In the Interest of Z.M., a Child v. the State of Texas

Opinion

Opinion filed August 27, 2026

In The

Eleventh Court of Appeals

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No. 11-26-00069-CV

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IN THE INTEREST OF Z.M., A CHILD

On Appeal from the 326th District Court Taylor County, Texas

Trial Court Cause No. 11339-CX

OPINION

In this accelerated appeal, we address, among other things, the propriety of the trial court’s order that terminated the parental rights of the father1 to his child, Z.M, 2 and the application of the extension procedures in Sections 263.401 and 263.403 of the Family Code. See TEX. FAM. CODE ANN. §§ 263.401, .403 (West Supp. 2025).

1 Only the father’s parental rights were terminated. Although the mother was originally a respondent in the underlying termination suit, she passed away in October 2025 prior to the final termination hearing.

2 To protect the identities of the child and the child’s family members, we use pseudonyms or initials to refer to them. See TEX. R. APP. P. 9.8(b).

Appellant, the father, presents five issues on appeal. He first contends that the trial court lost its jurisdiction to hear and decide the case. See FAM. § 263.401. In his second, third, and fourth issues, Appellant challenges the sufficiency of the evidence to support the trial court’s findings that: (1) he endangered Z.M. pursuant to Section 161.001(b)(1)(D) and (E); (2) termination of his parental rights is in Z.M.’s best interest; and (3) a continuing danger existed that prevented the return of Z.M. to Appellant. See id. § 161.001(b)(1)(D), (E), (b)(2), (f). In his fifth issue, Appellant contests the trial court’s conservatorship determination. See id. § 153.131 (West 2014).

For the reasons discussed below, we affirm in part, and we reverse and remand in part.

I. Termination Findings and Standards It has long been held that “[s]undering the ties between parent and child ‘can never be justified without the most solid and substantial reasons.’” In re J.Z.A., 738 S.W.3d 805, 808 (Tex. 2026) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)). To that end, the Texas Department of Family and Protective Services (the Department) must “clear[] a high bar” to justify terminating one’s parental rights. In re K.N., No. 24-0881, 2026 WL 1614378, at *6 (Tex. June 5, 2026); see also In re H.S., No. 24-0307, 2026 WL 1614496, at *8–9 (Tex. June 5, 2026) (reemphasizing that terminating parental rights “‘is always the last resort’ . . . permissible to protect children from serious harm . . . [and] may be exercised only in the absence of other legitimate options.” (quoting D.V. v. Tex. Dep’t of Fam. & Protective Servs., 722 S.W.3d 854, 861 (Tex. 2025))).

To support termination under this heightened standard, the Department must present clear and convincing evidence that: (1) the parent has committed one of the acts listed in Section 161.001(b)(1); and (2) termination is in the best interest of the child. See FAM. § 161.001(b). Clear and convincing evidence is “the measure or

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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.” FAM. § 101.007 (West 2019). This standard “is unforgiving” and “the government may not sever the legal ties between parents and children without clearing [this] high bar.” K.N., 2026 WL 1614378, at *6–7. In that regard, “[a] lack of evidence does not constitute clear and convincing evidence.” See In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012); In re M.A.J., 612 S.W.3d 398, 410 (Tex. App.—Houston [1st Dist.] 2020, pet. denied).

In this case, the trial court found that clear and convincing evidence established that Appellant: (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child; and (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child. See FAM. § 161.001(b)(1)(D), (E). The trial court further found that termination of Appellant’s parental rights was in the child’s best interest. See id. § 161.001(b)(2).

In reviewing a legal sufficiency challenge, we must decide whether “a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In re J.W., 645 S.W.3d 726, 741 (Tex. 2022). Cognizant of our deference to the factfinder, “we look at all the evidence in the light most favorable to the finding, assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.” Id. (internal quotation marks omitted). “However, we may not disregard ‘undisputed facts that do not support the finding.’” Id. (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). Because “the factfinder remains ‘the sole arbiter of the witnesses’ credibility

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and demeanor’” under this standard, we may not substitute our judgment for that of the factfinder. Id. (quoting In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021)).

In assessing whether the evidence is factually sufficient to support the finding, we weigh the disputed evidence that is contrary to the finding against all evidence that favors it. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). We give due deference to the finding, and determine whether, based on the entire record, a factfinder could have reasonably formed a firm belief or conviction about the truth of the allegations asserted against the parent. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002); In re L.C.C., 667 S.W.3d 510, 512 (Tex. App.—Eastland 2023, pet. denied).

II. Background and the Evidence Presented at Trial The Department initiated contact with Z.M.’s parents in February 2024 after law enforcement was dispatched to an alleged domestic disturbance between Appellant and the mother. Department investigator Alyssa Jones called the mother, who reported that Appellant assaulted her after she declined Appellant’s sexual advances. Jones met with Appellant at his father’s home where he and nineteen- month-old Z.M. were staying at the time. Appellant explained that he and the mother met at a hotel for Appellant’s visit with Z.M., and that they argued because the mother wanted to remain in the hotel room during the visit. Appellant denied physically assaulting the mother. Although the mother called the police to report her version of events, Jones was unaware of whether Appellant was arrested or charged with any crime following the mother’s report to the police that led to the Department’s involvement.

Jones believed that Appellant seemed “open and honest” with her when they met, and they candidly discussed his criminal history. Appellant’s first misdemeanor conviction was for driving while intoxicated in March 1990. Appellant pled guilty to felony sexual assault in 1995 and was placed on community

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supervision for eight years. See TEX. PENAL CODE ANN. § 22.011 (West 2026). In December 1996, Appellant’s community supervision was revoked after he failed to report to his probation officers for several months and did not remain in Tarrant County as required, and his punishment was assessed at imprisonment for seven years in the Institutional Division of the Texas Department of Criminal Justice. As a result of this conviction, Appellant was required to register as a sex offender for the rest of his life. See TEX. CODE CRIM. PROC. ANN. arts. 62.001(5)(A), (6)(A), 62.051, 62.101(a)(1) (West Supp. 2025).

In March 2023, Appellant pled guilty to failing to comply with the requirements of the Sex Offender Registration Program (SORP), a third-degree felony, and was placed on community supervision for five years. See CRIM. PROC. art. 62.102(b)(2). In October 2023, the State filed a motion to revoke his community supervision based on a domestic violence incident between Appellant and the mother and his failure to pay court-ordered fees. However, the trial court did not revoke Appellant’s community supervision but instead continued his supervision. Despite this, Appellant remained confined in jail until January 2024.

The day after Jones spoke to Appellant at his father’s home, she met with the mother at the Noah Project, a shelter for victims of family violence, sexual assault, and human trafficking. Z.M. was with the mother, so the child was “back and forth between the parents.” The mother confirmed that she brought Z.M. to the hotel for a visit with Appellant, and “they began to tussle” after she rejected him. The mother initially said that while Z.M. was lying on the bed next to where they were standing, Appellant “elbowed her in the face,” and “that it wasn’t intentional, but it wasn’t accidental either.” She clarified that Appellant “hit her intentionally but he didn’t mean her ill will.” The mother said that they began to argue and Appellant then pinned her onto the bed. She eventually left and called police, and Z.M. went home

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with Appellant. The mother told Jones that she “regretted contacting law enforcement because she felt like she overreacted.”

Jones also discussed with the mother the Department’s previous involvement with her and Appellant because of domestic violence between them, but the mother hoped that Appellant had changed. Before then, the Department was involved when Z.M. was born because his cord blood tested positive for cocaine. The mother and Appellant participated in services and that case was closed.

The mother stated that consuming alcohol increased Appellant’s propensity for violence, but she nonetheless intended to allow continued contact between him and Z.M. When Jones attempted to implement a safety plan, the mother “was not interested,” “did not believe it was necessary,” and said “that she was not going to participate.” The mother told Jones “to go do what [she] needed to do . . . and she would do whatever she needed to do to get [the Department] out of her life.”

On February 14, 2024, the Department was granted temporary managing conservatorship of Z.M. Z.M. was drug tested the same day, and was positive for cocaine metabolite, cocaethylene, and benzoylecgonine. The Department created family plans of service for the mother and Appellant, which the trial court amended and adopted as orders of the court in May 2024. The mother refused to submit to drug testing until August 2024 when she was ordered to do so at a hearing, and she tested positive for cocaine, methamphetamine, and alcohol. Appellant tested positive for alcohol in August 2024, but he consistently tested negative for illegal substances.

While the case was pending, Appellant continued residing with his father and adult daughter, whose background checks raised no concerns. Appellant completed anger management, counseling, and his psychological assessment, the recommendation of which was “reunification with [Z.M.] and to discontinue classes with [the Department].” The trial court granted the monitored return of Z.M. to

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Appellant in February 2025, and Z.M. began living with Appellant in his father’s home on March 20, 2025.

The mother’s visitation with Z.M. was suspended after she tested positive for cocaine and alcohol in February 2025. The order granting Z.M.’s monitored return prohibited Appellant from allowing the mother access to Z.M. The trial court also ordered Appellant “to complete the remaining requirements imposed under [the] service plan that [were] necessary for the child’s return,” specifically, that he “submit to weekly alcohol testing” and “attempt to submit to hair follicle alcohol testing weekly.” At that time, the Department’s permanency goal was family reunification.

In June 2025, permanency case manager Vanessa Gott became the family’s fourth assigned caseworker since Z.M. was removed. According to Gott, whose tangential involvement began in April 2025, Appellant had no outstanding requirements for services when she became the primary caseworker.

Then, in August 2025, Z.M. tested positive for marihuana metabolite at the cutoff level of 0.1 picograms per milligram (pg/mg). Appellant’s nail bed test was positive for Delta-9. Gott did not suspect that Appellant used marihuana and believed that Appellant “ha[d] always been up front that he doesn’t use drugs.” She instead surmised that Appellant’s daughter’s marihuana use was the source of Z.M.’s exposure based on a home visit in April 2025 during which she smelled marihuana emitting from the daughter’s vehicle. When Gott discussed Z.M.’s positive test results with Appellant and informed him of her suspicions, he stated “[h]e didn’t think anyone was using mari[h]uana” in the home, and “[h]e knew that his daughter used a vape, but wasn’t sure if the vape was mari[h]uana or something else.” Appellant’s father and daughter refused to submit to drug testing after Z.M. and Appellant tested positive.

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The monitored return ended in August 2025, and Z.M. was placed in a foster home in Bellevue, Texas. The mother again tested positive for cocaine in August 2025, then died unexpectedly in the beginning of October 2025. Appellant informed Gott of the mother’s death and disclosed that, although he was uncertain of the cause, he “had concerns that it could have possibly been from drug use.”

The final termination hearing commenced on November 5, 2025. The Department offered Appellant’s and the mother’s service plans as well as several of the trial court’s orders. When the final hearing resumed on January 29, Jones and Gott testified. Appellant was the third and final witness before the final hearing concluded on February 2, 2026. Z.M. was still living in the foster home in Bellevue, which was not a long-term or adoptive placement. His foster parents were only willing to care for him “until a decision [was] made on the case” regarding the termination of Appellant’s parental rights. Gott explained that the Department had not located a permanent placement for Z.M. at that time but was in the process of requesting a home study for a maternal aunt who had contacted the Department.

In addition to Appellant’s convictions for sexual assault and failure to comply with sex offender registration requirements, the Department offered Appellant’s 1995 judgment of conviction for Class A misdemeanor assault, a 1996 judgment for driving while his license was suspended, and two judgments of conviction for violating a protective order in 2021. On two occasions in 2021, Appellant was convicted following his plea of no contest to violating a protective order that was issued on June 26, 2021, that named the mother as the protected person. Gott had not discussed Appellant’s criminal history with him “in detail,” but acknowledged his difficulty in securing housing because of his criminal history and status as a sex offender.

Relying on documentation prepared by the three previous caseworkers, Gott stated that Appellant did not complete his mental health intake appointment at the

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Betty Hardwick Center as required by his service plan. She also attested that Appellant failed to complete a parenting course. However, Appellant testified that he attended his intake appointment at the Betty Hardwick Center, was advised that he “didn’t need any help,” and forwarded the letter he was given to the caseworker that was assigned to him at that time. Appellant testified that no one informed him that this requirement was considered incomplete. Gott admitted that she had not contacted anyone at Betty Hardwick to determine the accuracy of her predecessors’ notes.

Although Appellant was initially reluctant to promptly submit to drug and alcohol testing, Gott did not suspect that Appellant “was trying to be deceptive”; she “just [didn’t] think he was making it a priority.” She consistently maintained that drug use was not a concern with Appellant, though she believed that that “he [did] occasionally drink a few beers.”

Gott believed that Appellant abided by the condition of the monitored return to prohibit the mother from having unsupervised access to Z.M., was employed with a landscaping company, and was “able to take care of [Z.M.].” The Department’s “major concern” was Appellant’s unstable housing situation. Gott did not dispute that Appellant’s attempts to secure housing since the monitored return ended were met with difficulty. For instance, because of his reportable conviction, he was not eligible for government assistance through the United States Department of Housing and Urban Development (HUD), and several of his lease applications were summarily rejected. Appellant testified that he submitted “at least seven or eight” lease applications and in turn paid several hundred dollars in application fees. Gott acknowledged Appellant’s recent “bad luck” that contributed to the delay, including his father’s stroke and subsequent hospitalization, and Appellant’s own hospitalization in the months before the final hearing.

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Notwithstanding the “uphill fight,” Appellant was able to rent an apartment from his employer and signed a lease on January 21, 2026. Pursuant to the arrangement between him and his employer, Appellant took “a significant pay cut just to establish [his] residence.” He moved in “[m]ost of [Z.M.’s] stuff,” including “his bed[,] [h]is little table he can eat on that matche[d] his bed[,] [a] little setup for some of his clothes[,] [and] [h]is little play box.” Appellant could not move any of his own belongings to or take possession of the apartment until he registered his new address. See CRIM. PROC. arts. 62.051, 62.055. When Gott testified on January 29, she had not yet been to the apartment that Appellant had leased to assess its safety and suitability for Z.M. because she had received the lease that day. But even assuming the apartment was appropriate for a child, Gott still had concerns regarding Appellant’s stability, reliable transportation, childcare arrangements, and the need to ensure that Z.M. was “not exposed to any assaultive behavior.” She clarified:

I just want to be sure that not only is it stable housing, but there is a stable environment which [Appellant] is willing to continue accepting help if counseling was provided. But he has already stated that, you know, he just wants [Z.M.] home. He doesn’t think he has anything else that he needs to do. So, that’s where the concern is.

Gott confirmed that Appellant had not been arrested for violent or assaultive offenses while the underlying proceedings were pending. Aside from Appellant’s conviction for failure to register as a sex offender, his other criminal convictions predate Z.M.’s birth.

Additionally, Appellant consistently attended parent-child visitation, which went “very well.” Gott observed that “[Z.M.] [was] very bonded to [Appellant],” “[t]hey interact[ed] well,” Appellant played with Z.M., read to him, and made sure he was fed. It appeared to Gott that Appellant had “quite the concern over [Z.M.]’s well-being” and could provide for Z.M.’s needs. She agreed that terminating Appellant’s parental rights would be traumatic for Z.M. “because he does have a

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bond with [Appellant].” In fact, Z.M. started attending play therapy because he became so upset when the visits ended and he missed Appellant between visits.

Notwithstanding Z.M.’s bond with Appellant, and contrary to the Department’s initial permanency goal of reunification, the Department sought to terminate Appellant’s parental rights. Gott opined that termination was in Z.M.’s best interest “[a]t this time,” because the Department was concerned that Z.M. might “be[] exposed to any aggressive behavior due to the involvement we’ve had with the family.” She expounded:

We would like to see some stability in that home that he’s going to maintain. . . . As far as with termination, we’ve been in this case for almost two years, and so we are kind of still at the same point, so I’m still in the agreement of termination.

Gott’s testimony concluded on January 29. On February 2, Appellant described his new apartment, which Gott “had a chance to walk through” after the last setting. He was awaiting a callback from the Sex Offender Registry Detective at the Abilene Police Department to schedule an appointment, but he hoped to register his new address within a week.

Appellant averred that, despite his service plan requirements interfering with his employment, he completed “everything on the list” “because [his] son was the most important thing.” Although he repeatedly lost jobs while attempting to satisfy his service plan requirements, he remained continuously employed while the case was pending. Appellant also reserved a place for Z.M. at a daycare facility, confirmed that he was employed in landscaping, and had a vehicle for transportation.

At the close of evidence, Z.M.’s attorney ad litem expressed her opposition to terminating Appellant’s parental rights:

What I’ve seen is a bond between the two of them, dad and son, and I know he wants to be with his dad. . . . I just don’t . . . feel that it is in [Z.M.’s] best interest for [Appellant’s] parental rights to be terminated.

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[Z.M.] is not in a long-term placement . . . [or] a pre-adoptive home. . . . [W]here he wants to be is with his father, and you can tell every time you see the two of them together.

At the conclusion of the hearing, the trial court terminated Appellant’s parental rights and found termination to be in the best interest of Z.M. See FAM. § 161.001(b)(1)(D), (E), (b)(2). This appeal followed.

III. Jurisdiction Over the Case: Sections 263.401 and 263.403 In Appellant’s first issue, he asserts that the trial court lost its jurisdiction to hear and decide the case on August 16, 2025, because it failed to properly extend the dismissal deadline.

The legislature enacted Section 263.401 to encourage the prompt resolution of suits in which the Department requests termination of the parent-child relationship. In re G.X.H., 627 S.W.3d 288, 292 (Tex. 2021). In a parental termination proceeding, a trial on the merits must commence by “the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator.” FAM. § 263.401(a). The failure to do so without a valid extension under subsection (b) deprives the trial court of jurisdiction over the suit, resulting in its automatic dismissal. See id. § 263.401(c).

Section 263.401 “incorporate[s] heightened protections against government interference with parents’ fundamental liberty interest in the care, custody, and control of their children.” In re J.S., 670 S.W.3d 591, 599 (Tex. 2023). “In recognition of this interest, all branches of Texas government have implemented strong due-process protections for parents facing termination of their parental rights.” Id.

But the fundamental interests of parents and the policy favoring the prompt resolution of termination suits are important only to the extent that they advance the child’s best interest. See FAM. § 153.002 (“The best interest of the child shall always

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be the primary consideration of the court.”). To that end, the automatic dismissal date may be extended “in exceptional circumstances, but only if the trial court properly grants a limited extension before the one-year deadline.” In re C.S., No. 25- 0008, 2026 WL 1614382, at *1 (Tex. June 5, 2026) (citing FAM. § 263.401(a)).

“Notwithstanding Section 263.401,” Section 263.403 allows a trial court to retain jurisdiction and render an order for the monitored return of the child. See FAM. § 263.403(a). In relevant part, Section 263.403 provides:

(a-1) Unless the court has granted an extension under Section 263.401(b), the [D]epartment or the parent may request the court to retain jurisdiction . . . .

(b) If the court renders an order under this section, the court shall:

.... (2) schedule a new date, not later than the 180th day after the date the temporary order is rendered, for dismissal of the suit unless a trial on the merits has commenced.

(c) If before the dismissal of the suit or the commencement of the trial on the merits a child placed with a parent under this section must be moved from that home by the department or the court renders a temporary order terminating the transition order issued under Subsection (a)(2)(B), the court shall, at the time of the move or order, schedule a new date for dismissal of the suit. The new dismissal date may not be later than the original dismissal date established under Section 263.401 or the 180th day after the date the child is moved or the order is rendered under this subsection, whichever date is later.

FAM. § 263.403 (emphasis added). Appellant contends that the trial court’s February 13, 2025, extension order that was issued pursuant to Section 263.401(b- 3) foreclosed its ability to issue further extensions under other applicable provisions.

“Statutory construction is a question of law, and [our] review is conducted de novo.” City of Round Rock v. Rodriguez, 399 S.W.3d 130, 133 (Tex. 2013). “Our ultimate purpose when construing a statute is to [discern] the Legislature’s intent,”

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and the statute’s text is the best indication of it. Id. We must not interpret the statute in a manner that renders any part or provision meaningless or superfluous. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008). “In ascertaining a term’s meaning, courts look primarily to how that term is used throughout the statute as a whole.” Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). Statutory terms should be interpreted consistently in every part of a statute. Id. Thus, “courts should not give an undefined statutory term a meaning out of harmony or inconsistent with other provisions, although it might be susceptible of such a construction if standing alone.” Id.; see also State v. Haltom Med. Invs., L.L.C., 153 S.W.3d 664, 669 (Tex. App.—Fort Worth 2004, no pet.) (“Unless there is language clearly indicating a contrary intent, words or phrases used in different parts of a statute are presumed to have the same meaning throughout, and where the meaning in one instance is clear, this meaning will be attached in all other instances.”).

The plain and unambiguous language of Section 263.403(a-1) precludes the parties from requesting that the trial court retain jurisdiction over the case for an additional six months if the trial court has previously granted an extension under Section 263.401(b). FAM. § 263.403(a-1). However, the remaining applicable subsections of the Family Code specifically permit the trial court to retain jurisdiction over the case for a monitored return or transition monitored return “[n]otwithstanding Section 263.401,” even if the monitored return fails. Id. § 263.403(a), (b), (c). Importantly, as detailed above, in the event of a failed monitored return, the trial court must set a new dismissal deadline that “may not be later than the original dismissal date established under Section 263.401 or the 180th day after the date the child is moved [from the monitored return] . . . , whichever is later.” Id. § 263.403(c). Consequently, we conclude that Sections 263.401 and 263.403 do not prohibit the trial court from extending the dismissal deadline to order

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a monitored return or transition monitored return, as it did here, even if it has previously extended the dismissal deadline, so long as the new dismissal deadline is set no later than the 180th day after a child is removed from a monitored return. See L.C.C., 667 S.W.3d at 516–17.

On February 13, 2025, the trial court signed an order extending the dismissal deadline to August 16, 2025, pursuant to Section 263.401. See FAM. § 263.401. The trial court’s order and its purpose included specific findings that: (1) Appellant made a good faith effort to complete his service plan but needed additional time to be compliant; and (2) it intended to return the child to Appellant upon the completion of his service plan. FAM. § 263.401(b-3). Then, on February 24, 2025, the trial court held a permanency hearing during which it considered the monitored return of Z.M. to Appellant. The trial court signed its order granting a transition monitored return on March 26, 2025, and extended the dismissal deadline to August 23, 2025, in compliance with Section 263.403(b). The trial court terminated the monitored return on August 21, 2025, and, pursuant to Section 263.403(c), extended the dismissal deadline to November 18, 2025. The final hearing commenced on November 5, before the November 18 dismissal deadline passed. Thus, the trial court retained its jurisdiction to hear and decide the case.3 See In re P.Z.F., 651 S.W.3d 147, 154 (Tex. App.—Dallas 2021, pet. denied).

Accordingly, we overrule Appellant’s first issue.

IV. Section 161.001(b)(1)(D) and (E) – Endangerment In Appellant’s second issue, he challenges the trial court’s findings that he endangered Z.M. See FAM. § 161.001(b)(1)(D), (E).

3 Our interpretation of these extension provisions does not conflict with In re Texas Department of Family & Protective Services, No. 02-26-00515-CV, 2026 WL 2357227, at *2–3 (Tex. App.—Fort Worth Aug. 13, 2026, orig. proceeding) (per curiam) (mem. op.), which held that a trial court may not invoke Section 263.401(b) to further extend a dismissal deadline already set under Section 263.403(c) following a failed monitored return. Here, by contrast, the trial court granted one extension under Section 263.401(b)

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The statutory endangerment grounds require clear and convincing proof that the parent has: “(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child,” or “(E) 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.” FAM. § 161.001(b)(1)(D), (E); In re S.M.R., 434 S.W.3d 576, 585 (Tex. 2014). “[E]ndangerment encompasses a larger 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 269, 277 (Tex. 2024) (quoting Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). The term means “more than a threat of metaphysical injury or potential ill effects of a less-than-ideal family environment,” E.N.C., 384 S.W.3d at 803, but “does not require actual harm.” R.R.A., 687 S.W.3d at 277 (citing Boyd, 727 S.W.2d at 533).

To terminate a parent’s rights based on endangerment under subsection (D) or (E), the “parent’s endangering conduct need not ‘be directed at the child,’” nor must “the child actually suffer[] injury.” R.R.A., 687 S.W.3d at 277 (quoting Boyd, 727 S.W.2d at 533); In re C.E., 687 S.W.3d 304, 310 (Tex. 2024). “[T]ermination under [subsection] (D) requires that the child’s environment is a source of endangerment, and the parent’s conduct may create that dangerous environment.” C.E., 687 S.W.3d at 310. “A parent’s drug use, violence, or other abuse may make the child’s environment endangering to the child.” In re J.S., 675 S.W.3d 120, 128 (Tex. App.—Dallas 2023, no pet.). “A parent acts ‘knowingly’ when the parent is aware that the environment creates a potential danger to the child but the parent disregards that risk.” Id. Because conditions or surroundings cannot endanger a child unless

before it ordered the monitored return. Upon terminating the monitored return, the trial court set the new dismissal deadline under Section 263.403(c) and did not stack the previous extension under Section 263.401(b). Thus, the concern articulated by the Second Court of Appeals is not present here.

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the child is exposed to them, the relevant time frame for evaluating the applicability of subsection (D) is before the child’s removal. J.W., 645 S.W.3d at 749.

Endangerment under subsection (E) focuses on the parent’s conduct, and whether the endangerment of the child’s well-being was the direct result of the parent’s actions, omissions, or failures to act. In re J.S., 687 S.W.3d 541, 550 (Tex. App.—Eastland 2024, no pet.). Termination under subsection (E) must be based on more than a single act or omission; instead, a voluntary, deliberate, and conscious course of conduct by the parent is required. Id.; In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied). “A factfinder may infer endangerment from ‘a course of conduct’ that presents substantial risks to the child’s physical or emotional well-being.” R.R.A., 687 S.W.3d at 277. Further, a parent’s actions prior to and after the child’s birth or removal may show an endangering course of conduct. See J.S., 687 S.W.3d at 550 (“[E]ndangering conduct may include the parent’s actions before the child’s birth and may relate to the parent’s actions while the parent had possession of other children.”).

The Department contacted the mother and Appellant because the mother reported that physical violence had allegedly occurred between her and Appellant. Jones testified that she spoke to the mother, who stated that Appellant elbowed her in the face and pinned her on the bed in a hotel room while nineteen-month-old Z.M. was on the bed. Though Appellant denied any physical altercation with the mother, such evidentiary conflicts raised credibility issues that were for the trial court, as the factfinder, to resolve. See J.W., 645 S.W.3d at 744–45. “[W]hile the elevated burden of proof was certainly on the Department, it was the trial court’s responsibility to weigh evidence, draw inferences, and evaluate witness credibility.” Id. at 745.

Here, the evidence permitted an inference that Appellant and the mother conceivably engaged in a physical altercation in Z.M.’s presence. A parent’s violent

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conduct, especially in the presence of the child, can “produce an environment that endangers a child’s well-being.” See In re N.J.H., 575 S.W.3d 822, 832 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). The trial court could reasonably credit such evidence of Appellant’s alleged conduct and infer that “a substantial risk to the child’s health and safety” existed under the circumstances. See R.R.A., 687 S.W.3d at 278.

Viewing the evidence in the light most favorable to the trial court’s finding under subsection (D), and giving deference to its finding, as we must, we hold that a rational trier of fact could have formed a firm belief or conviction that Appellant knowingly placed Z.M. in conditions or surroundings that endangered Z.M.’s physical or emotional well-being. FAM. § 161.001(b)(1)(D); see In re J.P.B., 180 S.W.3d 570, 573–74 (Tex. 2005). Thus, the evidence is legally sufficient to support its finding. Given our resolution of Appellant’s third issue as we discuss below, and because only one statutory ground is necessary to support termination, we need not reach Appellant’s complaints insofar as they relate to the factual sufficiency of the trial court’s finding under subsection (D), nor the evidentiary sufficiency of its finding under subsection (E).4 See FAM. § 161.001(b); J.F.C., 96 S.W.3d at 266; In re T.M., No. 11-25-00273-CV, 2026 WL 770620, at *7–8 (Tex. App.—Eastland Mar. 19, 2026, no pet.) (mem. op.); see also TEX. R. APP. P. 47.1.

Accordingly, we overrule Appellant’s second issue.

V. The Best Interest of the Child In Appellant’s third issue, he challenges the legal and factual sufficiency of the evidence to support the trial court’s finding that termination of his parental rights is in the best interest of Z.M. “‘[B]est interest’ is a term of art encompassing a much broader, facts-and-circumstances based evaluation that is accorded significant

4 Because we reverse the trial court’s termination order in this case, the trial court’s endangerment findings cannot serve as a basis to terminate Appellant’s parental rights to his other minor children, if any. See FAM. § 161.001(b)(1)(M); In re N.G., 577 S.W.3d 230, 234–35 (Tex. 2019).

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discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013) (quoting Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)). Because the trial court is the sole judge of the witnesses’ credibility, when it is the factfinder, we generally do not disturb its determinations so long as they are not unreasonable. J.F.-G., 627 S.W.3d at 312; J.P.B., 180 S.W.3d at 573.

There is a strong presumption that termination is not in a child’s best interest;

therefore, a parental-termination order “must always be a last resort and never a first impulse.” H.S., 2026 WL 1614496, at *1. With respect to the best interest of the child, no unique set of factors need be proved. L.C.C., 667 S.W.3d at 513; In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied). Further, the best interest determination does not restrict the proof to any specific factor or factors. J.S., 687 S.W.3d at 547. In fact, evidence of each Holley factor is not required to support a best interest finding. C.H., 89 S.W.3d at 27–28; J.S., 687 S.W.3d at 547– 48; In re S.R., 452 S.W.3d 351, 366 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Nevertheless, courts may use the non-exhaustive Holley factors to shape their analysis. Holley, 544 S.W.2d at 371–72. These include, but are not limited to: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id.

The best interest analysis evaluates the best interest of the child, not the parent.

J.S., 687 S.W.3d at 548; In re E.C.R., 638 S.W.3d 755, 767 (Tex. App.—Amarillo 2021, pet. denied) (citing In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso

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2015, no pet.)). To support a best interest finding, the Department is not required to prove each Holley factor; in some circumstances, evidence of only one factor will suffice. C.H., 89 S.W.3d at 27; In re D.M., 452 S.W.3d 462, 473 (Tex. App.—San Antonio 2014, no pet.). Additionally, the same evidence that proves one or more statutory grounds for termination may also constitute sufficient, probative evidence illustrating that termination is in the child’s best interest. C.H., 89 S.W.3d at 28; J.S., 687 S.W.3d at 547–48; C.J.O., 325 S.W.3d at 266; see also H.S., 2026 WL 1614496, at *9 (Although the heightened standard of appellate review applies to both the grounds for termination and the best interest analysis, evidence that supports a finding under subsection (b)(1) “may also be, and indeed often is, relevant to best interest under [s]ubsection (b)(2).”). This is particularly true if the evidence indicates that the parent-child relationship and the parent’s conduct has endangered the safety and well-being of the child. C.H., 89 S.W.3d at 27.

In this regard, the factfinder may measure a parent’s future conduct by his or her past conduct in determining whether termination of a parent’s parental rights is in the child’s best interest. J.S., 687 S.W.3d at 548; In re Z.R.M., 665 S.W.3d 825, 829 (Tex. App.—San Antonio 2023, pet. denied); In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.). The factfinder may infer that a parent’s past conduct that endangered the safety and well-being of the child may recur in the future if the child is returned to the possession of the parent. J.S., 687 S.W.3d at 548; In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.); May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi–Edinburg 1992, writ denied). Moreover, the factfinder may infer from a parent’s past inability to meet the child’s physical and emotional needs an inability or unwillingness to meet the child’s physical and emotional needs in the future. J.S., 687 S.W.3d at 548; J.D., 436 S.W.3d at 118; see also In re A.S., No. 11-16-00293-CV, 2017 WL 1275614, at *3 (Tex. App.—Eastland Mar. 31, 2017, no pet.) (mem. op.).

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Correspondingly, “[t]he presence of scant evidence relevant to each factor will generally not support a finding that termination of parental rights [is] in the child’s best interest.” In re D.L.W.W., 617 S.W.3d 64, 82 (Tex. App.—Houston [1st Dist.] 2020, no pet.). Conjecture, proof by only a preponderance of the evidence, or a lack of evidence is not enough for a reasonable factfinder to form a firm belief or conviction that termination of one’s parental rights is in the child’s best interest. See E.N.C., 384 S.W.3d at 808, 810; M.A.J., 612 S.W.3d at 410; T.M., 2026 WL 770620, at *11.

A. Emotional and physical danger to the child now and in the future; acts and omissions that may indicate that the parent-child relationship is not a proper one That the evidence is legally sufficient to support the trial court’s finding under subsection (D) does not necessarily resolve the best-interest inquiry that we must consider. See H.S., 2026 WL 1614496, at *13. Significantly, subsection (D) permits termination based only upon a parent’s single act or omission, and the relevant period to be considered is the child’s pre-removal environment. In re R.S.-T., 522 S.W.3d 92, 108–09 (Tex. App.—San Antonio 2017, no pet.). But the best interest inquiry is prospective and entirely child-centered; “[t]he purpose of terminating parental rights . . . is not to punish parents or deter their ‘bad’ conduct, but rather to protect the interests of the child.” In re A.B., 437 S.W.3d 498, 504 (Tex. 2014); see also J.W., 645 S.W.3d at 746 (“The best-interest prong of the termination inquiry ‘is child-centered and focuses on the child’s well-being, safety, and development.’” (quoting A.C., 560 S.W.3d at 631)). Viewing the disputed incident between Appellant and the mother in February 2024 against that backdrop, we note the late mother’s statement that she did not believe that Appellant struck her intentionally, though not “accidental[ly] either,” and meant “no ill will” if it was intentional. The mother “regretted contacting law enforcement” and said that she “overreacted.”

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Appellant denied committing any physical violence toward the mother, and Jones perceived Appellant as cooperative, open, and honest with her.

Notably, no evidence was presented that Appellant was arrested for or charged with any assaultive offense despite the mother reporting this alleged incident to the police. In fact, the Department did not offer any police reports or present the testimony of the responding officers or other potential witnesses to substantiate the claim. See, e.g., H.S., 2026 WL 1614496, at *13 (“[T]he department offered little to none of the kind of evidence we would expect in a termination case based on endangerment.”). However, the mother’s service plan notes the Department’s concerns that the mother “was residing with known drug users,” and that “[t]here have been multiple instances of domestic violence inside the home while the child was present.” The alleged drug users and perpetrators of domestic violence are not identified, and those allegations are absent from Appellant’s service plan. Thus, aside from Jones’s testimony in which she related the deceased mother’s vacillating statements about the “physical altercation” in February 2024, nothing permitted an inference that Appellant and the mother engaged in domestic violence in Z.M.’s presence. Such evidence certainly factors into the best interest analysis, as domestic violence in the home—regardless of whether it occurred in the presence of the child—“leads to an unstable and unpredictable environment for children.” In re O.E.R., 573 S.W.3d 896, 905 (Tex. App.—El Paso 2019, no pet.). But the evidence must establish that Appellant’s acts or omissions created or may create a danger to Z.M.’s physical and emotional well-being such that it is not in Z.M.’s best interest to return to Appellant’s care. See Holley, 544 S.W.2d at 371–72.

The Department relies on Appellant’s criminal history, including his remote convictions for misdemeanor assault and felony sexual assault from nearly three decades before Z.M. was born. “[W]hen it comes to criminal malfeasance, termination may be available when the Department can establish a ‘course of

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conduct’ that has the effect of endangering the child.” K.N., 2026 WL 1614378, at *13 (quoting J.F.G., 627 S.W.3d at 312–13). However, criminal conduct “will not, standing alone, constitute engaging in conduct which endangers the emotional or physical well-being of a child.” Id. (quoting Boyd, 727 S.W.2d at 533). Rather, we must “tak[e] into account the nature of the crimes, the duration of incarceration, and whether a pattern of escalating, repeated convictions exists.” J.F.-G., 627 S.W.3d at 313.

The charging instruments and judgments for Appellant’s felony sexual assault and misdemeanor assault convictions show that Appellant committed violent offenses against two different women in 1994. Although we neither condone nor disregard such criminal conduct, “not all conduct we find reprehensible justifies [the] most draconian of sanctions” as the termination of one’s parental rights. K.N., 2026 WL 1614378, at *13; see also In re J.G.S., 574 S.W.3d 101, 125 (Tex. App.— Houston [1st Dist.] 2019, pet. denied) (Although the father’s sexual assault conviction was “some indication that the parent-child relationship . . . is not appropriate,” the trial court’s best interest finding was not supported by factually sufficient evidence.). In particular, “acts done in the distant past, without showing a present or future danger to a child, cannot be sufficient to terminate parental rights.” In re C.V.L., 591 S.W.3d 734, 751 (Tex. App.—Dallas 2019, pet. denied) (quoting In re C.E.K., 214 S.W.3d 492, 496 (Tex. App.—Dallas 2006, no pet.)). Appellant was punished for committing violent criminal offenses nearly three decades before Z.M. was born and he has not been convicted of any violent crime since then. As such, without evidence that Appellant’s violent behavior continued and created a risk to Z.M.’s well-being, his conduct from the distant past was of minimal probative value to the best interest determination. See id.

The evidence further established that Appellant violated a protective order, which was signed on June 26, 2021, by “going to or near” the mother’s residence

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and place of business on separate occasions. According to the charging instruments, the protective order was granted under Article 17.292 of the Code of Criminal Procedure, which authorizes the issuance of such an order against a person who was arrested for committing one of six enumerated offenses or any “offense involving family violence.” See CRIM. PROC. art. 17.292. Neither the protective order nor the evidence regarding the basis for its issuance were admitted, and there was no indication that Appellant was later convicted for assaultive conduct that related to the purpose of the protective order. As such, a reasonable factfinder could only infer that in June 2021, Appellant was arrested for some unknown crime but not convicted. Further, the protective order that was issued was effective, at most, for 120 days following his arrest. See CRIM. PROC. art. 17.292(j); E.N.C., 384 S.W.3d at 804–05; D.L.W.W., 617 S.W.3d at 89 (no evidence explaining how the parents’ convictions years before the child’s birth posed a danger to the child).

Because domestic violence allegations are especially context-dependent and fact-intensive, we “may not just presume that supporting evidence exists in some undisclosed location.” H.S., 2026 WL 1614496, at *13. Without factual elaboration, Appellant’s convictions for simply going to a prohibited location do not demonstrate a history of or propensity for violence, and Appellant cannot be punished for any underlying crime without any proof of what it is or whether he committed it. See J.G.S., 574 S.W.3d at 118 (The termination of parental rights cannot become “an additional punishment automatically imposed along with imprisonment for almost any crime.” (quoting In re E.S.S., 131 S.W.3d 632, 639 (Tex. App.—Fort Worth 2004, no pet.))). Such smoke without fire is the “type of inference-upon-inference [that] does not rise to the level of clear and convincing evidence.” See In re L.E.R., 650 S.W.3d 771, 785 (Tex. App.—Houston [14th Dist.] 2022, no pet.).

Appellant pled guilty to his most recent offense, failing to comply with sex offender registration requirements, nearly eight months after Z.M.’s birth. He

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explained that he was charged with this offense because his appointment to provide the requisite information to the appropriate agency was made outside the “certain time period -- [the] window when [he] had to do things.” He testified that he was arrested when he went to register, and “pled guilty just for probation.” The Department presented nothing to the contrary, and instead drew attention to Appellant’s community supervision violations, particularly an alleged “domestic violence incident” between Appellant and the mother in October 2023. The Department elicited the following testimony from Appellant:

[THE DEPARTMENT]: In October of 2023, there was a Motion to Revoke filed against you. . . . And the basis of that was a domestic violence incident between you and [the mother]. . . . [APPELLANT]: She kicked in my door. Yes. [THE DEPARTMENT]: I’m not asking if that happened or not, but that was the basis for that MTR? [APPELLANT]: Yes.

The Department adduced no other circumstances of this “domestic violence incident”—only that Appellant’s community supervision was not revoked. Both Jones and Gott alluded to the Department’s involvement after the incident in 2023, but provided no details, context, or pinpointed conduct that posed a present or future danger to Z.M. Jones related the mother’s statement that Appellant “was physical with her before, and that . . . [he] would get more angry when he drank.” She then recalled discussing “their history with [the Department] involving domestic violence,” but nothing more.

Invoking only familiar terms such as “instability” and “history of domestic violence” is not enough. See J.G.S., 574 S.W.3d at 126. A vague reference to an uncharged and unadjudicated allegation of domestic violence, without more, is not evidence that any crime occurred. See E.N.C., 384 S.W.3d at 804–05 (The Department has the burden to offer evidence concerning facts of an alleged criminal

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offense and show that the conduct endangered the child.); see also In re A.L.R., No. 04-19-00349-CV, 2019 WL 5765793, at *6 (Tex. App.—San Antonio Nov. 6, 2019, no pet.) (mem. op.) (general statement that parent is “violent” and has “extensive” “criminal history of assault, burglary and theft” does not, alone, support best interest finding; nor does mere fact that the parent is incarcerated). Perhaps with an understanding of what occurred between Appellant and the mother throughout the duration of their relationship, the risks posed to Z.M.’s well-being would be readily apparent. But the alleged history of domestic violence remains obscure, thereby leaving an analytical gap as it relates to Z.M.’s best interest.

We next turn to the Department’s contention that Appellant failed to protect Z.M. from the mother’s drug use and his daughter’s marihuana use. Appellant testified that the Department intervened when Z.M. was born because his cord blood tested positive for cocaine. Appellant and the mother completed services and the case was closed. As discussed, there were vague references to the Department’s involvement in 2023 following a “domestic violence incident,” which ceased after the parents participated in services. The logical assumption from this meager evidence is that the Department withdrew from the parents’ lives because of a determination that Z.M. was not in danger. See, e.g., D.L.W.W., 617 S.W.3d at 86– 87 (that the Department “did not have a problem with [the] father being appointed as a possessory conservator” of the child implied that the Department “did not feel that the father posed enough of a danger”). Appellant has never been suspected of using illegal drugs and was confined in jail from approximately October 2023 through January 2024. Thus, based on the evidence presented at the final hearing, Appellant cannot be charged with knowledge of the mother’s illegal drug use prior to Z.M.’s removal in February 2024.

Additionally, there is no indication that Appellant was aware of his daughter’s marihuana use prior to August 2025. When asked about Z.M.’s exposure to

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marihuana, Gott suspected that he was exposed to Appellant’s daughter’s use of it because Gott smelled marihuana emanating from the daughter’s vehicle in April 2025. Gott also made it clear that on that occasion, Appellant arrived at the home for the visit “in a different vehicle.” Gott confirmed that she had “conversations with [Appellant] about a possible source for that exposure,” which could only be after Z.M. tested positive. Based on testimony, it was after he and Z.M. were exposed to marihuana that he reported “learn[ing] later that the vape thing [his daughter] was puffing on” may have contained marihuana. We believe that no reasonable factfinder could derive from the record that Appellant was aware of his daughter’s marihuana use prior to August 2025, and “mere proximity to wrongdoing is insufficient.” K.N., 2026 WL 1614378, at *12.

Finally, Appellant tested positive for alcohol in August 2024 and admitted to drinking “some beer” in violation of his community supervision conditions, but it did not result in his revocation. As we have said, a parent’s conduct that may subject the child to a life of uncertainty and instability supports a trial court’s endangerment findings and is relevant to the best interest analysis. See J.S., 687 S.W.3d at 552. Appellant risked imprisonment by consuming alcohol in violation of his community supervision conditions, which weighs in favor of the trial court’s best interest finding. See id. However, because he was not revoked following his admission is somewhat mitigating but nevertheless suggests a risk to Z.M. if he were returned to Appellant. The Department otherwise presented minimal to no evidence of a current or future danger to Z.M.’s physical or emotional well-being, or of Appellant’s acts and omissions that may indicate that the parent-child relationship is not a proper one. See Holley, 544 S.W.2d at 371–72.

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B. Plans for the child by those seeking custody; Stability of the home or proposed placement; Programs available to assist these individuals to promote the best interest of the child; Any excuse for acts or omissions Appellant’s housing dilemma was a central issue at the final hearing, and rightfully so, as stability and permanence are paramount in the upbringing of children. In re J.A.R., 696 S.W.3d 245, 257 (Tex. App.—Houston [14th Dist.] 2024, pet. denied); see also In re M.A., No. 11-26-00054-CV, 2026 WL 2339171, at *12 (Tex. App.—Eastland Aug. 13, 2026, no pet. h.) (citing In re G.H., No. 11-26- 00012-CV, 2026 WL 1992098, at *7 (Tex. App.—Eastland July 10, 2026, pet. filed) (mem. op.)). It is undisputed that Appellant leased an apartment shortly before the parties reconvened for the final hearing in January. He described his apartment and testified that Gott inspected it after the hearing recessed on January 29. Despite the opportunity to visit Appellant’s apartment, the Department appeared on February 2 and rested without presenting any evidence—let alone clear and convincing evidence—of the conditions or stability of his apartment. Prior to Gott’s purported home visit, she testified that even if she had seen Appellant’s apartment before the final hearing and determined that it was appropriate, the Department would have nevertheless recommended terminating his parental rights. Gott clarified that had Appellant secured housing in October or November 2025, the Department’s position might have been different, then expressed additional concerns that Appellant “[didn’t] think he ha[d] anything else that he need[ed] to do.” She repeatedly emphasized Appellant’s need to prove “stability” and suggested that Appellant participate in counseling.

Gott’s September 2025 permanency report shows that the Department changed its permanency goal to unrelated adoption after Z.M. and Appellant tested positive for Delta-9 in August 2025. But Gott’s September and December permanency reports left open the possibility of reunification “[i]f [Appellant] [was] able to get his own residence, continue having stable employment, remov[ed]

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himself from those who may cause harm to [Z.M.], and maintain sobriety.” And since August 2025, Gott claimed: To have “had a lot of conversations with [Appellant], encouraging him that what we were looking for, and encouraged him that this is what we are wanting, so that we can get [Z.M.] back in his home.” Though unclear, it is logical to assume that Gott was referring to Appellant’s search for a new home. Permitting Appellant to persist under the hollow prospect of reunification after the Department had abandoned that possibility cannot be reconciled with its continuing duty to determine whether Appellant was willing and able to provide Z.M. with a safe environment. See FAM. § 263.307(b) (West 2019).

Compounding the confusion, Gott presented conflicting accounts as to when Appellant was notified that his father’s home was not appropriate for Z.M. Relying on the Department’s recommendation, the trial court permitted Z.M. to live with Appellant in his father’s home from March through August 2025 because it was determined to be a safe environment. Yet Gott agreed that “there has been discussion about [Appellant’s] living situation” since March 2024 after the adversary hearing. She went on to explain that Appellant had “been having [the] discussion in regards to him finding his own place since May,” which was prior to her assignment as the primary caseworker. More puzzling still, Gott revealed the effect of Z.M. testing positive for marihuana metabolite at a level of 0.1 pg/mg:

[THE DEPARTMENT]: Had [Z.M.] and [Appellant] not tested positive, would this case have [been] dismissed months ago? [Gott]: Yes, sir. [THE DEPARTMENT]: Successfully? [Gott]: Yes.

Appellant could hardly be expected to understand that he needed to search for different housing prior to August 2025 when Gott exhibited more confusion than clarity. See H.S., 2026 WL 1614496, at *12.

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For the same reasons, the Department’s contention that Appellant failed to comply with his service plan is equally unavailing. The Department maintains that Appellant failed to complete his parenting course and to utilize services through the Betty Hardwick Center, that his “employment plans and plans to pay for daycare were not established,” and that “[h]e ha[d] not provided proof of employment or income, saying that he was busy with work.”

The purpose of a service plan “is to help [parents] provide [their] child[ren]

with a safe environment within the reasonable period specified in the plan.” FAM. § 263.102(b). A parent’s failure to complete the services that are required to regain possession of his or her child is relevant insofar as it permits the inference that the parent lacks the willingness or ability to seek out available resources needed now or in the future. M.A., 2026 WL 2339171, at *14; In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). In that regard, just as “an uninterested parent poses an emotional and physical danger to the child” now and in the future, In re A.J.D.-J., 667 S.W.3d 813, 823 (Tex. App.—Houston [1st Dist.] 2023, no pet.), evidence of a parent’s willingness and commitment to meet the child’s emotional and physical needs now and in the future favors the preservation of the parent-child relationship. See Holley, 544 S.W.2d at 371–72; M.A., 2026 WL 2339171, at *14. Similarly, an adverse inference is unwarranted when a parent’s alleged failure to strictly comply with a service plan is attributable in large part to the Department’s lack of communication and clarity. See J.Z.A., 738 S.W.3d at 808, 811–12 (“[C]ourt-ordered service plans are strictly construed in the parent’s favor, as are the statutory provisions that supply the predicate ground for termination.”); H.S., 2026 WL 1614496, at *11–12; see also In re A.Y.C., 665 S.W.3d 800, 818 (Tex. App.—Houston [14th Dist.] 2023, pet. denied) (The lack of available programs to address the parents’ issues cannot be held against the parents.); M.A., 2026 WL 2339171, at *14.

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Although Gott testified that Appellant failed to fulfill those requirements, she also professed that Appellant had no outstanding services to complete when she was assigned to the case in June 2025. And, not only was Gott’s testimony fraught with material inconsistencies, she conceded that she was relying on the contents of documentation prepared by previous caseworkers, rather than her personal knowledge, with respect to the status of some of Appellant’s services. A witness’s conclusory testimony based on the lack of personal knowledge, but instead on conflicting reports from previous caseworkers, is “mere guesswork” and no evidence at all. See K.N., 2026 WL 1614378, at *8 n.2; E.N.C., 384 S.W.3d at 806–07.

A review of the permanency reports prepared and filed by Gott’s predecessors reveals material inconsistencies with respect to Appellant’s progress toward completing his service plan requirements. 5 For instance, the first caseworker’s permanency report filed in October 2024 confirmed that Appellant sought services at Betty Hardwick and was informed that none were required, which corroborates Appellant’s testimony. Another permanency report filed on February 19, 2025, by a different caseworker—the report on which the trial court relied in ordering the monitored return—marks “Parenting” as “Completed.” The report shows that the Department’s permanency goal was family reunification and that it recommended a monitored return of Z.M. to Appellant because Appellant “ha[d] complied with all recommended services and has had unsupervised visits.” Whereas on another page, the caseworker noted that Appellant had not completed a parenting course.

5 Because Gott had no independent personal knowledge of certain matters to which she attested, we look to the information on which she relied for the limited purpose of ascertaining the basis for her testimony, not as credible evidence of the matters asserted. See In re R.J.G., 681 S.W.3d 370, 375, 380 (Tex. 2023) (reviewing a report filed by the Department that undermined the assertion that the mother failed to comply with her service plan requirements); In re I.B., No. 13-17-00098-CV, 2017 WL 2806779, at *2, *11 (Tex. App.—Corpus Christi–Edinburg June 29, 2017, no pet.) (mem. op.) (holding that there was insufficient evidence of a best interest finding where the caseworker and sole witness attested to matters of which she had no personal knowledge and had instead simply reviewed “the CPS file”).

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“Generating such cognitive dissonance creates independent problems related to due process because parties cannot be expected to comply with orders that they cannot reasonably understand.” H.S., 2026 WL 1614496, at *12. This is especially true considering Appellant’s excuses for his delay in obtaining housing. In addition to the arduous process of changing residences in compliance with SORP, the difficulties encountered by Appellant in securing housing since August 2025 and registering his new home address were affected by unforeseen or uncontrollable circumstances: for instance, housing shortages in the Abilene area,6 the United States Government shutdown, and closures because of a winter snowstorm. Gott knew that (1) Appellant’s father was suffering from the effects of a brain tumor, (2) Appellant was his father’s caregiver, and (3) his father was hospitalized after sustaining a stroke in the months leading up to the final hearing. She was likewise aware that Appellant spent approximately five days in the hospital around November 2025 and agreed that other parents with whom she supervised had difficulty finding lowincome housing. Finally, because of the lack of clarity, we cannot say that other issues such as intermittently attending drug testing were excused by Appellant’s attempt to maintain stable employment. See, e.g., In re G.A.H., No. 05-25-00421- CV, 2025 WL 2697297, at *9 (Tex. App.—Dallas Sept. 22, 2025, no pet.) (mem. op.).

The Department’s adherence to pursuing termination notwithstanding Appellant’s potentially safe, appropriate home ran afoul of its obligation to “assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.” See FAM. § 153.001; see also In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003) (“The State’s foremost interest in suits affecting the parent-child relationship is the best interest of the child.”). To be clear,

6 https://www.bigcountryhomepage.com/news/abilene-rental-crisis-pushes-acu-to-expand-studenthousing /

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we do not suggest that a child should be reunited with his or her biological parents at all costs, nor should parents be permitted to demonstrate their ability to act in their child’s best interest indefinitely—it is contrary to the best interest of a child to be “kept in limbo while judicial processes crawl forward.” B.L.D., 113 S.W.3d at 353; see also H.S., 2026 WL 1614496, at *16 n.1 (Lehrmann, J., dissenting). But reasonableness cannot be sacrificed in the race to resolution. To that end, the Department’s imposition of an arbitrary deadline and goal prior to the conclusion of the final hearing without specifically informing Appellant of it—i.e., “wait[ing] until trial to reveal that [the Department] was measuring performance against a previously undisclosed requirement”—does not constitute clear and convincing evidence that Appellant failed to obtain appropriate, safe housing for Z.M. See R.J.G., 681 S.W.3d at 380.

Nevertheless, Appellant demonstrated his ability to act in Z.M.’s best interest—he consistently attended visits with Z.M. and was bonded with him, arranged daycare for him, maintained suitable employment, had transportation, and was days away from moving into a new home. That Appellant “[didn’t] think he ha[d] anything else that he need[ed] to do” is not so “concern[ing]” against the backdrop of his significant progress to parent and his bond with Z.M.

As we and other courts have recognized, “evidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a [parent’s] long history of drug use and irresponsible choices.” J.O.A., 283 S.W.3d at 346; see also M.A., 2026 WL 2339171, at *13; In re N.T., 474 S.W.3d 465, 479 (Tex. App,—Dallas 2015, no pet.) (“[R]ecent improvement alone is not sufficient to avoid termination of parental rights.” (quoting In re K.D.C., No. 02-12-00092-CV, 2013 WL 5781474, at *16 (Tex. App.—Fort Worth Oct. 24, 2013, no pet.) (mem. op.))). Nevertheless, the case before us, like others recently, is not the scenario with which we are typically confronted. See, e.g., M.A., 2026 WL 2339171, at *13; G.H.,

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2026 WL 1992098, at *6. Here, Appellant was bonded with Z.M., took advantage of the programs available to assist him in promoting Z.M.’s best interest, and planned to provide care for Z.M. in a drug-free home environment, and the Department had no permanent placement or a prospective adoptive home for Z.M. With “the goal of reunification and the rights of the parties to be of paramount interest,” we afford significant weight to Appellant’s genuine efforts to address the Department’s concerns. See In re C.A.M., 633 S.W.3d 68, 76 (Tex. App.—Amarillo 2021, no pet.); see also M.A., 2026 WL 2339171, at *13. Ignoring a parent’s postremoval efforts while focusing exclusively on his pre-removal misconduct arguably defeats the purpose of the service plan in the first place. See C.A.M., 633 S.W.3d at 76 (“Would it not have been in the best interest[] of the child[] to admit up front that the ultimate end was termination anyway?”).

Portions of Gott’s testimony regarding Appellant’s service plan requirements were conclusory and irreconcilable with the information on which she relied and therefore carries no weight in the balancing of the Holley factors. 7 See E.N.C., 384 S.W.3d at 806–07; I.B., 2017 WL 2806779, at *2, *11. Given the fundamental interests at stake and the child-centered focus of termination proceedings, the Department’s pursuit to terminate one’s parental rights demands far greater fidelity to facts that can be substantiated. See J.W., 645 S.W.3d at 740, 746–47 (citing A.C., 560 S.W.3d at 631). Anything less, whether it be carelessness or indifference, is a betrayal of the children whom the Department is bound to protect.

C. The Child’s desires; Emotional and physical needs of the child now and in the future; Parenting abilities of the individuals seeking custody Most importantly, the uncontroverted child-centered evidence undermines the trial court’s finding that termination of Appellant’s parental rights is in Z.M.’s best

7 This is not the first case that we have considered in which the Department sponsored a witness who attested to unverified facts. See, e.g., M.A., 2026 WL 2339171, at *10 & n.3; T.M., 2026 WL 770620, at *9–12.

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interest. See id. Z.M. was three at the time of the final hearing. Ordinarily, when a child is too young to express his desires, evidence that the child is bonded to a foster family, has spent minimal time with his parents, and has been well cared for by the foster family supports a finding that termination of a parent’s rights is in the child’s best interest. See In re E.J.M., 673 S.W.3d 310, 334 (Tex. App.—San Antonio 2023, no pet.). But that scenario does not exist here. Gott testified that Z.M. is “a very sweet and quiet boy” who is “very active.” Moreover, the attorney ad litem unequivocally averred that “where [Z.M.] want[ed] to be [was] with his father,” Appellant.

With respect to Z.M.’s emotional and physical needs, Gott testified that Z.M.

received speech therapy and was “working on potty training,” but otherwise was meeting his developmental milestones. Because Z.M. became upset when his visits with Appellant ended, he began play therapy in October 2025. Gott opined that Appellant was able to meet Z.M.’s needs and prioritized Z.M.’s well-being. In fact, she recalled that Appellant only cancelled parent-child visits in the event of inclement weather because “he [didn’t] want [Z.M.] on the road” from Wichita Falls to Abilene in dangerous conditions.

Appellant’s and Gott’s sentiments aligned on this topic. Expanding on Z.M.’s needs, Appellant recounted bringing Z.M. new shoes every month to help his “walking problem” or “foot problem,” as well as contacting West Texas Rehab to discuss the need for treatment. Appellant also contacted a counselor for Z.M. “to make sure that this experience [wasn’t] going to traumatize him later on.” Thus, Appellant clearly had the parental capabilities to care for Z.M., prioritized Z.M.’s well-being, and that Appellant and Z.M. shared a strong reciprocal bond.

Notwithstanding Z.M.’s relationship with his foster parents, his foster family was not willing to adopt him, and the Department had not found a permanent home for Z.M. Therefore, nothing established that maintaining the parent-child

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relationship between Appellant and Z.M. would disrupt any relationship that Z.M. might have formed with his foster family. See A.L.R., 2019 WL 5765793, at *5.

Regarding the remaining concerns, Gott attested to Appellant’s potential aggressive behaviors based on alleged domestic violence between Appellant and the late mother, as well as his criminal conduct. She explained:

Although [Z.M.] has a great bond with [Appellant], the concerns of -- again, like I’ve said, stability. Concerns of being exposed to any aggressive behavior due to the involvement we’ve had with the family.

I am concerned that if we were to step out of the case that [Appellant] would return to the home of his father and daughter, which would put [Z.M.] back at risk of being exposed to drugs.

Gott knew that Appellant was employed, had signed a lease for an apartment, and had not been arrested for or charged with any acts of violence while the underlying suit was pending. She further failed to articulate the basis for her concern that those dangers still purportedly existed. Under such circumstances, termination cannot stand on “the Department’s unknowns and uncertainties.” T.M., 2026 WL 770620, at *9; see also K.N., 2026 WL 1614378, at *13; R.J.G., 681 S.W.3d at 382.

Reviewing all the evidence, and the lack thereof, in the light most favorable to the trial court’s best interest finding while also considering the undisputed facts that do not support its finding, we conclude, as we have before, that the evidence is legally insufficient to support the finding that termination of Appellant’s parental rights is in Z.M.’s best interest. See J.W., 645 S.W.3d at 741; Holley, 544 S.W.2d at 371–72; M.A., 2026 WL 2339171, at *14; T.M., 2026 WL 770620, at *10; In re J.B., No. 11-22-00305-CV, 2023 WL 3213089, at *5–6 (Tex. App.—Eastland May 3, 2023, no pet.) (mem. op.); In re A.O., No. 11-22-00290-CV, 2023 WL 2799132, at *3–5 (Tex. App.—Eastland Apr. 6, 2023, pet. denied) (mem. op.); In re T.S.W., No. 11-21-00231-CV, 2022 WL 969526, at *4–5 (Tex. App.—Eastland Mar. 31, 2022, no pet.) (mem. op.). And even if the evidence were legally sufficient,

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it is certainly not factually sufficient. See M.A.J., 612 S.W.3d at 410. In sum, the evidence as it relates to Appellant’s actions and inactions, the absence of any emotional or physical danger to Z.M. now and in the future, Appellant’s ability to meet the emotional and physical needs of Z.M. now and in the future, and Appellant’s parenting abilities and progress toward stability, failed to “clear [the] high bar” that is necessary for the Department to establish that termination of Appellant’s parental rights is in Z.M.’s best interest. K.N., 2026 WL 1614378, at *6–7, *13; see also M.A., 2026 WL 2339171, at *14.

Accordingly, we sustain Appellant’s third issue. Because of our disposition and the resolution of this issue, we need not reach Appellant’s fourth issue. See TEX. R. APP. P. 47.1.

VI. Conservatorship

Appellant asserts in his fifth issue that the trial court abused its discretion when it refused to appoint Appellant as Z.M.’s managing conservator.

It is axiomatic that the primary consideration in determining issues of conservatorship is always the child’s best interest. FAM. § 153.002. Section 153.131 of the Family Code creates a rebuttable presumption that the appointment of a parent as managing conservator is in the best interest of the child unless the trial court finds that the appointment of the parent “would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development.” Id. § 153.131; see In re C.J.C., 603 S.W.3d 804, 812 (Tex. 2020) (discussing the “fit-parent presumption” that is so “deeply embedded in Texas law” (quoting In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000))).

We review a trial court’s conservatorship determination for an abuse of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re A.M.T., 592 S.W.3d 974, 976 (Tex. App.—San Antonio 2019, pet. denied). A trial court abuses its discretion if its decision is arbitrary and unreasonable. J.A.J., 243 S.W.3d at 616;

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D.L.W.W., 617 S.W.3d at 93. Under this standard in family law cases, legal and factual sufficiency grounds are not independent grounds of error, but rather are factors that are used to determine whether the trial court abused its discretion. In re B.G.J., 702 S.W.3d 886, 898 (Tex. App.—Eastland 2024, no pet.). In determining whether the trial court abused its discretion, we must consider whether it had sufficient information available to it upon which to exercise its discretion. Id.

The trial court may appoint the Department as the managing conservator of a child without the termination of one’s parental rights if it finds by a preponderance of the evidence that:

(1) 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 (2) it would not be in the best interest of the child to appoint a relative of the child or another person as managing conservator.

FAM. § 263.404(a); § 161.205 (West 2022) (If the trial court does not order termination of parental rights, it shall either “deny the petition” or “render any order in the best interest of the child.”). In making this determination, the trial court must consider the child’s age, needs, and desires. See id. § 263.404(b).

Here, the issue of sole managing conservatorship was part of the proceeding that resulted in the erroneous termination of Appellant’s parental rights on best interest grounds. Because we have concluded, based on the record before us, that the trial court’s termination of Appellant’s parental rights on that basis is not supported by legally or factually sufficient evidence, Appellant’s pre-termination status should be reinstated, as should the Department’s status as Z.M.’s temporary managing conservator. See In re F.E.N., 579 S.W.3d 74, 76–77 (Tex. 2019) (remand was necessary when the record did not support termination and was not adequately developed as to conservatorship); In re D.C., No. 05-22-01223-CV, 2023 WL 3243483, at *5 (Tex. App.—Dallas May 4, 2023, no pet.) (mem. op.).

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Accordingly, we sustain Appellant’s fifth issue.

VII. This Court’s Ruling

We reverse the final order of the trial court insofar as it found that termination of Appellant’s parental rights was in the best interest of Z.M. and terminated Appellant’s parental rights based on that finding. We vacate the portion of the order that appointed the Department as permanent managing conservator of Z.M. and found that appointing Appellant as the sole managing conservator would significantly impair Z.M.’s physical health or emotional development. We reinstate the Department’s appointment as temporary managing conservator of Z.M. pending further proceedings on remand. F.E.N., 579 S.W.3d at 77; In re W.J.G.G., No. 04- 26-00110-CV, 2026 WL 1893979, at *8 (Tex. App.—San Antonio July 1, 2026, no pet. h.) (mem. op.) (remanding solely on best interest grounds) (collecting cases). We affirm the order of the trial court in all other respects.8 Accordingly, we remand this cause to the trial court for further proceedings consistent with this opinion. See TEX. R. APP. P. 44.1(b). Any proceedings on remand must commence within 180 days of this court’s mandate. See TEX. R. APP. P. 28.4(c).

W. STACY TROTTER JUSTICE

August 27, 2026 Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

8 As we also noted in M.A., we recognize that the trial court, when it made its rulings, did not have the benefit of reviewing recent Texas Supreme Court precedent that has guided our decision in this and other related appeals. In these cases, the court discussed and clarified the standard of review and evolving nuances in parental termination proceedings, which we are bound to apply and follow. See H.S., 2026 WL 1614496, at *1, *6–14; K.N., 2026 WL 1614378, at *1–6, *12–14; J.Z.A., 738 S.W.3d at 808.