in the Interest of M.A.J.Jr., H.A.J., and B.D.J., Children v. Department of Family and Protective Services

Opinion issued March 5, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00685-CV
———————————
IN THE INTEREST OF M.A.J. JR., H.A.J., AND B.D.J., CHILDREN

On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2018-04197J

DISSENTING OPINION

I respectfully dissent. The majority reverses the trial court’s order terminating

Mother’s parental rights to three of her children—M.A.J. Jr. (M.A.J.), H.A.J., and

B.D.J.—under Texas Family Code subsections 161.001(b)(1)(E), (N), and (O). The

majority opinion does not address the sufficiency of the evidence to support

termination under these predicate acts. Instead, the majority reviews only the
evidence it deems material to the trial court’s finding that termination is in the best

interest of the children, deems the evidence supporting that finding insufficiently

“clear and convincing,” reverses the trial court’s order terminating Mother’s parental

rights, and remands the case for a new trial. It affirms the part of the trial court’s

order appointing the Department of Family and Protective Services (DFPS) as the

children’s sole managing conservator, leaving the children in the limbo of permanent

foster care with the prospect of their return to a drug-addicted Mother who satisfies

none of the factors designed to show her fitness as a parent.

Established law does not permit a reviewing court to ignore the evidence of

predicate acts relating to the fitness of a parent to raise her children, to reweigh only

those selective facts it deems pertinent to the mother’s rights and the children’s best

interests, and to make a subjective determination on the basis that the best interest

evidence is not sufficiently “clear and convincing,” and, accordingly, to overturn the

judgment of the trial court and remand for a new trial. Rather, established law

requires that, to satisfy constitutional due process standards, the reviewing court

must address both the evidence supporting the statutory predicate acts required for

termination and the evidence of the children’s best interests, review that evidence in

the light most favorable to the trial court’s ruling, and base its own ruling on the

legal and factual sufficiency of the evidence to support termination under objective

legal standards. Here, the evidence in favor of termination adduced at trial is

2
overwhelming. Accordingly, I respectfully dissent. I would affirm the judgment of

the trial court.

Background

Because the majority omits facts material to the trial court’s determination

regarding the relevant predicate acts, and, therefore, likewise material to determining

the children’s best interests, I have restated the record facts below.

DFPS became involved with Mother and three of her children—M.A.J., a son

born in January 2015, and H.A.J. and B.D.J., twin girls born in April 2018—after

receiving a referral alleging sexual abuse of M.A.J. and drug use by both parents.1

On June 25, 2018, Child Protective Services (CPS) investigator Wanda Alamutu

interviewed Mother at her home and observed the three children.

Mother told Alamutu that she was unmarried and unemployed, that she

received governmental assistance, including food stamps and Medicaid for the three

children, and that, although she did not receive court-ordered child support, the

children’s father offered financial help. Mother denied drug use. When asked about

the allegation of sexual abuse, she stated that M.A.J. told her that a family friend had

“touched him.” She stated that she took M.A.J. to see a doctor and that she no longer

allows the family friend access to him. Alamutu noted that Mother “appeared to be

1
Father did not appeal the trial court’s decision to terminate his parental rights to the
three children.
3
appropriate and cooperating with the agency.” Alamutu also observed that all three

children were dressed appropriately “with no visible bruises or marks” and were

“bonding with their parents,” and she noted no other concerns with Mother or the

children.

Alamutu arranged a forensic appointment for M.A.J. Mother agreed to take

him to the appointment, but she failed to do so because she did not have money for

gas. Alamutu rescheduled M.A.J.’s appointment and made transportation

arrangements for Mother.

On July 3, 2018, Alamutu contacted Mother to inform her that DFPS had

received another referral and that, as a result, Mother needed to take a drug test.2

Although Mother agreed to the testing, she did not follow through because the hair

follicle testing required shaving the back of her hair.

On July 23, 2018, the Harris County Sheriff’s Office responded to a report of

injury to a child at Mother’s home. The incident report stated that “[t]he location

contained various scrap metal piles and junked vehicles. Rusted scrap metal and

broken glass were found on the ground throughout the property. The location was

found to have numerous safety hazards.”

Mother told the responding officer that a 5-year-old neighbor had started a

physical altercation with 3-year-old M.A.J. and that the neighbor’s mother had

2
There is no additional information about this referral in the appellate record.

4
intervened, striking M.A.J. on his face with the back of her hand and knocking him

to the ground. Mother told the officer that she did not try to break up the fight because

M.A.J. had not started the fight and he was winning. The neighbor’s mother, who

had reported the incident, had a different account of how the fight transpired. She

also stated that, although she did pull her son away from the fight, she did not strike

M.A.J.

The responding officer’s report described M.A.J.’s injuries as “consistent with

being in a fight with a larger child,” including “[r]edness and swelling . . . observed

around both of his eyes,” “[m]inor scrapes . . . on the right side of his chin and along

his forehead,” and swelling to his wrists; and the report concluded that these injuries

did not “match a strike from an adult.” The report concluded that, “[d]ue to

conflicting stories and inconsistencies in injuries, [the responding officer] found all

parties involved to not be credible.”

The reporting officer referred the case to DFPS due to “the violent nature of

the incident and the hazardous environment in which both children lived.”

The next day, July 24, 2018, Alamutu informed Mother of the new allegations.

Mother stated that “children play and are going to hit each other.” Alamutu also

asked Mother to sign a “safety plan,” stating her agreement to leave her home with

the children to live with a family friend and to disallow Father further contact with

the children “until he cooperates and completes drug testing.” Alamutu also asked

5
that Mother submit to urine drug testing. Mother complied with both requests that

day.

Alamutu asked M.A.J. about the allegations that his neighbor had hit him, but

he did not want to speak about it. She did not notice any bruises or marks on M.A.J.’s

face where Mother said the neighbor had hit him. She observed M.A.J. bonding with

Mother, and she noted that he was dressed appropriately with clean clothes.

On August 6, 2018, Alamutu was informed that Mother and the children had

moved to live with Mother’s aunt in Goodrich, Texas, because Father was “talking

to another woman” and Mother “wants the best for her children.”

On August 10, 2018, the results from Mother’s drug testing returned positive

for high levels of methamphetamine and amphetamine and positive for marijuana.

When Mother, who was then living in Livingston, Louisiana, was informed of the

test results, she left Livingston, and “her whereabouts [were] unknown.”

On August 21, 2018, Alamutu learned that Mother and the children were back

at her home in Houston. Alamutu visited Mother and informed her that, based on her

positive drug test, she was concerned about Mother’s ability to provide a safe

environment for the children.

The following day, August 22, 2018, DFPS filed an original petition for

protection of the children, conservatorship, and termination of Mother’s parental

rights. The petition alleged that Mother had committed acts or omissions that

6
constituted predicate grounds for termination of her parental rights under Family

Code section 161.001(b)(1), subsections (E), (N), and (O), and that termination of

her parental rights was in the best interest of the children.

DFPS attached Alamutu’s affidavit to its petition. In it, Alamutu stated that,

prior to the 2018 referrals of Mother to CPS, Mother had been referred to CPS for

physical neglect in May and June 2016 after M.A.J. was treated in a hospital

emergency room for “bites or sores” on his buttock. The wounds were abscesses

from bites that appeared to be “both new and old.” Alamutu noted that Mother “did

not appear to be concerned about the one-year old’s condition.” Mother completed

Family Based Safety Services with CPS in October 2016 for the incident and DFPS’s

disposition of the referral was noted as “ruled out.”

Alamutu’s affidavit also stated that Mother had a criminal history, including

a conviction for engaging in organized criminal activity in November 2015 and a

conviction for burglary of a habitation in March 2016. And it stated that Mother had

“current and previous drug usage,” including positive drug testing results for

marijuana and “high levels” of methamphetamine and amphetamine in her urine in

July 2018. It also stated that Mother had refused to submit to hair follicle testing.

On that same day, August 22, 2018, the trial court issued an order of

protection, and DFPS removed the children from Mother’s home and placed them

in a foster home.

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 On September 6, 2018, after the statutorily required adversary hearing, the

trial court signed an order appointing DFPS temporary managing conservator of the

children. The trial court also signed a separate order for Mother to submit to drug

testing.

DFPS created a Family Service Plan for Mother, setting out the steps she had

to take to be reunited with her children. Mother’s Family Service Plan required her

to obtain and maintain for more than six months stable, safe, clean housing that was

free of hazards and had operational utilities such as electricity, water, and gas; to

obtain and maintain stable employment; to refrain from criminal activity; to

complete parenting classes; to submit to random drug screenings; to complete a

substance abuse assessment and follow all recommendations; to complete a

psychosocial assessment and follow all recommendations; and to participate in

individual therapy and substance abuse treatment. DFPS filed Mother’s Family

Service Plan with the court on October 1, 2018.

In October 2018, DFPS also filed CPS specialist Gabriela Cano’s status

report, which recommended that DFPS continue as the children’s temporary

managing conservator and requested that Mother’s Family Service Plan, filed

contemporaneously with the status report, be made an order of the court.

In January 2019, both DFPS and Child Advocates, Inc., the children’s court-

appointed advocate, filed reports in anticipation of the trial court’s February 2019

8
permanency hearing. DFPS, through Cano, filed a permanency report stating that

Mother had been referred to DFPS in January 2016 for neglectful supervision and

physical neglect of M.A.J. and in May 2016 for neglectful supervision and medical

neglect of M.A.J., and noting that these referrals had been designated as “ruled out”

by CPS. The report also stated that, in December 2018, Mother had been referred to

DFPS for neglectful supervision of J.J., a child of Mother’s who is not part of the

underlying proceedings, and it noted that CPS had “ruled out” the referral. The report

designated the June 2018 referral for neglectful supervision that arose from M.A.J.’s

fight with his neighbor as “reason to believe” the allegations. The report described

all three children who were in foster care as “happy.” But it stated that DFPS’s goal

had changed from “family reunification” to “unrelated adoption . . . due to

[Mother’s] testing positive [for drugs] consistently.”

Cano also noted in the report that Mother was taking parenting classes and

that although she had been referred for her psychosocial and drug assessments, she

had not completed the assessments. And she noted that although Mother stated that

she did not have contact with Father, “family friends have informed [Cano] that

[Mother] does have contact” with Father, and Mother “admitted to seeing [Father]

before Christmas.” Additionally, Mother had not obtained an income or stable

housing, and Cano stated that “[t]here are concerns that [Mother] also might be

pregnant, and she admitted to smoking [during] the month of January due to finding

9
out she has a warrant.” The report also stated that Mother had tested negative for

drugs twice in November, but that she had tested positive for marijuana in December.

In her January 2019 report to the trial court, Kristy Clark, the children’s

guardian ad litem through Child Advocates, stated that Mother had begun parenting

classes but had “not completed any other services that Child Advocates is aware of

at this time.” Noting that Mother “has a history of substance abuse and recently

admitted to Child Advocates that she used marijuana,” and that she had a prior CPS

history, Clark concluded that Mother was unable to care for the children’s health and

safety. Clark recommended that DFPS maintain temporary managing

conservatorship of the children.

Clark’s report also addressed the children’s foster placements. After a family

illness caused their original foster family to be unable to continue to care for them,

the children were placed in a second foster home. While in the second foster home,

all three of the children lost a significant amount of weight, and M.A.J. and H.A.J.

had unexplained bruises. The children were medically evaluated for abuse and

neglect. Due to concerns for their safety, the children were not returned to the second

foster home; instead, they were placed in a third foster home. The twins were then

evaluated by a pediatrician and referred to a hospital for a possible diagnosis of re-

feeding syndrome.

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 The trial court held a permanency hearing in February 2019. The record

indicates that Mother was not present at the hearing, after which the trial court signed

an order approving and incorporating Mother’s Family Service Plan and finding that

Mother had “not demonstrated adequate and appropriate compliance with the service

plan.” The trial court also ordered Mother to submit to drug testing.

In early May 2019, DFPS and Child Advocates each filed reports in advance

of the permanency hearing set at the end of the month. On behalf of DFPS, Cano

filed a permanency report, stating that Mother had completed her psychosocial

assessment and that she had been referred for individual counseling “to address the

stress she is dealing with and her past problems with [alcohol and other drugs].”

While Mother had begun her parenting classes, maintained contact with CPS, and

avoided new criminal activity, she had not completed her substance abuse

assessment, provided proof of income or stable housing, attended court hearings, or

demonstrated the ability to place her children’s needs above her own. After the last

permanency report in January 2019, Mother had tested positive for marijuana in

January, February, and March. Cano recommended that the children’s current

placement be continued and approved.

In her report for Child Advocates filed in May 2019, Clark stated that although

Mother had begun parenting classes, she had not completed any other services. She

also recommended that, because of Mother’s “history of substance abuse,” Mother

11
undergo further drug testing. With regard to the children’s progress since being

placed in foster homes, Clark stated that Child Advocates continued to monitor

H.A.J. and B.D.J. in connection with the weight loss they had experienced in their

second placement. She also stated that both H.A.J. and B.D.J. were developmentally

delayed, with cognitive, expressive, receptive, and language delays, and that B.D.J.

was reported to have “trunk issues, which caused her not to be able to sit up straight,”

but she noted that Child Advocates had noticed improvement in B.D.J.’s posture.

Clark also stated that M.A.J.’s speech had greatly improved and that he had made “a

lot of progress” at school. Clark concluded that Mother had “not resolved the reasons

for [her] involvement with DFPS,” and she recommended that DFPS maintain

temporary managing conservatorship of the children and that they remain in their

current placement.

The trial court held a permanency hearing on May 14, 2019. The record

indicates that Mother was present for the hearing. Cano testified that Mother had

started parenting classes and completed her psychosocial assessment but had not

provided proof of housing or stable income or undergone substance abuse treatment

and was still testing positive for drugs. Cano agreed that Mother “really isn’t

working her services at all” and that, other than a psychosocial assessment, she had

not “done anything really.” Cano also testified that Mother had been charged

recently with “prostitution.” When asked whether CPS was opposed to permitting

12
Mother supervised visits at CPS offices, Cano stated that CPS was opposed because

Mother “is testing positive for drugs.” Cano also stated that Mother had given her

the name of a family friend as a possible placement for the children, but this family

friend’s home study was denied.

Clark also testified at the May 14, 2019 permanency hearing. She stated that

she had visited the children at their current placement, which she described as

“absolutely wonderful.”

At the close of the hearing, the trial court called Mother to the bench and

stated,

Okay. So you have a limited amount of time to provide a safe
and stable home environment for your children. If you’re
unwilling to do so or cannot do so, then your parental rights can
be restricted or terminated. . . . The trial on this case is July 30th,
2019, and dismissal date is August 23rd, 2019.

Mother replied, “[Y]es, ma’am.”

After the hearing, the trial court signed an order finding that Mother had “not

demonstrated adequate and appropriate compliance with the service plan.” The trial

court also ordered Mother to submit to drug testing.

DFPS filed its final pre-termination permanency report in July 2019. In it,

Cano stated that Mother had maintained contact with DFPS and that she had avoided

engaging in criminal activity. Mother had not, however, provided proof of housing

or income, attended all of her court hearings, or demonstrated the ability to place her

13
children’s needs above her own. Mother had started but had not completed parenting

classes. While she had completed her substance abuse assessment, she had not

completed the outpatient treatment as instructed. And she had completed her

psychosocial assessment, which recommended counseling “to address the stress she

is dealing with and her past problems” with alcohol and drugs. The report also stated

that Mother had tested positive for marijuana in January, February, and March 2019.

Trial of the case commenced on July 30, 2019. When Mother did not appear

for trial, her counsel requested that the case be continued because she believed that

Mother “would like to be here knowing that the goal is termination.” The trial court

denied Mother’s counsel’s request.

Before calling its witnesses, DFPS introduced and the trial court admitted

Mother’s Family Service Plan, the June 23, 2018 police incident report, the court’s

temporary orders, hearing status orders, and permanency orders in the case, and

Mother’s drug test results, which indicated that she had tested positive for marijuana

and high levels of amphetamine and methamphetamine in July 2018, and positive

for marijuana in September, November,3 and December 2018, and in January,

February, March, and May 2019, and that she had failed to appear for testing on

January 3 and February 8, 2019.

3
Although Mother tested negative for all substances tested on November 8, 2018, she
tested positive for marijuana again on November 28, 2018.

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 Cano testified that DFPS sought termination of Mother’s parental rights under

subsection 161.001(E) of the Family Code because she had engaged in conduct that

endangered the physical and emotional well-being of the children, specifically, drug

use and physical abuse. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Cano stated

that there were positive drug test results for Mother dating back to 2016 and that

Mother continued to abuse drugs. When asked about the June 2018 physical abuse

referral, Cano could not recall whether Mother was the alleged perpetrator, but she

agreed that the allegation was “basically a failure to protect” and that Mother had

not “addressed those issues.”

Cano also asked the trial court to terminate Mother’s parental rights pursuant

to subsection (N) because she had failed to maintain significant contact with her

children after they were removed from her custody. See TEX. FAM. CODE ANN. §

161.001(b)(1)(N). Cano stated that Mother had not regularly visited the children

since their removal, and she explained that Mother’s visits had been suspended at

the beginning of the case because Mother would not give DFPS the location or other

information regarding a fourth biological child of Mother’s who lived with a cousin

or a family friend. She further explained that had Mother cooperated and provided

this information, she would have been able to visit M.A.J., H.A.J., and B.D.J.

Cano testified that DFPS was also seeking termination of Mother’s parental

rights under subsection (O) for failure to complete her court-ordered Family Service

15
Plan. See id. § 161.001(b)(1)(O). When asked about the progress Mother had made

on her Family Service Plan, Cano stated that Mother had completed her

psychological and substance abuse assessments but that she had not completed her

outpatient treatment. She also stated that although Mother had not signed her Family

Service Plan, Cano had met with Mother and Mother fully understood that her rights

could be restricted or terminated if she did not successfully complete her Family

Service Plan.

With regard to Father, Cano stated that she had only spoken with him once

and that he stated that “he wanted the children to go back to [Mother], and that he

would not show up to court because he has warrants out for his arrest and he was

going to run until he got caught.”

Cano further testified that the children were currently in a stable home

environment and the placement was “going well,” and she indicated that the adoptive

parents were present in the courtroom. She also stated that the children’s

circumstances had “substantially improved” since DFPS’s involvement and that, in

her opinion, it was in their best interest that Mother’s parental rights be terminated.

On cross-examination by Mother’s counsel, Cano testified that Mother had

attended the May 2019 permanency hearing and understood that “today was the final

trial date” and that “CPS’s goal was termination.” She also testified that Mother had

not informed her that she would not be at trial. Cano also stated that, since the May

16
2019 permanency hearing, Mother had not contacted her to complete any services,

and Cano agreed with Mother’s counsel that Mother had not done “anything that

was required, whether it was showing up clean on a drug test or giving [Cano]

locating information, so that she could visit these three children.”

On cross-examination by the children’s ad litem attorney, Cano testified that

the children’s therapeutic needs were being met in their current placement, including

occupational and speech therapy for the twins and individual therapy for M.A.J., and

that she had no concerns with the permanency that this foster home could provide

for the children.

Clark testified that the children were doing well in their current placement,

and she agreed that termination of Mother’s parental rights was in the children’s best

interest. On cross-examination by Mother’s counsel, Clark agreed that Mother “had

no family members for placement.” On cross-examination by the children’s ad litem

attorney, Clark also testified that the children had been neglected while in their

second foster home. She also stated that M.A.J. “has had some trouble adjusting”

and that he “needs a little bit more therapy.” She asked that the court order DFPS to

identify a trauma-informed therapist to assist M.A.J.’s therapeutic needs, and she

stated that she was willing to remain on the case to help facilitate the children’s

adjustment in their current foster home.

DFPS rested and Mother did not call any witnesses to testify.

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 The trial court signed a final decree of termination of Mother’s parental rights

on August 21, 2019. In the decree, the trial court found that termination of the parent-

child relationship was in the children’s best interest and that Mother had committed

predicate acts or omissions under Family Code subsections 161.001(b)(1)(E), (N),

and (O).

Mother filed a motion for new trial, in which she argued that the evidence was

legally and factually insufficient to support the trial court’s findings. After a hearing

at which Mother testified by telephone, the trial court denied the motion.

Mother filed a notice of appeal of the trial court’s order terminating her

parental rights to M.A.J., H.A.J., and B.D.J.

Standard of Review

On appeal, Mother challenges the legal and factual sufficiency of the evidence

to support the trial court’s predicate-act and best-interest findings.

A trial court may order termination of the parent-child relationship if DFPS

proves, by clear and convincing evidence, one of the statutorily enumerated

predicate findings for termination and that termination of parental rights is in the

best interest of the child. TEX. FAM. CODE ANN. § 161.001(b); see In re E.N.C., 384

S.W.3d 796, 802 (Tex. 2012) (stating that federal due process clause and Texas

Family Code both mandate “heightened” standard of review of clear and convincing

evidence in parental-rights termination cases). DFPS must prove both elements—a

18
statutorily prescribed predicate finding and that termination is in the child’s best

interest—by clear and convincing evidence. In re E.N.C., 384 S.W.3d at 803. 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 ANN. §

101.007; In re E.N.C., 384 S.W.3d at 802.

In a legal sufficiency review, we look at all of the evidence in the light most

favorable to the trial court’s finding to determine whether a reasonable trier of fact

could have formed a firm belief or conviction that the finding was true. In re E.N.C.,

384 S.W.3d at 802 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)); see In re

K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). We must give appropriate deference to

the factfinder’s conclusions, which means we must assume that the factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder could do so.

In re E.N.C., 384 S.W.3d at 802 (quoting In re J.F.C., 96 S.W.3d at 266). We should

disregard all evidence that a reasonable factfinder could have disbelieved or found

to have been incredible, but this does not mean that we must disregard all evidence

that does not support the finding. Id. (quoting In re J.F.C., 96 S.W.3d at 266).

Disregarding undisputed facts that do not support the finding could skew our

analysis of whether clear and convincing evidence exists. In re J.F.C., 96 S.W.3d at

266; see In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018) (“In conducting a legal-

19
sufficiency review, the reviewing court cannot ignore undisputed evidence contrary

to the finding, but must otherwise assume the factfinder resolved disputed facts in

favor of the finding.”). “In cases requiring clear and convincing evidence, even

evidence that does more than raise surmise and suspicion will not suffice unless that

evidence is capable of producing a firm belief or conviction that the allegation is

true.” In re K.M.L., 443 S.W.3d at 113. If we determine that no reasonable factfinder

could have formed a firm belief or conviction that the matter that must be proven is

true, we must conclude that the evidence is legally insufficient. In re E.N.C., 384

S.W.3d at 802 (quoting In re J.F.C., 96 S.W.3d at 266).

When a parent challenges the factual sufficiency of the evidence supporting

the trial court’s findings, we review all of the evidence, including disputed or

conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). We should

inquire whether the evidence is such that a factfinder could reasonably form a firm

belief or conviction about the truth of the allegations. In re H.R.M., 209 S.W.3d 105,

108 (Tex. 2006) (per curiam) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002));

see In re A.C., 560 S.W.3d at 631 (“In a factual-sufficiency review, the appellate

court must consider whether disputed evidence is such that a reasonable factfinder

could not have resolved it in favor of the finding.”). “If, in light of the entire record,

the disputed evidence that a reasonable factfinder could not have credited in favor

of the finding is so significant that a factfinder could not reasonably have formed a

20
firm belief or conviction, then the evidence is factually insufficient.” In re J.O.A.,

283 S.W.3d at 345 (quoting In re J.F.C., 96 S.W.3d at 266). In applying this

standard, our review “must not be so rigorous that the only factfindings that could

withstand review are those established beyond a reasonable doubt.” In re H.R.M.,

209 S.W.3d at 108 (quoting In re C.H., 89 S.W.3d at 26); see also In re A.B., 437

S.W.3d 498, 503 (Tex. 2014) (stating that, despite heightened standard, we must still

provide due deference to decisions of factfinder, who had full opportunity to observe

witness testimony first-hand and was sole arbiter of assessing witness credibility and

demeanor).

Analysis

The majority opinion concentrates solely on whether termination of Mother’s

parental rights was in the children’s best interest. I would first address whether DFPS

presented sufficient evidence of a predicate finding, as the evidence relevant to

predicate findings is also relevant to the best-interest determination.

A. Predicate Acts

1. Applicable Law

Mother argues that the trial court erred in terminating her parental rights

because the evidence was legally and factually insufficient to support the termination

finding under Family Code subsections 161.001(b)(1)(E) (endangerment), (N)

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(constructive abandonment), (O) (failure to complete requirements of court-ordered

family service plan), and 161.001(b)(2) (best interests of children).

“To affirm a termination judgment on appeal, a court need uphold only one

termination ground—in addition to upholding a challenged best interest finding—

even if the trial court based the termination on more than one ground.” In re N.G.,

577 S.W.3d 230, 232 (Tex. 2019) (per curiam). Family Code section

161.001(b)(1)(M) provides that parental rights may be terminated if there is clear

and convincing evidence that the parent has had their parent-child relationship with

respect to another child terminated based on conduct in violation of section

161.001(b)(1)(D) or (E). See id. at 233–34 (citing TEX. FAM. CODE ANN. §

161.001(b)(1)(M)).

When a trial court has terminated a parent’s rights under subsection (D) or

(E), that becomes a basis to terminate the parent’s rights to other children, and that

ground alone can be sufficient to support termination in a later proceeding; thus,

terminating parental rights under section 161.001(b)(1)(D) and (E) has “significant”

collateral consequences that can affect a parent’s rights to other children. Id. The

Texas Supreme Court has therefore held that “[w]hen a parent has presented the

issue on appeal, an appellate court that denies review of a section 161.001(b)(1)(D)

or (E) finding deprives the parent of a meaningful appeal and eliminates the parent’s

only chance for review of a finding that will be binding as to parental rights to other

22
children.” Id. at 235 (emphasis added). “Allowing section 161.001(b)(1)(D) or (E)

findings to go unreviewed on appeal when the parent has presented the issue to the

court thus violates the parent’s due process and due course of law rights.”4 Id. at 237.

2. Subsection (E) Finding

In her first issue, Mother argues that DFPS failed to produce clear and

convincing evidence to support the trial court’s finding under subsection (E) that she

engaged in a course of conduct that endangered her children’s physical or emotional

well-being. DFPS responds that the undisputed evidence that Mother engaged in

illegal drug use while parenting her children and continued illegal drug use even

after DFPS removed the children from her care is legally and factually sufficient to

support the trial court’s endangerment finding. See TEX. FAM. CODE ANN. §

161.001(b)(1)(E). I agree with DFPS, whose argument is supported by settled law.

4
I note that the majority emphasizes the “fundamental liberty interest[]” that a parent
has in “the care, custody, and control of [her] children.” Slip Op. at 10–11 (citing
Troxel v. Granville, 530 U.S. 57, 65 (2000)). However, the Supreme Court
emphasized in Troxel that this is the right of a fit parent. See Troxel, 530 U.S. at 68–
69 (“[S]o long as a parent adequately cares for his or her children (i.e., is fit), there
will normally be no reason for the State to inject itself into the private realm of the
family to further question the ability of that parent to make the best decisions
concerning the rearing of that parent’s children.”).

The very point of termination proceedings is to determine whether a parent is fit to
exercise that fundamental liberty interest. If the court does not fully address that
issue in making its determination on whether to terminate a parent’s rights to a child
and declares a parent fit when the evidence shows she is not, the child, as well as
the mother, is deprived of the benefit of the inquiry required by due process.
23
 Family Code section 161.001(b)(1)(E) provides that the trial court may

terminate a parent’s rights if the 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.” See id. Under this subsection, the relevant inquiry is whether evidence exists

that a parental course of conduct endangered the child’s physical or emotional well-

being. Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.]

2010, pet. denied). Termination under subsection (E) must be based on more than a

single act or omission; instead, “what is required is a voluntary, deliberate, and

conscious course of conduct.” Id. This conduct does not have to occur in the presence

of the child. Id. Courts may consider conduct that occurred before the child’s birth

and both before and after DFPS removed the child from the parent’s home. Walker

v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—

Houston [1st Dist.] 2009, pet. denied).

“Endanger” means “more than a threat of metaphysical injury or potential ill

effects of a less-than-ideal family environment,” but “endangering conduct need not

be directed at the child.” In re E.N.C., 384 S.W.3d at 803; see Jordan, 325 S.W.3d

at 723 (“[D]anger to a child need not be established as an independent proposition

and may be inferred from parental misconduct even if the conduct is not directed at

the child and the child suffers no actual injury.”); In re J.J.S., 272 S.W.3d 74, 78

24
(Tex. App.—Waco 2008, pet. struck) (stating that danger to child’s physical or

emotional well-being may be inferred from parental misconduct). Endangerment can

occur through both acts and omissions. In re N.S.G., 235 S.W.3d 358, 367 (Tex.

App.—Texarkana 2007, no pet.).

“Conduct that subjects a child to life of uncertainty and instability endangers

the child’s physical and emotional well-being.” Jordan, 325 S.W.3d at 723. A

parent’s drug use and the effects of that drug use on the parent’s life and ability to

parent may establish an endangering course of conduct supporting termination under

section 161.001(b)(1)(E). In re J.O.A., 283 S.W.3d at 345; In re N.J.H., 575 S.W.3d

822, 831 (Tex. App.—Houston [1st Dist.] 2018, pet. denied); see also In re B.J., 01-

15-00886-CV, 2016 WL 1389054, at *7 (Tex. App.—Houston [1st Dist.] Apr. 7,

2016, no pet.) (mem. op.) (“[I]llegal narcotics use and its effect on an individual’s

ability to parent may constitute an endangering course of conduct.”). Importantly, a

parent’s use of illegal drugs “exposes the child to the possibility that the parent may

be impaired or imprisoned.” In re N.J.H., 575 S.W.3d at 831 (quoting Walker, 312

S.W.3d at 617); In re A.A.M., 464 S.W.3d 421, 426 (Tex. App.—Houston [1st Dist.]

2015, no pet.) (“Illegal drug use creates the possibility that the parent will be

impaired or imprisoned and thus incapable of parenting.”).

In this case, DFPS presented evidence that Mother tested positive for drugs

on several occasions during the pendency of the termination proceedings. DFPS

25
presented evidence that, upon receiving the initial reports of sexual abuse by a family

friend and neglectful supervision of M.A.J. in June and July 2018, it ordered Mother

to submit to drug testing. DFPS introduced and the trial court admitted Mother’s

drug testing results, including the initial July 2018 results indicating that she tested

positive for marijuana and for high levels of methamphetamine and amphetamine.

After receiving these positive test results, DFPS sought temporary managing

conservatorship and termination of Mother’s parental rights, and the trial court

ordered Mother to undergo random drug screenings. Mother’s drug testing results

admitted into evidence also indicate that, with the exception of one negative result

for all substances tested on November 8, 2018, all of Mother’s drug tests over the

pendency of the termination proceedings returned positive for marijuana, including

tests on samples taken in September, November, and December 2018 and January,

February, March, and May 2019. Additionally, Mother failed to appear for testing

on January 3 and February 8, 2019.5 Both Cano, the children’s DFPS caseworker,

and Clark, the children’s Child Advocates ad litem, considered Mother’s ongoing

drug use to be a reason why they believed Mother could not provide the children

with a safe living environment. DFPS thus presented evidence that Mother had a

5
Mother’s failure to appear for testing may be treated as a positive result for illegal
drugs. See In re J.V.B., No. 01-17-00958-CV, 2018 WL 2727732, at *4 n.6 (Tex.
App.—Houston [1st Dist.] June 7, 2018, pet. denied) (mem. op.); In re J.M.T., 519
S.W.3d 258, 269 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
26
continuing problem with substance abuse and that this problem persisted throughout

the termination proceedings.

“[A] parent’s decision to engage in illegal drug use during the pendency of a

termination suit, when the parent is at risk of losing a child, may support a finding

that the parent engaged in conduct that endangered the child’s physical or emotional

well-being.” In re N.J.H., 575 S.W.3d at 831–32 (quoting In re K.C.F., No. 01-13-

01078-CV, 2014 WL 2538624, at *10 (Tex. App.—Houston [1st Dist.] June 5, 2014,

no pet.) (mem. op.)); In re E.R.W., 528 S.W.3d 251, 264–65 (Tex. App.—Houston

[14th Dist.] 2017, no pet.); In re M.T.W., 01-11-00162-CV, 2011 WL 6938542, at

*13 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, no pet.) (mem. op.) (“A parent’s

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

reunification with her children is sufficient to establish clear and convincing proof

of voluntary, deliberate, and conscious conduct that endangered the well-being of

her children.”). Thus, the undisputed evidence that Mother—in direct contravention

of her Family Service Plan—continued to use drugs after the children were removed

from her care further supports the trial court’s endangerment finding.

Mother argues that this evidence is insufficient to show that her drug use

endangered her children because she “was learning from her services and was trying

to become drug free.” She points out that, although she tested positive for marijuana,

methamphetamine, and amphetamine at the start of the termination proceedings, she

27
“engaged in services and completed a psychological and substance abuse

assessment,” she “no longer use[s] methamphetamine and amphetamine,” and she

tested “at lower levels for marijuana” in May 2019.

Evidence that Mother was trending toward engaging in less serious or less

frequent drug use does not nullify the uncontroverted evidence that she continued to

test positive for marijuana throughout the termination proceedings knowing that

doing so placed her relationship with her children in jeopardy. See In re J.O.A., 283

S.W.3d at 346 (“While the recent improvements made by [the parent] are significant,

evidence of improved conduct, especially of short-duration, does not conclusively

negate the probative value of a long history of drug use and irresponsible choices.”);

In re N.J.H., 575 S.W.3d at 832 (holding that “evidence of improved conduct,

especially of short-duration, does not conclusively negate the probative value of a

long history of . . . irresponsible choices”) (quoting In re J.O.A., 283 S.W.3d at 346);

see also In re T.E.G., No. 01-14-00051-CV, 2014 WL 1878919, at *7 (Tex. App.—

Houston [1st Dist.] May 8, 2014, no pet.) (mem. op.) (“Nor was the trial court

required to conclude that [mother] had adequately addressed her drug abuse issues

in light of a single negative drug test.”).

“Such evidence of improved conduct, especially of short-duration, does not

preclude the trial court from reasonably forming a firm belief that [Mother]’s acts or

omissions under Subsection (E) supported termination.” In re G.A., No. 01-18-

28
00395-CV, 2018 WL 5259905, at *5 (Tex. App.—Houston [1st Dist.] Oct. 23, 2018,

pet. denied) (mem. op.) (rejecting mother’s assertion that evidence of endangering

conduct is “fatally undermined” by evidence that she had “been progressing in her

therapy with her counselor” and “will eventually demonstrate that she can be

protective” of her child) (citing In re J.O.A., 283 S.W.3d at 346). Rather, “[e]vidence

of a recent turnaround should be determinative only if it is reasonable to conclude

that rehabilitation, once begun, will surely continue.” In re Z.H., No. 14-19-00061-

CV, 2019 WL 2632015, at *4 (Tex. App.—Houston [14th Dist.] June 27, 2019, no

pet.) (mem. op.) (quoting In re M.G.D., 108 S.W.3d 508, 514 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied)). Because the record in this case does not provide

evidence that Mother’s trend toward sobriety was “sure to continue,” the trial court

reasonably could have concluded that it may not. See id.

Mother also argues that there was no evidence that she used drugs around the

children or that they were neglected or abused and that “the evidence showed that

the children were well when they came into care.” But “[b]ecause it significantly

harms the parenting relationship, drug activity can constitute endangerment even if

it transpires outside the child’s presence.” In re N.J.H., 575 S.W.3d at 831–32 (citing

In re J.O.A., 283 S.W.3d at 345 and Walker, 312 S.W.3d at 617); see also In re

A.A.M., 464 S.W.3d at 426 (stating same).

29
 Moreover, evidence in this case strengthens the trial court’s conclusion that

Mother endangered her children. There is evidence that Mother failed to adequately

supervise and protect M.A.J. DFPS case worker Gabriela Cano testified at trial that

Mother failed to protect M.A.J. from physical abuse by a neighbor. The evidence

also included a report written by the officer who responded to the incident. The

officer stated in his report that he found all witnesses, including Mother, not to be

credible, and he concluded that M.A.J.’s injuries, including redness and swelling

around his eyes, minor scrapes on his chin and forehead, and swelling to his wrists,

did not appear to be caused by a strike to the face by an adult, as Mother had claimed.

He also noted that Mother stated that she did not try to break up the fight because

the other child had started it and M.A.J. was winning.

While on its own this additional evidence—showing that Mother failed to

come to M.A.J.’s aid when he was engaged in a physical altercation with an older

child—does not support an endangerment finding, it adds to the analysis by further

demonstrating Mother’s lack of judgment and resulting inability to adequately care

for her children. See In re N.J.H., 575 S.W.3d at 835 (stating that parent’s “exercise

of poor judgment currently and in the past demonstrates an inability to provide

adequate care” for her children) (quoting In re J.M., No. 01-14-00826-CV, 2015 WL

1020316, at *7 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem. op.)).

Taken as a whole, the uncontroverted evidence of Mother’s history of drug use that

30
continued during the pendency of this case—particularly given her awareness of the

impact it could have on her chances of being reunited with her children—together

with this evidence of neglect for M.A.J.’s physical well-being and the evidence that

M.A.J. was sexually abused at the age of one year, even if Mother took steps to

protect him after the fact, demonstrates Mother’s inability to provide adequate care

for her children and supports the trial court’s endangerment finding.

I would conclude that the record contains legally and factually sufficient

evidence to support the trial court’s conclusion that Mother engaged in conduct that

endangered the children’s physical and emotional well-being. See TEX. FAM. CODE

ANN. § 161.001(1)(E); In re J.O.A., 283 S.W.3d at 345; In re N.J.H., 575 S.W.3d at

831; Walker, 312 S.W.3d at 617.

I would overrule Mother’s first issue. Because I would conclude that the

evidence is legally and factually sufficient to support the trial court’s finding under

subsection (E), there is no need to address Mother’s second and third issues

contesting the evidentiary sufficiency of the court’s findings under subsections (N)

and (O). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). I turn, therefore, to her

challenge to the trial court’s finding that termination was in the children’s best

interests.

31
B. Best Interests of the Children

In her fourth issue, Mother contends that the evidence is legally and factually

insufficient to support the trial court’s finding that termination of her parental rights

was in the children’s best interest.

1. Applicable Law

“[T]he prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a).

There is a strong, but rebuttable, presumption that the best interest of a child is served

by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per

curiam); see TEX. FAM. CODE ANN. § 153.131(b); Jordan, 325 S.W.3d at 729 (noting

that while it is imperative for courts to recognize constitutional underpinnings of

parent-child relationship, courts must not sacrifice emotional and physical interests

of child “merely to preserve that right”).

In determining whether a child’s parent is willing and able to provide the child

with a safe environment, courts should consider factors including: (1) the child’s age

and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home

placements; (3) the magnitude, frequency, and circumstances of harm to the child;

(4) whether the child has been the victim of repeated harm after the initial

intervention by DFPS; (5) whether there is a history of substance abuse by the child’s

family; (6) the willingness and ability of the child’s family to seek out, accept, and

32
complete counseling services; (7) the willingness and ability of the child’s family to

effect positive environmental and personal changes within a reasonable period of

time; and (8) whether the child’s family demonstrates adequate parenting skills. TEX.

FAM. CODE ANN. § 263.307(b).

The Texas Supreme Court has also set out several non-exclusive factors that

we consider when determining whether termination of parental rights is in the child’s

best interest, including: (1) the child’s desires; (2) the child’s current and future

physical and emotional needs; (3) the current and future physical danger to the child;

(4) the parental abilities of the person seeking custody; (5) whether programs are

available to assist the person seeking custody in promoting the best interests of the

child; (6) the plans for the child by the person seeking custody; (7) the stability of

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

child relationship is not proper; and (9) any excuse for acts or omissions of the

parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re A.C., 394

S.W.3d 633, 641–42 (Tex. App.—Houston [1st Dist.] 2012, no pet.). These

considerations are not exhaustive, and it is not necessary that all of these

considerations be proved “as a condition precedent to parental termination.” In re

C.H., 89 S.W.3d at 27. The absence of evidence concerning some factors does not

preclude a factfinder from reasonably forming a firm belief or conviction that

termination is in the children’s best interest. In re A.C., 394 S.W.3d at 642. Appellate

33
courts examine the entire record to decide what is in the child’s best interest. In re

E.C.R., 402 S.W.3d 239, 250 (Tex. 2013).

Although proof of the predicate findings under section 161.001(b)(1) does not

relieve DFPS from proving that termination is in the children’s best interest, “the

same evidence may be probative of both issues.” In re C.H., 89 S.W.3d at 28. The

best-interest analysis may consider circumstantial evidence, subjective factors, and

the totality of the evidence as well as the direct evidence. In re B.R., 456 S.W.3d

612, 616 (Tex. App.—San Antonio 2015, no pet.). “A trier of fact may measure a

parent’s future conduct by [her] past conduct and determine whether termination of

parental rights is in the child’s best interest.” Id.

2. Application of the Holley Factors

In evaluating the sufficiency of the evidence to support a trial court’s finding

that termination of parental rights was in a child’s best interest, courts consider the

Holley factors and other relevant factors. See Holley, 544 S.W.2d at 371–72.

(a) The children’s desires

Although DFPS did not present direct evidence concerning the desires of the

children, “[w]hen children are too young to express their desires, the factfinder may

consider that the children have bonded with the foster family, are well-cared for by

them, and have spent minimal time with a parent.” 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.)

34
(mem. op.) (quoting In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th

Dist.] 2014, no pet.)).

At the time of trial, M.A.J. was four years old and H.A.J. and B.D.J. were one

year old. Their young ages weigh in favor of the trial court’s best-interest

determination. See TEX. FAM. CODE ANN. § 263.307(b)(1) (considering child’s age

and physical and mental vulnerabilities); In re J.M.T., 519 S.W.3d 258, 270 (Tex.

App.—Houston [1st Dist.] 2017, pet. denied) (noting that young age of child—

fourteen months at time of trial—weighed in favor of trial court’s finding that

termination was in child’s best interest). Here, both Cano and Clark testified that the

children were doing well in their current placement.

Mother argues that this factor weighs in her favor because there was evidence

that the children were bonded with her, physically well, and appropriately dressed

while they were in her care and had to be removed from a previous foster home for

neglect and transferred to their present home. This does not outweigh the evidence

that Mother jeopardized the children’s emotional and physical needs prior to and

after their removal by engaging in illegal drug use, has not had the children in her

custody for two years, and has failed both to take steps to visit them and to appear

for trial.

I would find that this factor weighs against Mother’s retention of her parental

rights.

35
 (b) The children’s current and future physical and emotional needs

Mother also argues that there is no evidence that the children had bonded with

the family currently fostering and planning to adopt them. And she points out that

Clark recommended that M.A.J. undergo intense trauma therapy for the trouble he

was having adjusting to the foster home. This argument ignores the testimony of

both Cano and Clark that the foster placement was good and that it was meeting the

children’s needs. Specifically, Cano testified that the placement was meeting the

children’s therapeutic needs, including occupational and speech therapy for the

twins and individual therapy for M.A.J., and she stated that the children’s

circumstances had “substantially improved” since DFPS’s involvement. Cano also

testified that she had no concerns with the permanency that this home could provide,

and it was in the children’s best interest that Mother’s parental rights be terminated.

Similarly, Clark testified that the children were doing well in their current placement,

and she agreed that termination of Mother’s parental rights was in their best interest.

Finally, a reasonable factfinder could have concluded that M.A.J.’s adjustment

difficulties resulted from having been neglected in his previous foster home and were

not due to problems with his current placement.

Mother argues that, because Cano and Clark testified that when they visited

the children at her home they did not observe bruises or other signs of injury on

them, and because they noted that the children were appropriately dressed, this factor

36
weighs against the trial court’s finding that termination of her parental rights was in

the children’s best interest.

But there is also evidence of Mother’s past conduct showing that, on at least

two occasions, she failed to adequately supervise M.A.J. See In re O.N.H., 401

S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.) (stating that past conduct

is probative of future conduct when evaluating child’s best interest). More

specifically, both Cano’s testimony and the June 23, 2018 police incident report

describing the physical altercation M.A.J. had with a neighbor tend to show that

Mother failed to adequately supervise and protect M.A.J.

Also, on June 25, 2018, two months after M.A.J.’s twin sisters were born, the

family was referred to DFPS on allegations of sexual abuse of M.A.J. and drug use

by both parents. Mother “appeared to be appropriate and cooperating with the

Agency.” However, she failed to keep a forensic appointment for M.A.J. Shortly

after that, on July 3, 2018, the Sheriff’s office responded to the report of injury to a

child following M.A.J.’s fight with another child. Mother’s account of the altercation

was found by the responding officer to “not be credible.” The condition of the

premises was found to “hazardous.” However, the DFPS representative who visited

the next day found that M.A.J. was bonded with Mother and was appropriately

dressed and clean.

37
 On August 10, the results of Mother’s drug test came back positive, but she

had moved from the state to Livingston, Louisiana, with the children. When

contacted there, she left Livingston. However, having learned that she had returned

to Houston, DFPS visited her on August 21 and informed her that DFPS was

concerned about her ability to provide a safe environment for the children. The next

day, DFPS filed a petition for termination of parental rights and the children were

removed from her home pursuant to a protective order. Mother did not regularly visit

the children after their removal and her visits were suspended after she failed to give

DFPS the location or other information regarding a fourth child of hers.

By the time of the permanency hearing in May 2019, Mother had begun taking

parenting classes but had not fulfilled any other part of her service plan, and she

continued to test positive for drugs. Meanwhile, after being removed from two foster

homes—once because of a family illness and once because of severe abuse and

neglect—the three children had been placed in a foster home that their Child

Advocates volunteer described as “absolutely wonderful” and had begun receiving

therapy and remedial services. Mother did not appear for trial on July 30, 2019, nor

had she appeared for drug tests about six months before trial.

This evidence supports the trial court’s best-interest finding by demonstrating

Mother’s inability to attend to her children’s physical and emotional needs. I would

find that this factor also weighs against Mother’s retention of her parental rights.

38
 (c) The current and future physical danger to the children

The evidence of Mother’s past and ongoing drug use is uncontroverted. Such

a pattern of illegal drug use by a parent suggests that she is “not willing and able to

provide the child with a safe environment—a primary consideration in determining

the child’s best interest.” In re A.C., 394 S.W.3d at 642; In re E.R.W., 528 S.W.3d

at 266 (“Mother’s history of drug abuse bespeaks a course of conduct that the fact

finder reasonably could conclude endangers [the child’s] well-being.”); see also

TEX. FAM. CODE ANN. § 263.307(b)(8) (considering whether child’s family has

history of substance abuse).

Furthermore, the evidence that Mother continued to use illegal drugs while

this case was pending, knowing that her parental rights were in jeopardy, shows a

disregard for the risk of harm to her children by jeopardizing her relationship with

them. See In re D.K.J.J., No. 01-18-01081-CV, 2019 WL 2455623, at *11 (Tex.

App.—Houston [1st Dist.] June 13, 2019, pet. denied) (mem. op.) (stating that

evidence of mother’s continued drug use during pendency of termination case and

her failure to submit to court-ordered drug testing showed that she acted “with

disregard for the risk of harm to her children by jeopardizing her relationship with

them” and supported finding that termination was in children’s best interest); In re

S.G., No. 01-18-00728-CV, 2019 WL 1448870, at *5 (Tex. App.—Houston [1st

Dist.] Apr. 2, 2019, no pet. h.) (mem. op.) (“Parental drug abuse also reflects poor

39
judgment and an unwillingness to prioritize a child’s safety and welfare and thus

may be considered in determining a child’s best interest.”).

This factor also weighs against Mother’s retention of her parental rights.

(d) The parental abilities of the person seeking custody

Mother argues that evidence that she engaged in services by completing

“many parenting classes” and completing her psychosocial and substance abuse

assessments “shows that she wanted to improve her parenting skills and was trying

to become drug free.” Even so, it is undisputed that Mother tested positive for

marijuana consistently throughout these proceedings, including as late as May 2019.

And she failed to complete her parenting classes and did not take part in court-

ordered individual counseling or substance abuse treatment. Nor did she take steps

to visit the children or appear for trial.

Furthermore, evidence of a recent turn-around does not necessarily make a

best-interest finding in favor of termination factually insufficient. In re J.H.G., 01-

16-01006-CV, 2017 WL 2378141, at *9 (Tex. App.—Houston [1st Dist.] June 1,

2017, pet. denied) (mem. op.) (stating that factfinder “is not required to ignore a

history of narcotics use merely because it abates as trial approaches”). Here, both

Cano, the caseworker, and Clark, the child advocate, expressed concern about

Mother’s ability to remain drug-free. See In re M.G.D., 108 S.W.3d at 513–14

(stating that “evidence of a recent turnaround should be determinative only if it is

40
reasonable to conclude that rehabilitation, once begun, will surely continue”); see

also In re J.M., No. 01-17-00986-CV, 2018 WL 3117887, at *6 (Tex. App.—

Houston [1st Dist.] June 26, 2018, no pet.) (mem. op.) (“While [m]other may have

shown some improvement regarding her drug usage, the trial court, based on

[m]other’s history of repeated relapses, could reasonably have concluded that she

remained at risk of relapses and was still a danger to the children.”) (citing In re

M.G.D., 108 S.W.3d at 514).

The uncontroverted evidence that Mother continued to use drugs even after

her parental rights were at stake shows that she lacks the ability to place her

children’s well-being ahead of her desire to do drugs and that termination of her

parental rights would safeguard the children from emotional and physical danger

now and in the future. See In re S.G., 2019 WL 1448870, at *7. Mother’s parental

abilities were placed in doubt by her drug use, including during the pendency of this

case to terminate her parental rights. See In re A.C., 394 S.W.3d at 642 (stating that

“pattern of illegal drug use suggests the mother was not willing and able to provide

the child with a safe environment—a primary consideration in determining the

child’s best interest”).

There is also evidence that Mother failed to provide the children with safe

living conditions. For example, after receiving a report of injury to a child at

Mother’s home, the responding officer noted in the incident report that there were

41
“numerous safety hazards” on the ground throughout the property, including

“various scrap metal piles and junked vehicles . . . [and] [r]usted scrap metal and

broken glass were found on the ground throughout the property.” The report also

noted that Mother stated that she did not try to intervene in the fight between M.A.J.

and an older child because M.A.J. had not started it and he was winning. This also

demonstrates Mother’s lack of concern for her children. And at no point was Mother

able to demonstrate that she had obtained a job, much less maintained employment,

or had stable housing for the children.

I would find that this factor too weighs against Mother’s retention of her

parental rights.

(e) Whether programs are available to assist Mother in promoting
the best interest of the children

The evidence shows that, for the most part, Mother did not take advantage of

the programs available to her to aid her in making the changes necessary to properly

care for her children. While she did complete some tasks in her Family Service Plan,

she ultimately gave up her efforts to comply. Importantly, Mother never

demonstrated that she had obtained employment or stable housing, and she failed to

complete her parenting classes, individual therapy, and substance abuse treatment.

The children’s foster family, on the other hand, at the time of the permanency

hearing—which Mother failed to attend—had provided a stable home and had been

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taking the twins to occupational and speech therapy and M.A.J. to individual

therapy.

Thus, this factor also weights in favor of termination of Mother’s parental

rights.

(f) The plans for the child by the person seeking custody

There is no evidence that Mother has plans for meeting the children’s needs.

The children’s foster placement, on the other hand, has demonstrated an ability to

plan for and follow through with engaging services to meet the children’s needs,

including a stable home and occupational and speech therapy for the twins and

individual therapy for M.A.J.

This factor also weights in favor of termination of Mother’s parental rights.

(g) The stability of the home

“The stability of the home has been found ‘to be of paramount importance in

a child’s emotional and physical well-being.’” In re D.K.J.J., 2019 WL 2455623, at

*19. “A parent’s drug use may indicate instability in the home because it exposes

the children to the possibility that the parent may be impaired or imprisoned.” Id.;

see also In re A.C., 394 S.W.3d at 642 (“Evidence of a parent’s pattern of drug use

is relevant to present and future stability, especially regarding the parent’s ability to

provide for the children and protect them from emotional and physical danger.”).

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Thus, the uncontroverted evidence of Mother’s drug use, including during the

pendency of this case, demonstrates a risk of instability.

“Likewise, a parent’s criminal history is indicative of a pattern of conduct that

creates a risk of uncertainty and instability in the child’s life.” In re D.K.J.J., 2019

WL 2455623, at *19. Accordingly, the evidence indicating that Mother was

convicted of the offenses of engaging in organized criminal activity in 2015 and

burglary of a habitation in 2016 also casts doubt upon Mother’s ability to provide

the children with a stable lifestyle. See id.; see also In re O.N.H., 401 S.W.3d at 684

(stating that past conduct is probative of future conduct when evaluating child’s best

interest).

On this record, whether Mother can meet the children’s financial needs or

provide them with a safe or stable place to live is also uncertain, as Mother

repeatedly failed to submit proof of income and stable housing as required in her

Family Service Plan. See Holley, 544 S.W.2d at 372 (listing stability of parent’s

home as factor relevant to best-interest determination); In re J.D., 436 S.W.3d at 121

(stating that Mother subjected child to uncertainty and instability by failing to

maintain stable housing and employment during pendency of case); In re D.R.A.,

374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“[T]he need

for permanence is a paramount consideration for the child’s present and future

physical and emotional needs.”).

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 I would find that this factor also weighs in favor of termination of Mother’s

parental rights.

(h) The willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period
of time

There is no evidence of Mother’s willingness or ability to effect positive and

personal changes in the children’s lives within any reasonable time period. Rather,

all the evidence suggests her inability to make such changes, such as her failure to

maintain a stable home or to find employment.

I would find that this factor too weighs in favor of termination of Mother’s

parental rights.

(i) The acts or omissions of the parent that may indicate that the
parent-child relationship is not proper

For the reasons discussed above—primarily among them, Mother’s decision

to continue to use drugs with the knowledge that doing so could cause her to lose

her children and her failure to visit her children in foster care—the trial court could

reasonably have concluded that the relationship between Mother and her children

was not proper. Here, I defer to the trial court and would find that this factor too

weighs in favor of termination of Mother’s parental rights.

(j) Any excuse for acts or omissions of the parent

The evidence supports a finding that Mother has demonstrated a lack of care

and concern for her children, and she has not offered an excuse for her decisions.
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 Accordingly, I would find that this factor, like all the others, weighs in favor

of termination of Mother’s parental rights.

3. Summation of the Record Under Applicable Legal Standards

In sum, the record includes uncontroverted evidence of Mother’s ongoing

drug use, failure to provide evidence of a safe and suitable residence, refusal to

complete her Family Service Plan, and neglect of her children’s physical and

emotional needs, as well as evidence of her failure to visit the children and of the

children’s substantial positive improvement in their current foster placement from

when they were in Mother’s care. Viewing the evidence in the light most favorable

to the trial court’s finding, I would conclude that the trial court reasonably could

have formed a firm belief or conviction that termination of Mother’s parental rights

is in the children’s best interest. See In re J.O.A., 283 S.W.3d at 345; In re S.B., 207

S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (stating that parent’s

drug use, inability to provide stable home, and failure to comply with family service

plan supports finding that termination is in child’s best interest). Further, in view of

the entire record, I would conclude that the disputed evidence is not so significant as

to prevent the trial court from forming a firm belief or conviction that termination of

Mother’s parental rights is in the children’s best interest. See In re J.O.A., 283

S.W.3d at 345. Accordingly, I would hold that legally and factually sufficient

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evidence supports the trial court’s best-interest finding under established principles

of law.

This is an unhappy case for all concerned. But while Mother is a sympathetic

figure, I cannot consent to the majority’s elevation of its concern for her rights as a

parent over these young children’s right to a fit mother capable of satisfying their

needs and best interests under relevant legal standards. See Troxel v. Granville, 530

U.S. 57, 68–69 (2000). Therefore, I cannot join in the majority’s holding in this case,

which I consider contrary to established legal principles and violative of the best

interests of the children. Instead, the majority opinion and judgment would keep the

children in permanent foster care with no hope of adoption and with very little, if

any, prospect of reunion with a parent who has consistently been indifferent to their

circumstances to the point of not only failing consistently to act in their best interests,

but also failing even to exercise her own visitation rights or to appear at trial to

protect her parental rights from termination.

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 Conclusion

For the foregoing reasons, I respectfully dissent. I would overrule Mother’s

issues on appeal under established legal precedents. And I would affirm the trial

court’s decree terminating Mother’s parental rights to M.A.J., H.A.J., and B.D.J.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Goodman, and Countiss.

Justice Keyes, dissenting.

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