Opinion issued January 13, 2026.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-25-00592-CV ——————————— IN THE INTEREST OF N.P.G., A CHILD
On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2024-01782J
MEMORANDUM OPINION
In this accelerated appeal, Mother challenges the trial court’s order
terminating her parental rights to her child, N.P.G.1 Mother argues on appeal that
the evidence is legally and factually insufficient to support: (1) the trial court’s
termination of her parental rights under Texas Family Code subsections
1 We refer to the parties using the pseudonyms adopted by the parties. See TEX. R. APP. P. 9.8(b)(2). 161.001(b)(1)(E) (engaging in conduct or knowingly placing child with persons
who engaged in conduct that endangers child’s physical or emotional well-being),
(N) (constructively abandoning child who has been in managing conservatorship of
Department of Family and Protective Services (the Department) for not less than
six months), and (O) (failing to comply with provisions of court order establishing
necessary actions for parent to obtain child’s return); and (2) the trial court’s
termination of her parental rights under subsection 161.001(b)(2) (termination in
child’s best interest). We affirm.
Background
This appeal concerns N.P.G., a child who was under the age of one year old
at the time of trial.
A. N.P.G.’s Mother and Father
The Department caseworker assigned to the case testified at the June 18,
2025 trial that Mother has a long history of drug use that resulted in the termination
of her rights as to at least five of her other children. Mother has struggled with
housing instability and homelessness. Department records introduced as an exhibit
at trial show multiple allegations against Mother of abuse and neglect of children
in her care. Some of those allegations were ruled out or unable to be verified, but
the Department had reason to believe that some accusations against Mother of
2 “neglectful supervision” due to drug use were accurate. Mother has a criminal
conviction for assault causing bodily injury.
Mother’s parental rights as to five children under the age of 13 were
terminated in 2019 under Texas Family Code subsections 161.001(b)(1)(D)
(knowingly placed or allowed children to remain in conditions or surroundings that
endangered children’s physical or emotional wellbeing), (E) (engaging in conduct
or knowingly placing children with persons who engaged in conduct that
endangered child’s physical or emotional well-being), and (O) (failing to comply
with provisions of court order establishing necessary actions for parent to obtain
children’s return).
The caseworker testified that Mother believed that N.P.G.’s father could be
either Potential Father 1, whom Mother referred to as her husband, or Potential
Father 2. Mother provided no contact information for Potential Father 2, and the
caseworker was unable to locate him. Potential Father 1 told the caseworker that he
was not N.P.G.’s father, was unwilling to do a DNA test, and was unwilling to “be
involved.” Potential Father 1 has a criminal history that includes convictions for
arson and assaults of family members and charges of driving while intoxicated,
possession of a controlled substance, and making a terrorist threat.
3 B. N.P.G.’s Removal
The caseworker testified that Mother did not test positive for drugs at the
time of N.P.G.’s birth. N.P.G. came into the Department’s care because Mother
tested positive for cocaine and amphetamines at a prenatal visit in April 2024. The
Department requested temporary managing conservatorship of N.P.G. based on
“the danger to the vulnerable newborn . . . from the mother’s pattern of illegal drug
use and dangerous [unhoused] living environment described by the mother as
having ‘drugs everywhere,’” along with “the extensive [Texas Child Protective
Services (CPS)] history of the mother, which includes illegal drug use and prior
terminations, and the criminal history of the alleged father, which includes two
convictions for domestic [violence].”
The caseworker testified at trial that she did not know where all of N.P.G.’s
siblings were living, but that a family member had adopted some of them and was
unwilling to take N.P.G. According to Department records introduced at trial:
(1) “[r]easonable efforts were made to prevent the removal of the baby by
contacting numerous relative and foster parents to the parents’ older children, but
nobody was willing and/or able to take the baby due to various circumstances,
including fear of repercussion from the alleged father”; and (2) Mother “declined
to allow [N.P.G.] to reside with a family member if they did not allow her to reside
in the home as well.”
4 The Department’s investigation at the time of the removal showed that:
• Mother stated that she had not used any type of illegal substance since December 2023, and the only reason she tested positive for cocaine and amphetamines at her prenatal visit was because she was living on the streets at the time, where there are “drugs everywhere” and she could have touched something with drugs on them. Mother stated that a family cousin was going to allow Mother and N.P.G. to live in her home. Mother sought to have that cousin be a safety monitor for Mother and N.P.G., and expressed her own strong desire to “turn her life around and do better.”
• The family cousin confirmed that she was willing to have Mother and N.P.G. live with her, and to be a safety monitor for Mother and N.P.G. However, the Department concluded that the cousin was not an appropriate safety monitor because the cousin had a “concerning CPS history” that included allegations of drug use.
• Mother then proposed a friend as a safety monitor. When Mother was informed that Mother, N.P.G., and the friend would have to live together, Mother stated that they could live with the family cousin whom the Department had rejected as a safety monitor.
• A relative of N.P.G. stated that she was unable to take N.P.G. given her personal circumstances, and warned that “everyone is going to be scared” to take N.P.G. due to Potential Father 1 “being crazy.” The relative stated that Potential Father 1 had been in jail for arson and assault of a family member. The relative suggested another relative as a potential caregiver for N.P.G., but that other relative declined to take N.P.G. due to concerns about harassment from N.P.G.’s parents.
• Another relative stated that Mother was a “dangerous person,” and that she was afraid of both Mother and Potential Father 1. The relative stated that her fear of the couple, whom she accused of various illegal acts including abandoning a “dirty and unfed” child with a disabled relative, prevented her from taking custody of N.P.G.
• The foster parent of one of N.P.G.’s siblings stated that she did not know if she would be able to take N.P.G. given her commitments at the time. The foster parent of another of N.P.G.’s siblings stated that he was unable to care
5 for N.P.G. The Department attempted but was unable to speak with three other foster parents of one or more of N.P.G.’s siblings.
• The Department attempted but was unable to speak with Potential Father 1 or N.P.G.’s maternal grandparents.
In July 2024, a court appointed the Department as N.P.G.’s Emergency
Temporary Sole Managing Conservator.
In October 2024, the Department reviewed a possible placement for N.P.G.
that was based on a suggestion by Mother. The suggested couple appears to have
been rejected because the wife could not show proof of her income and the
husband, whom the wife said was working toward obtaining citizenship in the
United States, did not submit to a requested background check.
In December 2024, the Department reported that Mother had “attended
hearings and conferences and visitations” but that, since the Department’s prior
report, Mother had been late to two visits with N.P.G. and missed one.2 The
Department noted that Mother’s visits with N.P.G. were “going well,” that Mother
2 This evidence, which is in the record but was not admitted at trial, conflicts with trial testimony by the Department caseworker that, after N.P.G.’s removal from her care, Mother attended one visitation with N.P.G., on November 22, 2024—and that neither Mother nor anyone else contacted the caseworker to schedule any other visits. For the reasons discussed below, including our obligation to consider all evidence in the light most favorable to the trial court’s finding, we do not need to resolve that inconsistency. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (noting that, when performing legal sufficiency review when burden of proof is clear and convincing evidence, court should look at all evidence in light most favorable to trial court’s finding to determine whether reasonable trier of fact could have formed firm belief or conviction that its finding was true).
6 had shown compassion and ability to care for N.P.G., and had not been distracted
by her phone or other devices.
C. Pretrial Hearings
Mother attended at least four pretrial hearings prior to the June 18, 2025
trial: two in August 2024, one in September 2024, and one on May 7, 2025. Based
on the September 2024 hearing, the trial court approved a plan permitting Mother
to visit N.P.G.
At the June 18, 2025 trial, Mother’s counsel stated that she had not
communicated with Mother since the May hearing. At the May hearing, the trial
court had admonished Mother to file a statement of indigence, but none was filed.
The trial court noted at trial that, without that statement, the trial court saw no basis
for Mother’s having a court-appointed attorney.
D. Mother’s Circumstances at Time of Trial
Mother did not attend the June 18, 2025 trial. The caseworker testified at
trial that, after Mother stopped communicating with the Department, the
caseworker received word that Mother had started using drugs again, was
unhoused, and was living behind a shopping center. The caseworker found Mother
at that location in May 2025 but did not speak to her for safety reasons. Mother
appeared to be under the influence, looked unhealthy, was wearing dirty clothes,
7 and had dirty hair. Mother was with approximately four other people whose
appearance was similar to Mother’s.
E. N.P.G.’s Circumstances at Time of Trial
At the time of trial, N.P.G. was living with a foster mother and father who
offered N.P.G. a potential adoptive home. The caseworker testified that the foster
parents were a good fit for N.P.G. and were taking very good care of her. N.P.G.
had bonded with her foster parents, and her foster parents had bonded with her.
The only family N.P.G. had ever known was her foster parents. The foster parents
had a three-bedroom home and a support system that included significant
assistance from the foster father’s father, who lived in the same neighborhood, and
the foster mother’s sister.
The caseworker testified that, at the time of trial, N.P.G. was doing “really
well” and meeting all her milestones. N.P.G. had no physical issues. N.P.G. was
developmentally on target. N.P.G. had an Early Childhood Intervention assessment
and was found to not require any services. N.P.G. was eating well, and doing well
on a strict schedule.
F. Trial Court Judgment
At the June 18, 2025 trial, the trial court terminated Mother’s parental rights
under Texas Family Code subsections 161.001(b)(1)(E), (N), and (O), and that the
termination of Mother’s parental rights was in N.P.G.’s best interests under
8 subsection 161.001(b)(2). The trial court appointed the Department as N.P.G.’s
Permanent Managing Conservator.
Sufficiency of the Evidence
A. Standard of Review
In a case to terminate parental rights under section 161.001 of the Texas
Family Code, the Department must establish that (1) the parent committed one or
more of the enumerated acts or omissions justifying termination and
(2) termination is in the best interest of the child. TEX. FAM. CODE § 161.001(b).
Only one predicate finding under section 161.001(b)(1) is necessary to support a
judgment of termination when there is also a finding that termination is in the
child’s best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The Department
must prove both elements—i.e., both the statutorily prescribed predicate finding(s)
and that termination is in the child’s best interest—by clear and convincing
evidence. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). The Family Code
defines “clear and convincing evidence” as “the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established.” TEX. FAM. CODE § 101.007.
When assessing the legal sufficiency of the evidence in a termination
proceeding, we consider all evidence in the record in the light most favorable to the
trial court’s finding and decide “whether a reasonable trier of fact could have
9 formed a firm belief or conviction that its finding was true.” In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002); City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex.
2005) (discussing elevated standard of review in parental termination cases). We
assume that any disputed facts were resolved in favor of the finding if a reasonable
factfinder could have done so. J.F.C., 96 S.W.3d at 266. When “no reasonable
factfinder could form a firm belief or conviction” that the matter on which the
Department bears the burden of proof is true, we “must conclude that the evidence
is legally insufficient.” Id. In reviewing the evidence’s factual sufficiency, we
consider the entire record, including disputed evidence. Id. The evidence is
factually insufficient if, considering the entire record, the disputed evidence that a
reasonable factfinder could not have resolved in favor of the finding is so
significant that the factfinder could not reasonably have formed a firm belief or
conviction. Id.
We give due deference to the factfinder’s findings, and we cannot substitute
our own judgment for that of the factfinder. See In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006) (per curiam). The factfinder is the sole arbiter when assessing the
credibility and demeanor of witnesses. See id. at 109.
B. Applicable Law
Protection of the best interest of the child is the primary focus of a
termination proceeding. See A.V., 113 S.W.3d at 361. However, a parent’s rights to
10 the “companionship, care, custody, and management” of a child is a constitutional
interest “far more precious than any property right.” Santosky v. Kramer, 455 U.S.
745, 758-59 (1982) (citation modified); In re M.S., 115 S.W.3d 534, 547 (Tex.
2003). Accordingly, we strictly scrutinize termination proceedings and strictly
construe the involuntary termination statutes in favor of the parent. Holick v. Smith,
685 S.W.2d 18, 20-21 (Tex. 1985).
Here, the trial court terminated Mother’s rights under subsections
161.001(b)(1)(E), (N), and (O). The Texas Supreme Court has held that, because
subsection (M) provides a basis to terminate parental rights due to a prior
subsection (D) or (E) finding, due process concerns coupled with the requirement
for a meaningful appeal require that, if an appellate court affirms a termination
order based on a (D) or (E) finding, the court must provide the details of its
analysis. See In re N.G., 577 S.W.3d 230, 236-37 (Tex. 2019). Because Mother
challenges the trial court’s findings under subsection (E), thus implicating due
process concerns, we start our sufficiency of the evidence analysis with that
subsection. See id.; In re Z.M.M., 577 S.W.3d 541, 542-43 (Tex. 2019) (per
curiam).
C. Predicate Findings Under Subsection 161.001(b)(1)(E)
In Mother’s first through third issues, she challenges the sufficiency of the
evidence to support the trial court’s termination of her parental rights under,
11 respectively, subsections (E), (N), and (O) of section 161.001(b)(1) of the Family
Code. Subsection 161.001(b)(1)(E) of the Family Code focuses on the parent’s
conduct and asks whether the parent engaged in a voluntary, deliberate, and
conscious course of conduct that endangered the child. V.P. v. Texas Dep’t of Fam.
& Protective Servs., No. 03-19-00531-CV, 2020 WL 544797, at *4 (Tex. App.—
Austin Feb. 4, 2020, no pet.) (mem. op.). A child is endangered when the
environment creates a potential for danger that the parent is aware of but
consciously disregards. In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied). Under subsection (E), courts may consider conduct
both before and after the Department removed the child from the home. In re
J.A.R., 696 S.W.3d 245, 254 (Tex. App.—Houston [14th Dist.] 2024, pet. denied);
In re J.D.G., 570 S.W.3d 839, 851 (Tex. App.—Houston [1st Dist.] 2018, pet.
denied).
While endangerment often involves physical endangerment, the statute does
not require that conduct be directed at a child or that the child actually suffer any
injury; rather, the specific danger to the child’s well-being may be inferred from
the parent’s misconduct alone. Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531,
533 (Tex. 1987); In re N.J.H., 575 S.W.3d 822, 831 (Tex. App.—Houston [1st
Dist.] 2018, pet. denied) (mem. op.). A parent’s conduct that subjects a child to a
life of uncertainty and instability endangers the child’s physical and emotional
12 well-being. In re J.S., 584 S.W.3d 622, 635 (Tex. App.—Houston [1st Dist.] 2019,
no pet.). The Department does not need to establish that a parent intended to
endanger a child to support termination based on endangerment. See In re M.A.J.,
612 S.W.3d 398, 407 (Tex. App.—Houston [1st Dist.] 2020, pet. denied). Under
subsection (E), the evidence must show that the endangerment was the result of the
parent’s conduct, including acts, omissions, or a failure to act. In re K.P., 498
S.W.3d 157, 171 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
Department records show that Mother has a criminal conviction for assault
causing bodily injury.3 “Domestic violence and a propensity for violence may be
considered evidence of endangerment, even if the endangering acts did not occur in
the children’s presence, were not directed at the children, or did not cause actual
injury to the children.” In re J.B.M., No. 04-18-00717-CV, 2019 WL 1139858, at
*2 (Tex. App.—San Antonio Mar. 13, 2019, pet. denied) (mem. op.).
3 Mother complains on appeal that “the only evidence of this old misdemeanor offense is one line of hearsay in the caseworker’s court report. A judgment of conviction was not offered into evidence.” Mother’s conviction was referenced in the Department’s Exhibit 1 at trial, an affidavit made on the basis of personal knowledge that was admitted without objection by Mother’s counsel and is thus probative evidence. See Tex. Com. Bank, Nat. Ass’n v. New, 3 S.W.3d 515, 516 (Tex. 1999) (noting that unobjected-to hearsay in affidavit is probative evidence); J.B. v. Tex. Dep’t of Fam. & Protective Services, No. 03-24-00159-CV, 2024 WL 3906786, at *1 n.3 (Tex. App.—Austin Aug. 23, 2024, no pet.) (mem. op.) (in parental termination case, holding that appellant’s failure to object to admission of affidavit at trial waived any hearsay complaint on appeal). Moreover, as shown, Mother’s assault conviction is merely cumulative evidence of endangerment.
13 Mother has also struggled with illegal drug use. The Supreme Court of
Texas has clarified that, “[w]hile illegal drug use alone may not be sufficient to
show endangerment, a pattern of drug use accompanied by circumstances that
indicate related dangers to the child can establish a substantial risk of harm.” In re
R.R.A., 687 S.W.3d 269, 278 (Tex. 2024) (emphasis in original). Drug-use
evidence should not be evaluated in isolation; rather, it should be considered
alongside evidence showing that “illegal drug use presents a risk to the parent’s
‘ability to parent.’” Id. (quoting In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009));
see also A.V., 697 S.W.3d 657, 659 (Tex. 2024) (characterizing R.R.A. standard as
“holistic endangerment review”).
The supreme court has since affirmed a termination order based on evidence
that the parents used drugs together while the mother was pregnant and while
caring for the child’s half-sibling; visited the child only sporadically after the child
was born; and did not comply with a court order that they refrain from using drugs
and submit to drug testing. A.V., 697 S.W.3d at 659. The supreme court held that
such conduct “show[s] a pattern of continued substantial risk of harm to the child
sufficient to support a trial court’s finding of endangerment.” Id.; see also In re
Z.J.G., No. 01-24-00894-CV, 2025 WL 1129130, at *10 (Tex. App.—Houston [1st
Dist.] Apr. 17, 2025, pet. denied) (mem. op.) (after R.R.A., affirming termination
order based in part on evidence parent used drugs during termination proceeding);
14 In re J.C.P.L., Jr., No. 01-24-00723-CV, 2025 WL 757159, at *6 (Tex. App.—
Houston [1st Dist.] Mar. 11, 2025, pet. denied) (mem. op.) (same); In re A.R.D.,
694 S.W.3d 829, 840 (Tex. App.—Houston [14th Dist.] 2024, pet. denied) (after
R.R.A., affirming termination order based in part on evidence of parent’s drug use
while pregnant and during termination proceeding); In re E.G.A., Nos.
01-24-00204-CV, 01-24-00206-CV, 2024 WL 3941021, at *17 (Tex. App.—
Houston [1st Dist.] Aug. 2024, pet. denied) (mem. op.) (after R.R.A., affirming
termination order based in part on evidence parent used drugs during termination
proceeding).
In this case, Mother admitted to illegal drug use in December 2023. Mother
tested positive for cocaine and amphetamines in April 2024, at which time she was
pregnant with N.P.G. See A.R.D., 694 S.W.3d at 840 (in post-R.R.A. case involving
pattern of illegal drug use showing risk to mother’s ability to parent, including
drug use during pregnancy, noting that “[d]rug abuse during pregnancy constitutes
conduct that endangers a child’s physical and emotional well-being” (citing In re
M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.))). Mother
tested negative for illegal substances when N.P.G. was born and at some
subsequent random tests. However, when the Department caseworker observed
Mother in May 2025, at a time when Mother’s parental rights were in jeopardy,
Mother appeared to be under the influence. See id. (also noting, as part of pattern
15 of illegal drug use showing risk to mother’s ability to parent, evidence of mother’s
drug use during termination proceedings). And by the time of the June 2025 trial,
Mother had missed two random tests—conduct that is treated as evidence of
ongoing drug use. See In re D.Y.V.-M., No. 14-24-00427-CV, 2024 WL 4984209,
at *13 (Tex. App.—Houston [14th Dist.] Dec. 5, 2024, pet. denied) (mem. op.)
(citing mother’s failure during suit to participate in court-ordered drug testing as
evidence of ongoing drug use). Indeed, a failure to complete required testing is
considered to be a positive result. See In re J.H.G., No. 01-16-01006-CV, 2017
WL 2378141, at *6 (Tex. App.—Houston [1st Dist.] June 1, 2017, pet. denied)
(mem. op.) (father’s failure to participate in court-ordered drug test was equivalent
to positive test result); In re I.W., No. 14-15-00910-CV, 2016 WL 1533972, at *6
(Tex. App.—Houston [14th Dist.] Apr. 14, 2016, no pet.) (mem. op.) (stating that
parent’s “refusal to submit to [a] drug test may be treated by the trial court as if he
had tested positive for drugs”).
In sum, the record shows that: (1) Mother has a criminal conviction for
assault causing bodily injury; (2) Mother used illegal drugs while pregnant despite
the risk of harm to N.P.G.; (3) Mother used illegal drugs again when N.P.G. was
less than a year old; and (4) Mother used illegal drugs at that time despite knowing
that doing so could potentially lead to the termination of her parental rights. The
trial court could reasonably have interpreted the above evidence regarding the risk
16 of Mother exposing N.P.G. to drugs and violence as showing a pattern of
continued substantial risk of harm to N.P.G. sufficient to support the trial court’s
finding of endangerment under subsection (E). See R.R.A., 687 S.W.3d at 278
(holding that pattern of drug use accompanied by evidence of related dangers to
child can establish substantial risk of harm sufficient to support endangerment
finding).
Because we conclude the evidence is legally and factually sufficient to
support the trial court’s finding under subsection 161.001(b)(1)(E), we overrule
Mother’s first issue. We thus need not address Mother’s second and third issues—
i.e., that the evidence is legally and factually insufficient to support the trial court’s
findings under, respectively, subsections 161.001(b)(1)(N) and (O). See A.V., 113
S.W.3d at 362 (stating only one predicate finding is necessary).
D. Best Interest of N.P.G.
In Mother’s fourth issue, she contends that the evidence is legally and
factually insufficient to support the trial court’s finding that termination of her
parental rights was in N.P.G.’s best interest. See TEX. FAM. CODE § 161.001(b)(2).
There is a strong presumption that the best interest of a child is served by keeping
the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (per curiam); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th
Dist.] 2012, no pet.). However, prompt and permanent placement of the child in a
17 safe environment is also presumed to be in the child’s best interest. TEX. FAM.
CODE § 263.307(a).
Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best-interest finding: (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) the acts or omissions of the parent
which 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 each factor to support a finding that terminating a parent’s rights is in
the child’s best interest. Id.; D.R.A., 374 S.W.3d at 533. Moreover, we note that
evidence supporting termination under one of the grounds listed in section
161.001(b)(1) can also be considered in support of a finding that termination is in
the best interest of the child. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding
same evidence may be probative of both section 161.001 grounds and best
interest).
18 In addition, the Texas Family Code sets out factors to be considered in
evaluating the parent’s willingness and ability to provide the child with a safe
environment, including: the child’s age and physical and mental vulnerabilities;
whether there is a history of substance abuse by the child’s family or others who
have access to the child’s home; the willingness and ability of the child’s family to
seek out, accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision; the willingness and ability of
the child’s family to effect positive environmental and personal changes within a
reasonable period of time; whether the child’s family demonstrates adequate
parenting skills, including providing the child with minimally adequate health and
nutritional care, a safe physical home environment, and protection from repeated
exposure to violence even though the violence may not be directed at the child; and
an understanding of the child’s needs and capabilities. TEX. FAM. CODE
§ 263.307(b); R.R., 209 S.W.3d at 116.
1. Mother’s History of Drug Use, Violence, and Neglect
A parent’s past conduct is probative of her 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.). Thus, the evidence discussed in support of the trial court’s
findings under section 161.001(b)(1)(E) is probative as to potential danger in
19 determining the children’s best interest. Walker v. Tex. Dep’t of Fam. & Protective
Servs., 312 S.W.3d 608, 619 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
As noted above, Mother has a criminal conviction for assault causing bodily
injury. A parent’s inability to maintain a lifestyle free from arrests and
incarcerations is relevant to the trial court’s best-interest determination. In re
E.S.T., No. 01-22-00404-CV, 2022 WL 17096713, at *18 (Tex. App.—Houston
[1st Dist.] Nov. 21, 2022, no pet.) (mem. op.).
Mother has also struggled with illegal substance use, including drug use that
contributed to findings of neglect on which basis N.P.G.’s siblings were removed
from Mother’s care. Mother tested positive for cocaine and amphetamines while
pregnant with N.P.G. and, after N.P.G. was born, failed to comply fully with
court-ordered drug testing and drug-related services during the period when
Mother knew she was being evaluated for possible reunification with N.P.G. While
pregnant with N.P.G., Mother was unhoused and living in an environment she
described as having “drugs everywhere.” The only home where Mother indicated
she would be able to live with N.P.G. and someone who could serve as a safety
monitor was the home of a relative whom the Department ruled out as a safety
monitor due to allegations of drug use.4 A parent’s substance abuse supports a
4 Mother complains on appeal that there was no non-hearsay evidence at trial that Mother did not have a home. However, the Department caseworker testified at trial without objection that, a month prior, she had personally observed Mother at 20 finding that termination is in the best interest of the child. In re E.R.W., 528
S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (noting
factfinder can give “great weight” to “significant factor” of drug-related conduct);
see also In re Z.H., No. 14-19-00061-CV, 2019 WL 2632015, at *6 (Tex. App.—
Houston [14th Dist.] June 27, 2019, no pet.) (mem. op.) (considering parent’s drug
use in context of evaluating present and future emotional and physical danger to
child). Mother’s history of drug use, violence, and neglect weigh in favor of
termination of Mother’s parental rights to N.P.G.
2. N.P.G.’s Environment, Needs, and Desires
At the time of trial, N.P.G. was less than a year old and too young to express
her desires. In re A.J.H., No. 01-18-00673-CV, 2019 WL 190091, at *7 (Tex.
App.—Houston [1st Dist.] Jan. 15, 2019, no pet.) (mem. op.) (finding that child
under three was too young to express desires). When a child is too young to
express her desires, the fact-finder may consider whether the child has bonded with
the proposed adoptive family, is well-cared for by them, and whether she has spent
minimal time with a parent. See S.R., 452 S.W.3d at 369. A child’s need for
the location where Mother was reported to be living unhoused. And the evidence that Mother’s only proposal for a home where she could live with N.P.G. and a safety monitor was her relative’s home was contained in an affidavit admitted at trial without objection. See New, 3 S.W.3d at 516 (holding that unobjected-to hearsay in affidavit is probative evidence); J.B., 2024 WL 3906786, at *1 (in parental termination case, holding that appellant’s failure to object to admission of affidavit at trial waived any hearsay complaint on appeal).
21 permanence through the establishment of a “stable, permanent home” has been
recognized as the paramount consideration in a best interest determination. See In
re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.). Therefore,
evidence about the present and future placement of the child is relevant to the best
interest determination. In re J.E.M.M., 532 S.W.3d 874, 889 (Tex. App.—Houston
[14th Dist.] 2017, no pet.).
N.P.G. spent only limited time with Mother. The Department was appointed
Emergency Temporary Sole Managing Conservator of N.P.G. the same day that
N.P.G. was scheduled to leave the neonatal intensive care unit where she received
oxygen for at least a week after she was born. And while N.P.G. has multiple
siblings, Mother’s parental rights have been terminated as to at least five of them.
The evidence at trial showed that N.P.G. was doing “really well” with her
foster parents. The caseworker testified that N.P.G. had bonded with her foster
family, who were the only family she knew, and that her foster parents had bonded
with N.P.G. There was testimony that N.P.G’s foster parents were a good fit for
her and taking very good care of her. The evidence at trial showed that the foster
parents had a three-bedroom home, and a support system that included significant
assistance from the foster father’s nearby father and the foster mother’s sister.
N.P.G. had no physical or developmental issues, and an Early Childhood
Intervention assessment determined she required no services. And because
22 N.P.G.’s foster home was also a potential adoptive home, the foster parents offered
permanence. These factors also weigh in favor of termination of Mother’s parental
rights to N.P.G.
Viewing the evidence in the light most favorable to the trial court’s finding
that termination of Mother’s parental rights was in N.P.G.’s best interest, we
conclude the trial court could have formed a firm belief or conviction that its
finding was correct. See J.F.C., 96 S.W.3d at 266. Further, looking at 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 N.P.G.’s best interest. Id.
We thus overrule Mother’s fourth issue.
Conclusion
We affirm the trial court’s decree of termination.
Amparo “Amy” Guerra Justice
Panel consists of Justices Guerra, Caughey, and Dokupil.