In the Interest of J.C.D.Y. A/K/A J.Y., J.E.D.Y. AKA J.Y., M.M.D.Y. AKA M.Y., J.T.D.Y., AKA J.Y. Children v. Department of Family and Protective Services

• Court: Texas Court of Appeals, 1st District (Houston)
• Decided: February 3, 2026
• Docket: 01-25-00640-CV
• Status: Published

Opinion

Opinion issued February 3, 2025.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-25-00640-CV ——————————— IN THE INTEREST OF J.C.D.Y. A/K/A J.Y., J.E.D.Y. A/K/A J.Y., M.M.D.Y. A/K/A M.Y., J.T.D.Y., A/K/A J.Y., Children

On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2022-00167J

MEMORANDUM OPINION

C.B.A.K. (“Mother”) challenges the trial court’s final order terminating her

parental rights to her minor children J.C.D.Y. a/k/a J.Y. (“Jack”), J.E.D.Y. a/k/a J.Y.

(“John”), and M.M.D.Y. a/k/a M.Y. (“Mark”), denying Mother access and

possession to her daughter J.T.D.Y. a/k/a J.Y. (“Julie”), and appointing a non-parent

caregiver as Julie’s sole managing conservator. Mother argues there is legally and

1 factually insufficient evidence supporting the trial court’s findings that (1) Mother

committed the predicate acts under Family Code Section 161.001(b)(1)(E) and (P),

and (2) termination of her rights was in Jack, John, and Mark’s best interest.1 She

also argues that the trial court abused its discretion by appointing the Department of

Family and Protective Services as sole managing conservator for Jack, John, and

Mark and appointing a non-parent caregiver as Julie’s sole managing conservator.

We affirm the trial court’s order modifying the prior order as to Julie and the

decree terminating Mother’s parental rights to John, Jack, and Mark.

Background

Mother has six children: J.T.D.Y. a/k/a J.Y. (“Julie”), J.C.D.Y. a/k/a J.Y.

(“Jack”), J.E.D.Y. a/k/a J.Y. (“John”), M.M.D.Y. a/k/a M.Y. (“Mark”), M.D.K.G.

a/k/a M.Y. a/k/a M.O.D.Y. (“Mike”), and I.E.J. a/k/a I.J. (“Ivan”).2 The family has

been involved with the Department of Family and Protective Services

(“Department”)3 since at least March 1, 2014, when the Department received a

referral for child abuse and neglect by Mother against Mike, Julie, Jack, and John.

1 To protect the identity of the minor children, we refer to them and their foster parents by pseudonym and we refer to the children’s biological parents as Mother and Father. See TEX. R. APP. P. 9.8(b)(2). 2 Mike’s father is K.G., Ivan’s father is N.D.J., and Julie, Jack, John, and Mark’s father is M.Y. 3 For purposes of this appeal and ease of reference, the term “Department” also includes Harris County Child Protective Services.

2 According to the Department, Mother and the children were living in “deplorable

conditions” in a filthy, cluttered home containing “a lot of marijuana” that did not

have “a sink, a bathroom shower or tub.” Mother, who was then pregnant with Mark,

had used marijuana the day before and her speech was slurred, her eyes were “red

bloodshot, and she could not carry a conversation.”

Two months later in May 2014, the Department received another referral for

abuse after Mother and Mark tested positive for marijuana at Mark’s birth. The

Department provided Mother with a family-based safety services plan that required

her to refrain from illegal drug use and submit to random drug testing. According

to the Department, Mother maintained her sobriety for five months and “appear[ed]

to have resolved the safety concerns that led to the Agency’s involvement.”

In May 2019, the Department received another referral for physical neglect

from Julie’s teacher alleging that Julie’s hygiene was deteriorating, her clothes had

“a very strong smell of urine,” she was “very skinny,” she “often want[ed] to take

food home with her,” and the “utilities [were] not often working” in Julie’s home.

The Department also received a referral from Mike’s father in February 2020

for neglect and abuse after he discovered that Mother and the children had been

living in a single hotel room for a week. According to the referral, the hotel room

was dirty, there were no sheets on the bed, and Mike reportedly slept on the floor.

Mike’s father stated that Mike smelled like mildew, his hair was smelly and matted,

3 and he was not wearing socks. Mike claimed he had gotten into trouble recently for

taking a bath, and he refused to leave with his father because he was afraid to leave

his siblings. According to the referral, Mike was skinny, he appeared malnourished,

his leg bones protruded, and he told his father that sometimes he went to bed without

food. Mike, who had not been in school in a month, told his father that he was left

to care for his five younger siblings, including two-year-old Ivan, when Mother went

out. According to Mike, Mother and her boyfriend spent all their money on

marijuana, and he had seen Mother smoke marijuana.

None of these referrals resulted in the children being removed from Mother’s

care.

Petition to Terminate Mother’s Parental Rights

In February 2022, the Department filed an Original Petition for Protection of

a Child for Conservatorship, and for Termination in Suit Affecting the Parent-Child

Relationship seeking to terminate Mother’s parental rights to Mike, Julie, Jack, John,

Mark, and Ivan based on new allegations that Mother had physically neglected and

abused the children. The removal affidavit attached to the petition states that law

enforcement referred the family to the Department after officers discovered the six

children home alone living in abject squalor. According to the officers, there were

multiple rats running through the home, rat holes in the walls, piles of black trash

bags in the kitchen and living room, roaches crawling out of the bags, and “an odor

4 of urine” emanating from within the home. It appeared that the children had not

bathed in “a few days,” and Ivan, who was three years old, had scratches and marks

on his body and scars from old injuries.

When Department Investigator Brandy Whitely visited the home the next day,

all of the children had “a strong, musty, urine and filth stench that could be smelled

when the door opened,” they did not appear to have bathed “for quite some time,”

heir grooming was in poor condition, their hair “severely matted,” and their clothes

were “soiled with a foul odor.” The conditions Whitely witnessed were not “livable

for the children.” The carpets and walls were very dirty, the living room furniture

was “soiled with no cushions on them,” there were “bags of trash throughout the

home,” there were no televisions, and “loose wiring was seen hanging out the walls

throughout the home.” She saw “several rats and roaches in the home, mainly in the

kitchen and dining area,” and there was a “huge pile of garbage” in the dining area

that “had numerous rodents being seen hiding within it.”

Whitely stated there was no food in the house. The kitchen did not have a

refrigerator or a working stove or microwave, and the kitchen cabinets were bare.

According to Whitely, there were no cups, plates, utensils, pots, or pans in the

kitchen. Whitely found a deep freezer in the laundry room, but it was empty. The

laundry room was filled with soiled clothes on the floor. The children’s bathroom

was completely unusable. According to Whitely, there was no running water in the

5 home, the toilet was backed up and there was feces and urine in the toilet and

bathroom sink. The bathroom sink countertop was broken and the tile on the floor

was soiled as well. Although it was a three-bedroom home, “only the master

bedroom had a bed that contained a soiled mattress topper” and that belonged to

Mother. The master bedroom had several trash bags filled with soiled clothes all

over the floor. Whitely did not see any beds in the home for the children or anything

the children could use as beds.

Mike told Whitney that he had been suffering from a toothache for two weeks

and the children had not been in school for a “few months.” According to Mike,

Mother had left the house on Friday morning. Julie, who did not want to speak with

Whitely at first, appeared to have been coached on what to say to the Department

and gave inconsistent explanations for Mother’s absence. Jack, John, Mark, and Ivan

refused to speak to Whitely, and Ivan was dirty and wearing a soiled diaper.

After multiple attempts to contact Mother over four hours, Whitely was

eventually able to reach Mother, who seemed unconcerned that law enforcement and

the Department were at her home until she was told that the children would be

removed due to the environment and because no caregiver was present. When

Mother arrived home, she “downplayed the home conditions and said they were

remodeling the home, without addressing why there were rats, roaches and feces all

over the home and in the bathrooms.” Mother was arrested at the scene for child

6 endangerment and abandonment, and the children were taken into the Department’s

The next day, a Department supervisor spoke to Mike and Julie who reported

that “mother had left on Friday morning and did not return until Sunday night” when

the investigator was at the home. Mike and Julie told the supervisor that “they should

have cleaned better that way they would not been taken from their mother.” They

told the supervisor that Mother, who “leaves the[m] alone all the time,” would “leave

for a couple of days then would come back for a day two and leave again” and this

had “been going on for at least 6 months.” Although Mother would leave food for

the children, they would run out of food, and they had trouble contacting Mother

when she was away. Mike told the supervisor that Ivan’s father was “not around

much and it’s a good thing” because he was “abusive to his mother” and he had

“seen him hit his mother.” They told her that they had never seen Mother use drugs.

The case was tried to the court over four days in May, June, and July 2023.

In September 2023, the trial court signed an order terminating Mother’s

parental rights to Mike pursuant to Section 161.001(b)(1)(D), (E), (O), (J), and (P),

appointing Mike’s father as his sole managing conservator, terminating Mother’s

parental rights to Ivan pursuant to Section 161.001(b)(1)(D), (E), (O), (P), and

appointing the Department as Ivan’s sole managing conservator. The trial court also

appointed the Department as Julie, Jack, John, and Mark’s sole managing

7 conservator, appointed Mother as their possessory conservator, awarded Mother

supervised therapeutic visitation with the children once a month, and ordered Mother

to pay monthly child support for Julie, Jack, John, and Mark.

Mother appealed the portions of the order terminating her parental rights to

Mike and Ivan. In March 2024, this court overruled Mother’s sole issue challenging

the trial court’s finding that termination of her rights to Mike and Ivan was in their

best interest and we affirmed the September 2023 order. See In re J.C.D.Y., No. 01-

23-00713-CV, 2024 WL 1334334 (Tex. App.—Houston [1st Dist.] Mar. 29, 2024,

pet. denied) (mem. op.). A detailed rendition of the events that transpired through

July 24, 2023—the last day of trial—is set forth in our prior opinion.

Post-July 2023 Events

In February 2024, while Mother’s appeal of the September 2023 order was

pending in this Court, the Department provided Mother with an updated family

service plan (“FSP”). Mother’s updated FSP states that Mother “exhibits the lack of

parenting knowledge and skill[,] is in denial of leaving her children unsupervised,”

and “is against the children’s recent diagnosis which does not support the children’s

growth and development.”4 It further states that although Mother had completed her

4 Ivan had been diagnosed with autism, developmental delays, and encephalopathy. In re J.C.D.Y., No. 01-23-00713-CV, 2024 WL 1334334, at *33 (Tex. App.— Houston [1st Dist.] Mar. 29, 2024, pet. denied) (mem. op.). Julie had been diagnosed with anxiety and oppositional defiant disorder and Mike had been diagnosed with ADHD. Id. at *7. Jack had been diagnosed with ADHD, major depressive disorder,

8 parenting classes and individual therapy, she nevertheless “appears to be in deep

denial about the negative effects of her absenteeism, neglect and poor parenting has

affected her children negatively[,] vehemently denies all allegations of abuse and

neglect the children bring up regarding their time under her care and will then deflect

and blame anything the children allege on their time in [the Department’s] care.”

The Department stated in Mother’s updated FSP that it was worried Mother

would “neglect and cause physical harm to the children, which may cause death by

physical abuse or malnourishment.” The FSP kept in place the requirements that

Mother secure and maintain housing while the case was pending, provide the

Department with proof she had “adequate housing that is hygienic and safe for her

children's security,” provide the Department with proof of her sources of income,

complete parenting classes, complete a psychosocial evaluation and follow any

recommendations, and complete individual counseling.

The updated FSP states that Mother “currently uses marijuana” and is “alleged

to have used it around her children previously.” It further states that Mother

“sporadically participates in drug tests required by the agency [and] recently tested

positive for illicit substances in December 2022.” The plan continued to require

Mother to complete a substance abuse evaluation and follow any recommendations

generalized anxiety disorder, and “mixed disturbance of emotions and conduct” and John had been diagnosed with ADHD-specified trauma and “stress-related disorder due to multiple transitions” after he came into care. Id.

9 and submit to random drug tests. The FSP stated that any refusal to test or missed

appointment for testing would be considered a positive result and required Mother

to complete substance abuse services if any of her drug tests were positive.

In June 2024, Jack, John, and Mark participated again in psychological

evaluations. All three boys were living in the same foster home since October 2023,

and they had monthly in-person and weekly virtual visits with their siblings. Jack,

John, and Mark received counseling, and Jack and Mark needed special education

services because of their educational deficiencies and/or learning disorders. The

assessments reflected that Jack, John, and Mark appeared to be the victims of

repeated trauma including maternal neglect and physical abuse and all three boys

would benefit from a highly structured and nurturing environment. Jack, who had

reported that when he lived with Mother he and his siblings often went without food

and Mother was often not home, “seemed quite content in his current placement,”

had a good appetite, and was sleeping well.

Motion to Modify Conservatorship and Second Termination Proceeding

In October 2024, the Department filed an Original Motion to Modify for

Conservatorship, and for Termination in Suit Affecting the Parent-Child

Relationship seeking to terminate Mother’s parental rights to Jack, John, Mark and

Julie. The Department asked the trial court to appoint “a relative or other suitable

person” as the children’s sole managing conservator if the children could not safely

10 be reunified with Mother but could be permanently placed with that person, and if

neither placement was possible, the trial court should appoint the Department as the

children’s permanent sole managing conservator. The Department later abandoned

its request to terminate Mother’s parental rights to Julie and asked the trial court to

appoint a non-relative M.F. (“Mary”) as Julie’s sole managing conservator. The case

was tried to the bench on April 15 and May 15, 2025.

A. Trial Testimony

1. Foster Mom

Jack, John, and Mark’s foster mother testified that the boys were placed in her

home in October 2023. According to the foster mother, the boys were removed from

Mother’s care in 2022 after police officers found the children unsupervised in a home

that was not “feasible for living.” According to the foster mother, none of the

children had been enrolled in school while in Mother’s care, they lacked adequate

food, and reported they were at one point living in a car. She testified that the boys

had scars on their bodies, and they told her that “some of their permanent marks and

whips came from [Mother],” and that “a lot of the bruising” was caused by Mother

and their maternal grandmother. They told her that “they always did something bad,”

but “sometimes they didn’t do anything, but they still got a whooping.”

When Jack, John, and Mark first came to her home, “they were not used to

having food,” they ate until they “literally got sick,” they stole food, and there “was

11 never a time when they [weren’t] hungry.” She told them they did not need to steal

and could eat whenever they were hungry and the boys’ constant eating and stealing

food eventually stopped. Their low self-esteem had also improved.

The foster mother testified that Jack was fourteen years old, earned As and Bs

in school, and he played sports. He received special education services and took

medication for his ADHD. When asked about the biggest change she saw in Jack

since he moved into her home, the foster mother testified that Jack “is less stressed,”

and although he had been distant initially and did not want to get close to others,

“now he’s very loving.” He told his foster mother he loved her, “that he’s extremely

happy where he is, and he thanks me all the time.” He also told her “all the time”

that he wanted to remain in her home.

John was thirteen years old, he played sports, and though he continued to

struggle with math, he received all As and Bs in his other classes. He also received

special education services and took medication. Since being placed in her care, John

had become less aggressive, shared his thoughts, and communicated “very well.”

Mark, who was ten years old, earned As and Bs in school, received special

education services, and he took medication for his ADHD. The biggest change the

foster mother noticed in Mark is that he developed a love of reading while he lived

in her home.

12 The foster mother testified that she and her husband guided the boys “with

first, love,” took them to church, encouraged them to do well in school, and she

attended all their school meetings. The foster parents disciplined the boys by

“sit[ting] them down and [talking] with them” and telling “them what they did wrong

and what better choices . . . they need to make.” The foster mother also arranged

visits between the boys and Julie, and the foster mother did not have any concerns

about the boys’ behavior.

According to the foster mother, she and her husband were able to provide for

all the boys’ needs and her plan for the boys was to become educated, graduate high

school, go to college, get a job, and do “something that makes them happy.” She

testified that all three boys called her mom, they loved their foster father, and they

all expressed the desire to remain in their foster home. She and her husband wanted

to adopt Jack, John, Mark, and their younger brother, Ivan, who had been placed in

her home in August 2024.

2. Jane Piaskowski, Child Advocates

Jane Piaskowski with Child Advocates is Julie, Jack, John, and Mark’s

guardian ad litem. Piaskowski, who testified during the first trial, testified that the

children were removed from Mother’s care in 2022 based on the unsafe conditions

inside the home, and because the children lacked food, were sleeping in one bed, and

blamed each other for eating too much.

13 Jack disclosed to Piaskowski that he had been physically abused and he had

visible marks on his arms, and the other boys made similar reports. They described

witnessing domestic violence as well as “conflict and parental separation within the

home,” and having “multiple caregivers over different periods of time; as well as

physical abuse and neglect, and an absence of consistent food and caregiving.”

Piaskowski testified that Jack, John, and Mark were living in an emergency

shelter when the first trial occurred, and the boys did not want Mother’s rights

terminated. However, since that time, they each told her they wanted to remain with

their foster parents. According to Piaskowski, Jack told her that he wanted to stay

with his foster family and his brothers on a permanent basis and “requested that if

it’s possible that he not change . . .homes or schools or anything like that in the future

. . . .” He became much more expressive and confident while living with his foster

parents and he had “really come into his own” as the leader of his younger brothers.

John, who also wanted to remain in the foster home, was “very enthusiastic and asks

[Piaskowski] frequently when he can be adopted.” John had become more expressive

and artistic. According to Piaskowski, Mark was initially quiet and “very sensitive,”

but he had “come into his own” since he was placed with his foster parents. He now

loved school, was more confident, excited to start football, and loved music and

singing. Piaskowski visited the children monthly and said the boys were “all very

close” and they had become “very natural and joyful.” According to Piaskowski, the

14 boys had developed a deep affection for their foster family, and their niece who lives

with them.

Julie, almost seventeen years old, was living with Mary, a family friend whom

Julie referred to as grandma. Piaskowski testified that Julie performed well in school,

had a part-time job, was “incredibly driven” to succeed, was diligent in her classes,

and aspired to attend college and obtain a nursing degree. Mary was “very attentive”

to Julie’s needs and desires, and they would “go out and spend time together.”

According to Piaskowski, Mary “is a wonderful caregiver” for Julie, and she had no

hesitation recommending that Mary be named as Julie’s managing conservator.

Piaskowski also recommended that Julie continue to visit with Mother in a

supervised therapeutic setting. According to Piaskowski, Julie was at a pivotal point

in her life and Child Advocates wanted to “make sure that the influences and people

around her do truly have her best interest at heart.” Piaskowski was concerned

because she could not say “with confidence that mom is that, necessarily.”

Piaskowski testified that although Julie had not disclosed to her that she had

been physically abused while in Mother’s care, Julie had disclosed during a forensic

interview in the 2022 case that physical abuse “was a part of the situation” in

Mother’s home. Julie also made an “outcry of sexual abuse” during the forensic

interview. According to Julie, Mike, Mother, and Julie’s maternal grandmother were

aware of the sexual abuse. According to Piaskowski, Julie feels responsible for the

15 children being taken away from Mother and Julie often “said that if she had kept the

house cleaner or taken better care of the boys they would not have been placed in

foster care.”

Piaskowski testified that although the trial court had ordered Mother and the

children to have monthly visits supervised by a licensed family therapist, there had

been difficulty scheduling those visits because the therapists the Department planned

to use asked to be removed from the case. She testified she had observed one visit,

two or three other visits occurred in person, and other visits were virtual. The first

therapist who supervised the visits asked to be removed from the case due to

scheduling issues. A second therapist withdrew as well and there was a period of

months during which the Department and Piaskowski were unable to find another

therapist to supervise visits between Mother and the children.

According to Piaskowski, there was a time when the boys refused to visit

Mother. In January or February 2025, a visit was scheduled and each of the boys

asked whether they were required to go. Piaskowski said she spoke to the boys and

“each of them independently said that they would prefer not to attend those visits.”

Piaskowski testified that in 2023 Mother had violated the no-contact order in

place during the prior proceeding and Piaskowski knew of one occasion when

Mother had unsupervised contact with the boys through a video call they were on

with Julie. Piaskowski was aware that Julie was communicating with Mother without

16 therapeutic supervision, though Piaskowski was “not sure by what means.” She said,

though, that both Mother and Julie expressed things they would not know “unless

they were in close communication.”

According to Piaskowski, Mother’s visits with the children were required to

be supervised because the children’s therapists were concerned that Mother would

not abide by any rules set by the court. Piaskowski testified that Mother “still hasn’t

acknowledged any kind of responsibility or accountability” and Child Advocates

“wanted to make sure that someone would be there to be protective of the children

because we couldn’t be confident that Mom would be.”

Regarding Mother’s required services, Piaskowski testified that Mother

completed substance abuse treatment but then tested positive in drug tests on

multiple occasions following that treatment. Mother’s most recent positive result

was in December 2024. Piaskowski said that there were multiple occasions on which

Mother refused to participate in drug testing, and more specifically tests of her hair.

3. Marion Hackett

Marion Hackett, who was assigned the case in December 2024, is the current

conservatorship caseworker for Jack, John, Mark, and Julie. She testified that the

children had not made any outcries of physical abuse to her.

Hackett testified that Mother had provided the Department with proof of

housing and income, and she had been employed during the four months before trial

17 began in April 2025. When she visited Mother’s home in January or February 2025,

Hackett saw furniture, clothing for mom, and “things of that nature.” Mother had not

told Hackett what she planned to do when her lease expired in June 2025. Hackett

testified that Mother indicated she was willing to meet with Hackett in Hackett’s

office, but they had not been able to do so.

Hackett testified that Mother was compliant with her FSP except for the

random drug testing requirement. After she was appointed to the children’s case in

December 2024, Hackett sent Mother for random drug testing twice a month

(urinalysis) and hair follicle testing once every three months, but Mother had taken

only half of the tests. According to Hackett, Mother told her that she was not able to

submit to testing because she had to work or had her hair done. Hackett testified that

although Mother had been successfully discharged from a substance abuse program

in 2022 and a second substance abuse program in May 2023, Mother’s hair tested

positive for marijuana in June 2023.

Julie, who had expressed aspirations to pursue a nursing degree, told Hackett

that she wanted to continue living with Mary and have a relationship with Mother.

Hackett testified that Jack, John, and Mark, who had been living in an emergency

shelter when the September 2023 order was signed, were happy and thriving in their

current adoptive placement. According to Hackett, the foster parents, whom the boys

refer to as mom and dad, had provided the boys with a stable and loving home that

18 met all their needs. Hackett testified that Jack, John, and Mark wanted their foster

parents to adopt them.

Hackett testified that when Jack, John, and Mark lived with Mother, the

children lacked adequate food, did not have their own beds, did not engage in

“normalcy activities,” and did not attend school. They had marks and bruises on their

body from physical abuse perpetrated by Mother and were often left home alone

without food or adult supervision. Hackett testified that although the court had

required Mother to have monthly therapeutic visits with the children, the Department

had difficulty the last two years finding a therapist who would supervise visitation,

and it was not Mother’s fault that those visits had not occurred.

According to Hackett, there had been material and substantial changes since

the September 2023 order was signed that warranted termination of Mother’s rights,

including the boys’ transition from an emergency placement to an adoptive

placement, Mother’s positive drug tests, and Mother’s failure to take “accountability

for what’s transpired in the past.” Hackett testified that the Department wanted the

court to terminate Mother’s parental rights to Jack, John, and Mark in part because

Mother had not taken responsibility for “the physical abuse and the neglect” that

occurred before the September 2023 order.

19 4. Mike

Mike is seventeen years old and Mother’s oldest child. He testified that the

Department terminated Mother’s rights to him in the September 2023 order and

although he now lived with his father, he had remained in contact with Mother and

saw her regularly. Mike testified that Mother never abused or neglected him or used

drugs in front of him and she had provided him with a safe and stable home.

According to Mike, there were two beds in the home that everyone shared, and he

never felt that there was not enough to eat. Mike testified that Mother was a caring

and loving parent and a good mother, and he asked the court not to terminate

Mother’s rights to his siblings.

When told that his trial testimony that Mother had never abused or neglected

him conflicted with statements he gave to the Department when he was taken into

care in 2022, Mike testified that the Department had misled him about Mother and

based on the Department’s statements, he had believed that he would never be

reunited with her. Mike testified that speaking to Mother had “changed him,” and he

questioned the truthfulness of the Department’s statements to him about her.

Mike acknowledged that the statements he gave to the Department in 2022

were probably correct, but it had been so long that he did not remember everything

he said. He remembered telling the Department that Mother would frequently leave

him and his siblings for days at a time and that they were not enrolled in school.

20 Mike testified that sometimes other adults would come to the home, and Mother

would come home after they left. He did not remember Mother leaving him and his

siblings at home alone overnight.

5. Mother

Mother testified that she had been employed since January 14, 2024, had been

living in her current home for a year and a half, and she was renewing her lease,

which was due to expire in June 2025. She testified that she never used marijuana

around her children and had never been arrested on a drug-related charge. She

testified that she had a good relationship with Mike.

Mother testified that she was granted monthly therapeutic visitation with the

children in the September 2023 order, and although she tried to visit with Jack, John,

Mark, and Julie, Mother was denied the opportunity to do so because the Department

was not able to provide the visitation. According to Mother, one therapist ended

therapy because of lack of communication with the Department. Mother testified

that the Department’s failure to arrange for visits with Jack, John, Mark, and Julie

had denied her an opportunity to bond with them, and she would have had a closer

relationship with the children if the Department had arranged for the monthly visits.

When asked if she had taken responsibility for her behavior that brought her

children into care, Mother testified that she had taken responsibility and she “a

hundred percent” understood the conditions of her home and that she was “supposed

21 to be home more hours.” Mother testified she had learned from the parenting classes

she attended what she had done wrong in the past and how she could change her

behavior.

Mother testified that the reason her home looked the way it did was because

the family had been isolated during the pandemic, and she had COVID and could

not clean. According to Mother, she was in middle of remodeling when the children

were removed. She stated that she tried to plunge the toilet but was told by the men

who were renovating her house that they would fix it. She testified that the children

were getting three meals a day, and that she cooked breakfast, lunch, and dinner for

them. When she was not at home, she would send the children “Uber Eats,” or

“Walmart groceries.” Mother testified that before Jack, John, and Mark were

removed from her care in 2022, the boys had been doing well academically, and Jack

was receiving special needs help from his school.

With respect to the Department’s concerns about her marijuana use, Mother

denied using marijuana after she completed substance abuse counseling in

November 2022. She did not recall being discharged from a second substance abuse

program in May 2023. Mother acknowledged that a hair follicle test in December

2024 had been positive for marijuana but she stated she had not used any illegal

substances for over a year and a half. She was unaware of any positive urinalysis

22 results after 2022. According to Mother, her doctor had suggested that she try “CBD

gummies” and she had been using them since August 2024.

When asked about the scars on the children’s bodies when they first came into

the Department’s care in 2022, Mother testified that Jack’s father had “put an iron”

on Jack’s leg when he was younger, and the other scars were from accidents at school

and chicken pox. Mother denied speaking with Mike and Julie in May 2022 in

violation of a no-contact order or blaming Mike and Julie for the children’s removal

from her home.

Mother acknowledged that Jack, John, Mark, and Julie were doing well in

their current placements, and she testified that she “truly want[ed] what’s best for

my children.” She testified that if Jack, John, Mark, and Julie were not returned to

her care, it was in their best interest to remain in the Department’s conservatorship

to allow Mother additional time to address any of the Department’s lingering

concerns about her and have an opportunity to place the children with “accurate

family members.”

On July 24, 2025, the trial court signed a final order finding that Mother had

committed the predicate grounds for termination under Section 161.001(b)(1)(E),

(O), and (P), and that termination of Mother’s parental rights to Jack, John, and Mark

23 was in the children’s best interest.5 The court terminated Mother’s parental rights to

Jack, John, and Mark and appointed the Department as the boys’ sole managing

conservator. The court found that it was not in Julie’s best interest to appoint Mother

as Julie’s managing conservator because Mother’s appointment would impair Julie’s

physical health or emotional development. The trial court appointed Mary as Julie’s

sole managing conservator and denied Mother possession or access to Julie.

This appeal followed.

Termination of Parental Rights

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

his or her child is a constitutional interest “far more precious than any property

right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (quoting Lassiter v. Dep’t

of Soc. Servs., 452 U.S. 18, 27 (1981)); see In re M.S., 115 S.W.3d 534, 547 (Tex.

2003). The United States Supreme Court has emphasized that “the interest of [a]

5 The Texas Legislature amended Family Code Section 161.001(b)(1) and repealed Subsection (O), effective September 1, 2025. See Act of May 16, 2025, 89th Leg., R.S., ch. 211, § 2, 4, 2025 Tex. Sess. Law Serv. 573, 574–75; In re D.M., No. 11- 25-00102-CV, 2025 WL 2980658, at *1 n.2 (Tex. App.—Eastland Oct. 23, 2025, no pet.) (mem. op.). The repeal applies only to suits affecting the parent-child relationship pending on or after the effective date. See In re D.M., 2025 WL 2980658, at *1 n.2. Because the Texas Legislature repealed former Subsection (O), Section 161.001(b)(1)(P) is now Subsection (O). Any references to Section 161.001(b)(1)(O) and Section 161.001(b)(1)(P) in this memorandum opinion are to the previous version of the statute that was in effect on July 24, 2025—the date the trial court signed its order terminating Mother’s parental rights to Jack, John, and Mark.

24 parent[ ] in the care, custody, and control of [her] children . . . is perhaps the oldest

of the fundamental liberty interests recognized by th[e] Court.” Troxel v. Granville,

530 U.S. 57, 65 (2000). Likewise, the Texas Supreme Court has concluded that

“[t]his natural parental right” is “essential,” “a basic civil right of man,” and “far

more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)

(internal quotations omitted); see also In re R.J.G., 681 S.W.3d 370, 373 (Tex. 2023)

(“Both this Court and the Supreme Court of the United States have long recognized

the fundamental right of parents to make decisions concerning the care, custody, and

control of their children.”). Consequently, we strictly scrutinize termination

proceedings and strictly construe the involuntary termination statutes in favor of the

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

Termination can be achieved following a prior order denying termination

through either Section 161.001 or Section 161.004 of the Family Code. See In re

K.P., 498 S.W.3d 157, 170 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); see

also In re K.G., 350 S.W.3d 338, 352 (Tex. App.—Fort Worth 2011, pet. denied).

A court may terminate the parent-child relationship under Section 161.001 if

the Department establishes, by clear and convincing evidence, that (1) the parent has

engaged in one or more of the enumerated predicate acts or omissions under Section

161.001(b)(1), and (2) termination is in the best interest of the child. See TEX. FAM.

CODE § 161.001(b). “Both elements must be established, and termination may not

25 be based solely on the best interest of the children as determined by the trier of fact.”

In re M.A.J., 612 S.W.3d 398, 406 (Tex. App.—Houston [1st Dist.] 2020, pet

denied). “[A] trial court can terminate the parent-child relationship, even though it

previously denied termination in another order, using section 161.001 alone if

termination is sought on evidence of acts or omissions having occurred since the

earlier order in which termination was denied.” In re D.N., 405 S.W.3d 863, 870

(Tex. App.—Amarillo 2013, no pet.) (emphasis in original).

Section 161.004 provides an alternative method for termination following the

rendition of an order that previously denied termination if (1) termination is in the

child’s best interest, (2) the new petition to terminate was filed after the date of the

prior order denying termination, (3) the parent committed an act listed under Section

161.001 before the date of the prior order denying termination, and (4) the

circumstances of the child, parent, sole managing conservator, possessory

conservator, or other party affected by the prior order have “materially and

substantially changed” since the date of the order. TEX. FAM. CODE § 161.004(a). At

a hearing under Section 161.004, “the court may consider evidence presented at a

previous hearing in a suit for termination of the parent-child relationship of the

parent with respect to the same child.” Id. § 161.004(b).

“There are no definite guidelines as to what constitutes a material and

substantial change in circumstances under [Section] 161.004.” In re N.R.T., 338

26 S.W.3d 667, 679 (Tex. App.—Amarillo 2011, no pet.). Instead, courts make this

determination based on the facts of each case. Id. Courts have found evidence of a

material and substantial change when among other things, a child has moved from a

non-adoptive placement to an adoptive placement. See In re H.M.O.L., No. 01-17-

00775-CV, 2018 WL 1659981, at *12 (Tex. App.—Houston [1st Dist.] Apr. 6, 2018,

pet. denied) (mem. op.) (“The fact that Ken was in an adoptive placement in 2017 is

a material and substantial change in his circumstances since the rendition of the

previous order in April 2015.”); In re J.R., No. 07–12–00003–CV, 2012 WL

1605738, at *4 (Tex. App.—Amarillo May 8, 2012, no pet.) (mem. op.) (observing

that children, who were in foster homes, were “significantly closer, both

psychologically and logistically, to places in which they seek adoptive families and

stability,” thereby supporting finding of material and substantial change in

circumstances). A material and substantial change in circumstances may be

established by either direct or circumstantial evidence. In re A.L.E., 279 S.W.3d 424,

429 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

Due to the elevated burden of proof in termination cases, courts do not apply

traditional factual and legal sufficiency of the evidence standards. See In re C.H., 89

S.W.3d 17, 26 (Tex. 2002) (rejecting application of traditional sufficiency standards

when clear and convincing burden of proof applies). In a legal sufficiency review of

a trial court’s findings of fact where a clear and convincing evidence standard

27 applies, “‘[we] look at all the evidence in the light most favorable to the finding to

determine whether a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true.’” In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020)

(quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We “must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder

could do so.” In re Z.N., 602 S.W.3d at 545 (quoting In re J.F.C., 96 S.W.3d at 266).

We must “disregard all evidence that a reasonable factfinder could have disbelieved

or found to have been incredible.” In re Commitment of Stoddard, 619 S.W.3d 665,

674 (Tex. 2020) (quoting In re J.F.C., 96 S.W.3d at 266). “In cases requiring clear

and convincing evidence, even evidence that does more than raise surmise and

suspicion will not suffice unless that evidence is capable of producing a firm belief

or conviction that the allegation is true.” In re K.M.L., 443 S.W.3d 101, 112 (Tex.

2014). But if we “determine[ ] that [a] reasonable factfinder could form a firm belief

or conviction that the matter that must be proven is true,” the evidence is legally

sufficient. In re Z.N., 602 S.W.3d at 545 (quoting In re J.F.C., 96 S.W.3d at 266).

For a factual sufficiency review of a finding where a clear and convincing

evidence standard applies, we review the entire record in a neutral light, giving due

consideration to evidence that the factfinder could reasonably have found to be clear

and convincing. In re J.F.C., 96 S.W.3d at 266. In contrast to the legal sufficiency

review:

28 a factual-sufficiency review is premised on consideration of the entire record. The assumption that the factfinder resolved disputed evidence in favor of the finding if a reasonable factfinder could do so remains. However, rather than “disregard” disputed evidence that a reasonable factfinder could not have credited in favor of the finding, the court must determine whether, in light of the entire record, that evidence “is so significant that a factfinder could not reasonably have formed a firm belief or conviction” that the finding was true.

In re Commitment of Stoddard, 619 at 674–75 (internal citations omitted). If the

evidence would allow a reasonable factfinder to form a firm belief or conviction

about the truth of the challenged finding, and the evidence contrary to the finding is

not so significant that a factfinder could not reasonably have formed a firm belief or

conviction, the evidence is factually sufficient. In re J.F.C., 96 S.W.3d at 266.

Under both legal and factual sufficiency standards, the trial court is “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)). As the

sole factfinder in a bench trial, it is the trial court’s province to weigh the evidence

and resolve any evidentiary conflicts. See In re R.J., 579 S.W.3d 97, 117 (Tex.

App.—Houston [1st Dist.] 2019, pet. denied). Because of the fact-intensive nature

of review of parental termination cases, appellate courts afford great deference to

the factfinder on issues of credibility and demeanor because the factfinder “faced the

parties and their witnesses, observed their demeanor, and had the opportunity to

evaluate the claims made by each parent.” In re J.J.G., 540 S.W.3d 44, 56 (Tex.

29 App.—Houston [1st Dist.] 2017, pet. denied) (quoting In re J.R.D., 169 S.W.3d 740,

743 (Tex. App.—Austin 2005, pet. denied)).

Termination under Section 161.004

The trial court terminated Mother’s parental rights to Jack, John, and Mark

pursuant to Family Code Section 161.004. In the July 2025 Order, the trial court

found (1) there had been a previous denial of termination of Mother’s parental rights

to Jack, John, and Mark, (2) “the circumstances of the children, parent, sole

managing conservator, possessory conservator, or other party affected by the order

denying termination ha[d] materially and substantially changed since the date the

order was rendered,” (3) Mother “committed an act listed in 161.001 before and after

the date denying termination was rendered,” and (4) termination of Mother’s

parental rights was in the best interest of Jack, John, and Mark.

Mother’s Appeal

In her first, second, and third issues, Mother argues there is legally and

factually insufficient evidence supporting the trial court’s findings that she

committed the predicate acts for termination under Sections 161.001(b)(1)(E), (O),

and (P) of the Family Code. In her fourth issue, she argues that termination of her

parental rights was not in the best interest of Jack, John, and Mark. And in her fifth

issue, she argues the trial court abused its discretion in appointing the Department

30 as sole managing conservator of Jack, John, and Mark, and in appointing Mary as

the sole managing conservator of Julie.

Predicate Findings

A. Endangerment Finding Under Section 161.001(b)(1)(P)

Under Section 161.001(b)(1)(P), a parent’s rights may be terminated if clear

and convincing evidence establishes the parent “used a controlled substance, as

defined by Chapter 481, Health and Safety Code, in a manner that endangered the

health or safety of the child” and either “failed to complete a court-ordered substance

abuse treatment program” or “after completion of a court-ordered substance abuse

treatment program, continued to abuse a controlled substance.” TEX. FAM. CODE

§ 161.001(b)(1)(P).

The term “endanger” encompasses a broad “array of conduct that ‘expose[s a

child] to loss or injury’ or ‘jeopardize[s]’ the child.” In re R.R.A., 687 S.W.3d at 277

(quoting Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987));

see also In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014,

pet. denied) (stating parent’s conduct that subjects child to life of uncertainty and

instability endangers child’s physical and emotional well-being). “[E]ndangering

conduct is not limited to actions directed towards the child.” In re J.O.A., 283 S.W.3d

at 345; see also In re T.G.R.-M., 404 S.W.3d 7, 13 (Tex. App.—Houston [1st Dist.]

2013, no pet.). The danger to the child may be inferred from parental misconduct,

31 even if the conduct is not directed at the child and the child suffered no actual injury.

See Boyd, 727 S.W.2d at 533 (stating although endanger means “more than a threat

of metaphysical injury or the possible ill effects,” “it is not necessary that the conduct

be directed at the child or that the child actually suffers injury”); see also In re D.T.,

34 S.W.3d 625, 636–37 (Tex. App.—Fort Worth 2000, pet. denied) (stating parent’s

conduct with regard to other children can support finding of endangerment).

Evidence of a parent’s illegal drug use may support a finding of

endangerment. See In re J.O.A., 283 S.W.3d at 345. In In re R.R.A., the Texas

Supreme Court clarified the connection between a parent’s illegal drug use and

endangerment of a child. The court confirmed that endangerment does not require a

parent’s drug use to harm the child directly. Instead, “a pattern of parental behavior

that presents a substantial risk of harm to the child permits a factfinder to reasonably

find endangerment.” 687 S.W.3d at 278. The court explained:

While illegal drug use alone may not be sufficient to show endangerment, a pattern of drug use accompanied by circumstances that indicate related dangers to the child can establish a substantial risk of harm. A reviewing court should not evaluate drug-use evidence in isolation; rather, it should consider additional evidence that a factfinder could reasonably credit that demonstrates that illegal drug use presents a risk to the parent’s “ability to parent.”

Id. (quoting In re J.O.A., 283 S.W.3d at 345) (emphasis in original); see also In re

A.V., 697 S.W.3d 657, 659 (Tex. 2024) (stating In re R.R.A. requires “holistic

endangerment review”). For example, “[w]hen a pattern of drug use is coupled with

32 credible evidence of attendant risks to employment, housing, and prolonged absence

from the children, a factfinder reasonably can find endangerment to the child’s

physical or emotional well-being under (D) and (E).” In re R.R.A., 687 S.W.3d at

281; see id. (“Father’s positive drug tests in 2020 and across-the-board refusal to

undergo service-plan tests from November 2020 to September 2021 sufficiently

develop Father’s continued pattern of drug use.”).

The court held in In re R.R.A. that the lower court “should not have ignored

the aggregate weight of Father’s ongoing drug use, homelessness, employment

instability, and near-complete abandonment of his children for the six months

preceding trial,” and the court “reasonably could have inferred that this conduct, in

the aggregate, endangered the children’s physical and emotional well-being.” Id.

B. Analysis

The record reflects that Mother used marijuana in March 2014 while she was

pregnant with Mark. She and the children were living in “deplorable conditions” and

when Mark was born in May 2024, she and Mark tested positive for marijuana. See

In re H.M.O.L., 2018 WL 1659981, at *13 (“Illegal drug usage during pregnancy is

also conduct that endangers the physical and emotional well-being of the unborn

child.”); In re S.F., No. 07-24-00310-CV, 2025 WL 424727, at *4 n.9 (Tex. App.—

Amarillo Feb. 6, 2025, pet. denied) (mem. op.) (“Marijuana is a controlled substance

33 under Chapter 481 of the Health and Safety Code.”) (citing TEX. HEALTH & SAFETY

CODE §§ 481.002(5), .032).

The evidence also reflects that Mother and the children had been living in a

motel room for a week with only one bed when the Department received a referral

from Mike’s father in February 2020 involving allegations of drug use and neglect.

Mike’s father alleged that Mother and her boyfriend had spent all the family’s money

on marijuana, and Mike had seen Mother smoke marijuana. He alleged that the hotel

room was dirty, that Mike appeared malnourished, and that Mike stated he

sometimes went to bed without food.

During the pendency of the 2022 case, Mother tested positive for marijuana

several times, even after she was successfully discharged from a substance abuse

program. Mother tested positive for marijuana on May 11, 2022 (hair and urine) and

May 17, 2022 (urine). Although she was successfully discharged from a substance

abuse program on November 16, 2022, she tested positive for marijuana on

November 30, 2022 (urine), December 13, 2022 (urine), December 15, 2022 (hair),

March 14, 2023 (hair), and March 15, 2023 (hair). After being discharged

successfully from a second substance abuse program on May 9, 2023, Mother

relapsed and tested positive for marijuana less than a week later on May 15, 2023

(hair) and again on June 20, 2023 (hair) while trial in the 2022 case was in progress.

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

34 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.”) (quoting In re K.C.F., No. 01–13–01078–CV, 2014 WL 2538624, at

*9–10 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (mem. op.)). This evidence

demonstrates that Mother repeatedly tested positive for marijuana while the children

were in the Department’s care, despite knowing that her parental rights were at stake

and that she was required to stop using marijuana before the children could be

returned to her care, and thus supports the trial court’s finding of endangerment. See

In re K.A.C., 594 S.W.3d 364, 373 (Tex. App.—El Paso 2019, no pet.) (“[E]vidence

that the parent continued to use illegal drugs even though the parent knew her

parental rights were in jeopardy is conduct showing a voluntary, deliberate, and

conscious course of conduct, which by its nature, endangers a child’s well-being.”);

see also In re R.R.A., 687 S.W.3d at 281 (recognizing parent’s “positive drug tests

in 2020 and across-the-board refusal to undergo service-plan tests from November

2020 to September 2021 sufficiently develop[ed] [his] continued pattern of drug

use”); In re M.T.W., 01-11-00162-CV, 2011 WL 6938542, at *13 (Tex. App.—

Houston [1st Dist.] Dec. 29, 2011, no pet.) (mem. op.) (“A parent’s engaging in

illegal drug activity after agreeing not to do so in a service plan for reunification with

her children is sufficient to establish clear and convincing proof of voluntary,

35 deliberate, and conscious conduct that endangered the well-being of her children.”)

(quotation omitted).

The evidence reflects that Mother’s marijuana use occurred when Mother and

the children were living in unsafe and unsanitary conditions in 2014. And it also

reflects that in 2020, Mother was spending all her money on marijuana while she

and the children were living in a motel room, that the hotel room was dirty, and that

the children went to bed without food sometimes. Some of the children had not been

in school in a month and Mother would go out leaving the children alone. Based on

this evidence, a rational factfinder could reasonably infer that Mother’s “difficulties

in providing shelter and support for” for the children “were related to [her] drug

use.” In re R.R.A., 687 S.W.3d at 279; see id. at 281 (“When a pattern of drug use is

coupled with credible evidence of attendant risks to employment, housing, and

prolonged absence from the children, a factfinder reasonably can find endangerment

to the child’s physical or emotional well-being under (D) and (E).”).

Viewing the evidence in the light most favorable to trial court’s finding, we

conclude the trial court could have formed a firm belief or conviction that prior to

the September 2023 order, Mother used a controlled substance in a manner that

endangered the health or safety of Jack, John and Mark, and Mother continued to

abuse a controlled substance after she completed a court-ordered substance abuse

treatment program. TEX. FAM. CODE § 161.001(b)(1)(E); In re J.F.C., 96 S.W.3d at

36 266; see also TEX. FAM. CODE § 161.004(a)(3) (requiring finding parent committed

predicate act “before the date the order denying termination was rendered”).

Further, in view of the entire record, we conclude that the disputed evidence

is not so significant as to prevent the trial court from forming a firm belief or

conviction that prior to the September 2023 order, Mother used a controlled

substance in a manner that endangered the health or safety of Jack, John, and Mark,

and Mother continued to abuse a controlled substance after she completed a court-

ordered substance abuse treatment program. TEX. FAM. CODE § 161.001(b)(1)(P)(2);

In re J.F.C., 96 S.W.3d at 266; see also TEX. FAM. CODE § 161.004(a)(3).

We overrule Mother’s third issue.6

6 Mother does not challenge the trial court’s finding that the circumstances of the children, a conservator, or other party affected by the order have materially and substantially changed since the rendition of the September 2023 decree. See In re J.D.R.G., No. 01-18-00469-CV, 2018 WL 6175321, at *6 (Tex. App.—Houston [1st Dist.] Nov. 27, 2018, pet. denied) (noting that unchallenged findings of fact are binding on appellate court “unless the contrary is established as a matter of law, or if there is no evidence to support the finding”). When the September 2023 decree was rendered, Jack, John, and Mark were placed in an emergency shelter and the boys did not want Mother’s rights terminated. They boys were in an adoptive placement when the 2025 decree was rendered and they had expressed that they wanted to remain in their current placement. The fact that Jack, John, and Mark were in an adoptive placement in 2025 is a material and substantial change in their circumstances since the rendition of the prior decree. See In re H.M.O.L., No. 01-17-00775-CV, 2018 WL 1659981, at *12 (Tex. App.— Houston [1st Dist.] Apr. 6, 2018, pet. denied) (mem. op.) (holding there was sufficient evidence supporting trial court’s finding of material and substantial change in circumstances when child, who had not been in adoptive placement when first petition to terminate was denied, was in adoptive placement).

37 C. Endangerment Finding Under Section 161.001(b)(1)(E)

In her first and second issues, Mother argues there is legally and factually

insufficient evidence supporting the trial court’s findings that she committed the

predicate acts for termination under Sections 161.001(b)(1)(E) and (O) of the Family

Code. Under Section 161.001(b)(1)(E), a parent’s rights may be terminated if clear

and convincing evidence establishes the parent “engaged in conduct or knowingly

placed the child with persons who engaged in conduct which endangers the physical

or emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(E). And

under Section 161.001(b)(1)(O), a parent’s rights may be terminated if the trial court

finds by clear and convincing evidence that a parent “failed to comply with the

provisions of a court order that specifically established the actions necessary for the

parent to obtain the return of the child who has been in the permanent or temporary

managing conservatorship of the Department of Family and Protective Services for

not less than nine months as a result of the child’s removal from the parent under

Chapter 262 for the abuse or neglect of the child.” Id. § 161.001(b)(1)(O).7

Evidence that Mother continued to use marijuana after the September 2023 decree also supports the trial court’s finding of a material and substantial change in circumstances. See In re J.R.P., 526 S.W.3d 770, 779 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (holding trial court did not abuse its discretion in finding material and substantial change in parent’s circumstances considering evidence of parent’s drug relapse after first petition to terminate was denied). 7 The legislature repealed Subsection (O) effective September 1, 2025. H.B. 116, Act of May 28, 2025, 89th Leg., R.S., ch. 211, 2025 Tex. Sess. Law Serv. The repeal

38 Ordinarily, it would be necessary for us to review the trial court’s finding

under Subsection (E) because termination of parental rights on this basis can serve

as the basis for termination of a parent’s rights to another child in the future. See

N.G., 577 S.W.3d 230, 235 (Tex. 2019) (stating due process requires review of trial

court’s findings under Subsection (E) “even when another ground is sufficient for

termination, because of the potential consequences for parental rights to a different

child”); TEX. FAM. CODE § 161.001(b)(1)(M) (authorizing trial court to terminate

parental rights to child if court finds by clear and convincing evidence parent “had

his or her parent-child relationship terminated with respect to another child based on

a finding that the parent’s conduct was in violation of Paragraph (D) or (E)”); see

also In re R.R.A., 687 S.W.3d at 279 (“Although termination under (P) is sufficient

to reverse the judgment of the court of appeals, we must also review termination

under subsections (D) and (E) because a finding of termination under those grounds

may justify termination of parental rights to other children under subsection (M).”).

Here, however, there is no dispute that Mother’s parental rights to Mike and Ivan

were terminated in 2023, and that the trial court did so based on a finding that Mother

applies to suits affecting the parent-child relationship pending in the trial court on the effective date of September 1, 2025. Because the trial court entered its final judgment on July 24, 2025 and the notice of appeal was filed prior to the effective date, Subsection (O) remains in effect for the purpose of this appeal. See In re G.A.H., No. 05-25-00421-CV, 2025 WL 2697297, at *1 (Tex. App.—Dallas Sept. 22, 2025, no pet.) (mem. op.).

39 endangered Mike’s and Ivan’s physical or emotional well-being as required for

termination under Sections 161.001(b)(1)(D) and (E). See TEX. FAM. CODE

§ 161.001(b)(1)(D), (E).

Although Mother appealed from the termination of her rights to Mike and

Ivan, she challenged only the trial court’s finding that termination of her rights to

Mike and Ivan was in their best interest. See In re J.C.D.Y., 2024 WL 1334334, at

*25. She did not challenge the sufficiency of the evidence supporting the trial court’s

predicate findings for termination under Section 161.001(b)(1), including the trial

court’s findings that Mother endangered Mike’s and Ivan’s physical or emotional

well-being as required for termination under Sections 161.001(b)(1)(D) and (E). See

TEX. FAM. CODE § 161.001(b)(1)(D), (E). We affirmed the trial court’s 2023 order

terminating Mother’s rights to Mike and Ivan and the Texas Supreme Court denied

Mother’s petition for review. See In re J.C.D.Y., 2024 WL 1334334, at*33.

The trial court’s endangerment finding in the challenged July 2025 order thus

does not impose any additional consequences for Mother to which she was not

already subject to as a result of the September 2023 order terminating her parental

rights to Mike and Ivan. We thus need not address whether there is sufficient

evidence supporting the trial court’s findings under Subsection (E). See In re R.S.,

No. 01-20-00126-CV, 2020 WL 4289978, at *6 (Tex. App.—Houston [1st Dist.]

July 28, 2020, no pet.) (mem. op.) (holding appellate court did not need to address

40 endangerment finding because it did not impose any additional collateral

consequences).

Moreover, because there is legally and factually sufficient evidence

supporting the trial court’s finding that Mother committed the predicate act under

Section 161.001(b)(1)(P), we need not consider whether there is sufficient evidence

supporting the trial court’s findings under Subsections (E) and (O). See In re A.V.,

113 S.W.3d 355, 362 (Tex. 2003) (stating one predicate finding under

Section 161.001(b)(1) “is necessary to support a judgment of termination when there

is also a finding that termination is in the child’s best interest”); see also In re N.G.,

577 S.W.3d at 232.

We overrule Mother’s first and second issues.

Best Interest

In her fourth issue, Mother argues there is legally and factually insufficient

evidence supporting the trial court’s finding that termination of her parental rights

to Jack, John, and Mark is in the children’s best interest.

A. Applicable Law

The purpose of the State’s intervention in the parent-child relationship is to

“protect the best interests of the children, not to punish parents for their conduct.” In

re A.V., 113 S.W.3d at 361. There is a strong presumption that the best interest of a

child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116

41 (Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]

2012, no pet.). But there is also a presumption that the “prompt and permanent

placement of the child in a safe environment is presumed to be in the child’s best

interest.” TEX. FAM. CODE § 263.307(a); see also In re B.J.C., 495 S.W.3d 29, 39

(Tex. App.—Houston [14th Dist.] 2016, no pet.) (noting child’s need for

permanence through establishment of stable, permanent home is paramount

consideration in best interest determination).

To determine whether parental termination is in a child’s best interest, courts

may consider the following non-exclusive factors: (1) the desires of the child; (2) the

present and future physical and emotional needs of the child; (3) the present and

future emotional and physical danger to the child; (4) the parental abilities of the

persons seeking custody; (5) the programs available to assist those persons seeking

custody in promoting the best interest of the child; (6) the plans for the child by the

individuals or agency seeking custody; (7) the stability of the home or proposed

placement; (8) acts or omissions of the parent that may indicate the existing parent-

child relationship is not appropriate; and (9) any excuse for the parent’s acts or

omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors are

not exhaustive, and evidence is not required on every factor to support a finding that

termination of parental rights is in the child’s best interest. Id.; In re D.R.A., 374

S.W.3d at 533. Courts may consider circumstantial evidence, subjective factors, and

42 the totality of the evidence as well as direct evidence when conducting a best interest

analysis. See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet.

denied).

We may also consider the statutory factors under Texas Family Code Section

263.307, including (1) the child’s age and physical and mental vulnerabilities;

(2) whether there is a history of abusive or assaultive conduct by the child’s family

or others who have access to the child’s home; (3) the willingness and ability of the

child’s family to seek out, accept, and complete counseling services and to cooperate

with and facilitate an appropriate agency’s close supervision; (4) the willingness and

ability of the child’s family to effect positive environmental and personal changes

within a reasonable period of time; (5) whether the child’s family demonstrates

adequate parenting skills, including providing the child with minimally adequate

health and nutritional care, a safe physical home environment, and an understanding

of the child’s needs and capabilities; and (6) whether an adequate social support

system consisting of an extended family and friends is available to the child. TEX.

FAM. CODE § 263.307(b); In re R.R., 209 S.W.3d at 116.

A parent’s past conduct is probative of his future conduct when evaluating the

child’s best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San

Antonio 2013, no pet.). A factfinder may also infer that past conduct endangering

the well-being of a child may recur in the future if the child is returned to the parent

43 when assessing the best interest of the child. See In re D.M., 452 S.W.3d 462, 471

(Tex. App.—San Antonio 2014, no pet.).

Evidence supporting termination under one of the predicate grounds listed in

Section 161.001(b)(1) may also be considered in support of a finding that

termination is in the best interest of the child. See In re C.H., 89 S.W.3d at 28

(holding same evidence may be probative of both Section 161.001(b)(1) grounds

and best interest).

Multiple factors support the trial court’s finding that termination of Mother’s

parental rights was in the best interest of Jack, John, and Mark, including Mother’s

lengthy history of endangering her children, who experienced profound neglect and

physical abuse while in Mother’s care, her ongoing use of marijuana in a manner or

under circumstances that harmed or threatened to harm the children, and her

unwillingness to accept responsibility for the circumstances that brought the children

into the Department’s care in 2022.

As to the present and future emotional and physical dangers to Jack, John, and

Mark, the evidence shows that Mother endangered the children’s well-being by

having repeatedly allowed Jack, John, Mark, and their siblings to live in unsafe and

unsanitary conditions. See Holley, 544 S.W.2d at 372 (identifying present and future

emotional and physical dangers to child as best interest factor).

44 The record from the 2025 trial reflects that the Department investigator and

police officers who visited Mother’s home in January 2022 described the home as

“unsuitable” and “not livable for the children.” The home was filthy and smelled of

urine. It was filed with bags of trash, infested with rats and cockroaches, and there

was “loose wiring” hanging out of the walls. There was no running water in the home

and the toilet and sink in the children’s bathroom were filled with urine and feces.

There was no food in the kitchen or deep freezer, and there was one mattress on the

floor in the master bedroom which Mother shared with her six children. When they

were questioned by the Department, Mike and Julie reported that Mother had been

leaving them alone for days at a time for the previous six months with fourteen-year-

old Mike as the children’s primary caretaker.

The Department also found Mike, Julie, Jack, and John living in similar

“deplorable conditions” in March 2014. According to the referral, there was a

“stench as you walk into the home,” it was littered with clothes “and stuff,” and it

did not have “a sink, a bathroom shower or tub.” There is also evidence that in

February 2020, Mother and the children were living in a dirty motel room for a week

with only one bed and the children would sometimes go to bed without eating.

According to the referral, Mike cared for his five younger siblings, including two-

year-old Ivan, when Mother was gone.

45 This is some evidence that Mother repeatedly placed her children in dangerous

and unsanitary living conditions and left them home alone for days at a time and thus

supports the trial court’s best interest finding. See In re L.W., No. 01-18-01025-CV,

2019 WL 1523124, at *16 (Tex. App.—Houston [1st Dist.] Apr. 9, 2019, pet.

denied) (mem. op.) (holding evidence parent allowed child to live in unsanitary

conditions supports endangerment and best interest findings); In re E.P.C., 381

S.W.3d 670, 683–84 (Tex. App.—Fort Worth 2012, no pet.) (stating evidence parent

left young child alone in apartment supports endangerment finding). The trial court

could also infer from this evidence that such endangering conduct could reoccur in

the future if the children were returned to Mother’s care. See In re D.M., 452 S.W.3d

at 471 (stating fact finder may infer that past endangering conduct will recur if child

returned to parent).

There is also evidence that Mother physically abused the children and exposed

them to domestic violence while they were in her care. Mike, Jack, and Mark made

outcries of physical abuse by Mother and Julie collaborated their claims. The boys’

foster mother testified that Jack, John, and Mark had scars on their bodies that were

caused by Mother and their maternal grandmother. They told her that “they always

did something bad,” but “sometimes they didn’t do anything, but they still got a

whooping.” Mike also told the Department that Ivan’s father was “abusive to his

mother and has seen him hit his mother.” This evidence also supports the trial court’s

46 best interest finding. See In re A.K.T., No. 01-18-00647-CV, 2018 WL 6423381, at

*16 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, pet. denied) (mem. op.) (stating

mother’s history of violent abusive conduct directed at child, father, and other

individuals supported best interest finding); see also In re K.S., 2014 WL 3867529,

at *9–11 (stating evidence children witnessed violence in home supports

endangerment and best interest findings). The evidence that Julie told the forensic

interviewer that she had been sexually assaulted and although Mother was aware of

the abuse, Mother did nothing about it, also supports the trial court’s best interest

finding. See In re A.B., 125 S.W.3d 769, 778 (Tex. App.—Texarkana 2003, pet.

denied) (stating parent’s “failure to protect the emotional well-being of the children

following the allegations of sexual abuse” supports trial court’s best interest finding).

A fact finder may infer that such endangering conduct may recur in future if the child

is returned to the parent. See In re D.M., 452 S.W.3d at 471 (stating fact finder may

infer that past endangering conduct will recur if child returned to parent).

With regard to the present and future physical and emotional needs of the

children, the record reflects that Mother failed to meet many of her children’s basic

needs by failing to provide adequate food and neglecting the children’s personal

hygiene. In re K-A.B.M., 551 S.W.3d 275, 288 (Tex. App.—El Paso 2018, no pet.)

(“A child’s basic needs include food, shelter, clothing, routine medical care, and a

safe, stimulating, and nurturing home environment.”); see also Holley, 544 S.W.2d

47 at 372 (identifying present and future physical and emotional needs of child as best

interest factor); TEX. FAM. CODE § 263.307(b)(12)(A) (stating parent’s ability to

provide child with “minimally adequate health and nutritional care” is best interest

factor).

The record reflects that concerns were raised about the availability and

adequacy of food in Mother’s home as early as 2019. In May 2019, Julie’s teacher

reported that Julie was severely underweight and often asked to take food home from

school. Mike’s father told the Department that when he saw Mike in 2020, Mike was

skinny, he appeared malnourished, and his leg bones protruded. Mike also told his

father that he went to bed without food some days. The foster mother for Jack, John,

and Mark testified that the boys “were not used to having food,” and they would eat

until they “literally got sick,” they stole food, and there “was never a time when they

[weren’t] hungry.” Piaskowski testified that Mother had not met the children’s

nutritional needs, and the children blamed each other for eating too much. This

evidence that Mother did not provide the children with adequate nutrition also

supports the court’s best interest finding. See In re D.M., 452 S.W.3d at 470 (stating

evidence that home had no food and child appeared hungry supported endangerment

finding).

The record also reflects that Mother repeatedly neglected her children’s

personal hygiene for years. In May 2019, Julie’s teacher reported that Julie’s hygiene

48 was deteriorating, and her clothes had “a very strong smell of urine.” Mike’s father

reported that when he saw Mike in 2020, Mike smelled like mildew, his hair was

smelly and matted. When they were removed from Mother’s home in January 2022,

Jack, John, Mark, and their siblings “had a strong, musty, urine and filth stench,”

they were wearing smelly, soiled clothing, they had trash or debris stuck in their

“severely matted” hair and they were underweight for their ages. It was apparent to

the police and to Whitely that none of the children had bathed “for quite some time.”

This evidence also supports the trial court’s best interest finding. See In re J.H., No.

01-22-00629-CV, 2023 WL 2169952, at *14, 18 (Tex. App.—Houston [1st Dist.]

Feb. 23, 2023, pet. denied) (mem. op.) (holding “evidence of unsanitary and

dangerous conditions in a child’s home as well as evidence that a parent has

neglected her child’s physical condition” supports endangerment and best interest

findings); see generally In re S.G.S, 130 S.W.3d 223, 238 (Tex. App.—Beaumont

2004, no pet.) (reasoning that fact finder could infer from actual neglect of one child

that physical and emotional well-being of other children was also jeopardized).

A parent’s drug use is also indicative of instability in the home because it

exposes the children to the possibility that the parent may be impaired or imprisoned.

See In re A.M., 495 S.W.3d at 579; see also In re J.O.A., 283 S.W.3d at 345 (“[A]

parent’s use of narcotics and its effect on his or her ability to parent may qualify as

an endangering course of conduct.”); TEX. FAM. CODE § 263.307(b)(8) (including

49 “whether there is a history of substance abuse by the child’s family” among factors

that “should be considered by the court” when “determining whether the child’s

parents are willing and able to provide the child with a safe environment”).

The record reflects that Mother used marijuana in March 2014 while she was

pregnant with Mark and she and the children were living in “deplorable conditions.”

Mother and Mark tested positive for marijuana at Mark’s birth in May 2014. See In

re H.M.O.L., 2018 WL 1659981, at *13 (“Illegal drug usage during pregnancy is

also conduct that endangers the physical and emotional well-being of the unborn

child.”). In 2020, when Mother and the children had been living in a motel room for

a week, Mike’s father made a referral to the Department alleging that Mother and

her boyfriend spent all of the family’s money on marijuana, and Mike had seen

Mother smoke marijuana. See In re J.O.A., 283 S.W.3d at 345 (stating parent’s

illegal drug use, including effect of such use on her life and parenting abilities, may

establish endangering course of conduct under subsection (E)); In re E.D., 682

S.W.3d 595, 607 (Tex. App.—Houston [1st Dist.] 2023, pet. denied) (“A continuing

pattern of illegal drug use. . . implicates most of the Holley factors and will support

a finding that termination of parental rights is in a child’s best interest.”).

While the 2022 case was pending, Mother submitted nine urine and hair

samples that tested positive for marijuana or marijuana metabolites. Mother also

tested positive for drugs during trial in the 2022 case and after she was discharged

50 from substance abuse treatment twice. See In re A.M., 495 S.W.3d at 580 (“[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.”)

(quoting In re K.C.F., 2014 WL 2538624, at *9–10). Mother also had several

negative drug tests after the Department filed its motion to modify in October 2024,

but her December 23, 2024 hair follicle test was positive for marijuana and she failed

to submit to drug testing on multiple occasions. See In re J.M.T., 519 S.W.3d 258,

269 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (stating refusal to give hair

sample permitted court to infer father refused testing because it would be positive).

With respect to Mother’s parental abilities, Mother’s use of marijuana during

the pendency of the case indicates that she lacks the parental abilities necessary to

care for the children and supports the trial court’s best interest finding. See In re

D.R., 631 S.W.3d 826, 835 (Tex. App.—Texarkana 2021, no pet.) (“Mother’s use

of methamphetamine during the pendency of the case, even after being released from

inpatient treatment, showed that she lacked the parental abilities necessary to care

for the children, that she failed to learn from the programs available to assist her, and

that the existing parent-child relationship was not a proper one.”).

Evidence of Mother’s unwillingness to accept responsibility for the

circumstances that brought the children into the Department’s care in 2022 also

51 supports the trial court’s best interest finding. Mother’s FSP reflects that the

Department was concerned because although Mother had completed parenting

classes and individual therapy, she remained “in deep denial about the negative

effects of her absenteeism, neglect and poor parenting” on the children, she

continued to deny that she abused or neglected the children, and she “deflect[ed] and

blam[ed] anything the children allege on their time in [the Department’s] care.”

Although Hackett testified that Mother was compliant with her FSP except for the

random drug testing requirement, she also testified that the Department was asking

the trial court to terminate Mother’s parental rights to Jack, John, and Mark in part

because Mother had “not tak[en] accountability for the physical abuse and the

neglect” of the children that occurred before the September 2023 order.

Mother testified that she had taken responsibility for the reasons the children

were removed from her home in 2022 and she “a hundred percent” understood the

conditions of her home, and that she was “supposed to be home more hours.” She

testified that the parenting classes she completed in June 2022 taught her what she

had “done wrong and specifically how to change the behaviors.” Mother, however,

continued to deny, minimize, or excuse the deplorable, unsanitary, and dangerous

conditions in her home, including the lack of food and running water, feces in the

sink, and rat and cockroach infestation. She also denied leaving them unsupervised

at home and claimed that she provided the children with three meals a day even when

52 she was away. Mother also denied physically abusing the children and when asked

about the scars on the children’s bodies when they first came into the Department’s

care in 2022, Mother testified that one scar was caused by Jack’s father, and the

other scars were from accidents at school, and chicken pox. Mother also testified

that she had not used marijuana for a year and a half, despite her positive drug test

in December 2024, and she suggested that the positive result was caused by the CBD

gummies she had been taking at her doctor’s suggestion. As the sole factfinder, the

trial court could have disbelieved Mother’s testimony that she took responsibility for

the conditions that lead to her children being removed and credited Haskett’s

testimony that Mother had “not tak[en] accountability for the physical abuse and the

neglect,” and we must defer to the court’s findings. See In re J.F.-G., 627 S.W.3d at

311–12 (stating appellate courts should defer to fact finder’s determinations

regarding witness credibility); see also In re J.P.B., 180 S.W.3d at 574 (noting it is

within fact finder’s province to access parent’s demeanor and to disbelieve parent’s

testimony).

Although Mother denied causing the children’s injuries, leaving the children

unsupervised at home, and failing to provide them with sufficient food, it was within

the trial court’s province, as the sole arbiter of a witness’s credibility, to disbelieve

Mother’s testimony and credit the children’s and other witnesses’ testimony to the

contrary. See In re J.O.A., 283 S.W.3d at 346 (stating trial court is sole arbiter of

53 witness credibility and demeanor). Likewise, although Mike testified that Mother

never abused him, neglected him, or used drugs in front of him and she had provided

him with a safe, stable home with sufficient food, the trial court, as the sole fact

finder, could have disbelieved Mike’s testimony and instead credited evidence and

testimony to the contrary, and we must defer to the court’s findings. See In re J.F.-

G., 627 S.W.3d at 311–12; see also In re J.P.B., 180 S.W.3d at 574.

By all accounts, the boys’ foster parents have provided Jack, John, and Mark

with a loving, safe, stable, nurturing, and drug-free home environment and the boys

are thriving in their care, thus demonstrating that the boys’ foster parents are able to

meet their present and future physical and emotional needs. There is also evidence

that Jack, John, and Mark are well bonded to their foster parents, whom they referred

to as mom and dad, and who wanted to adopt Jack, John, and Mark and their younger

brother Ivan. Jack, John, and Mark want their foster parents to adopt them. See

Holley, 544 S.W.2d at 372 (recognizing desires of child, child’s present and future

physical and emotional needs, present and future emotional and physical dangers to

child, parental abilities of persons seeking custody, plans for child by individuals

seeking custody, child’s desires, and stability of home or proposed placement as best

interest factors); see also In re M.D.M., 579 S.W.3d 744, 770 (Tex. App.—Houston

[1st Dist.] 2019, no pet.) (“Evidence that a child is well-cared for by a foster family

or a proposed adoptive placement, is bonded to the proposed placement, and has

54 spent minimal time in the presence of the child’s parent is relevant to the best interest

determination and, specifically, is relevant to the child’s desires.”).

Mother testified that although she had tried to visit with Jack, John, and Mark

after the September 2023 order, she was denied the opportunity to do so because the

Department was not able to provide the visitation. According to Mother, the

Department’s failure to arrange for these court-required visits with Jack, John, and

Mark denied her an opportunity to bond with the children, and she would have had

a closer relationship with them if the Department had arranged for the monthly visits.

The evidence reflects, however, that Mother was able to visit with the children on

several occasions, and in January or February 2025, the boys refused to visit Mother.

Furthermore, Mother had already established a bond with the children before they

were removed from her care.

Mother argues that her successful completion of her FSP either weighs in

favor of or neutralizes several Holley factors, including considerations of the

children’s needs, any danger she posed, parenting abilities, available programs,

stability, the parent’s acts or omissions, and any excuses the parent has for her

conduct. According to Mother, she satisfied her FSP’s requirements because she

provided the Department with proof of stable housing and employment, provided

proof of income, submitted to psychological assessments in May 2022 and

December 2024, completed a parenting class in June 2022, submitted to a substance

55 abuse assessment in September 2022, and successfully completed substance abuse

counseling in November 2022 and May 2023. The fact that Mother has secured

housing, provided proof of employment and income, and participated in services is

some indication that termination of her rights is not in the children’s best interest,

but given the evidence of Mother’s denial and minimization of the circumstances

that resulted in the children being removed from her care and her continued use of

marijuana after completing substance abuse counseling twice, the trial court could

have reasonably determined that this evidence was not enough to overcome the

evidence that termination of her rights to John, Jack, and Mark was in the boys’ best

interest.

Viewing the evidence in the light most favorable to the trial court’s finding,

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

termination of Mother’s parental rights was in the best interest of Jack, John, and

Mark. See In re J.F.C., 96 S.W.3d at 266.

Further, in view of the entire record, we conclude that the disputed evidence

is not so significant as to prevent the trial court from forming a firm belief or

conviction that termination of Mother’s parental rights was in the best interest of

Jack, John, and Mark. Id.; see also In re A.C., 560 S.W.3d at 631.

We overrule Mother’s fourth issue.

56 Conservatorship

In her fifth issue, Mother argues the court abused its discretion in appointing

the Department as the sole managing conservator of Jack, John, and Mark and in

appointing non-parent caregiver Mary as Julie’s sole managing conservator.

Mother argues that the trial court abused its discretion because the Department

failed to introduce sufficient evidence that demonstrated any specific, identifiable

behaviors on her part that would significantly impair the children’s physical health

or emotional development. Mother argues that in light of the legally and factually

insufficient evidence supporting the trial court’s conservatorship findings, she

should be named as the children’s managing conservator.

A. Standard of Review

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 839, 856 (Tex. App.—

Houston [1st Dist.] 2018, pet. denied). Under an abuse-of-discretion standard,

challenges to the legal and factual sufficiency of the evidence are not independent

grounds of error but instead are factors used to determine whether the trial court

abused its discretion. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin

2006, pet. denied). Under this standard, an appellate court considers whether the trial

court had sufficient information on which to exercise its discretion and, if so,

57 whether the trial court erred in its application of discretion. Id. at 588. “The appellate

court then proceeds to determine whether, based on the evidence, the trial court made

a reasonable decision, that is, that the court’s decision was neither arbitrary nor

unreasonable.” Id. A trial court does not abuse its discretion if there is some

substantive, probative evidence to support its decision. Id. at 587. Evidence is legally

sufficient when it would enable reasonable and fair-minded people to reach the

verdict under review and is factually insufficient only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.

See id. at 588–89.

B. Applicable Law

The primary consideration in any conservatorship case “shall always be the

best interest of the child.” In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000) (quoting

TEX. FAM. CODE § 153.002)). The Texas Family Code presumes that a parent should

be appointed the child’s managing conservator “unless the court finds that

appointment of the parent or parents would not be in the best interest of the child

because the appointment would significantly impair the child’s physical health or

emotional development.” TEX. FAM. CODE § 153.131(a); see Critz v. Critz, 297

S.W.3d 464, 471 (Tex. App.—Fort Worth 2009, no pet.) (“Under section 153.131

. . . a non-parent may not be appointed a joint managing conservator without

overcoming the presumption as to both parents”); see also TEX. FAM. CODE

58 § 263.404(a) (authorizing trial court to appoint Department as child’s conservator

“without terminating the rights of the parent of the child” if court finds “appointment

of a parent as managing conservator would not be in the best interest of the child

because the appointment would significantly impair the child’s physical health or

emotional development” and “it would not be in the best interest of the child to

appoint a relative of the child or another person as managing conservator”).

Impairment must be proved by a preponderance of the evidence indicating

that some specific, identifiable behavior or conduct of the parent, demonstrated by

specific acts or omissions of the parent, will probably cause harm. See Lewelling v.

Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). “Specific acts or omissions of a parent

implicating a significant impairment to a child’s emotional development may be

inferred from direct evidence.” Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex.

App.—Houston [1st Dist.] 2007, no pet.). The link between the parent’s conduct and

harm to the child may not be based on evidence which merely raises a surmise or

speculation of possible harm. Id.

“Acts or omissions that constitute significant impairment include, but are not

limited to, physical abuse, severe neglect, abandonment, drug or alcohol abuse, or

immoral behavior by the parent.” In re S.T., 508 S.W.3d 482, 492 (Tex. App.—Fort

Worth 2015, no pet.). “The material time to consider is the present, and evidence of

past conduct may not, by itself, be sufficient to show present unfitness.” Id.; see also

59 Critz, 297 S.W.3d at 475 (“Evidence of past misconduct is not alone sufficient to

show present unfitness.”). While evidence of past misconduct alone may not be

sufficient to show present unfitness, “we recognize that a[ ] [parent]’s future conduct

may be somewhat determined by recent past conduct.” In re De La Pena, 999

S.W.2d 521, 528 (Tex. App.—El Paso 1999, no pet.); see also May v. May, 829

S.W.2d 373, 377 (Tex. App.—Corpus Christi–Edinburg 1992, writ denied) (stating

parent’s past misconduct standing alone may not demonstrate parent’s present

unfitness but present unfitness “could hardly be shown without reference to the

recent past behavior of the parent”).

C. Jack, John, and Mark

Mother argues that the trial court abused its discretion by appointing the

Department as the sole managing conservator for Jack, John, and Mark because the

Department failed to introduce sufficient evidence that demonstrated any specific,

identifiable behaviors on her part that would significantly impair the boys’ physical

health or emotional development.

An order terminating the parent-child relationship divests a parent of legal

rights and duties with respect to the child. TEX. FAM. CODE § 161.206(b); In re

J.D.G., 570 S.W.3d at 856. Once we overrule a parent’s challenge to an order

terminating her parental rights, the trial court’s appointment of the Department or

another person as the child’s sole managing conservator may be considered a

60 “consequence of the termination.” In re A.S., 261 S.W.3d 76, 92 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied); see also In re J.D.G., 570 S.W.3d at 856.8

Because we have overruled Mother’s challenge to the portion of the trial

court’s decree terminating her parental rights to Jack, John, and Mark, the decree

divested Mother of her legal rights and duties to these children. See TEX. FAM. CODE

§ 161.206(b) (stating order terminating the parent-child relationship divests a parent

of legal rights and duties with respect to the child); In re J.D.G., 570 S.W.3d at 856.

Consequently, Mother does not have standing to challenge the portion of the order

appointing the Department as the sole managing conservator of Jack, John, and

Mark. In re J.D.G., 570 S.W.3d at 856 (affirming termination of mother’s parental

rights and holding that mother, who had been divested of her legal rights to child,

did not have standing to challenge conservatorship determination).

D. Julie

Mother argues that the trial court abused its discretion by appointing Mary as

Julie’s sole managing conservator because there was insufficient evidence

demonstrating any specific, identifiable behaviors on Mother’s part that would

significantly impair Julie’s physical health or emotional development.

8 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).

61 Mother argues that the Department’s concerns about her parental fitness are

based primarily on “the incident that brought the children into care, as well as the

contention that she endangered her children,” and the Department failed to prove by

a preponderance of the evidence that she endangered Jack, John, Mark, or Julie. As

previously discussed, there is clear and convincing evidence that Mother engaged in

an ongoing course of conduct prior to the September 2023 order that endangered

Jack, John, and Mark by among other things repeatedly allowing Jack, John, and

Mark and their siblings to live in unsafe and unsanitary conditions, neglecting the

children’s personal hygiene and nutritional needs, physically abusing the children,

exposing the children to domestic violence, and using marijuana in a manner or

under circumstances that harmed or threatened to harm the children. This evidence,

which includes evidence of endangering conduct directed towards Julie,

demonstrates that Mother’s conduct endangered Julie’s physical or emotional well-

being. See In re D.T., 34 S.W.3d at 636–37 (stating parent’s conduct with regard to

other children can support finding of endangerment).

Mother testified at the 2025 trial that she had taken responsibility for the

circumstances that brought Julie and her siblings into the Department’s care in 2022

and that led directly to the termination of Mother’s parental rights to Mike and Ivan

in 2023. Mother, however, continued to minimize and excuse the unsafe and

unsanitary conditions in the home. She also denied abusing the children, leaving

62 them unsupervised, failing to provide them with adequate nutrition and using

marijuana during the year and a half before trial despite testing positive for marijuana

in December 2024, five months before she testified in May 2025.

Although Mother had not tested positive for marijuana since December 2024,

she failed to submit to approximately six random drug tests during that same period.

The trial court could have reasonably inferred from this evidence that Mother had

refused to drug test because she was using marijuana. See In re C.A.B., 289 S.W.3d

874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding fact finder could

infer that parent’s failure to submit to court-ordered drug testing indicated parent

was avoiding testing because she was using narcotics). The trial court also could

have reasonably inferred from evidence of Mother’s prior use of marijuana in a

manner or under circumstances that harmed or threatened to harm the children

beginning in 2014, Mother’s inability to maintain her sobriety after twice receiving

substance abuse treatments, and Mother’s failure to submit to drug testing

approximately six times within the six months prior to trial, that Mother’s drug use

could recur, placing Julie’s emotional or physical well-being at risk. See In re De La

Pena, 999 S.W.2d at 528 (stating that while evidence of parent’s past misconduct

alone may not be sufficient to show present unfitness, “we recognize that a[ ]

[parent]’s future conduct may be somewhat determined by recent past conduct”);

May, 829 S.W.2d at 377 (stating parent’s present unfitness “could hardly be shown

63 without reference to the recent past behavior of the parent”); see also In re B.K.D.,

131 S.W.3d at 17 (stating fact finder may infer that past conduct endangering child’s

well-being may recur in future if child returned to parent).

Evidence of Mother’s prior endangering conduct, coupled with evidence of

her ongoing minimization of her past endangering conduct, and her failure to address

her drug use, as evidenced by her failure to comply with her FSP’s drug testing

requirement, denial of having used marijuana within a year and a half before trial

despite her positive drug test in December 2024, and her pattern of relapsing and

using marijuana after substance abuse treatments and periods of sobriety, supports

the trial court’s finding that appointment of Mother as Julie’s managing conservator

would significantly impair Julie’s physical health or emotional development. See In

re S.T., 508 S.W.3d at 492 (identifying “parental irresponsibility” and “bad

judgment” as considerations when assessing whether child would be significantly

impaired by appointment of parent as child’s conservator); see also In re C.C., 720

S.W.3d 41, 64 (Tex. App.—Texarkana 2025, no pet.) (holding mother’s illegal drug

use presented risk to her ability to parent when drug use was accompanied by lack

of safe, stable housing, inadequate income, and child’s failure to consistently attend

school, all of which established substantial risk of harm to child).

Based on the record before us, we cannot say that the trial court abused its

discretion by finding that appointment of Mother as Julie’s managing conservator

64 would significantly impair Julie’s physical health or emotional development. See

Whitworth, 222 S.W.3d at 623 (stating court does not abuse its discretion if some

evidence of substantive and probative character exists to support trial court’s

decision).

We overrule Mother’s third issue.

Conclusion

We affirm the trial court’s order modifying the prior order as to Julie and

terminating Mother’s parental rights to John, Jack, and Mark.

Veronica Rivas-Molloy Justice

Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.