Opinion issued April 17, 2025.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00894-CV ——————————— IN THE INTEREST OF Z.J.G., J.R.G. AND N.L.G., CHILDREN
On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2023-01629J
MEMORANDUM OPINION
In this accelerated appeal, Mother and Father challenge the trial court’s order
terminating their parental rights to their children, “Zachary,” “James,” and “Naomi.”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 section
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)(D) (knowingly placing or allowing the child to remain in conditions
or surroundings which endanger the physical or emotional well-being of the child),
(E) (engaging in conduct or knowingly placing the child with persons who engaged
in conduct which endangers the physical or emotional well-being of the child),
(O) (failure to comply with the provisions of a court order establishing the
necessary actions for the parent to obtain return of the child) , and (P) (using a
controlled substance in a manner that endangered the child’s health or safety) of the
Texas Family Code; and (2) the trial court’s termination of her parental rights under
section 161.001(b)(2) (termination is in the best interest of the child).
Father argues on appeal that the evidence is legally and factually insufficient to
support: (1) the trial court’s termination of his parental rights under section
161.001(b)(1)(E) (engaging in conduct or knowingly placing the child with persons
who engaged in conduct which endangers the physical or emotional well-being of
the child), and (2) the trial court’s termination of his parental rights under section
161.001(b)(2) (termination is in the best interest of the child). Both Mother and Father
argue on appeal that the evidence is legally and factually insufficient to support the trial
court’s finding that appointment of the Texas Department of Family and Protective
Services (the Department) as managing conservator was in the children’s best interest.
We affirm.
2 Background
This appeal concerns three siblings: Zachary, James, and Naomi. At the time
of trial, Zachary was five years old and James was two years old. Naomi turned
one year old between the start and end dates of the trial.
A. The Department’s Removal of the Children
The Department’s caseworker assigned to the case testified at trial that the
children were brought to the Department’s attention when the Department received
allegations of substance abuse and domestic violence in the children’s home. The
alleged domestic violence was between Father and Mother. It was also alleged that
the home might be a “flophouse,” or “trap house,” with people coming in and out
of the house, staying for short periods, possibly to do drugs. Both parents admitted
to drug use, and the caseworker did not view the environment as being safe for the
children.
The Department elected to seek Temporary Conservatorship of Zachary,
James, and Naomi. On July 10, 2023, the Department filed its Original Petition for
Protection of a Child for Conservatorship and for Termination in Suit Affecting the
Parent-Child Relationship. The Department sought removal of the children due to
issues including substance abuse by Mother and Father, as well as what the
Department believed was Mother’s untreated depression and anxiety. The trial
3 court appointed the Department the Emergency Temporary Sole Managing
Conservator of the children, and set a full adversary hearing for July 18, 2023.
B. Subsequent Proceedings
The trial court held a full adversary hearing on July 18, 2023, pursuant to
section 262.201 of the Texas Family Code. On that same date, the trial court
appointed the Department the children’s Temporary Managing Conservator and
ordered Father and Mother to comply with the Department’s Family Plans of
Service.
Under Mother and Father’s Family Plans of Service, both were required to:
(1) maintain and provide proof of stable employment; (2) maintain stable and
appropriate housing free from safety hazards; (3) refrain from all criminal activity;
(4) attend and actively participate in parent/child visits; (5) successfully complete
parenting classes; (6) submit to drug testing including twice-monthly urinalysis
tests and a random hair test every three months; (7) participate in drug, alcohol,
and substance abuse evaluations and follow all recommendations; and (8) complete
a psychosocial assessment and follow all recommendations. Father was also
required to successfully complete domestic violence classes and give the
Department the names of three individuals who are his support system outside his
household.
4 The trial court conducted a permanency hearing on March 26, 2024, which
both Mother and Father attended in person and through their respective counsel.
After the hearing, the trial court issued an order finding that Mother and Father had
not demonstrated adequate and appropriate compliance with their Family Plans of
Service, which the trial court incorporated by reference and made part of the trial
court’s Permanency Hearing Order Before Final Order. The trial court found
further that returning the children to their home was not safe, appropriate, or in
their best interest; that neither Mother nor Father were willing and able to provide
the children with a safe environment; and that the children thus had substitute care
needs.
C. Trial
A bench trial was held over three days: June 25, August 28, and October 1,
2024. On the first day of trial, the trial court admitted exhibits including the
following:
• P-1: the executed citation for Mother;
• P-2 to P-4: the children’s birth certificates;
• P-8 to P-9: orders establishing Father as the children’s biological father;
• P-10: the trial court’s July 18, 2023 order after the adversary hearing;
• P-11: Mother’s signed Family Plan of Service;
• P-12: Father’s signed Family Plan of Service;
5 • P-13: the trial court’s order after a September 19, 2023 status hearing;
• P-14: the trial court’s order after its December 13, 2023 permanency hearing;
• P-15: the Department’s June 13, 2024 Permanency Report;
• P-16 and P-17: drug test results for Mother (showing that on July 18, 2023 Mother tested positive for methamphetamine, and that in April 2024 Mother tested positive for amphetamine and methamphetamine); and
• P-18 and P-19: documents certifying that Father did not appear for court-ordered drug testing in December 2023 and April 2024.
The Department’s June 13, 2024 Permanency Report included information
about the Department’s prior investigations of Mother in 2021 and 2022. The
Permanency Report included some of Mother’s drug testing history to date,
including a series of refused tests and, for one test not refused (in December 2023),
a positive result for amphetamine and methamphetamine. The Permanency Report
also included some of Father’s drug testing history, consisting of a series of
refused tests, and a May 9, 2024 misdemeanor charge for tampering with a drug
test that was later dismissed.
1. Caseworker
The first two days of trial, June 25, 2024 and August 28, 2024, the trial court
heard testimony from caseworker Tyese Craig. Craig is the Department caseworker
assigned to the children’s case. Craig prepared Mother and Father’s Family Plans
6 of Service, summarized above. Through Craig’s work with Mother and Father, the
Department had tried to help Mother and Father reunify with their children,
including by preparing Mother and Father’s Family Plans of Service; maintaining
communication with the children, Mother, Father, and foster parents; and
facilitating in-person visits between the children and Mother and Father. Craig
testified the barriers to reunification include the substance abuse of Mother and
Father, lack of a stable home environment, and lack of means to care for the
Craig’s testimony focused on Mother and Father’s compliance with their
Family Plans of Service. For example, with regard to the requirement that the
Mother and Father maintain and provide proof of stable employment, she testified
that neither Mother nor Father was employed, and that neither had provided the
required proof of income. She noted that Mother claimed to be looking for work
and had worked at times as a housekeeper.
With regard to the requirement that Mother and Father maintain stable and
appropriate housing free from safety hazards, Craig testified that the home
environment provided by Mother and Father was not safe for the children, and that
Mother and Father were unable to offer their children a safe and stable
environment. She testified to multiple places that Mother and Father claimed or
were said to be living over time, together or separately, including her
7 understanding that Mother and Father were staying in a series of hotel rooms, that
Mother was staying in a FEMA-funded hotel room, and that Father was staying
with a friend. She also noted her understanding that, at one point, the Mother and
Father were homeless. Mother told Craig that she was no longer in a relationship
with Father, but Craig observed that Mother and Father always showed up together
for visits with their children.
With regard to the requirement that the Mother and Father refrain from all
criminal activity, Craig testified that she believed Father had no criminal history or
drug convictions.
With regard to the requirement that Mother and Father attend and actively
participate in parent/child visits, Craig testified that Mother and Father both
regularly attended their scheduled visits with their children, missing only a small
number of visits, but that only Mother maintained any other contact with the
Department. Mother and Father had been permitted visits with their children twice
a month, for two hours each visit. Craig described the visits as “appropriate,” as
going “pretty good,” and as going “well.” To Craig’s knowledge, Mother never
came to a visit under the influence. She noted that Father was not as involved as
Mother in parenting the children during the visits. But both Father and Mother
would give the children gifts at the visits, like clothes, toys, or food.
8 With regard to the requirement that Mother and Father successfully
complete parenting classes, Craig testified that Father had not even started the
parenting classes. Mother had started but not completed the parenting classes.
With regard to the requirement that Mother and Father submit to drug testing
including twice-monthly urinalysis test and a random hair test every three months,
Craig testified that both Mother and Father admitted to drug use. Neither Mother
nor Father routinely submitted to the twice-monthly urinalysis testing. Father did
not participate in any of the drug testing requested of him. Each test not taken was
considered by the trial court to be a positive result. Craig testified that the only
drug tests with which Mother complied were the tests in December 2023 and April
2024, which resulted in the positive test results for amphetamine and/or
methamphetamine described above. (As noted above, Mother appears to have also
tested positive for methamphetamine in July 2023, soon after Naomi was born.)
While Mother and Father were always able to find transportation to their visits
with their children, Mother said early in the case that transportation issues
prevented her from complying with the drug testing. Father said early in the case
that he might get fired from his job if he went to the drug tests. Though, as noted
above, Father never provided any proof of employment.
With regard to the requirement that Mother and Father participate in drug,
alcohol, and substance abuse evaluations and follow all recommendations, Craig
9 did not testify as to whether Father had completed those evaluations. However,
when asked if Mother and Father had completed a drug assessment, she responded:
“[Mother] did complete a drug assessment.” She testified that Mother had
completed her substance abuse assessment and a recommended psychological
assessment. But Craig also noted that Mother had not completed recommended
outpatient substance abuse therapy. Mother was discharged from that therapy after
missing three therapy appointments. Mother had voluntarily admitted herself to in-
patient “rehab” treatment twice but, each time, she left the program without
completing it—the second time to “go back to” Father. Craig testified that Mother
has not actively worked on her sobriety since leaving the in-patient rehab
treatment.
With regard to the requirement that Mother and Father complete a
psychosocial assessment and follow all recommendations, Craig said that Father
had not completed his requested psychosocial evaluation. Mother had completed
the psychosocial evaluation, but had not verified completion of the trauma therapy
recommended based on that evaluation. Craig noted, however, that Mother agreed
to the recommended trauma therapy, but remained on the provider’s wait list,
indicating the provider did not have availability for her. Craig’s view was that,
given Mother could not remain sober, the therapy would not have been effective.
10 With regard to the requirement that Father successfully complete domestic
violence classes, Craig did not testify as to whether Father complied with that
requirement. She testified that allegations of domestic violence between Father and
Mother were one of the reasons the children were brought to the Department’s
attention in the first place. The allegations of domestic violence of which she was
aware related to a period before the two youngest children were born. She was not
aware of any allegations of domestic violence occurring since the case was
initiated.
With regard to the requirement that Father give the Department the names of
three individuals who are his support system outside his household, Craig testified
that Father did not provide the names of family members who could care for the
children if his rights were restricted or lost.
In summary, Craig testified that, at the start of the case, reunification of
Mother and Father with the children had been the Department’s goal, noting the
Department prefers reunification “if at all possible” because it is the best result for
the children. She said she had made diligent efforts to work with Mother and
Father and explain to them the importance of their completing the requested
services. But Mother and Father had not taken full advantage of the services
offered to them—or any advantage, in Father’s case. Craig had to reorder services
for Father multiple times because he would not take advantage of them, and the
11 orders would expire. Compared to Father, Mother did work a significant amount of
services. But neither parent took advantage of the services offered to them so they
could be considered for reunification.
Indeed, Craig reported that, in the year she had been on the case, nothing had
changed in terms of the services offered to Mother and Father. Craig did not
believe that either parent had demonstrated an ability to care for the children’s
physical or emotional needs, or that giving them additional time to engage in the
services offered to them would change that. She testified that “we’re going in
circles” and that, if Mother and Father were given more time, they would not do
anything with it - “it’s just going to be excuse after excuse.”
Craig testified that Mother’s and Father’s refusal to participate in drug
testing, and Mother’s leaving rehab, is what ultimately caused the Department to
change its goal from reunification to unrelated adoption in January 2024. Due to
Mother’s positive drug tests, non-compliance with other drug tests, and failure to
complete her drug treatment, the Department would not consider reunification of
Mother and her children. Craig noted that there are safety concerns with returning
a child to a parent who is testing positive for methamphetamines.
Craig acknowledged that the children love and are bonded to both Mother
and Father. She acknowledged that, if the children never see Mother again, it will
be traumatic—especially for Zachary. But, in Craig’s view, neither Mother nor
12 Father had been able to demonstrate the ability to meet their children’s emotional
and physical needs. In her view, the Department could not send the children back
to a home with parents who had failed repeatedly to take requested drug tests and,
when they did take the tests, tested positive for methamphetamines. She testified
that exposing the children to drug use and domestic violence would also be
traumatic.
Craig noted that the Department had initiated a home study with the
children’s aunt, but that the aunt had told the Department that she and her husband
could not take on the care of all three children given their work schedules. Neither
of Mother’s parents was an option for caregiver.
Craig testified that the children had been together in a foster home since July
2023, with the goal of a possible adoption by the foster parents. She said that the
children were “doing great” in the foster home. They were stable and bonded in
their foster home, and their physical and emotional needs were being met. At the
time of the trial, the children were one, two, and five years old. To the extent that
Zachary, the eldest, had expressed a preference, he had said he wanted to go back
home with Mother or his aunt. But he had not really spoken much about it.
Craig noted that the Department was requesting to be named Permanent
Managing Conservator of all three children. She testified that the Department
recommended terminating the parental rights of both Mother and Father. Craig
13 believed termination of Mother and Father’s parental rights would be in the
children’s best interest and would give the children the permanency they need.
2. Mother
After Craig’s testimony, the Department rested. The trial court took a short
recess during which the trial court asked counsel for Mother and Father to talk with
their clients. When the trial proceeded later that morning, Mother took the stand.
Upon being sworn in, Mother stated she did not want to testify. When her counsel
asked her a question about a possible compromise resolution under which she
would accept a termination of her parental rights but only on the basis of just one
of the alleged grounds, she responded: “I can’t do this right now. I really can’t. I
need some more time. . . . I need to know what all my options are. . . . I want the
chance to have my kids back again if later on down the line I get my ducks in a
row.” Given the trial would thus proceed, and an additional day would be needed,
the trial court recessed for the day.
Trial concluded on October 1, 2024. Neither parent was present. Craig was
recalled, and testified that neither Mother nor Father had completed any services or
participated in any drug testing since she last testified in August.
3. Foster Mother
The children’s foster mother testified next. Foster Mother testified that the
children had been with her and her husband since July 2023. She said that they
14 were “fantastic children,” who were “doing well,” “thriving,” and “growing.”
Mother had tested positive for methamphetamine days after Naomi was born, and
Foster Mother testified that Naomi had arrived in their home a very colicky baby
who slept a lot and was not eager to feed. Naomi had since overcome those
difficulties, was growing, and meeting all her milestones. Naomi was very bonded
to her foster parents and her brothers.
Foster Mother said that James was “doing fantastic.” When he first arrived at
the foster parents’ home, she said that he “didn’t have any words.” The foster
parents had him tested several times but, ultimately, “he just needed some extra
help.” At the time of trial, at just shy of 17 months old, James was “exceeding
expectations.” Foster Mother said that James was “ahead of the curve at this
point.”
Zachary was four years old when he came to live with foster parents. Foster
Mother noted that, at that time, Zachary struggled with lashing out physically when
he did not get his way. Zachary also “very much parented” James. The foster
parents addressed the former issue with play therapy and behavioral help, and the
latter by reinforcing for Zachary that he does not need to be the parent, that he can
be just a kid. The brothers have “a great sibling bond” that is “amazing to watch.”
Foster Mother testified that, if the trial court were to terminate the parental
rights of the children’s biological parents, she and her husband were willing and
15 able to give the children a permanent home. They “would be honored” to adopt the
children. Foster Mother stated that she and her husband were willing and able to
continue to meet all the children’s emotional and physical needs, and give them the
stability they need, noting that the children “deserve the world and more.”
4. Foster Father
Foster Father testified that, if asked the same questions that his wife had
answered, he would answer the same.
D. Termination
On May 16, 2023, the trial court signed a final decree of termination, finding
that clear and convincing evidence existed to support findings as to Mother under
Texas Family Code sections 161.001(b)(1)(D) (knowingly placing or allowing the
child to remain in conditions or surroundings which endanger the physical or
emotional well-being of the child), (E) (engaging in conduct or knowingly placing
the child with persons who engaged in conduct which endangers the physical or
emotional well-being of the child), (O) (failure to comply with the provisions of a
court order establishing the necessary actions for the parent to obtain return of the
child), and (P) (using a controlled substance), and that termination of Mother’s
parental rights to the children was in the children’s best interests. The trial court
also found that clear and convincing evidence existed to support findings as to
Father under Texas Family Code sections 161.001(b)(1)(E) (engaging in conduct
16 or knowingly placing the child with persons who engaged in conduct which
endangers the physical or emotional well-being of the child) and (O) (failure to
comply with the provisions of a court order establishing the necessary actions for
the parent to obtain return of the child), and that termination of Father’s parental
rights to the children was in the children’s best interests. This appeal followed.
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.
17 When assessing the legal sufficiency of the evidence in a termination
proceeding, we consider all evidence in the light most favorable to the trial court’s
finding and decide “whether a reasonable trier of fact could have formed a firm
belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002); see also 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. In re 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.
18 B. Applicable Law
Protection of the best interest of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S.W.3d at 361. A parent’s rights to 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); 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 section
161.001(b)(1)(D), (E), (O), and (P), and Father’s rights under section
161.001(b)(1)(E) 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 subsections (D) and (E), and Father
challenges the trial court’s finding under subsection (E), thus implicating due
19 process concerns, we start our sufficiency of the evidence analysis with these two
subsections. See id.; In re Z.M.M., 577 S.W.3d 541, 542–43 (Tex. 2019).
C. Predicate Findings Under Section 161.001(b)(1)(D) and (E)
In Mother’s first through fourth issues, she challenges the sufficiency of the
evidence to support the trial court’s termination of her parental rights under,
respectively, subsections (D), (E), (O), and (P) of section 161.001(b)(1) of the
Family Code. In Father’s first issue, he challenges the sufficiency of the evidence
to support the trial court’s termination of his parental rights under subsection (E).
Section 161.001(b)(1)(D) of the Family Code provides that the trial court
may order termination of the parent-child relationship if it finds by clear and
convincing evidence that the parent has “knowingly placed or knowingly allowed
the child to remain in conditions or surroundings which endanger the physical or
emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(D). Section
161.001(b)(1)(E) provides that the trial court may terminate a parent’s rights if the
trial court finds by clear and convincing evidence that 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.
Subsection (E) 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.
20 03-19-00531-CV, 2020 WL 544797, at *4 (Tex. App.—Austin Feb. 4, 2020, no
pet.) (mem. op.). “Endanger” means more than a threat of metaphysical injury or
the possible ill effects of a less-than-ideal family environment. Tex. Dep’t of Hum.
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). In this context, endanger means
to expose a child to loss or injury or to jeopardize a child’s emotional or physical
well-being. Id.; In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam).
“Environment” refers to the acceptability of living conditions, as well as a parent’s
conduct in the home. In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th
Dist] 2014, pet. denied). A child is endangered when the environment creates a
potential for danger that the parent is aware of but consciously disregards. Id.
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).
Termination under subsection (E) must be based on more than a single act
or omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. In re S.R., 452 S.W.3d at 360. A court may consider actions
and inactions occurring both before and after a child’s birth to establish a “course
of conduct.” In re J.A.R., 696 S.W.3d at 254. While endangerment often involves
physical endangerment, the statute does not require that conduct be directed at a
21 child or that the child actually suffers injury; rather, the specific danger to the
child’s well-being may be inferred from parents’ misconduct alone. Boyd, 727
S.W.2d at 533; 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 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).
Evidence of a parent’s illegal drug use may support termination under
Subsection (E). In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re J.C.P.L., Jr.,
No. 01-24-00723-CV, 2025 WL 757159, at *5 (Tex. App.—Houston [1st Dist.]
Mar. 11, 2025, no pet. h.) (mem. op.). The Supreme Court of Texas recently
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
22 should not be evaluated in isolation; rather, it should be considered alongside
evidence showing that “illegal drug use presents a risk to the parent’s ‘ability to
parent.’” Id. (quoting In re J.O.A., 283 S.W.3d at 345); see also In re A.V., 697
S.W.3d 657, 659 (Tex. 2024) (characterizing R.R.A. standard as “holistic
endangerment review”). For example, a parent’s decision to continue to use drugs
during the termination proceedings, even though the parent’s parental rights were
in jeopardy, has been cited as evidence of a voluntary, deliberate, and conscious
course of conduct that, by its nature, endangered a child’s well-being. In re
J.C.P.L., No. 01-24-00723-CV, 2025 WL 757159, at *6 (citing 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.)); see also In re A.V., 697
S.W.3d at 659 (citing “parents’ drug use continued despite their knowledge that
their parental rights were subject to termination for continued drug use” as part of
“a pattern of continued substantial risk of harm to the child sufficient to support a
trial court's finding of endangerment”). Similarly, a parent’s decision to continue
using drugs during a pregnancy “supports a finding of direct injury to the child.” In
re A.V., 697 S.W.3d at 659.
This Court has previously held that “[i]nappropriate, abusive, or unlawful
conduct by persons who live in the child’s home or with whom the child is
compelled to associate on a regular basis in the home is a part of the ‘conditions or
23 surroundings’ of the child’s home under section D.” Jordan v. Dossey, 325 S.W.3d
700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). An analysis of
endangerment under subsection (D) focuses on evidence of the child’s physical
environment, “although the environment produced by the conduct of the parents
bears on the determination of whether the child’s surroundings threaten his
well-being.” Id.; see also In re S.R., 452 S.W.3d at 360 (“‘Environment’ refers to
the acceptability of living conditions, as well as a parent’s conduct in the home.”).
Termination is permissible under subsection (D) if the Department proves that the
parent’s conduct caused a child to be placed or remain in an endangering
environment, and, under subsection (D), termination may be based upon only a
single act or omission. Jordan, 325 S.W.3d at 721.
A parent’s pattern of illegal drug use, and the effect on the parent’s life and
parenting ability, may establish not just endangering conduct under subsection (E),
but also an endangering environment under subsection (D). See In re R.R.A., 687
S.W.3d at 281.
In this case, both Mother and Father admitted to the Department their illegal
drug use. The trial court ordered Mother and Father to submit to drug testing as
required by their Family Plans of Service, including twice-monthly urinalysis tests
and a random hair test every three months. The trial court also ordered additional
spot-check urinalysis and hair tests on an episodic basis. Father submitted to none
24 of the requested or required tests in any of these categories. Mother submitted to
just two or three of such tests. The caseworker testified that the only drug tests
with which Mother complied were the tests in December 2023 and April 2024. The
December 2023 test was positive for amphetamine and methamphetamine. The
April 2024 test was also positive for amphetamine and methamphetamine. The trial
exhibits included an additional test result from July 2023, when Mother tested
positive for methamphetamine.
Mother and Father’s repeated refusals to participate in drug testing—
consistent in Father’s case and near-consistent in Mother’s case—are 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, as the Family Plans of Service made clear,
a failure to complete required testing was 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 is 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”).
25 We have also held that a parent’s failure to complete drug treatment as
required by a Family Plan of Service can be reasonably interpreted as evidence that
the parent would continue to use illegal drugs and endanger the child’s future. In re
E.G.A., No. 01-24-00204-CV, 2024 WL 3941021, at *17 (Tex. App.—Houston
[1st Dist.] Aug. 27, 2024, pet. denied) (mem. op.) (citing In re J.O.A., 283 S.W.3d
at 346). Here, the trial court could reasonably have interpreted the evidence as
showing that Father did not participate in the required drug, alcohol, and substance
abuse evaluations that were to have determined what inpatient or outpatient drug
treatment he might need. When asked if Father had “ever worked or tried to work
any of his services,” the caseworker testified that he had not. She also testified that
she had to reissue the paperwork for Father’s services multiple times because
Father would not do the services when she ordered them, and the paperwork would
expire. And when she was asked if Mother and Father had completed a drug
assessment, she responded that Mother had done so.
In addition, the Department’s June 13, 2024 Permanency Report lists Father
as “not compliant” with the requirement that he participate in a substance abuse
assessment, states that both Mother and Father “continue to refuse to test and/or
test positive,” and states that “[n]either parent has alleviated the Department’s
concerns of substance abuse.” Mother completed her substance abuse assessment,
but the caseworker testified that Mother had not completed recommended
26 outpatient substance abuse therapy. Indeed, Mother was discharged from that
therapy after missing three therapy appointments. Also, Mother had voluntarily
admitted herself to in-patient “rehab” treatment twice but, each time, she left the
program without completing it. According to the caseworker, Mother left the
second time in September 2023 to “go back with the children’s father,” and has not
actively worked on her sobriety since then. Given these were actions by Mother
and Father while they faced possible termination of their parental rights for failing
to submit to an assessment and follow any resulting drug treatment
recommendations, the trial court could reasonably have interpreted this as evidence
that Mother and Father would continue to use illegal drugs and endanger their
children’s future.
While not addressed in the caseworker’s testimony at trial, there is also
evidence in the record that Mother used illegal drugs during and soon after her
pregnancy with Naomi, who was born in July 2023. The trial exhibits include a
drug test result from July 18, 2023, less than two weeks after Naomi was born,
when Mother tested positive for methamphetamine. Mother’s Family Plan of
Service also noted that Mother had “admitted and tested positive for
Amphetamines while pregnant.” Drug use while a mother is pregnant can
reasonably be interpreted as part of a pattern of behavior establishing
endangerment even under the Texas Supreme Court’s ruling in In re R.R.A. See In
27 re A.V., 697 S.W.3d at 659; see also In re J.C.P.L., 2025 WL 757159, at *6 (citing
father’s continued relationship with mother, who used marijuana during pregnancy,
as part of pattern of behavior establishing endangerment under R.R.A.); see also In
re A.R.D., 694 S.W.3d 829, 840 (Tex. App.—Houston [14th Dist.] 2024, pet.
denied) (“Drug abuse during pregnancy constitutes conduct that endangers a
child’s physical and emotional well-being.”).
In sum, the record contains evidence that: (1) both Mother and Father have
been using illegal drugs fairly consistently since around the time Naomi was born
and, at least in Mother’s case, since Mother was pregnant with Naomi; (2) Mother
used illegal drugs while pregnant despite the risk of harm to Naomi; (3) Mother
and Father both used illegal drugs while Naomi was a newborn—and while her
brothers James and Zachary were just a year and a half and four years old,
respectively—both before and after the children had been placed in a foster home
within a few weeks of Naomi’s birth; (4) throughout the year that the Department
was investigating Mother and Father for alleged neglect of their children, which
could potentially lead to termination of their parental rights, Mother and Father
continued using illegal drugs; (5) despite his parental rights being contingent on
participating in drug testing and treatment during that year, Father complied with
none of the drug-related requirements in his Family Plan of Service; (6) despite her
parental rights being contingent on participating in drug testing and treatment
28 during that year, Mother failed to submit to most of her drug testing, tested positive
for methamphetamine and/or amphetamine each time she did submit to testing, and
did not complete required outpatient drug treatment because she missed too many
treatment sessions.
Further, the caseworker testified that the Department had received
allegations of domestic violence in the children’s home. The alleged domestic
violence was between Father and Mother. The allegations of domestic violence of
which the caseworker was aware related to a period before the two youngest
children were born. She was not aware of any allegations of domestic violence
occurring since this case was initiated. Still, Father was required, as part of his
Family Plan of Service, to successfully complete domestic violence classes. The
caseworker did not testify specifically as to whether Father completed those
classes. However, when asked if Father had “ever worked or tried to work any of
his services,” the caseworker testified that he had not. She also testified that she
had to reissue the paperwork for Father’s services multiple times because Father
would not do the services when she ordered them, and the paperwork would
expire. “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
29 (Tex. App.—San Antonio Mar. 13, 2019, pet. denied) (mem. op.). Similarly,
endangerment may occur when an environment creates the potential for danger that
the parent is aware of but disregards, In re E.R.W., 528 S.W.3d 251, 264 (Tex.
App.—Houston [14th Dist.] 2017, no pet.), such as when a parent continues to live
with someone who committed instances of domestic violence. In re G.M., 649
S.W.3d 801, 809 (Tex. App.—El Paso 2022, no pet.); In re M.V., 343 S.W.3d 543,
547 (Tex. App.—Dallas 2011, no pet.).2
The trial court could reasonably have interpreted the above evidence
regarding the risk of Mother and Father exposing the children to drugs and
violence as showing a pattern of continued substantial risk of harm to the children
sufficient to support its finding of endangerment under subsections (D) and (E).
Because we conclude the evidence is legally and factually sufficient to
support the trial court’s finding under Section 161.001(b)(1)(D) and (E) as to both
Mother and Father, we overrule Mother’s first and second issues and Father’s first
issue. We need not address Mother’s third and fourth issues—i.e., that the evidence
is legally and factually insufficient to support the trial court’s findings under,
2 The caseworker noted that Mother denied any ongoing relationship with Father, but also her doubts that the two had truly separated. For example, she testified that Mother had left her inpatient drug treatment for the second time in September 2023 to “go back to” Father. She also expressed doubt regarding the parents’ statements that they were not living together, noting that they always showed up together for visits with their children. 30 respectively, section 161.001(b)(1)(O) and (P). See In re A.V., 113 S.W.3d at 362
(stating only one predicate finding is necessary).
D. Best Interest of the Children
In Mother’s fifth issue and Father’s second issue, Mother and Father contend
that the evidence is legally and factually insufficient to support the trial court’s
finding that termination of their parental rights was in their children’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.). Prompt and permanent placement of the child in a safe
environment is also presumed to be in the child’s best interest. TEX. FAM. CODE §
263.307(a).
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
31 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.; In re 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).
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
32 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); In re R.R., 209 S.W.3d at 116.
1. Children’s Desires
When the trial began, Zachary had just turned five and the two younger
children were two and one years old. The two younger children were too young to
express their 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 In re S.R., 452 S.W.3d at 369. A child’s need for
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.).
33 Weighing against termination of the parental rights of Mother and Father is
the caseworker’s undisputed testimony that the children are bonded with and love
their biological parents. The caseworker believed that, if the children never see
Mother again, it will be traumatic—especially for the oldest, Zachary. Indeed, the
caseworker testified that Zachary had said he wanted to go back home with Mother
or his aunt, though she added the qualification that he had not spoken much about
it. Weighing in favor of termination, the evidence shows that the children are also
bonded with their foster parents. The two younger children have lived with their
foster parents longer than they lived with their biological parents. There is
testimony that the foster parents meet all the children’s physical, medical, and
emotional needs and care, and offer stability. And because they wish to adopt all
three children, the foster parents offer permanence. These factors all weigh in favor
of termination of Mother and Father’s parental rights. See Holley, 544 S.W.2d at
372; TEX. FAM. CODE § 263.307(b).
2. Children’s Needs and Parental Abilities of Those Seeking Custody
The record includes evidence that (1) at the time they were placed in foster
care, the children had medical or developmental issues; and (2) after a year in
foster care, these issues had largely or entirely abated. For example, Foster Mother
testified that Zachary, who was four when he went to his foster home, “struggle[d]
with lashing out physically to [his foster parents] whenever he didn’t get his way,” 34 and “also very much parented” his younger brother, James. The foster parents
addressed the physicality issue with play therapy and behavioral help, and Zachary
no longer physically lashes out at them. In foster care, Zachary has also learned
that he is not responsible for parenting James and can just “be a kid.”
Foster Mother testified that James, who was one when he went to his foster
home, “didn’t have any words”—presumably meaning that he was non-verbal—
when he arrived. His foster parents had James tested for autism, for hearing loss,
and for other possible deficits. However, according to Foster Mother, James “just
needed some extra help.” After assistance from an Early Childhood
Intervention specialist, James is now “exceeding expectations” and “ahead of the
curve.”
Naomi was less than a month old when she went into foster care. Foster
Mother testified that she was a “very colicky” baby who slept a lot. Foster Mother
said that she and her husband were advised that, due to Naomi’s prenatal exposure
to drugs taken by Mother, they would need to “wake her often to feed her and even
then it was a struggle to get her to feed.” In foster care, in the year before trial,
Naomi improved and was (at the time of trial) “growing” and “meeting all of her
milestones.”
The caseworker’s testimony supported the foster parents’ testimony. She
testified that the children were “doing great” in the foster home. They were stable
35 and bonded, and their physical and emotional needs were being met. She believed
it would be in the children’s best interest if the parental rights of Mother and Father
were terminated, and it would give the children the permanency they need.
In the year before trial, neither of the children’s biological parents was ever
able to show the Department proof of employment or a permanent residence.
Those facts could reasonably be viewed as suggesting that Mother and Father
would not be any better placed going forward to provide better care for the
children than the care that had led to the medical and developmental issues
confronting the children at the time they were placed into foster care.
This evidence of the children’s biological and foster parents’ differing
abilities to meet the children’s needs weighs in favor of termination. See Holley,
544 S.W.2d at 372; TEX. FAM. CODE § 263.307(b).
3. Present and Future Emotional and Physical Danger to Children
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
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).
36 We have detailed above Mother and Father’s pattern of routinely permitting
their drug use to interfere with the care of their children. Even knowing that he
could lose his parental rights to the children, Father made no effort to comply with
those of his Family Plan of Service requirements related to drug use and treatment.
Mother made some efforts but was unable to demonstrate any serious or extended
commitment to compliance. A parent’s substance abuse supports a finding that
termination is in the best interest of the child. In re E.R.W., 528 S.W.3d at 266
(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 the context of evaluating the present and future emotional and
physical danger to the child).
We have also detailed above evidence that the trial court could reasonably
have concluded was evidence of a risk that children would be exposed to incidents
or the consequences of domestic violence by Father, who appears to have not
completed the domestic violence classes required by his Family Plan of Service.
Because the record contains evidence showing that Mother and Father’s
drug use would persist, as well as the possibility that Mother would continue to
expose herself to domestic violence and thus present a future emotional danger to
37 the children, this factor also weighs in favor of termination. See Holley, 544
S.W.2d at 372; TEX. FAM. CODE § 263.307(b).
Viewing the evidence in the light most favorable to the trial court’s finding
that termination of Mother and Father’s parental rights was in their children’s best
interest, we conclude the trial court could have formed a firm belief or conviction
that its finding was correct. See In re 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 and Father’s parental rights was in the children’s best interest. Id.
We thus overrule Mother’s fifth issue and Father’s second issue.
E. Appointment of Sole Managing Conservator
Mother and Father argue, in their sixth and third issues, respectively, that the
trial court abused its discretion by appointing the Department as the sole managing
conservator of the children because, according to Mother and Father, the
Department failed to introduce sufficient evidence demonstrating that Mother and
Father would harm the children.
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); see In re S.M.M., No. 01-22-00482-CV,
38 2022 WL 17981669, at *12 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, pet.
denied) (mem. op.); In re J.D.G., 570 S.W.3d at 856. Conservatorship
determinations are reviewed for an abuse of discretion and will be reversed only if
the decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex.
2007); In re J.D.G., 570 S.W.3d at 856. An order terminating the parent-child
relationship divests a parent of legal rights and duties with respect to the child. See
TEX. FAM. CODE § 161.206(b). Once we overrule a parent’s challenge to an order
terminating her parental rights, the trial court’s appointment of the Department as
sole managing conservator may be considered a “consequence of the termination.”
In re J.D.G., 570 S.W.3d at 856; In re A.S., 261 S.W.3d 76, 92 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied).
Because we have overruled Mother and Father’s challenges to the trial
court’s order terminating their parental rights, the order divested them of their legal
rights and duties related to the children. See TEX. FAM. CODE § 161.206(b); In re
J.D.G., 570 S.W.3d at 856. Consequently, Mother and Father lack standing to
challenge the portion of the order appointing the Department as the children’s
conservator. See In re N.E., No. 01-22-00739-CV, 2023 WL 2530197, at *1 (Tex.
App.—Houston [1st Dist.] Mar. 16, 2023, pet. denied) (mem. op.) (affirming
termination of mother’s parental rights and holding that mother, who had been
divested of her legal rights to child, lacked standing to challenge portion of order
39 appointing Department as child’s conservator); In re S.M.M., 2022 WL 17981669,
at *12 (affirming termination of father’s parental rights and holding that father,
who had been divested of his legal rights to child, lacked standing to challenge
portion of order appointing Department as child’s conservator); In re J.D.G., 570
S.W.3d at 856 (same).
We overrule the Mother’s sixth issue and the Father’s third issue.
Conclusion
We affirm the trial court’s decree of termination.
Amparo “Amy” Guerra Justice
Panel consists of Justices Guerra, Caughey, and Morgan.