Opinion issued July 29, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-25-00136-CV ——————————— IN THE INTEREST OF J.C., A CHILD
On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2023-02474J
MEMORANDUM OPINION
This accelerated appeal arises from a suit brought by the Texas Department
of Family and Protective Services (DFPS) to terminate a parent-child relationship. After a bench trial, the trial court terminated the parental rights of M.M.
(Mother) to her minor child, “Jack.”1 The trial court’s Decree of Termination is
based on its findings under subsections 161.001(b)(1)(D), (E), and (O) of the Texas
Family Code and that termination of the parent-child relationship is in Jack’s best
interest. The trial court also appointed DFPS as sole managing conservator of Jack.
Mother now argues that there is insufficient evidence to support the trial
court’s decision to terminate her parental rights and appoint DFPS as sole managing
conservator.2
We affirm.
Background
Jack was born in November 2017. On October 30, 2023, when he was almost
six years old, DFPS filed a petition for his protection, seeking managing
conservatorship and the termination of Mother’s parental rights. By affidavit
attached to the petition, DFPS Investigator Michael Danielson testified that he had
received a call from Officer D. Ortega with the Houston Police Department. Officer
Ortega informed Danielson that Mother had been arrested for harassment of a
1 Pursuant to the Texas Rules of Appellate Procedure, we use an alias to refer to the child and to his parents. See TEX. R. APP. P. 9.8(b)(2) (providing that, in parental- rights termination cases, “the court must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor’s identity, to the minor’s parent or other family member”). In its brief, DFPS refers to the child as “Jack.” 2 See TEX. FAM. CODE § 263.405(a); TEX. R. APP. P. 28.4.
2 neighbor and had her son, Jack, with her. Mother would not cooperate with police
officers by providing names for potential placement for Jack and, therefore, Officer
Ortega needed assistance in finding a placement for Jack. Mother was the primary
caregiver for Jack at the time of her arrest. Danielson attempted to contact several
alleged relatives and friends of Mother’s to find a suitable placement for Jack, but
none of those calls were successful. Because DFPS was not able to locate an
appropriate caregiver for Jack, he was removed from Mother’s care and placed in a
foster home.
Danielson also testified that before Mother’s arrest in October 2023, DFPS
had received two referrals related to Mother’s care of Jack. DFPS received the first
referral in July 2023. It was reported that Jack, who suffers from eczema, had
“bleeding, dry, cracked skin” on his hands and feet. It was also reported that Mother
drank alcohol all day and smoked marijuana in front of Jack.
DFPS received the second referral in September 2023. Then it was reported
that Mother used drugs and left Jack alone for hours. It was also reported that Jack
did not attend school.
On October 30, 2023, the trial court entered an emergency order of protection,
finding that there existed an immediate danger to Jack’s physical health or safety. It
named DFPS his temporary managing conservator. After a hearing, the trial court
ordered Mother to comply with the requirements set out in a DFPS Family Service
3 Plan (FSP) and made the FSP an order of the court. Mother’s FSP required her to
maintain stable housing and employment, to submit to urine analysis and hair–
follicle drug testing, to refrain from criminal activity, to participate in a psychosocial
assessment and parenting classes, and to attend all family visits, permanency
conferences, and court hearings.
This case proceeded to trial on October 2, 2024. DFPS caseworker Davien
Guidry testified that Jack had been in his current foster home placement for a few
months after being removed at the request of the previous foster-home caregiver.
Jack had an altercation and some behavioral incidents and that is partly why the
previous foster parents requested the move. The foster agency also realized that the
previous foster family was unable to meet all of Jack’s needs.
Guidry testified that Jack’s psychological examination suggested that he was
a victim of neglect and physical abuse; therefore, DFPS sought individual therapy
for him. Since then, Jack’s current foster home placement has ensured that Jack
attends therapy twice per week. The foster parents also ensure that Jack’s
educational needs are being met. Guidry testified that Jack’s current placement is a
stable one and that his foster parents provide Jack with food and medication on a
regular basis. And they have also adjusted his eczema medication as needed.
Guidry explained that Jack’s level of care was specialized due to his behavior,
which includes tantrums as well as aggressive behavior against other children.
4 Guidry testified that DFPS was also concerned that Mother’s own aggressive
behavior was influencing Jack to act aggressively. For instance, Guidry testified that
during her visits, Mother told Jack that he needed to hit back and defend himself.
Accordingly, the trial court instructed Mother not to have those types of
conversations with Jack.
Guidry testified that Jack has eczema that has been difficult to control. Jack
was also diagnosed with post-traumatic stress disorder (PTSD). And he has received
diagnoses related to child neglect, physical abuse, and upbringing away from a
parent. Guidry stated that Jack’s participation in the Boys and Girls Club has been
helpful.
Guidry testified that Jack was prescribed medication for ADHD and mood
stabilization. Jack was diagnosed with having a speech impediment as well, for
which speech therapy was recommended. Jack also sees a therapist weekly. When
asked about DFPS’s efforts to place Jack with relatives, Guidry testified that they
were looking into a relative in New York.
Guidry testified that although Mother has recently been compliant with drug
testing, overall, she was not. Guidry explained that Mother had been sent to various
drug-testing locations, but she had just refused to go. DFPS also introduced
evidence of Mother’s drug-testing results. On November 10, 2023, Mother tested
positive for marijuana, cocaine, and alcohol. Mother then failed to attend, and
5 therefore was presumed to test positive, the next three random drug tests ordered in
December 2023 and February 2024. Thereafter, between February 16, 2024, and
August 20, 2024, Mother tested negative on nine drug tests.3
Guidry testified that Mother did not complete her psychological assessment
but she did submit to the psychosocial assessment. Mother completed a psychiatric
evaluation, drug and alcohol assessment, and completed an online parenting class.
Guidry also testified that Mother completed nine classes on counseling and anger
management that were recommended from the psychosocial assessment.
Although Mother completed some of the assessments required by her FSP,
Guidry testified that there were concerns about her truthfulness during those
assessments. With respect to Mother’s psychosocial assessment, Guidry testified
that the provider stated that Mother seemed to be unclear about her mental health
history, past treatments, and diagnoses. Mother minimized her mental health
concerns and conditions, as well as her criminal history in both New York and Texas.
Furthermore, Guidry testified that Mother denied her substance abuse. During the
psychosocial assessment, Mother also described her alcohol use as “once a month”
or “on the weekend when she goes out.” But, in the substance abuse assessment,
Mother claimed that she drinks only “once a year.”
3 On March 6, 2024, Mother tested negative in a urine analysis, but there was not enough hair to retrieve results from a hair follicle test. On June 24, 2024, her urine analysis results were invalid due to an abnormal pH level. 6 Guidry testified that, overall, Mother did not take responsibility for her actions
as to why Jack came into DFPS’s care. Guidry testified that Mother was very
aggressive in the way that she interacted in person and via email with DFPS
caseworkers, supervisors, and program directors. According to Guidry, Mother
repeatedly called and texted DFPS caseworkers, during which she was irate and
would yell and curse at them. Despite having completed many of the requirements
of her FSP, Guidry testified that there has been no change in Mother’s behavior from
when the case came in.
Guidry further testified that Mother virtually visited Jack biweekly. She
testified that Mother requested to have virtual visits with Jack, rather than in-person
visits. Mother explained that this was because Jack had separation anxiety. Guidry
testified that she believed Mother did not want Jack to have to go through that
following an in-person visit.
Guidry explained that Mother is nurturing during her visits with Jack, and she
tells Jack she misses him and loves him. Guidry testified that Jack has expressed a
desire to be with Mother and, that during these visits, she observed a bond between
Mother and Jack. Mother has also provided food, snacks, juice, clothing, and toys
for Jack. But she also told Jack not to trust his foster parents and not to listen to
anyone but her. And Guidry testified that there were a few instances in which
7 Mother hounded Jack about something until he put his head down and cried or she
seemed to manipulate him into saying that something was wrong when it was not.
Guidry confirmed that DFPS sought termination of Mother’s parental rights,
and its concurrent permanency goal was relative conservatorship. Guidry testified
that DFPS asked several of Jack’s relatives in New York if they would be willing to
take care of him, but many stated that they could not because they were afraid of
Mother. Other relatives told Guidry that Mother is violent, so they do not want to
get into the middle of it.
DFPS also introduced evidence of Mother’s criminal history. Specifically, in
2013, while Mother was living in New York and before Jack was born, Mother
stabbed a woman in the face during an altercation. Mother pled guilty to second
degree assault with intent to cause physical injury with a weapon and received five
years’ probation.
Then in 2022, after Jack was born but while they still lived in New York,
Mother ran in front of a vehicle driven by her ex-boyfriend. According to her ex-
boyfriend’s statement to police officers, Mother began hitting the windshield of his
vehicle with a handgun. He exited his vehicle and told Mother he was calling the
police. Mother then pointed the handgun at him and fired once. Mother was charged
with criminal mischief with intent to damage property. She was found guilty and
sentenced to time served.
8 Additionally, in October 2023, Mother was arrested and charged with the
harassment of her neighbor. As a result of this arrest, Jack was removed from
Mother’s care and placed in a foster home. Mother’s harassment charge was
dismissed after she completed a pretrial diversion program.
Finally, in December 2023, Mother was charged with two counts of
aggravated assault with a deadly weapon related to a shooting that occurred at a
nightclub in Houston in September 2023—while Mother was Jack’s primary
custodian. According to the probable cause affidavit, after Mother allegedly got into
an altercation with a woman outside the nightclub, she was seen getting into a vehicle
with T.W. T.W. then “drove his vehicle toward the parking lot of the club with
[Mother] in his passenger seat.” T.W. purportedly positioned his vehicle so that
Mother could “open fire” toward the crowd outside the nightclub. Mother then
“pulled a pistol out and began firing the weapon from the passenger side window
toward the crowd.” Two individuals were struck by the gunfire. One of the victims
suffered a gunshot wound to the face; the other to the leg. Both were transferred to
the hospital in critical condition. Mother faces up to twenty years for each
aggravated-assault charge.4 She was released on a $100,000 bond and these charges
were still pending at the time of trial in this case.
4 See TEX. PENAL CODE §§ 12.33, 22.02. 9 Joy Franklin, the coordinator for Court Appointed Special Advocates
(CASA), testified that she made monthly visits to Jack’s placement. Franklin
testified that Jack has had a difficult time adjusting as he came into foster care. She
testified that Jack’s behaviors are consistent with that of a child who has experienced
trauma.
But Franklin testified that Jack’s current foster mother is doing a good job
meeting Jack’s needs. She testified that his foster mother is diligent in addressing
Jack’s physical and emotional needs, and she includes him in family activities.
Franklin testified that Jack has acclimated well to this current placement and that his
foster mother “works very well with him.” She added that Jack is happy in his
current placement.
Franklin testified that she had received some information about Mother’s
employment and housing, but that she had not received any proof of income or a
copy of the lease from Mother’s apartment.
Franklin testified that Mother was facing jail time for her current aggravated
assault charges, and if Jack was returned to Mother and then she was convicted and
then incarcerated, it would be “extremely traumatic” for him “and probably cause
him problems for years to come.”
10 When asked whether Jack expressed his desire regarding where he wanted to
live, Franklin stated that Jack wanted to be with his mother. She said that his second
choice would to be with family.
Franklin testified that CASA was not aligned with DFPS’s requested relief of
termination of Mother’s parental rights. Instead, CASA’s recommendation was for
DFPS to be awarded sole managing conservator of Jack without termination. But
Franklin noted that part of the reason for this recommendation was that CASA had
recently received Mother’s CPS and criminal records from New York, which they
had not yet had a chance to review.
When trial resumed, Mother, who had recently obtained new counsel, recalled
Guidry to the stand. Guidry testified that Mother drug tested 17-20 times during the
case. Of those times, Mother tested positive for alcohol and cocaine once, and “no-
show[ed]” on a few other occasions. Guidry testified that, typically, parents are
tested weekly or biweekly and the frequency of testing is determined on a case-to-
case basis.
Guidry confirmed that Mother offered to retake the substance abuse
assessment. But on the day of the rescheduled assessment, Mother declined.
Regarding Mother’s behavior, Guidry described it as aggressive and, at times,
threatening. She added that it was more outrageous than in other cases, because
Mother repeatedly called her and other workers, and yelled and cursed at them.
11 Guidry testified that DFPS changed its goal from reunification to termination in
September, roughly two weeks before trial.
Bruce Jeffries, owner of National Screening Center (NSC), testified next that
NSC had records of approximately 25 drug testing samples of Mother. He confirmed
that, on November 10, 2023, Mother tested positive for alcohol, cocaine, and
marijuana. Jeffries confirmed that no prescription medication would result in a
positive test result for cocaine.
Mother testified next and explained that Jack was enrolled in a virtual school
at age five because she felt that he was not ready to be around a big crowd. Mother
also provided a certificate of accomplishment for classes and training she took
during this case, in addition to those required by DFPS. Mother also provided a copy
of her health insurance card and her labor union card. Mother testified that she had
an open felony assault case and that her bond conditions required her to submit to
random drug testing. She added that all the drug tests submitted for her criminal
case were negative or else she “wouldn’t be out.”
Mother testified that she has an apartment in Seabrook, Texas, and that she
has lived there for nine months. Mother acknowledged that there was an allegation
that she was intoxicated at the time she was arrested for harassment, but that case
has since been dismissed.
12 With respect to Jack’s eczema, Mother admitted that when they first moved
to Texas, she struggled to control it in the new climate until she realized she had to
wrap up the affected area of Jack’s skin with the medication for it to work. Mother
denied ever having to take Jack to the hospital or urgent care because of his eczema.
She contended that treatment of Jack’s eczema was “neglected” while he has been
in foster care and that she reported it “several times.” It is her understanding that
Jack will outgrow his eczema condition.
Mother also testified that Jack had no dental cavities at the time he was taken
into DFPS custody. But since then, he has developed dental issues, including four
or five cavities and has had to have a tooth removed due to infection. But she
admitted that those dental issues have been treated and remediated.
Mother testified that she can provide a safe and stable home environment for
Jack. She added that she could provide for him financially, explaining that she works
construction when she is not pregnant,5 does hair for a living, and receives social
security, which she receives due to carpal tunnel and tendonitis. Mother, who has
three other children in addition to Jack, pays child support for her other children.
Mother testified she visits with Jack virtually every other Wednesday for an
hour. She acknowledged that Jack sometimes exhibits behavioral issues during
5 Mother was seven months pregnant at the time of trial. She testified that she is not “actively working right now” due to her pregnancy and because it “would be a health hazard” to her baby, but that she has a job she can go back to once she has her baby. 13 those visits, and she tries to be patient and give him time to calm down. She testified
that she has provided Jack with food, snacks, clothes, and toys during the case.
Mother admitted that she pled guilty to attempted assault with a deadly
weapon in 2013. She also acknowledged that she was found guilty of misdemeanor
intentional damage of property in 2022. Mother further admitted that she has two
pending aggravated-assault-with-a-deadly-weapon charges in Harris County. She
admitted that she was the sole caregiver for Jack at the time of the alleged shooting
serving as a basis for those charges, but she denied any involvement in that incident.
Finally, Betsi Longoria, CASA team leader, testified that CASA’s termination
recommendation had changed since the last trial date. CASA’s recommendation is
now that Mother’s parental rights be terminated. Longoria explained that, at the
commencement of trial, CASA did not have Mother’s criminal and CPS records
from New York, and they needed an opportunity to review them. Longoria
explained that, in the time since, they had looked at everything and had determined
that termination would be their recommendation. She testified that it is CASA’s
belief that termination is in Jack’s best interest because he needs “to be raised by a
parent who is free of drugs and free from criminal activity.”
Longoria testified that Jack is currently in a foster-to-adopt placement, but
that CASA would like to continue looking for a family placement. They are
reviewing whether Jack may be placed with Mother’s brother in New York.
14 After hearing closing arguments, the trial court took the matter under
advisement. The court signed the decree for termination on February 5, 2025,
terminating Mother’s parental rights under subsections (D), (E), and (O), and finding
that termination is in Jack’s best interest.6 And it awarded DFPS sole managing
conservatorship of Jack.
Termination of Mother’s Parental Rights
Mother now argues on appeal that the evidence is legally and factually
insufficient to support the trial court’s findings. Namely, that she engaged in the
predicate acts set forth in subsections 161.001(b)(1)(D), (E), and (O) of the Family
Code and that termination of her parental rights is in Jack’s best interest. See TEX.
FAM. CODE § 161.001(b)(1)(D), (E), (O), (b)(2).
A. Standard of Review
A parent’s “right to the companionship, care, custody, and management of his
or her children is an interest far more precious than any property right.” Santosky v.
Kramer, 455 U.S. 745, 758–59 (1982) (internal quotations omitted). “When the
State initiates a parental rights termination proceeding, it seeks not merely to infringe
that fundamental liberty interest, but to end it.” Id. at 759. “A parent’s interest in the
accuracy and justice of the decision to terminate his or her parental status is,
6 The unknown father’s rights were terminated after the trial court received the certificate of paternity registry search. 15 therefore, a commanding one.” Id. (internal quotations omitted). Thus, we strictly
scrutinize termination proceedings and strictly construe involuntary termination
statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
“[T]he rights of natural parents are not absolute,” “protection of the child is
paramount,” and “[t]he rights of parenthood are accorded only to those fit to accept
the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003).
Recognizing that a parent may forfeit his parental rights based on his actions or
omissions―the primary focus of a termination suit is protection of the child’s best
interests. Id.
Accordingly, “[i]n parental-rights termination cases, due process mandates a
clear and convincing evidence standard of proof.” In re N.G., 577 S.W.3d 230, 235
(Tex. 2019); see also TEX. FAM. CODE § 161.001(b). “Clear and convincing” is “the
measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.” TEX.
FAM. CODE § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “This
heightened burden of proof affects the standard of review in an evidentiary challenge
on appeal.” In re J.W., 645 S.W.3d 726, 741 (Tex. 2022).
“To that end, in reviewing a legal-sufficiency challenge, we must determine
whether a reasonable trier of fact could have formed a firm belief or conviction that
its finding was true.” Id. (internal quotations omitted). “[W]e look at all the evidence
16 in the light most favorable to the finding, assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so, and
disregard all evidence that a reasonable factfinder could have disbelieved or found
to have been incredible.” Id. (internal quotations omitted). We may not, however,
“disregard undisputed facts that do not support the finding.” Id. (internal quotations
omitted).
In conducting a factual-sufficiency review in this context, the court should
give due consideration to evidence that the factfinder could reasonably have found
to be clear and convincing. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). And the
court should consider whether disputed evidence is such that a reasonable factfinder
could not have resolved that 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.” Id.
Under these standards, the factfinder remains “the sole arbiter of the
witnesses’ credibility and demeanor.” In re J.F.-G., 627 S.W.3d 304, 312 (Tex.
2021) (quoting In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009)). In a bench trial, the
trial court, as factfinder, weighs the evidence and resolves evidentiary conflicts. In
re R.J., 579 S.W.3d 97, 117 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).
17 B. Applicable Law
Section 161.001(b) of the Family Code authorizes an “involuntary termination
of parental rights if a court finds by clear and convincing evidence both that a parent
engaged in one or more enumerated predicate grounds for termination and that
termination is in the best interest of the child.” In re M.P., 639 S.W.3d 700, 701–02
(Tex. 2022); see TEX. FAM. CODE § 161.001(b)(1)(A)-(U), (b)(2).
Generally, “[o]nly one predicate ground and a best interest finding are
necessary for termination, so ‘a court need uphold only one termination ground—in
addition to upholding a challenged best interest finding—even if the trial court based
the termination on more than one ground.’” In re M.P., 639 S.W.3d at 702 (quoting
In re N.G., 577 S.W.3d at 232).
Although only one predicate ground is necessary to support a judgment of
termination, we may not bypass challenges to the sufficiency of the evidence to
support findings under subsections 161.001(b)(1)(D) and (E)―“the so-called
endangerment grounds.” In re J.W., 645 S.W.3d at 748. “Those grounds bear special
significance because termination of a parent’s rights under either can serve as a
ground for termination of his rights to another child.” Id.; see TEX. FAM. CODE
§ 161.001(b)(1)(M). “[B]ecause prior termination for endangerment is a predicate
ground for a future termination, due process and due course of law require that the
court of appeals review the legal and factual sufficiency of the evidence supporting
18 a trial court’s order of termination under Subsections 161.001(b)(1)(D) and (E) when
challenged on appeal.” In re M.P., 639 S.W.3d at 704.
Because Mother challenges the trial court’s findings under subsections (D)
and (E), thus implicating due process concerns, we must address those findings first.
See id.
C. Endangerment Findings
1. Section 161.001(b)(1)(D)
Section 161.001(b)(1)(D) of the Family Code authorizes a trial court to order
termination of a parent-child relationship if it finds by clear and convincing evidence
that the parent has “knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of
the child.” TEX. FAM. CODE § 161.001(b)(1)(D).
To establish subsection (D), DFPS must prove that the parent’s conduct
caused a child to be placed or remain in an “endangering environment.” In re J.W.,
645 S.W.3d at 749; Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied). The suitability of the child’s living conditions and the
conduct of parents or others in the home are relevant to this inquiry. In re J.W., 645
S.W.3d at 749.
“Inappropriate, abusive, or unlawful conduct by persons who live in the
child’s home or with whom the child is compelled to associate on a regular basis in
19 the home is a part of the ‘conditions or surroundings’ of the child’s home under
section D.” Jordan, 325 S.W.3d at 721. “A parent’s illegal drug use . . . may also
support a finding that the child’s surroundings endanger his or her physical or
emotional wellbeing.” In re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015,
pet. denied). Under subsection (D), termination may be based on a single act or
omission. Jordan, 325 S.W.3d at 721.
2. Section 161.001(b)(1)(E)
Section 161.001(b)(1)(E) of the Family Code authorizes a trial court to order
termination of a parent-child relationship if it finds by clear and convincing evidence
that the parent has “engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or emotional well-being of
the child.” TEX. FAM. CODE § 161.001(b)(1)(E).
To “endanger” means to expose a child to loss or injury or to jeopardize a
child’s emotional or physical health. See Tex. Dep’t of Hum. Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); Walker v. Tex. Dep’t of Fam. & Protective Servs., 312
S.W.3d 608, 616 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). A child is
endangered if her environment creates a potential for danger that the parent
disregards. In re N.J.H., 575 S.W.3d 822, 831 (Tex. App.—Houston [1st Dist.] 2018,
pet. denied). “As a general rule, conduct that subjects a child to a life of uncertainty
20 and instability endangers the physical and emotional well-being of a child.” In re
R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).
For instance, “[i]ntentional criminal activity that exposes a parent to
incarceration is conduct that endangers the physical and emotional well-being of a
child.” In re V.V., 349 S.W.3d 548, 554 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied). Abusive and violent criminal conduct by a parent can also produce an
environment that endangers a child’s well-being and evidence that a person has
engaged in such conduct in the past permits an inference that the person will continue
violent behavior in the future. Jordan, 325 S.W.3d at 724; Walker, 312 S.W.3d at
617.
Although “mere imprisonment will not, standing alone, constitute engaging
in conduct which endangers the emotional or physical well-being of a child, . . .
incarceration does support an endangerment finding ‘if the evidence, including the
imprisonment, shows a course of conduct which has the effect of endangering the
physical or emotional well-being of the child.’” In re J.F.-G., 627 S.W.3d at 312–
13 (quoting Boyd, 727 S.W.2d at 533–34). Thus, our supreme court has held that
“[a] parent’s criminal history—taking into account the nature of the crimes, the
duration of incarceration, and whether a pattern of escalating, repeated convictions
exists—can support a finding of endangerment.” Id. at 313.
21 Additionally, “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 J.O.A., 283 S.W.3d
at 345. “Because it significantly harms the parenting relationship, drug activity can
constitute endangerment even if it transpires outside the child’s presence.” In re
N.J.H., 575 S.W.3d at 831. On this point, our supreme court has explained that
endangerment does not require a parent’s drug use to directly or physically harm the
child. See In re R.R.A., 687 S.W.3d 269, 278 (Tex. 2024). “Instead, a pattern of
parental behavior that presents a substantial risk of harm to the child permits a
factfinder to reasonably find endangerment.” Id. (emphasis added).
Thus, 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.” In re N.J.H., 575 S.W.3d at 832 (internal quotations
“Termination under subsection (E) must be based on more than a single act or
omission . . . .” Id. at 831. A parent’s conduct prior to the child’s birth and either
before or after the child’s removal by DFPS may be considered. Walker, 312 S.W.3d
at 617. Offenses occurring before the child’s birth can be considered as part of a
voluntary, deliberate, and conscious course of conduct that has the effect of
endangering the child. Id.
22 And “[a] parent’s past endangering conduct may create an inference that the
past conduct may recur and further jeopardize the child’s present or future physical
or emotional well-being.” In re J.D.G., 570 S.W.3d 839, 851 (Tex. App.—Houston
[1st Dist.] 2018, pet. denied). To support termination under subsection (E), it is not
necessary to establish that a parent intended to endanger the child. Id. And the
endangering conduct need not have occurred in the child’s presence. Walker, 312
S.W.3d at 617.
3. Analysis
Here, DFPS presented sufficient evidence to support the trial court’s findings
that Mother engaged in conduct that endangered Jack’s physical or emotional well-
being and knowingly placed or knowingly allowed Jack to remain in conditions or
surroundings which endangered his physical or emotional well-being. See TEX. FAM.
CODE § 161.001(b)(1)(D), (E). In that regard, DFPS presented evidence that Mother
has engaged in a continuing course of violent criminal activity both before and after
Jack’s birth. See In re J.F.-G., 627 S.W.3d at 313. Only one of Mother’s convictions
or charges occurred before Jack was born. But courts may consider a criminal record
beginning before a child’s birth as evidence of an endangering course of conduct.
See In re N.L.S., No. 23-0965, 2025 WL 1687924, at *4 (Tex. June 13, 2025); In re
J.F.-G., 627 S.W.3d at 315.
23 The remainder occurred after Jack was born and at a time when Mother was
his sole caregiver. And there is evidence that Mother committed increasingly serious
crimes following Jack’s birth: misdemeanor criminal mischief with intent to damage
property, harassment, and aggravated assault with a deadly weapon. Thus, it is clear
that Mother did not stop engaging in criminal activity after Jack was born, “when
[s]he would (or should) have been aware that criminal conduct . . . risked separating
h[er] from [Jack] for years.” In re J.F.-G., 627 S.W.3d at 315.
Moreover, each of Mother’s charges or convictions involved violence or the
threat of violence.7 And three involved the use of a weapon. Critically, at the time
of trial, Mother had two aggravated assault charges pending against her that involved
her allegedly shooting a firearm into a crowd resulting in critical injuries to two
victims. Abusive and violent criminal conduct by a parent can produce an
environment that endangers a child’s well-being, and evidence that a person has
engaged in such conduct in the past permits an inference that the person will continue
violent behavior in the future. See Jordan, 325 S.W.3d at 724; In re N.J.H., 575
S.W.3d at 832. Furthermore, although none of Mother’s charges or convictions
involve the physical abuse of Jack, “want of self-control[] and a propensity for
7 The harassment complaint alleged that Mother “unlawfully, with intent to harass and alarm another, and in a manner reasonably likely to alarm [the Complainant], . . . threaten[ed] to inflict bodily injury on the Complainant, namely, an Assault.” (Emphasis added). 24 violence may also be considered as evidence of endangerment.” In re M.M.M., No.
01-21-00269-CV, 2021 WL 5365102, at *10–11 (Tex. App.—Houston [1st Dist.]
Nov. 18, 2021, pet. denied) (mem. op.) (considering evidence of mother’s violent
criminal history as supporting trial court’s endangerment finding).
And although Mother’s aggravated assault charges are still pending, charged
offenses themselves are relevant to the endangerment analysis, even where no
criminal conviction has yet resulted. See In re D.J.G., No. 01-22-00870-CV, 2023
WL 3513143, at *15 (Tex. App.—Houston [1st Dist.] May 18, 2023, no pet.) (mem.
op.).8 If convicted of these charges, Mother faces up to twenty years in prison for
each charge. See TEX. PENAL CODE §§ 12.33, 22.02. “An environment which
routinely subjects a child to the probability that she will be left alone because her
parent[ ] [is] once again jailed . . . endangers both the physical and emotional well-
being of a child.” In re M.M.M., 2021 WL 5365102, at *11 (quoting In re S.D., 980
S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied)).
Accordingly, we conclude that this evidence of a pattern of violent criminal
conduct supports the trial court’s endangerment findings under subsections (D) and
(E). See In re N.L.S., 2025 WL 1687924, at *4; In re J.F.-G., 627 S.W.3d at 315.
8 See also In re E.S.T., No. 01-22-00404-CV, 2022 WL 17096713, at *15 (Tex. App.—Houston [1st Dist.] Nov. 21, 2022, no pet.) (mem. op.) (“[E]ven non-violent, misdemeanor offenses, and arrests for criminal conduct that do not result in conviction will support a finding of endangerment.”). 25 Additionally, although Mother completed many of the services required by
her family service plan, and there was evidence that she was nurturing and bonded
with Jack during her visits, DFPS also presented evidence that Mother had a volatile
temper. For instance, Guidry testified that Mother was aggressive and hostile with
DFPS employees throughout the case. See In re P.M.B., No. 01-17-00621-CV, 2017
WL 6459554, at *10 (Tex. App.—Houston [1st Dist.] Dec. 19, 2017, pet. denied)
(mem. op.) (considering evidence that mother was aggressive and hostile to DFPS
employees throughout case as evidence supporting endangerment finding). Guidry
also testified that DFPS had difficulty locating a family placement for Jack because
many of Mother’s family members considered her violent and aggressive.
Moreover, DFPS introduced evidence that, although she had completed some
services required by the plan, Mother had neither learned from the services nor
embraced them. See In re M.M.M., 2021 WL 5365102, at *12 (considering evidence
mother completed services, but failed to learn from those services, as support for
endangerment finding).
Finally, the trial court could have considered the evidence that Mother tested
positive for cocaine, marijuana, and alcohol at the beginning of this case, as well as
her refusal to submit to three subsequent drug tests. The trial court was entitled to
find her failure to participate in the drug tests as equivalent to a positive test result.
See In re S.C.M., No. 01-22-00964-CV, 2023 WL 3873342, at *8 (Tex. App.—
26 Houston [1st Dist.] June 8, 2023, pet. denied) (mem. op.) (stating trial court may
treat failure to participate in court-ordered drug test as positive test result).
Mother points to the evidence that she had numerous negative drug tests after
February 2024. We agree that a parent’s efforts to improve or enhance parenting
skills are also relevant in determining whether a parent’s conduct results in
endangerment. In re P.M.B., 2017 WL 6459554, at *10. Nonetheless, “evidence of
improved conduct, especially of short-duration, does not conclusively negate the
probative value of a long history of . . . [Mother’s] irresponsible choices.” In re
J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). A parent’s use of illegal drugs constitutes
endangering conduct because “it exposes the child to the possibility that the parent
may be impaired or imprisoned.” Walker, 312 S.W.3d at 617; see also In re J.O.A.,
283 S.W.3d at 345. Although Mother’s drug use may not be ongoing, evidence of
her past drug use is part of a course of conduct that endangered Jack’s well-being
because it exposed Mother to future jail time. See In re E.S.T., No. 01-22-00404-
CV, 2022 WL 17096713, at *15 (Tex. App.—Houston [1st Dist.] Nov. 21, 2022, no
pet.) (mem. op.); see also Walker, 312 S.W.3d at 617.
Thus, considering the evidence in the light most favorable to the trial court’s
finding under Section 161.001(b)(1)(D) and (E), we conclude that a reasonable trier
of fact could have formed a firm belief or conviction that Mother endangered Jack’s
physical or mental well-being. We further conclude that, viewed in light of the entire
27 record, any disputed evidence could have been reconciled in favor of a finding of
endangerment under Section 161.001(b)(1)(D) and (E) or was not so significant that
the factfinder could not reasonably have formed a firm belief or conviction regarding
Mother’s endangerment of Jack. Accordingly, we hold that legally and factually
sufficient evidence supports the trial court’s findings under Section
161.001(b)(1)(D) and (E).9
D. Best Interest of the Child
Mother also asserts that the evidence is legally and factually insufficient to
support the trial court’s finding that termination of his parental rights is in Jack’s
best interest. We disagree.
1. Applicable Law
The best-interest inquiry focuses on the child’s well-being, safety, and
development. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). A best-interest
determination is guided by several non-exclusive factors, the “Holley factors,”
including: (1) the child’s desires; (2) the child’s emotional and physical needs;
(3) present and future emotional and physical danger to the child; (4) the parental
abilities of the individuals seeking custody; (5) the programs available to assist these
individuals to promote the best interest of the child; (6) the plans for the child by
9 Because sufficient evidence of only one predicate finding is necessary to support termination, we do not address Mother’s challenge to the trial court’s finding under Section 161.001(b)(1)(O). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). 28 these individuals or by the agency seeking custody; (7) the stability of the home or
proposed placement; (8) the acts or omissions of the parent which may indicate that
the existing parent-child relationship is not a proper one; and (9) any excuse for the
acts or omissions of the parent. See id.; Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976). We may also consider the statutory factors set forth in Section 263.307
of the Family Code. See TEX. FAM. CODE § 263.307; In re A.C., 560 S.W.3d at 631
n.29.
It is not necessary that DFPS prove all of these factors as a condition precedent
to termination. In re C.H., 89 S.W.3d at 27. Accordingly, the absence of evidence
concerning some of the factors does not preclude a factfinder from forming a firm
belief or conviction that termination is in a child’s best interest. Id.
2. Analysis
Based on the above standards, several factors support the trial court’s finding
here that termination of Mother’s parental rights is in Jack’s best interest.
For instance, Mother’s continued violent criminal conduct supports the trial
court’s finding that termination of her parental rights is in Jack’s best interest. See
In re V.V., 349 S.W.3d at 558 (stating that trial court reasonably could have inferred
that father’s consistent, and at times violent, criminal conduct would put child in his
custody in emotional and physical danger now or in future). The record reflects that,
while living in New York before Jack was born, Mother pled guilty to second degree
29 assault with intent to cause physical injury with a weapon after she stabbed a woman
in the face. After Jack’s birth, she was also convicted of criminal mischief with
intent to damage property after she hit her ex-boyfriend’s windshield with a
handgun. A parent’s inability to maintain a lifestyle free from arrests and
incarcerations is relevant to the trial court’s best-interest determination. See In re
E.S.T., 2022 WL 17096713, at *18.
Most recently, Mother was arrested for harassment of her neighbor, which led
to Jack being taken into DFPS’s custody. This charge was later dismissed after
Mother completed a pretrial diversion program. Then, while this case was pending,
Mother was arrested on two counts of aggravated assault with a deadly weapon after
she allegedly fired shots into a crowd at a nightclub, critically injuring two people.
Although the aggravated assault charges were pending as of trial and the harassment
charge did not result in a conviction, these charges are nevertheless relevant for to
the best interest determination because each time she was jailed, Mother was absent
from Jack’s life and unable to provide for his physical and emotional needs. See In
re T.G.R.-M., 404 S.W.3d 7, 15 (Tex. App.—Houston [1st Dist.] 2013, no pet.); see
also Holley, 544 S.W.2d at 372 (factors two and three). And, as this Court has
concluded, a parent’s “unresolved criminal cases threaten her ability to maintain a
stable home.” In re A.C.K., No. 01-25-00014-CV, 2025 WL 1738310, at *12 (Tex.
30 App.—Houston [1st Dist.] June 24, 2025, no pet. h.) (mem. op.); see also Holley,
544 S.W.2d at 372 (factor seven).
Mother also tested positive for cocaine and marijuana within days after DFPS
removed Jack from her care. And Mother failed to submit to three additional drug
tests during the pendency of this case. See In re W.E.C., 110 S.W.3d 231, 239 (Tex.
App.—Fort Worth 2003, no pet.) (recognizing that factfinder could reasonably infer
that parent’s failure to complete scheduled screening indicated she was avoiding
testing because she was using drugs). This drug use exposed Mother to the
possibility of incarceration and jeopardized her ability to provide for Jack physically
and emotionally.
Mother’s alcohol use was also a concern for DFPS throughout this
proceeding. DFPS received a referral that Mother drank all day in front of Jack. At
the time Mother was arrested for harassment of her neighbor, resulting in Jack being
taken into DFPS custody, she was allegedly intoxicated. Further, DFPS was
concerned that Mother was not truthful about the extent of her alcohol usage during
her substance abuse assessment. And Mother tested positive for alcohol in
November 2023. Although the record does not reflect further positive alcohol tests
after that date, it demonstrates that Mother was required to refrain from drug and
alcohol use and to submit to drug and alcohol testing as conditions of her bond in
31 the aggravated assault case. And she testified that she tested negative on subsequent
tests or she “wouldn’t be out.”
Based on everything above, the trial court could have reasonably inferred that
Mother was at risk for continuing drug and alcohol use. Thus, the evidence of
Mother’s drug and alcohol use was relevant to multiple Holley factors—including
her parenting abilities and the stability of the home, as well as to Jack’s emotional
and physical needs now and in the future and to the physical danger in which Jack
could be placed now and in the future. See Holley, 544 S.W.2d at 372 (factors two,
three, four, and seven); see also In re S.C.M., 2023 WL 3873342, at *13 (considering
evidence that father tested positive for drugs one month after child was born and
refused to submit to first court-ordered drug test as support for trial court’s finding
that termination was in child’s best interest); In re A.C.K., 2025 WL 1738310, at *13
(considering evidence of mother’s continued alcohol use as evidence supporting trial
court’s best interest finding).
We note that some evidence weighs against a finding that termination is in
Jack’s best interest. For example, Franklin testified that Jack desired to live with
Mother. And the evidence shows that Mother provided proof of stable housing, that
she brought Jack clothes, shoes, and toys, and that she was loving and bonded with
Jack. See Holley, 544 S.W.2d at 372 (factors one, two, four, and seven). She also
completed many of the requirements of her family service plan.
32 But Mother also failed to take responsibility for her actions resulting in Jack
coming into DFPS’s care, and she demonstrated behavior indicating that the
relationship between herself and Jack was inappropriate. See id. (factor eight). In
that regard, Guidry testified that, during their visits, Mother encouraged Jack to
engage in aggressive physical behavior and that the trial court ultimately ordered
Mother to cease this behavior. Mother also told Jack not to trust or listen to his foster
parents.
In contrast, the uncontroverted evidence showed that Jack’s needs were being
met in his current foster placement and that he was being well cared for and was
happy.
And although Jack expressed a desire to live with Mother, he was only six—
almost seven—at the time of trial. Thus, his young age renders him particularly
vulnerable if left in the custody of a parent unable or unwilling to protect him or to
attend to his needs. See TEX. FAM. CODE § 263.307(b)(1); In re B.D.A., 546 S.W.3d
346, 361 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).
On balance, the evidence demonstrates that the applicable statutory and
Holley factors weigh in favor of the trial court’s best-interest finding. Accordingly,
considering the evidence in the light most favorable to the trial court’s best interest
finding, we conclude that a reasonable trier of fact could have formed a firm belief
or conviction that termination of Mother’s parental rights was in Jack’s best interest.
33 We further conclude that, viewed in light of the entire record, any disputed evidence
could have been reconciled in favor of the trial court’s best interest finding or was
not so significant that the factfinder could not reasonably have formed a firm belief
or conviction that termination of Mother’s parental rights was in Jack’s best interest.
We therefore hold that legally and factually sufficient evidence supports the trial
court’s best interest finding.
Sole Managing Conservator
Lastly, Mother argues that the trial court erred in appointing DFPS as the sole
managing conservator of Jack.
When the parental rights of all living parents of a child are terminated, the
trial court must appoint a “competent adult, the Department of Family and Protective
Services, or a licensed child-placing agency as managing conservator of the child.”
TEX. FAM. CODE § 161.207(a); In re J.D.G., 570 S.W.3d at 856. Conservatorship
determinations are reviewed for an abuse of discretion and will be reversed only if
the decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex.
2007); In re J.D.G., 570 S.W.3d at 856.
An order terminating the parent-child relationship divests a parent of legal
rights and duties with respect to the child. See TEX. FAM. CODE § 161.206(b). Once
we overrule a parent’s challenge to an order terminating his parental rights, the trial
34 court’s appointment of DFPS as sole managing conservator may be considered a
“consequence of the termination.” In re J.D.G., 570 S.W.3d at 856.
Because we have overruled Mother’s challenges to the portion of the trial
court’s order terminating her parental rights, the order divested Mother of her legal
rights and duties related to Jack. See TEX. FAM. CODE § 161.206(b); In re J.D.G.,
570 S.W.3d at 856. Consequently, Mother lacks standing to challenge the portion
of the order appointing DFPS as Jack’s conservator. See In re J.D.G., 570 S.W.3d at
856.
Conclusion
We thus affirm the trial court’s decree of termination.
Terry Adams Chief Justice
Panel consists of Chief Justice Adams and Justices Caughey and Johnson.