-year-old Jack wandering
alone near a busy street around 7:00 a.m. The police contacted the Department, and
the Department sent an investigator. Jack appeared to be healthy, aside from some
minor scratches on his thumb and forearm. But he was wearing soiled clothing that
was too small. And he had “defecated through his diaper to his pants.” Jack could
not tell the Department’s investigator his name, his parents’ names, or where he
lived. The investigator changed Jack’s clothes and diaper, confirmed with a doctor
that Jack was not injured, fed him lunch, and let him play at a park while she waited
for someone to report Jack missing. About ten hours after Jack was found by the
concerned citizen, Jack’s Mother called police.
2 The investigator met with Mother at the family’s apartment,2 which was about
a half mile from where Jack was found. Mother told the investigator that she had
not noticed Jack was missing until around 2:00 p.m. because she was sleeping.3 She
admitted drinking alcohol and smoking marijuana before going to bed around 1:00
a.m. For most of the night before, Mother was Jack’s sole caretaker because Father
was at a family party until around 1:00 or 1:30 a.m.
Father also had been drinking alcohol and smoking marijuana the night before
Jack wandered away. When he came home from the party, Father played with Jack
before falling asleep with Jack on the couch in the living room around 2:00 a.m.
Jack was dressed and wearing shoes when he fell asleep, which Father believed
might have signaled to Jack that he could leave the house when he woke up. Father
described Jack as “programmed when we put his shoes on, [that] we’re fixing to go.”
Father did not notice that Jack was missing when he woke up. Although Father
could see that Jack was not in the living room or in the other common areas like the
kitchen and bathroom, he assumed Jack was in the bedroom with Mother. Father
left to attend another family party around 1:30 p.m. without confirming Jack was in
the apartment.
2 Mother and Father also have an adult son and an adult daughter. Their adult daughter and her boyfriend and child also lived in the family apartment when Jack was removed. 3 Mother testified that she looked for Jack on her own before calling police. 3 The investigator was concerned that neither Mother nor Father asked where
Jack had been found or if he had been hurt. The investigator noticed that there was
no safety lock on the front door, not much food in the apartment, and no bed for Jack
to sleep in. Mother said that Jack used to have a bed but otherwise slept on the living
room couch with Father, as he had done before he wandered away.
The Department took custody of Jack and petitioned to terminate Mother’s
and Father’s parental rights on several grounds, including that Mother’s and Father’s
drug use had endangered Jack. The trial court approved service plans for Mother
and Father. Among other things, Father’s plan required him to maintain a stable
income, complete a psychosocial evaluation and follow any therapy
recommendations, complete parenting classes, participate in drug and alcohol
assessments and follow all recommendations, and agree to drug testing that included
a random ETG alcohol test once a month, two random urinalysis tests each month,
and a hair follicle drug test every three months.
At the termination hearing, the Department presented evidence that Father
completed some, but not all, services. Specifically, the Department caseworker
testified that Father had not provided proof of housing or employment. But he did
complete parenting classes and attend visits with Jack. And he did complete the
drug assessment, which recommended individual therapy, outpatient therapy, and
Narcotics Anonymous. Father completed individual therapy but not outpatient
4 therapy or Narcotics Anonymous. He claimed not to know that he needed to attend
Narcotics Anonymous meetings.
The caseworker was concerned that both parents continued to use controlled
substances while Jack was in the Department’s care. Although most of Father’s drug
test results were negative, he had positive results more than once. Between May
2023 and May 2024, Father tested positive for (1) methamphetamine and
benzoylecgonine once, (2) marijuana twice, and (3) cocaine four times. Mother also
tested positive for marijuana and cocaine, sometimes during the same month as
Father.4
Confronted with the positive drug test results, Father acknowledged a history
of marijuana use that began at age 18. He also acknowledged Mother’s use of
marijuana, testifying that he knew she used marijuana during her pregnancy with
Jack, that he knew Jack had tested positive for marijuana at birth, and that he knew
Mother was smoking marijuana when she was watching Jack the night before he
wandered off. But he denied that drinking and smoking interfered with either his or
Mother’s ability to care for Jack. He also denied that he continued to use marijuana
during the case or had ever used cocaine.
4 Even though her service plan required hair follicle drug tests, Mother kept her hair too short to provide any hair follicle samples. She testified that she preferred to keep a shaved hairstyle. Consequently, her drug tests were limited to ETG tests for alcohol and urinalysis. 5 The caseworker’s other concern was Mother’s and Father’s parenting skills.
She testified that Jack was happy to see Mother and Father on visits, but Mother and
Father did not always keep their eyes on him and often used phones or the internet
to keep him engaged.
This inattentiveness was notable because, while Jack was in the Department’s
care, he was diagnosed with autism and ADHD and was recommended for
multi-disciplinary treatment that included services to help with socialization skills
as well as speech therapy, occupational therapy, physical therapy, and play therapy.
Jack had received speech therapy at school and was on the wait list for additional
therapies. Additionally, Jack’s therapist recommended that Jack be closely
supervised in a structured environment, which his foster family provided. The
caseworker described Jack as making “tremendous strides” and thriving with his
foster family.
Mother acknowledged that her interactions with Jack had improved while he
was in the Department’s care and receiving therapy. The Department spoke with
her and Father about Jack’s diagnosis and provided them with information about
resources; however, they had not asked questions about his therapies or explored
what specialists or services were available in their area. Father testified that he was
looking into a “a couple of schools . . . for [Jack’s] autism.” Asked if he knew what
6 kind of autism resources were available, Father answered “not right off, no,” but that
he had a “general idea.”
At the close of evidence, the trial court terminated both Mother’s and Father’s
parental rights to Jack. The trial court found that termination was appropriate under
four predicate grounds because Mother and Father had engaged in the following acts
or omissions:
• knowingly placed or knowingly allowed Jack to remain in conditions or surroundings which endangered Jack’s physical or emotional well-being, see TEX. FAM. CODE § 161.001(b)(1)(D);
• engaged in conduct or knowingly placed Jack with persons who engaged in conduct which endangered Jack’s physical or emotional well-being, see id. § 161.001(b)(1)(E);
• failed to comply with the provisions of the court-ordered family services plan that specifically established the actions necessary for Father to obtain the return of Jack, see id. § 161.001(b)(1)(O); and
• used a controlled substance, as defined by Chapter 481 of the Health and Safety Code, in a manner that endangered Jack’s health or safety and (1) failed to complete a court-ordered substance abuse treatment program, or (2) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance. See id. § 161.001(b)(1)(P).
The trial court also found that termination of Mother’s and Father’s parental rights
was in Jack’s best interest and appointed the Department as Jack’s sole managing
conservator. See id. §§ 161.001(b)(2), .207(a). Only Father appealed.
7 II. Termination of Parental Rights
Father’s first through fifth issues challenge the legal and factual sufficiency
of the evidence supporting each of the trial court’s predicate findings and the
best-interest finding. See id. § 161.001(b)(1)(D)–(E), (O)–(P), (b)(2).
A. Standard of review and applicable law
A parent’s rights to the “companionship, care, custody, and management” of
their child are constitutional interests “far more precious than any property right.”
Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (quotation omitted); see In re
M.S., 115 S.W.3d 534, 547 (Tex. 2003). A termination decree is final, irrevocable,
and permanently divests the parent of all legal rights, privileges, duties, and powers
as to the parent-child relationship, except for the child’s right to inherit. Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
proceedings and construe the involuntary termination statutes in the parent’s favor.
Id. But parental rights “are not absolute” and “are accorded only to those fit to accept
the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)
(quotation omitted). Recognizing that parents may forfeit their parental rights by
their acts or omissions, we focus on protecting the child’s best interest. See id.
Because of the severity and permanency of the termination of parental rights,
the evidence supporting termination must be clear and convincing. TEX. FAM. CODE
§ 161.001(b); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing
8 evidence’ means the measure or degree of proof that will produce in the mind of the
trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established.” TEX. FAM. CODE § 101.007. This is an intermediate standard that falls
between “preponderance of the evidence,” which is used in ordinary civil
proceedings, and “reasonable doubt,” which is used in criminal proceedings. State
v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam).
This heightened burden of proof results in a heightened standard of review.
In re S.R., 452 S.W.3d 351, 358 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). “When reviewing whether the evidence is legally sufficient to support the
termination of parental rights, we view the facts in a light favorable to the findings
of the trial judge, who heard the testimony, evaluated its credibility, and dealt the
closest with the evidence at hand.” In re R.R.A., 687 S.W.3d 269, 276 (Tex. 2024)
(quotation omitted). We determine whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction about the truth of the Department’s
allegations. In re J.O.A., 283 S.W.3d 336, 344–45 (Tex. 2009).
Only when the factual sufficiency of the evidence is challenged do we review
disputed or conflicting evidence. Id. at 345. “If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor of the
finding is so significant that a factfinder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.” Id. (quotation
9 omitted). We cannot substitute our own judgment for the factfinder’s when
considering the credibility of the evidence. In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (per curiam) (designating factfinder as sole arbiter of credibility). Nor can we
second guess the “resolution of a factual dispute by relying on evidence that is either
disputed, or that [the factfinder] could easily have rejected as not credible.” In re
L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
A single predicate ground under Section 161.001(b)(1) of the Family Code
supports termination when there is also a finding that termination is in the child’s
best interest. In re A.V., 113 S.W.3d at 362. If the factfinder finds multiple predicate
grounds, we may affirm on any one ground. See In re T.G.R.-M., 404 S.W.3d 7, 13
(Tex. App.—Houston [1st Dist.] 2013, no pet.). But when termination is ordered
under the predicate grounds in Subsection (D) or (E), we must review those grounds
because they have special significance and can supply the predicate for future
terminations. See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (due process
mandates appellate review of Subsection (D) and (E) findings when the issue is
preserved, even if the termination could be affirmed on another ground); see also
TEX. FAM. CODE § 161.001(b)(1)(M) (allowing termination if parent has had rights
terminated with respect to another child under Subsection (D) or (E)).
10 B. The evidence was legally and factually sufficient to support termination of Father’s parental rights under Subsection (E) for endangering conduct
We begin with Father’s second issue challenging the trial court’s termination
of his parental rights under Subsection (E) for “engag[ing] in conduct or knowingly
plac[ing] the child with persons who engaged in conduct which endangers the
physical or emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(E).
To “endanger” means to expose a child to loss or injury or to jeopardize a child’s
emotional or physical health. Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531,
533 (Tex. 1987). It requires “more than a threat of metaphysical injury or the
possible ill effects of a less-than-ideal family environment,” id., but the Department
does not have to prove that the conduct was directed at the child or that the child
suffered an actual injury. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). The
factfinder may infer specific danger to the child’s well-being from the parent’s
misconduct alone. Boyd, 727 S.W.2d at 533.
Termination under Subsection (E) must be based on more than a single act or
omission. In re E.G.A., Nos. 01-24-00204-CV, 01-24-00206-CV, 2024 WL
3941021, at *14 (Tex. App.—Houston [1st Dist.] Aug. 2024, pet. denied) (mem.
op.); In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). The evidence must show a voluntary, deliberate, and conscious course of
conduct. In re S.R., 452 S.W.3d at 360; see also In re M.A.J., 612 S.W.3d 398, 405
(Tex. App.—Houston [1st Dist.] 2020, pet. denied) (op. on reh’g). In determining
11 whether the parent engaged in endangering conduct, the factfinder may consider
conduct that occurred before and after the child was born, conduct in the child’s
presence and outside the child’s presence, and conduct before and after the child was
removed from his parent’s custody. In re J.O.A., 283 S.W.3d at 345.
Evidence of a parent’s illegal drug use may support termination under
Subsection (E). Id.; In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.)
(“Evidence of illegal drug use or alcohol abuse by a parent is often cited as conduct
which will support an affirmative finding that the parent has engaged in a course of
conduct which has the effect of endangering the child.”). The Supreme Court of
Texas recently clarified in R.R.A. that, “[w]hile illegal drug use alone may not be
sufficient to show endangerment, a pattern of drug use accompanied by
circumstances that indicate related dangers to the child can establish a substantial
risk of harm.” 687 S.W.3d at 278 (emphasis in original). Drug-use evidence should
not be evaluated in isolation; rather, it should be considered alongside evidence
showing that “illegal drug use presents a risk to the parent’s ‘ability to parent.’” Id.
(quoting In re J.O.A., 283 S.W.3d at 345); see In re A.V., 697 S.W.3d 657, 659 (Tex.
2024) (explaining that R.R.A. requires a “holistic endangerment review”).
Father asserts that the trial court’s Subsection (E) endangerment finding could
be based only on his “alleged drug/alcohol use” and “the incident that brought [Jack]
into care,” i.e., Jack leaving the home. He argues that there was “no clear and
12 convincing evidence of how [his] alleged drug/alcohol use” the evening before
“contributed to the conditions that led to [Jack] leaving the home” the morning of
the incident. In his view, Jack leaving the home was a “one-off, isolated incident”
and no evidence of a continuing course of endangering conduct. We disagree.
Father acknowledged a decades-long history of marijuana use and that Jack
was born with marijuana in his system. Mother testified that she and Father smoked
marijuana together the night before Jack wandered away, although it is not known
at what time they smoked together. Father admitted he went to a party that night
and left Jack alone with Mother while she continued to smoke and drink. Father
testified he was drinking vodka at the party but later asserted he had a single drink.
He also denied smoking marijuana at the party, explaining he had single puff of
marijuana but then stating he had a couple puffs.5 Although he denied that he was
high or drunk, there is no evidence establishing the actual amount of alcohol or
marijuana he (or Mother) consumed.
Father came home around 1:00 or 1:30 a.m., played with Jack until 2:00 a.m.,
and then fell asleep with Jack on the couch. Father woke up around 1:00 p.m.,
showered and got ready to go to a different party, and left for that party assuming
Jack was in the bedroom with Mother but without checking. Father did not hear
5 On the day Jack was taken into the Department’s care, Father told the Department investigator that he had one glass of vodka and “two hits of a marijuana blunt.” 13 Jack leave the house that morning even though the door Jack exited was in the same
room where Father was sleeping. At 7:00 a.m. that day, Jack was found wandering
alone near a busy road; he was not wearing appropriately sized clothing, had not
been fed, and was not reported missing for at least ten hours. Father also testified
that Jack usually stayed up with Father until 2:00 a.m. on Friday and Saturday nights.
In sum, Father, who has a history of drug use, stayed up until the early
morning hours, during which time he used an unknown amount of marijuana and
alcohol, and then slept until around 1:00 p.m., several hours after Jack had
dangerously wandered away from the house. The close temporal relationship
between this drug and alcohol use and Jack wandering away allows a reasonable
inference that the lack of supervision was related to Father’s lifestyle and drug and
alcohol use and created a substantial risk of harm. See In re R.R.A., 687 S.W.3d at
278–79; In re J.O.A., 283 S.W.3d at 345.
At that moment—when Jack was removed from the home after he was found
a half mile away dangerously walking along a road without his parents realizing he
was missing until many hours later—Father was faced with the choice of having to
avoid drugs and alcohol and change his lifestyle if he wanted to establish he would
not endanger Jack’s physical well-being in the future. But Father continued to use
drugs during the termination proceedings, even though he knew his parental rights
were in jeopardy. See In re E.G.A., 2024 WL 3941021, at *17 (parent’s continued
14 drug use during termination proceedings was evidence of voluntary, deliberate, and
conscious course of conduct, which by its nature, endangered child’s well-being).
He tested positive for methamphetamine and benzoylecgonine once, marijuana
twice, and cocaine four times over the course of about one year, including the month
before the termination hearing.6 He was also positive for alcohol the month before
the hearing.
Although Father completed a drug assessment and individual therapy, he
failed to complete outpatient therapy or attend Narcotics Anonymous meetings as
required by the service plan. See id. (upholding endangerment finding, in part,
because appellant did not finish service-plan-mandated counseling and continued to
use drugs in violation of service plan); In re A.L.S., 660 S.W.3d 257, 273 (Tex.
App.—San Antonio 2022, pet. denied) (same). Father vehemently denied any
continued drug use during this case, especially regarding marijuana and cocaine,
which in the face of his numerous failed drug tests, permitted the trial court to
conclude Father lacks credibility and has no intention of ceasing drug use to parent
Jack appropriately and safely. See In re A.J.W., No. 04-19-00346-CV, 2019 WL
6 There was also evidence that Father missed two of the random drug tests required under the service plan. The trial court could infer that the missed tests would have had positive results. See In re E.G.A., 2024 WL 3941021, at *17; see also T.D. v. Tex. Dep’t of Family & Protective Servs., 683 S.W.3d 901, 914 (Tex. App.—Austin 2024, no pet.) (“The factfinder may infer from a parent’s missing Department- requested illegal-drug tests during a parental-rights-termination suit that the tests missed would have come up positive.”). 15 6333468, at *6 (Tex. App.—San Antonio Nov. 27, 2019, no pet.) (mem. op.) (“The
court could have rationally concluded that [mother] is unable to protect her children
or to provide them a safe and stable environment because she minimizes her drug
problem.”).
Additionally, Father continues to live with Mother, his wife of 24 years.
Mother used marijuana during her pregnancy with Jack, failed numerous drug and
alcohol tests during the case, admitted her drug and alcohol use “caused a very
dangerous thing to happen to” Jack, admitted she continues to drink alcohol on
Fridays and Saturdays, and admitted she had not dealt with her alcohol problem by
the time of trial. Mother further agreed that “there’s a high likelihood there’ll be a
next time,” referring to Jack getting into a dangerous situation because of her poor
parenting. The drug tests showed that Father and Mother used the same drugs some
months, and were positive for cocaine on the same day one month, supporting a
finding that they continued to use drugs together even when faced with the
termination of their parental rights and will continue do so into the future.
The evidence shows a voluntary, deliberate, and conscious course of conduct,
which by its nature, endangered Jack’s well-being because Father is continuing the
behavior that led to Jack dangerously wandering away from home and which could
lead to Father being asleep, impaired, or imprisoned when he is supposed to be
caring for Jack. See In re J.O.A., 283 S.W.3d at 346 (listing father’s use of marijuana
16 “shortly before the final hearing” as evidence in favor of termination); Walker v.
Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied) (holding illegal drug use may support
termination under Subsection (E) because “it exposes the child to the possibility that
the parent may be impaired or imprisoned”). The trial court could have reasonably
inferred that Father will continue to use illegal drugs and alcohol and engage in the
same lifestyle, endangering Jack’s well-being in the future as he had in the
past. See In re J.O.A., 283 S.W.3d at 346.7
Viewing the evidence in the light most favorable to the trial court’s Subsection
(E) finding and considering undisputed contrary evidence, we conclude that the trial
court could have formed a firm belief or conviction that Father engaged in conduct
or knowingly placed the child with someone who engaged in conduct that
endangered the child’s physical or emotional well-being. See TEX. FAM. CODE
§ 161.001(b)(1)(E); In re J.W., 645 S.W.3d 726, 741 (Tex. 2022). We therefore hold
that the evidence was legally sufficient to support termination of Father’s parental
rights under Subsection (E).
7 This was precisely the Department’s concern as expressed in its Family Plan Evaluation: “[The Department] is worried that if [Mother] and [Father] are continuing substance use, not attending to [Jack], and do not address untreated mental health concerns, [Jack] may be placed in another dangerous situation resulting in death.” 17 Considering the entire record, Father’s testimony disputing the positive drug
test results and continuing drug use is not so significant that it required the trial court
to find in his favor under Subsection (E). See TEX. FAM. CODE § 161.001(b)(1)(E);
In re A.C., 560 S.W.3d 624, 631–32 (Tex. 2018). Father denied that his drug use
interfered with his ability to care for Jack and denied that he continued to use
marijuana during this case or that he had ever used cocaine. But these denials were
rebutted by evidence of Jack wandering off when Father had used drugs and by the
drug-test results. We cannot second guess the trial court’s credibility
determinations, even in factual-sufficiency review. In re H.R.M., 209 S.W.3d at
108–09. We therefore hold that the evidence was factually sufficient to support the
termination of Father’s parental rights under Subsection (E).
Because the evidence was legally and factually sufficient to support
termination of Father’s parental rights under Subsection (E), we need not address
the other predicate grounds for termination. See In re A.V., 113 S.W.3d at 362; see
also TEX. R. APP. P. 47.1. We overrule Father’s second issue and do not reach his
first, third, or fourth issues challenging the other grounds for termination.
C. The evidence is legally and factually sufficient to find that termination of Father’s parental rights is in the child’s best interest
We turn to Father’s sixth issue challenging the trial court’s finding that
termination of his parental rights is in the child’s best interest. See TEX. FAM. CODE
§ 161.001(b)(2). Along with a predicate violation, a party seeking to terminate
18 another’s parental rights must show by clear and convincing evidence that
termination is in child’s best interest. Id. The best-interest inquiry is “child-centered
and focuses on the child’s well-being, safety, and development.” In re A.C., 560
S.W.3d at 631. There is a strong presumption that the best interest of a child is
served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012,
no pet.). Prompt and permanent placement of the child in a safe environment is also
presumed to be in the child’s best interest. TEX. FAM. CODE § 263.307(a).
A factfinder may consider several factors to determine a child’s best interest:
• the desires of the child;
• the present and future physical and emotional needs of the child;
• the present and future emotional and physical danger to the child;
• the parental abilities of the persons seeking custody;
• the programs available to assist those persons seeking custody in promoting the best interest of the child;
• the plans for the child by the individuals or agency seeking custody;
• the stability of the home or proposed placement;
• acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate; and
• any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). This list of factors is not
exhaustive, and evidence is not required on all the factors to support a finding that
19 terminating a parent’s rights is in the child’s best interest. Id. at 372; In re D.R.A.,
374 S.W.3d at 533. But the lack of evidence cannot be used as if it were clear and
convincing evidence supporting a termination finding. In re E.N.C., 384 S.W.3d at
808. In some cases, undisputed evidence of only one factor may be enough to
support a finding that termination is in the child’s best interest; in other cases, there
could be “more complex facts in which paltry evidence relevant to each
consideration mentioned in Holley would not suffice” to support termination. In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002).
In addition, the Family Code sets out factors for evaluating the parent’s
willingness and ability to provide the child with a safe environment, including:
• the child’s age and physical and mental vulnerabilities;
• whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home;
• the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision;
• the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable time;
• whether the child’s family demonstrates adequate parenting skills, including providing the child with minimally adequate health and nutritional care, a safe physical home environment, and an understanding of the child’s needs and capabilities; and
• whether an adequate social support system consisting of an extended family and friends is available to the child.
TEX. FAM. CODE § 263.307(b); In re R.R., 209 S.W.3d at 116.
20 Courts may consider circumstantial evidence, subjective factors, and the
totality of the evidence as well as the direct evidence when conducting the best
interest analysis. See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio
2013, pet. denied). Evidence supporting termination under one of the predicate
grounds can also be considered in support of a finding that termination is in the
child’s best interest. See In re C.H., 89 S.W.3d at 28. A factfinder may infer that
past conduct endangering the child’s well-being may recur if the child is returned to
the parent when assessing the best interest of the child. In re D.M., 452 S.W.3d 462,
471 (Tex. App.—San Antonio 2014, no pet.); Jordan, 325 S.W.3d at 724.
Father contends that no rational factfinder could have formed a strong
conviction or belief that severing the parent-child relationship was in Jack’s best
interest. But several factors support the trial court’s finding.
There is no direct evidence about Jack’s desire because he was only five years
old at the time of trial and did not testify. See Holley, 544 S.W.2d at 371–72. The
caseworker testified that Jack had bonded with his foster family. See In re J.D., 436
S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“When children
are too young to express their desires, the fact finder may consider that the children
have bonded with the foster family, are well-cared for by them, and have spent
minimal time with [their] parent.”). But she also testified that Jack was happy to see
21 Mother and Father on visits and enjoyed spending time with them. So, the first
Holley factor is neutral.
The same is not true for several other factors implicated by the evidence of
Father’s continuing pattern of illegal drug use. See In re Z.L.W., No.
01-12-00736-CV, 2013 WL 396270, at *4 (Tex. App.—Houston [1st Dist.] Jan. 31,
2013, no pet.) (mem. op.) (“Evidence establishing one of the predicate acts under
[TEX. FAM. CODE § 161.001(b)](1) may also be relevant to determining the best
interest of the child.”). The evidence discussed above is relevant, not only to
Father’s parenting abilities and to the stability of the home he would provide, but
also to the emotional and physical needs of Jack, now and in the future, and to the
emotional and physical danger in which Jack could be placed, now and in the
future—needs and dangers that the evidence established would require special
attention due to Jack’s autism and ADHD. See, e.g., Holley, 544 S.W.2d at 371–72
(factors two, three, four, and seven); In re N.J.H., 575 S.W.3d 822, 834–36 (Tex.
App.—Houston [1st Dist.] 2018, pet. denied) (father’s history of drug use and
continued drug use during case bore on second, third, fourth, and seventh Holley
factors—child’s emotional and physical needs, emotional and physical danger to the
child, father’s parental abilities, and stability of home—and supported best-interest
finding); In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no
pet.) (finding pattern of illegal drug use suggested mother was not willing and able
22 to provide child with safe environment—a primary consideration in determining the
child’s best interest). Father’s drug use also indicated instability in the home
environment because it exposed Jack to the possibility that Father may be impaired
or imprisoned.
Although Father underwent some treatment and had several negative drug
tests while the termination case was pending, he did not complete the services
required to address the illegal-drug-use concern that brought Jack into the
Department’s care. The trial court could reasonably find that Father’s history of
illegal drug use, positive drug test results, and failure to complete all services related
to substance abuse weighted the second, third, fourth, and seventh Holley factors in
favor of termination. See In re N.J.H., 575 S.W.3d at 834–36; see also In re S.C.F.,
522 S.W.3d 693, 703 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (holding
trial court sitting as factfinder could credit lab reports and witness testimony over
father’s denial of drug use and his claim that positive drug test result was false).
The trial court could also consider other evidence of instability in the home in
weighting these factors in favor of termination. Although Father testified that he
received disability income and had moved into stable housing before trial, he
acknowledged that he had moved “from spot to spot” during the termination
proceedings and not provided the Department with proof of housing. The
caseworker testified that the missing proof was not just as to housing but also as to
23 Father’s employment. Father testified that he was not employed because he has
cerebral palsy and receives “full disability,” but the child advocate reports from
September 2023 and January 2024, which were admitted into evidence, stated that
Father had not provided proof of his disability income. “Without stability, income,
or a home, [a parent] is unable to provide for the child’s emotional and physical
needs.” In re T.G.R.-M., 404 S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013,
no pet.) (quotation omitted).
The trial court heard other evidence that Jack was thriving in an adoptive
foster placement that provided him with the supervision and structure he needed as
a child with autism and ADHD. The caseworker testified that Jack’s foster mother
ensured that Jack received speech therapy at school and actively sought out other
services. In contrast, despite knowing Jack’s diagnosis, Father had not asked
questions about Jack’s therapies or explored what specialists or services were
available beyond considering a couple of schools. And he was not always actively
engaged in supervising Jack during visits. From this evidence, the trial court could
reasonably find that the fifth and sixth Holley factors weighed in favor of
termination.
We therefore agree with the Department that, relative to the legal sufficiency
of the evidence, viewing all the evidence in the light most favorable to the trial
court’s best-interest finding and considering any undisputed contrary evidence, a
24 reasonable factfinder could have formed a firm belief or conviction that terminating
Father’s parental rights was in Jack’s best interest. And, relative to the factual
sufficiency of the evidence, considering the entire record, we conclude that the
disputed evidence that a reasonable factfinder could not have credited for the
best-interest finding is not so significant that a reasonable factfinder could not have
formed a firm belief or conviction that is the best-interest finding was true. We hold
the evidence is legally and factually sufficient to support the trial court’s best-interest
finding as to Father. See In re A.C., 560 S.W.3d at 630–31.
We overrule Father’s fifth issue.
III. Conservatorship of the Child
In his sixth issue, Father challenges the trial court’s appointment of the
Department as Jack’s sole managing conservator. Because we have overruled
Father’s challenges to the trial court’s order terminating his parental rights, the order
has divested Father of his legal rights and duties related to Jack. See TEX. FAM.
CODE § 161.206(b). Consequently, Father does not have standing to challenge the
portion of the order appointing the Department as Jack’s sole managing conservator.
See In re R.J., 579 S.W.3d 97, 120–21 (Tex. App.—Houston [1st Dist.] 2019, pet.
denied) (concluding father could not challenge the Department’s appointment as sole
managing conservator after Court overruled father’s challenge to the termination of
his parental rights); In re J.D.G., 570 S.W.3d at 856 (explaining the Department’s
25 appointment as sole managing conservator was a “consequence of termination” after
overruling parent’s challenge to a termination order).
We overrule Father’s sixth issue.
IV. Conclusion
Having overruled the issues that are necessary to resolve Father’s appeal, we
affirm the trial court’s judgment terminating Father’s parental rights.
Andrew Johnson Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.