in the Interest of R.B., a Child

Affirmed and Opinion Filed July 9, 2021

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00043-CV

IN THE INTEREST OF R.B., A CHILD

On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-30016-2019

MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Nowell
Opinion by Justice Molberg

Father and Mother appeal the trial court’s final order terminating their parental

rights to their son, R.B., after a bench trial. Both challenge the legal and factual

sufficiency of the evidence to support the trial court’s findings that each engaged in

the conduct proscribed by family code sections 161.001(b)(1)(D), (E), and (O) and

that termination of their parent-child relationships was in R.B.’s best interest. See

TEX. FAM. CODE §§ 161.001(b)(1)(D), (E), (O); 161.001(b)(2). Mother also appeals

the appointment of the Texas Department of Family and Protective Services (the

Department) as R.B.’s permanent non-parent managing conservator. We affirm the

trial court’s judgment for the reasons below.
 I. BACKGROUND

This case involves the parent-child relationships between L.B. (Father), M.E.

(Mother), and R.B. (Child). R.B. was born in January 2018.

The Department filed an original petition for protection and temporary

managing conservatorship of R.B. on February 4, 2019. The eighteen-page affidavit

accompanying the original petition stated, among other things, that Mother had

recently told law enforcement that Father abused her and that R.B., vulnerable due

to his age, had been removed by CPS in a previous case. The affidavit also referred

to Mother’s extensive mental health issues and stated she had been taken by law

enforcement to the hospital. The affidavit also listed several significant concerns by

the Department, including, but not limited to, reports of Father’s domestic violence

and bizarre punishment of Mother in the home, which was suspected to be in front

of R.B.; Father’s recent arrest for assaulting Mother; and Mother’s mental health

condition. The affidavit included information about various referrals and the history

between Department, Mother, Father, and R.B. beginning in November 2018 and

continuing through the date of the affidavit.

The trial court signed the ex parte temporary order on February 4, 2019. In

that order, the court appointed the Department as R.B.’s temporary managing

conservator and included findings that there was an immediate danger, that

continuation in the home would be contrary to R.B.’s welfare, and that there was no

time consistent with the nature of the emergency to make reasonable efforts to

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prevent or eliminate the need for R.B.’s removal. The ex parte order also provided

the Department with various rights—including the right to have physical possession

of R.B. The Department removed R.B. and placed him in foster care. The trial court

also signed orders appointing attorneys ad litem for Father, Mother, and R.B. and

appointing Collin County CASA as guardian ad litem for R.B.1

Ten days later, the court extended the ex parte order to February 21, 2019, and

on that date, the court signed a temporary order requiring parents to perform certain

tasks and participate in certain services. Among other things required by that

temporary order, (1) both parties were to maintain stable, suitable housing and

suitable, stable, and legal employment; (2) Father was to participate in a

psychological evaluation as recommended by CPS and in individual counseling; and

(3) Mother was to participate in a psychological evaluation if one had not been

conducted in the past twelve months; participate in a psychiatric evaluation or

provide a psychiatric evaluation within 180 days of the order; participate in

individual counseling; take all medication as prescribed; follow any treatment plan

recommended by her current mental health provider; provide CPS with a list of all

of her prescription medications; and notify CPS in writing of any medication

changes.

1
Later, on February 24, 2020, the court also appointed a guardian ad litem for Mother.

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 On July 9, 2019, the court signed a permanency hearing order stating, in part,

that Father and Mother had not complied with the case plan of services prepared for

the family and R.B. to the extent that R.B. could be returned home and that Father

and Mother were not then able or willing to provide R.B. a safe environment and a

continuing need existed for placement of R.B. in foster care. In addition to the

participation in other services the court already required for Father, in the July 9,

2019 order and permanency hearing orders signed thereafter,2 the court also ordered

Father to participate in a batterers intervention and prevention program (BIPP).

On November 5, 2019, the Department filed an amended petition seeking,

among other things, termination of Father’s and Mother’s parent-child relationship

with R.B. In addition to other alleged acts proscribed under family code section

161.001(b)(1), the Department alleged that Father and Mother had both engaged in

conduct described in sections 161.001(b)(1)(D), (E), and (O) and that termination of

Father’s and Mother’s parent-child relationship with R.B. was in R.B.’s best interest.

The Department also sought appointment as R.B.’s permanent managing

conservator if R.B. could not safely be reunified with either parent or permanently

placed with a relative or other suitable person.

By the time trial began, both parents had filed pleadings that included general

denials. Mother’s pleading also included a counter-petition alleging that she and

2
Permanency hearing orders were signed on July 9, 2019, November 5, 2019, February 18, 2020, June
29, 2020, and December 18, 2020.
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Father were separated and had never legally married and that it was in R.B.’s best

interest for Mother to be appointed as R.B.’s sole managing conservator.

The trial court conducted a two-day bench trial through Zoom electronic video

conferencing on January 19, 2021, and January 20, 2021. During trial, the judge

heard from twenty-seven witnesses, including Mother but not Father, and admitted

roughly ninety exhibits.

During the trial, many witnesses testified about their concerns regarding

domestic violence between Father and Mother and regarding Mother’s mental

health, based in part on their observations and Mother’s statements to them about

various events from 2018 through 2020.

However, when Mother testified, she denied any abuse occurred. According

to the record before us, she did so while testifying by video from Father’s home,

with Father in the same room, and while Mother and Father appeared together on-

screen. Despite this, Mother testified the two were no longer living together and that

she was living with a family friend.

Besides Mother, the other trial witnesses included several Department and law

enforcement personnel, various healthcare providers for Mother, Mother’s former

foster mother, Mother’s guardian ad litem, and a volunteer for CASA, the court-

appointed guardian ad litem for R.B. Generally, the exhibits included pleadings,

temporary orders, family plans, visitation plans, evaluations, permanency reports,

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Mother’s healthcare records, various other records, and photographs, several of

which depicted bruising and other marks on Mother’s body at various times.

At the conclusion of trial, the court rendered judgment terminating Father’s

and Mother’s parent-child relationship with R.B. under family code sections

161.001(b)(1)(D), (E), and (O) and made findings that doing so was in R.B.’s best

interest. When rendering judgment, the trial judge stated, in part:

I know that Mom disagrees. I know that Dad disagrees. But there is
evidence that Mom has been a victim of physical abuse, which as I said
both Mom and Dad denied, but also extreme emotional abuse.

....
So even though we have evidence one way, and then testimony a
different way, as the fact finder, I believe that domestic violence has
occurred. I believe that emotional abuse, controlling, all those things
that were testified to, I believe that Mom has had to endure and
experience that.
....

I’m looking at all the bruises, listening to all the reports, the police calls,
the neighbors, all those things. And as [Department’s counsel] pointed
out, the consistency about the closet and all these things. And also
connecting that through one of the other CPS witnesses that testified
about a different woman whose experience was very similar to what
Mom’s experience is as it relates to the allegations of abuse, both
emotional and physical. So the Court cannot overlook those things.

....
I simply cannot ignore the volume of evidence that points to this child,
his inability to be safe. I cannot ignore the high risk if I were to place
him back home. And, as I said, I have placed him back home before.
And the same behaviors that caused him to come into care are the same
behaviors and the evidence I’m listening to now, two years later. So
though we’ve had services, we haven’t modified behaviors, which is
what has to happen before children can go back home to a safe and
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 stable environment. So, for those reasons, all of the evidence, all of the
testimony that the Court has reviewed and heard, I will terminate the
parent-child relationship between the biological father and the child,
subject of this suit, on the grounds (D), (E), and (O) under 161.001.
Also making a finding on the record that it’s in the child’s best interest
to do so. With respect to the mother . . . and the child, subject of this
suit. The Court will also terminate that parent-child relationship on the
grounds of (D), (E), and (O) under 161.001. And also make a finding
that it’s in the child’s best interest to do so.

The trial judge signed the final order on February 5, 2021. Among other

things, the final order stated that the trial court found by clear and convincing

evidence that Father and Mother each (1) “knowingly placed or knowingly allowed

[R.B.] to remain in conditions or surroundings which endanger [his] physical or

emotional well-being,” (2) “engaged in conduct or knowingly placed [R.B.] with

persons who engaged in conduct which endangers [his] physical or emotional well-

being,” and (3) “failed to comply with the provisions of a court order that specifically

established the actions necessary for the parent to obtain the return of [R.B.] who

has been in the permanent or temporary managing conservatorship of the

[Department] for not less than nine months as a result of [his] removal from the

parent under Chapter 262 for the abuse or neglect of [R.B.].” See TEX. FAM. CODE

§ 161.001(b)(1)(D), (E), (O). The order also stated the trial judge found by clear and

convincing evidence that it was in R.B.’s best interest to terminate the parent-child

relationship between each parent and R.B. See id. §§ 161.001(b)(2). Finally, the

trial court’s final order stated that appointment of a parent as a managing conservator

was not in R.B.’s best interest because it would significantly impair his physical and

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emotional well-being and, as a result, appointed the Department as R.B.’s permanent

non-parent managing conservator.

Both parents appeal.3

II. TRIAL COURT’S JURISDICTION

Jurisdiction has not been questioned by the parties, and our own review of the

record confirms that the usual dismissal deadlines for the trial court’s jurisdiction

were extended, in part, due to emergency orders regarding the COVID-19 pandemic.

Initially, under family code section 263.401(a), the trial court’s jurisdiction

was to terminate on February 10, 2020, the first Monday after the first anniversary

of February 4, 2019, when the court rendered a temporary order appointing the

Department as R.B.’s temporary managing conservator, unless the trial court had

commenced trial on the merits or granted an extension under subsection (b) or (b-1).

See TEX. FAM. CODE § 263.401(a).

In an order signed November 22, 2019, the trial court extended the original

dismissal date under section 263.401(b). See id. § 263.401(b). In that order, the trial

court (1) found that extraordinary circumstances necessitated R.B. remaining in the

temporary managing conservatorship of the Department, (2) found that continuing

3
Father and Mother both filed notices of appeal before the trial court signed the final order. Mother
also filed a motion for new trial regarding the legal and factual sufficiency of the evidence to support the
court’s findings under sections 161.001(b)(1) and 161.001(b)(2). The trial court did not rule on Mother’s
motion. While Father did not file a motion for new trial raising legal or factual sufficiency issues in the
trial court, he was not required to do so in this civil nonjury matter. TEX. R. APP. P. 33.1(d) (“In a civil
nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for
the first time on appeal in the complaining party’s brief.”)
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the Department’s appointment as his temporary managing conservator was in R.B.’s

best interest, and (3) extended the dismissal date to August 8, 2020, 180 days after

the original dismissal date. Id.

On June 29, 2020, the trial court extended the dismissal date to November 22,

2020, based on the Texas Supreme Court’s seventeenth emergency order regarding

the COVID-19 state of disaster, which was issued on May 26, 2020. See Seventeenth

Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 119 (Tex.

2020). The supreme court’s seventeenth emergency order stated, in part, that “all

courts in Texas may in any case, civil or criminal . . . and must to avoid risk to court

staff, parties, attorneys, jurors, and the public . . . in all proceedings under Subtitle

E, Title 5 of the Family Code, specifically including but not limited to Section

263.401(b) . . . extend the dismissal date for any case previously retained on the

court’s docket for an additional period not to exceed 180 days from the date of [the]

Order.” Id. at 120 (para. 3.b.(ii)). In addition to extending the dismissal date, the

trial court’s June 29, 2020 order set the case for trial on October 5-6, 2020.

About a week before trial was to begin, Father moved for a continuance and

an extension of the dismissal date, with no opposition from the other parties.

Father’s motion noted the upcoming trial setting, stated his counsel had tested

positive for COVID-19, and asked that the trial date be continued and that the

dismissal deadline be extended to March 17, 2021, 180 days after the supreme

court’s September 18, 2020 twenty-sixth emergency order regarding the COVID-19

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state of disaster. See Twenty-Sixth Emergency Order Regarding COVID-19 State of

Disaster, 609 S.W.3d 135 (Tex. 2020). The supreme court’s order included the same

language quoted above from the seventeenth emergency order. Id. at 135 (para.

2.b.(i)).

On October 2, 2020, the trial court signed an order that granted Father’s

motion, extended the dismissal deadline to March 17, 2021, and set the case for trial

on January 19-20, 2021. The trial court’s order cited the supreme court’s twenty-

sixth emergency order and stated that the extension of the dismissal date and trial

date was “necessary to avoid risk to court staff, parties, attorneys, jurors, and the

public” and that “continuing the appointment of the Department as temporary

managing conservator is in [R.B.’s] best interest.”

Under these circumstances, the trial court had jurisdiction when the case was

tried. See E.N. v. Tex. Dep’t of Family & Protective Servs., No. 03-21-00014-CV,

2021 WL 2460625, at *5 (Tex. App.—Austin June 17, 2021, no pet. h.) (mem. op.)

(discussing family code section 263.401 and supreme court’s emergency orders

relating to COVID-19 state of disaster and stating “[t]his would theoretically have

allowed the district court to extend the case indefinitely by granting an extension

under each successive order” and noting that, once the supreme court’s

authorizations stopped, each case where a court had granted an extension would have

to be tried before the automatic dismissal date.)

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 III. REVIEW STANDARDS

The involuntary termination of parental rights involves fundamental

constitutional rights. In re G.M., 596 S.W.2d 846 (Tex. 1980). A natural parent’s

desire for—and right to—the companionship, care, custody, and management of his

or her child is an interest “far more precious than any property right.” Santosky v.

Kramer, 455 U.S. 745, 758–59 (1982). A termination order is final and irrevocable,

divesting for all time that natural right as well as all legal rights, privileges, duties,

and powers between the parent and child except for the child’s right to inherit.

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re M.S., 115 S.W.3d 534,

549 (Tex. 2003) (referring to termination of a parent’s right to his or her child as

“traumatic, permanent, and irrevocable.”)

Both the Texas Family Code and federal due process require that grounds for

termination of parental rights be proved by clear and convincing evidence. TEX.

FAM. CODE § 161.001; Santosky, 455 U.S. at 753–54. A trial court may order

termination of a parent’s rights to a child under section 161.001 if the court finds by

clear and convincing evidence that termination is in the child’s best interest and that

one or more of the statutory predicate grounds for termination have been satisfied.

In re Z.N., 602 S.W.3d 541, 543 (Tex. 2020) (per curiam); TEX. FAM. CODE

§ 161.001(b).

“‘Clear and convincing evidence’ means 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

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of the allegations sought to be established.” TEX. FAM. CODE § 101.007. This

heightened standard of review requires us to strictly construe involuntary

termination statutes in favor of the parent. In re Z.N., 602 S.W.3d at 545 (citations

omitted); Holick, 685 S.W.2d at 20.

This heightened standard of proof gives rise to a heightened standard of

appellate review. In re Z.N., 602 S.W.3d at 545 (citing In re N.G., 577 S.W.3d 230,

235 (Tex. 2019)). For both legal and factual sufficiency challenges, we consider all

the evidence, defer to the factfinder’s credibility determinations, and determine

whether the factfinder could form a firm belief or conviction that the grounds for

termination were proven. In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).

Factfinders may draw inferences regarding the evidence, as long as they are

“reasonable and logical.” In re Z.N., 602 S.W.3d at 545 (citing In re E.N.C., 384

S.W.3d 796, 804 (Tex. 2012)).

The distinction between legal sufficiency review and factual sufficiency

review “lies in the extent to which disputed evidence contrary to a finding may be

considered.” In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).

In reviewing legal sufficiency of a finding to support termination, we “‘look

at all the evidence in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that the finding

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

We assume the trial court resolved disputed facts in favor of its finding if a

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reasonable factfinder could do so, and we disregard all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible. Id. (quoting In

re J.F.C., 96 S.W.3d at 266). After this review, if we determine that “‘no reasonable

factfinder could form a firm belief or conviction that the matter that must be proven

is true,’” then we “‘must conclude that the evidence is legally insufficient’” for the

trial court’s finding. Id. (quoting In re J.F.C., 96 S.W.3d at 266).

In reviewing the factual sufficiency of evidence supporting a termination

finding, we ask whether, in light of the entire record, the evidence is such that a

factfinder could reasonably form a firm conviction about the truth of the allegation

against the parent. In re A.B., 437 S.W.3d 498, 502–03 (Tex. 2014) (citing In re

C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “‘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 firm belief or

conviction, the evidence is factually insufficient.’” Id. at 503 (quoting In re J.F.C.,

96 S.W.3d at 266). In a factual sufficiency review, we “consider whether disputed

evidence is such that a reasonable a factfinder could not have resolved that disputed

evidence in favor of its finding.” In re J.F.C., 96 S.W.3d at 266.

Finally, we include two other important considerations affecting our review.

First, while we fully appreciate the “constitutional magnitude” afforded parental

rights, we also recognize the imperative that we not sacrifice the “emotional and

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physical interests of the child . . . merely to preserve that right.” In re C.H., 89

S.W.3d at 26.

Second, in A.B., the supreme court observed, “While parental rights are of a

constitutional magnitude, they are not absolute,” and, despite the heightened review

standards, courts of appeals “must nevertheless still provide due deference to the

decisions of the factfinder, who, having full opportunity to observe witness

testimony first-hand, is the sole arbiter when assessing the credibility and demeanor

of witnesses.” Id. (citing In re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).

IV. ANALYSIS

Father and Mother each raise four issues, and most of those issues overlap.4

For purposes of our analysis, we group them into three categories: (1) their

challenges to the legal and factual sufficiency of the evidence to support the trial

court’s findings under sections 161.001(b)(1)(D), (E), and (O); (2) their challenges

to the legal and factual sufficiency of the evidence to support the trial court’s

findings that termination of their parental rights was in R.B.’s best interest under

4
In Father’s four issues, he argues the evidence was legally and factually insufficient to support the
trial court’s finding that (1) he engaged in the conduct covered by family code section 161.001(b)(1)(D),
(2) he engaged in the conduct covered by family code section 161.001(b)(1)(E), (3) he engaged in the
conduct covered by family code section 161.001(b)(1)(O), and (4) termination of his parental rights was in
R.B.’s best interest under section 161.001(b)(2). In Mother’s first three issues, she argues the evidence was
legally and factually insufficient to support (1) termination of her parental rights under family code
161.001(b)(1)(O); (2) termination of her parental rights under family code sections 161.001(b)(1)(D) or
(E); and (3) a finding that termination of her parental rights was in R.B.’s best interest under section
161.001(b)(2). Finally, in her fourth issue, Mother argues the trial court abused its discretion in appointing
the Department, a nonparent, as R.B.’s conservator.
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section 161.001(b)(2); and (3) Mother’s challenge to the trial court’s appointment of

the Department as R.B.’s permanent non-parent managing conservator.

A. Predicate Acts Under Section 161.001(b)(1)

Section 161.001(b)(1) of the family code lists twenty-one predicate acts that,

if found by clear and convincing evidence, allow a court to terminate a parent-child

relationship if the court also finds that termination of the relationship is in the child’s

best interest. See TEX. FAM. CODE §§ 161.001(b)(1)(A)–(U); 161.001(b)(2). Only

one predicate finding is necessary to support a judgment of termination of parental

rights when a finding is also made that termination is in the child’s best interest. In

re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (citations omitted).

In this case, the court found by clear and convincing evidence that each parent

engaged in the predicate acts proscribed by 161.001(b)(1)(D), (E), and (O). See TEX.

FAM. CODE §§ 161.001(b)(1)(D), (E), (O). Specifically, the trial court concluded

Father and Mother each (1) “knowingly placed or knowingly allowed [R.B.] to

remain in conditions or surroundings which endanger [his] physical or emotional

well-being,” (2) “engaged in conduct or knowingly placed [R.B.] with persons who

engaged in conduct which endangers [his] physical or emotional well-being,” and

(3) “failed to comply with the provisions of a court order that specifically established

the actions necessary for the parent to obtain the return of [R.B.] who has been in

the permanent or temporary managing conservatorship of the [Department] for not

less than nine months as a result of [his] removal from the parent under Chapter 262

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for the abuse or neglect of [R.B.].” Both parents argue the evidence is legally and

factually insufficient to support these findings. We disagree with both parents.

1. Applicable Law Under Subsections (D) and (E)

In Father’s first and second issues and in Mother’s second issue, each parent

argues the evidence was legally and factually insufficient to support the trial court’s

findings under sections 161.001(b)(1)(D) and (E). We consider these two

subsections together because the evidence on them is interrelated.5

Parental rights may be terminated under section 161.001(b)(1)(D) if clear and

convincing evidence supports a finding that the parent “knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which endanger

the physical or emotional well-being of the child.” TEX. FAM. CODE

§ 161.001(b)(1)(D). Under section 161.001(b)(1)(E), parental rights may be

terminated if clear and convincing evidence supports a finding 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.” Id.

§ 161.001(b)(1)(E).

Proof of endangerment is required under both subsections (D) and (E). Id.

§§ 161.001(b)(1)(D), (E). “Endanger” means to expose to loss or injury or to

jeopardize a child’s emotional or physical health, but it is not necessary that the

5
See In re C.V.L., 591 S.W.3d 734, 750 (Tex. App.—Dallas 2019, pet. denied) (consolidating
examination under sections 161.001(b)(1)(D) and 161.001(b)(1)(E) because evidence on these two grounds
is interrelated).
–16–
conduct be directed at the child or that the child actually suffer an injury. In re M.C.,

917 S.W.3d 268, 269 (Tex. 1996) (citing Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987)); In re J.D.B., 435 S.W.3d 452, 463 (Tex. App.—

Dallas 2014, no pet.) (citation omitted).

At least three distinctions exist between subsections (D) and (E). First, the

primary distinction between the two subsections is the source of the physical or

emotional endangerment to the child. Id. Subsection (D) addresses the child’s

surroundings and environment, while subsection (E) addresses parental misconduct.

Id.; In re S.K., 198 S.W.3d 899, 902 (Tex. App.—Dallas 2006, pet. denied)

(subsection (E) “refers only to the parent’s conduct, as evidenced not only by the

parent’s acts, but also by the parent’s omissions or failures to act”). However,

parental conduct is also relevant to the child’s environment under subsection (D). In

re J.D.B., 435 S.W.3d at 463. That is, “[c]onduct of a parent or another person in

the home can create an environment that endangers the physical and emotional well-

being of a child as required for termination under subsection (D).” Id. at 464 (quoting

Castaneda v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 509, 522

(Tex. App.—El Paso 2004, pet. denied)). “Inappropriate, abusive, or unlawful

conduct by persons who live in the child’s home is part of the ‘conditions or

surroundings’ of the child’s home under subsection (D).” Id. (citing In re M.R.J.M.,

280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (“A child is endangered

when the environment creates a potential for danger that the parent is aware of but

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disregards.”)); see also In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth

1995, no writ) (“environment” refers not only to the acceptability of the living

conditions but also to a parent’s conduct in the home).

Second, termination of parental rights under subsection (D) can be based on

only a single act or omission. See In re L.D.C., 622 S.W.3d 63, 71 (Tex. App.—El

Paso 2020, no pet.) (citing In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San

Antonio 1997, pet. denied)); Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—

Houston [1st Dist.] 2010, pet. denied) (citation omitted); In re T.B., No. 07-12-

00538-CV, 2013 WL 2467344, at *5 (Tex. App.—Amarillo May 31, 2013, no pet.)

(mem. op.) (citation omitted). However, under subsection (E), termination “must be

based on more than a single act or omission; a voluntary, deliberate, and conscious

course of conduct by the parent is required.” In re K.S., No. 05-15-01294-CV, 2016

WL 1613126, at *14 (Tex. App.—Dallas Apr. 21, 2016, pet. denied) (mem. op.)

(internal quotations and citations omitted).

Third, knowledge of paternity is a prerequisite to a showing of a knowing

placement of a child in an endangering environment under subsection (D) but not to

a showing of a parental course of conduct endangering a child under subsection (E).

A.S. v. Texas Dep’t of Fam. & Protective Servs., 394 S.W.3d 703, 713 (Tex. App.—

El Paso 2012, no pet.) (citing In re Stevenson, 27 S.W.3d 195, 201–03 (Tex. App.—

San Antonio 2000, pet. denied)); see In re D.W., No. 10-09-00188-CV, 2009

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5155890, at *3 (Tex. App.—Waco 2009, no pet.) (mem. op.) (citation omitted); In

re M.J.M.L., 31 S.W.3d 347, 351 (Tex. App.—San Antonio 2000, pet. denied).6

Subsections (D) and (E) also have additional similarities. Under both

subsections, a trial court may consider endangering conduct that occurred before and

after the child’s birth. See In re E.N.C., 384 S.W.3d 796, 804–05 (Tex. 2012)

(agreeing “an offense occurring before a person’s children are born can be a relevant

factor in establishing an endangering course of conduct”) (citation omitted); In re

J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (noting “endangering conduct may include

the parent’s actions before the child’s birth, while the parent had custody of older

children, including evidence of drug usage” which was at issue in that case) (citing

In re M.N.G., 147 S.W.3d 521, 536 (Tex. App.—Fort Worth 2004, pet. denied)).7

Also, under both subsections, a trial court may consider conduct that occurred

both inside and outside the child’s presence. Director of Dallas Cty. Child

Protective Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex. App.—Dallas 1992, no

writ) (concluding that endangerment under predecessor statute to section

161.001(b)(1)(E) does not require that the child witness the conduct).

6
In this case, Father has raised no issue about paternity or the timing of any evidence under subsection
(D). The final order included a finding regarding paternity and stated Father admitted by pleading or in
open court that he is R.B.’s biological father and that there is no reason to question the admission—a finding
that the trial court had made in several other orders dating back to at least as early as March 25, 2019.
7
In citing M.N.G., the supreme court included a parenthetical describing M.N.G.’s holding as one
allowing “courts [to] look to parental conduct both before and after [a] child’s birth to determine whether
termination is appropriate.” In re J.O.A., 283 S.W.3d at 345.
–19–
 Less clear, however, is whether a trial court may consider conduct that

occurred after a child’s removal by the Department, or, if it can be, whether a

distinction on this issue exists between subsections (D) and (E). Previously, without

drawing any distinction between the subsections—and without any analysis, we

stated, “The relevant time frame within which to determine whether there is clear

and convincing evidence of endangerment to the child is before the child was

removed.” In re J.K.F., 345 S.W.3d 706, 711–12 (Tex. App.—Dallas 2011, no pet.)

(citing In re C.E.K., 214 S.W.3d 492, 496 (Tex. App.—Dallas 2006, no pet.)); In re

C.L.C., 119 S.W.3d 382, 392 (Tex. App.—Tyler 2003, no pet.); Ybarra v. Texas

Dep’t of Human Servs., 869 S.W.2d 574, 577 (Tex. App.—Corpus Christi–Edinburg

1993, no writ)). Like J.K.F., none of the cases we cited for that proposition include

any explanation or analysis, and Ybarra, the original source of that view, includes

no explanation, analysis, or other citation.

In recent years, however, this view has been criticized and rejected,

particularly in connection with an analysis of endangerment subsection (E). See In

re R.B., Nos. XX-XXXXXXX-CV, 07-17-00188-CV, 2017 WL 4785328, at *2 (Tex.

App.—Amarillo Oct. 19, 2017, pet. denied) (mem. op.) (criticizing our statement in

J.K.F. and the Ybarra opinion we and other courts relied on). And, even when not

directly criticized, many of our sister courts have not applied it, at least with respect

to an endangerment analysis under subsection (E). See In re S.R., 452 S.W.3d 351,

360 (Tex. App.—Houston (14th Dist. 2014, pet. denied) (stating courts consider the

–20–
“child’s environment before the Department obtained custody of the child” under

subsection (D) but “may consider conduct both before and after the Department

removed the child from the home” under subsection (E)) (citations omitted).8

Despite the generality of our statement in J.K.F., our own review in that case

was consistent with the approach described by our sister court in S.R.—that is, while

we did not explain that we could consider evidence after a child’s removal for

subsection (E) purposes, we did, in fact, do so. See J.K.F., 345 S.W.3d at 712–15

(finding sufficient evidence of endangerment under subsection (E) based in part on

events occurring after March 2008, when child was removed from mother, and not

reaching issue under subsection (D)). We do so again here, at least with respect to

subsection (E), and none of the parties have argued we may not do so.

As to endangerment generally, it is not necessary that the conduct be directed

at the child or that the child actually suffers injury. Boyd, 727 S.W.2d at 533; In re

8
See also In re A.A.M., 464 S.W.3d 421, 427 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (in section
161.001(b)(1)(E) analysis, stating trial court reasonably could have concluded that father’s continued
pattern of drug use, even after Department’s involvement, displayed a voluntary, deliberate, continued, and
conscious course of endangering conduct); In re C.J.S., 383 S.W.3d 682, 688–89 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (“In considering whether a relevant course of conduct has been established, a
court properly may consider evidence establishing that a parent continued to engage in endangering conduct
after the child’s removal by the Department or after the child no longer was in the parent’s care, thus
showing the parent continued to engage in the course of conduct in question.”) (citation omitted); In re
C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (in section 161.001(b)(1)(E)
analysis, stating “court may consider evidence establishing that a parent continued to engage in endangering
conduct after the child’s removal by the Department or after the child no longer was in the parent’s care,
thus showing the parent continued to engage in the course of conduct in question”) (citations omitted); In
re S.T., 263 S.W.3d 394, 402 (Tex. App.—Waco 2008, pet. denied) (in section 161.001(b)(1)(E) analysis,
stating parent’s conduct after child’s removal was “an additional factor supporting the decision to terminate
because it constitutes evidence [he] continued to engage in conduct even though his parental rights were in
jeopardy”); Walker, 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (in section
161.001(b)(1)(E) analysis, stating “the conduct may occur . . . both before and after the child has been
removed by the Department”).
–21–
J.D.B., 435 S.W.3d at 463. Specific danger to the child’s well-being may be inferred

from the parent’s misconduct alone. Boyd, 727 S.W.2d at 533; see In re C.V.L., 591

S.W.3d at 750 (citing Cervantes-Peterson v. Tex. Dep’t of Family & Protective

Servs., 221 S.W.3d 244, 253 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (en

banc)). A parent’s conduct that subjects a child to a life of uncertainty and instability

endangers the child’s physical and emotional well-being. In re C.V.L., 591 S.W.3d

at 750 (citing In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet.

denied)).

2. Discussion

As indicated, in Father’s first and second issues, and in Mother’s second issue,

each parent argues the evidence is legally and factually insufficient to support the

trial court’s findings that each knowingly placed or knowingly allowed R.B. to

remain in conditions or surroundings that endanger his physical or emotional well-

being and engaged in conduct or knowingly placed R.B. with persons who engaged

in conduct that endangers his physical or emotional well-being,

Both parents argue there was no evidence they placed R.B. in or exposed R.B.

to an environment that endangered his physical or emotional health. Mother refers

to testimony that R.B. was not upset and presented without injury when witnesses

observed him. Father argues he did not endanger R.B. and also refers to evidence

regarding Mother, stating that law enforcement and Department witnesses testified

that they did not see her injuries—though he acknowledges others did—and argues

–22–
Mother was appropriately cared for, was treated with medication and regular

psychiatrist visits, and was doing well at the time of trial.

As to any legal authority for their positions, Father and Mother cite various

cases for the applicable standards, but they do little to apply any cited cases to the

facts as to endangerment. Father does not apply any case to the facts before us on

that issue, and although Mother attempts to apply one, her attempt is unavailing.

Specifically, she cites In re E.C., No. 02-20-00022-CV, 2020 WL 2071755, at *7

(Tex. App.—Fort Worth Apr. 30, 2020, no pet.) (mem. op.), but she has

misunderstood the holding.9 In re E.C. does not support Mother’s position.

The Department cites In re S.R., 452 S.W.3d at 360, 362–63 to support its

position that the evidence is legally and factually sufficient under subsections (D)

and (E). We agree that case supports the Department’s argument. See id. at 365

(holding evidence, which included evidence of family violence, was legally and

factually sufficient to support findings under subsections (D) and (E)).

In this case, a reasonable fact-finder could conclude Father engaged in family

violence towards Mother on multiple occasions and that Mother allowed R.B. to

remain in that environment. The evidence included testimony from witnesses who

9
According to Mother, In re E.C. involved a mother whose admission of a lifetime of drug use was not
enough to rise to the level of clear and convincing evidence needed. Because the parents made no similar
admissions here, Mother argues the evidence in this case is not enough to rise to the requisite level of proof.
Mother has misunderstood the holding in that case, as our sister court concluded the evidence was factually
sufficient to support a finding under section 161.001(b)(1)(E) in that case. See In re E.C., 2020 WL
2071755, at *7 (“We hold that the evidence, viewed in the appropriate deferential light, was factually
sufficient to reasonably form a firm conviction or belief to support the finding” under section
161.001(b)(1)(E)).
–23–
saw marks and bruises on Mother’s back and buttocks when bathing her during a

May 2018 hospitalization and testimony from Mother’s former foster mother, who

noticed bruises on Mother around the same time that Mother moved into an

apartment with Father during her freshman year of college. The evidence also

included testimony from various witnesses about Mother’s statements about Father’s

conduct towards her and R.B., such as statements that he spanked R.B. hard at times,

often got very angry and fought, hit her in the head, punched her in the face, pushed

her, locked her in the closet for hours, grabbed her arms, wrapped his hands around

her body and squeezed, prevented her from leaving, rationed her food, took away

her things, including her Bible, and prohibited her from driving, leaving the house,

or using her phone. The evidence also included testimony from various witnesses

about Mother’s own conduct, including appearing to be catatonic inside and outside

her home, expressing fear of Father and fear of separation from a female police

officer, asking that she be listed as a “no name” patient at a hospital so that Father

could not find her, and hiding inside a closet with R.B. for hours, requiring a SWAT

team and hostage negotiator to be called to get her to come out of the closet with

R.B.

A reasonable fact-finder could also conclude that Father allowed R.B. to

remain alone in Mother’s care despite Father’s concerns to the police regarding

Mother caring for R.B. alone because of her mental health issues. The court heard

evidence that on February 1, 2019, shortly before R.B.’s removal in this case, police

–24–
responded to a call regarding an assault at Father’s and Mother’s home. Father was

ultimately arrested, and after he was placed in custody, Father made it clear to the

police he did not believe Mother should be left alone with R.B. due to her mental

health issues and that he did not believe R.B. would be safe alone in Mother’s care.

Father arranged for Mother and R.B. to stay with neighbors instead, and the

neighbors agreed. Mother and R.B. went to the neighbors’ home. After everyone

went to bed, Father called one of the neighbors from jail and spoke with Mother. He

told Mother it was okay for her to return to the house by herself with R.B. When the

neighbors awoke the next morning, their front door was left partially open and

unlocked, and Mother and R.B. were not there.

All of the evidence in the prior two paragraphs involved events occurring on

or before R.B.’s removal. The trial court heard other, similar evidence about events

occurring after R.B.’s removal. For example, the trial court heard testimony about

Mother’s emergency room visit on February 13, 2020 and admission to a crisis

stabilization unit for about a month thereafter. The emergency room nurse who

interacted with Mother during that emergency room visit observed Mother to be

stressed, extremely fearful, and very anxious, and she observed that Father talked

for Mother, did not allow her to speak, and did not allow Mother to be left alone,

even to provide a urine sample. Because of her concerns, the nurse separated them,

and when she did, Mother became so upset she urinated on herself. Mother later

expressed fear that Father would go to prison and that she would become homeless,

–25–
and she described Father as the person that gave her money and food after they had

sex. Mother also told the nurse about a closet she would go into to hide when she

was afraid. The nurse contacted police, who responded, and the officer who spoke

with Mother observed Mother to be very frightened and confused and heard Mother

refer to Father by three different names as if she was referring to three different

people. Mother was involuntarily admitted into a crisis stabilization unit the

following day, and at the time of admission, Mother was near catatonic, a state she

remained in for more than a week. Mother remained at the facility for about a month

before being discharged. At discharge, her diagnosis was major depressive disorder,

recurrence severe with psychosis and partial remission, and post-traumatic stress

disorder.

Additionally, the trial court heard evidence regarding events on August 25,

2020, when Mother ran to her neighbors’ house in a manner that the neighbor

described as “running for dear life.” The neighbor testified that Mother’s face was

covered with bruises, with both eyes blackened, and Mother had bruises on her

head, bruises up and down her arms, and swollen lips. The neighbor testified

Mother was very scared and very frightened that Father would find her. While

they waited for police to arrive, Mother told the neighbor Father had “done this

to her,” “sat on her,” “beat her,” and “strangled her.” When the neighbor offered

Mother a seat, Mother told the neighbor she could not sit down because Father

“had beaten her with a belt and belt buckle.”
–26–
 At trial, Mother denied any abuse occurred. She did so while testifying by

video from Father’s home, with Father in the same room, and while Mother and

Father appeared together on-screen. Mother testified she and Father were no longer

living together and that she was living with a family friend, but she also admitted

that in the week before trial, she and Father attended a visit with R.B. together,

portrayed themselves as a couple, and held hands throughout the visit.

After reviewing all the evidence in the light most favorable to the termination

findings, we conclude a reasonable factfinder could have formed a firm belief or

conviction as to the truth of the findings that Father and Mother knowingly placed

or knowingly allowed R.B. to remain in conditions or surroundings which endanger

his physical or emotional well-being under subsection (D) and engaged in conduct

or knowingly placed R.B. with persons who engaged in conduct which endangers

his physical or emotional well-being under subsection (E). We also conclude, based

on the entire record, that the disputed evidence that a reasonable factfinder could not

have credited in favor of these termination findings is not so significant that a

factfinder could not reasonably have formed a firm belief or conviction as to the

truth of these findings under both subsection (D) and (E).

We therefore hold the evidence is legally and factually sufficient to support

the predicate termination findings under subsections (D) and (E). See TEX. FAM.

CODE §§ 161.001(b)(1)(D), (E); In re L.E.S., 471 S.W.3d 915, 923–26 (Tex. App.—

Texarkana 2015, no pet.); In re S.R., 452 S.W.3d at 365.

–27–
 We overrule Father’s first and second issues and Mother’s second issue. As

a result, we need not reach parents’ issues regarding section 161.001(b)(1)(O)10

because only one predicate finding is necessary to support a judgment of termination

of parental rights when there is also a finding that termination is in the child’s best

interest. See In re A.V., 113 S.W.3d at 362.

B. R.B.’s Best Interest Under Section 161.001(b)(2)

In Father’s fourth issue and Mother’s third issue, each parent challenges the

legal and factual sufficiency of the evidence to support the trial court’s finding that

termination of their parent-child relationships with R.B. is in R.B.’s best interest.

See TEX. FAM. CODE § 161.001(b)(2).

1. Applicable Law Under Section 161.001(b)(2)

“Best interest” is a term of art encompassing a broad “facts-and-circumstances

based evaluation that is accorded significant discretion.” In re Lee, 411 S.W.3d 445,

460 & n.22 (Tex. 2013). The best interest prong “is child-centered and focuses on

the child’s well-being, safety, and development,” In re A.C., 560 S.W.3d at 631, and

it allows a court to consider the following non-exclusive factors:

(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;

Thus, we do not address Father’s third issue and Mother’s first issue, in which each parent argues the
10

evidence was legally and factually insufficient to support the trial court’s findings under section
161.001(b)(1)(O).
–28–
 (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 which may indicate that the
existing parent-child relationship is not a proper one; and

(9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see In re A.C., 560 S.W.3d

at 631 & n.29 (citing Holley, while listing many of these same factors and noting

that family code section 263.307 also provides additional best-interest factors).11

These Holley factors are not exhaustive, and a best-interest finding need not

be supported by evidence of every Holley factor. In re C.H., 89 S.W.3d at 27. The

same evidence can be relevant to both section 161.001(b)(1) termination grounds

11
Section 263.307(b) lists several best-interest factors that the trial court and the Department can
consider in determining whether a child’s parents are willing and able to provide the child with a safe
environment, 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 the harm to the
child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by
the Department or other agency; (5) whether the child is fearful of living in or returning to the child’s home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents,
or other family members, or others who have access to the child’s home; (7) whether there is a history of
abusive or assaultive conduct by the child’s family or others who have access to the child’s home; (8)
whether there is a history of substance abuse by the child’s family or others who have access to the child’s
home; (9) whether the perpetrator of the harm is identified; (10) the willingness and ability of the child’s
family to seek out, accept, and complete counseling services and to cooperate with and facilitate an
appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to effect
positive environmental and personal changes within a reasonable period of time; (12) whether the child’s
family demonstrates adequate parenting skills; and (13) whether an adequate social support system
consisting of an extended family and friends is available to the child. TEX. FAM. CODE § 263.307(b). Father
and Mother list the Holley factors and do not discuss these other factors in their briefs.
–29–
and the child’s best interest. Id. Moreover, while there is a strong presumption that

maintaining the parent–child relationship serves the child’s best interest, there is also

a presumption that promptly and permanently placing the child in a safe environment

is in the child’s best interest. TEX. FAM. CODE §§ 153.131(b); 263.307(a); In re

D.W., 445 S.W.3d 913, 925 (Tex. App.—Dallas 2014, pet. denied).

In C.H., the supreme court stated, “The absence of evidence about some of

these considerations would not preclude a factfinder from reasonably forming a

strong conviction or belief that termination is in the child’s best interest, particularly

if the evidence were undisputed that the parental relationship endangered the safety

of the child.” In re C.H., 89 S.W.3d at 27. Although “paltry evidence relevant to

each [Holley factor] would not suffice to uphold [a factfinder’s] finding that

termination is required,” id., the evidence here is sufficient.

2. Discussion

Both parents argue the evidence to support the trial court’s best interest

finding under section 161.001(b)(2) is legally and factually insufficient under the

Holley factors; however, only Father attempts to apply the Holley factors to the

evidence here, and his attempt is limited to the first three factors. As Father notes,

on the first Holley factor, R.B. was less than three years old at the time of trial, and

no evidence regarding his desires was presented. Father cites no evidence as to the

second and third Holley factors and simply argues the evidence on them is

–30–
insufficient. Mother makes no attempt to apply the Holley factors at all to the record

evidence, though she does list what the factors are.

Rather than focusing their arguments by applying the Holley factors to the

record evidence, Mother and Father instead make the same general argument that

certain best interest testimony was conclusory and insufficient as a result. In doing

so, both parents cite the testimony provided by Ramon Hodridge, one of the

Department’s conservatorship workers involved in this case. Hodridge worked on

this case from February 2020 to November 2020. Hodridge expressed support of

the Department’s position that termination of parental rights was in R.B.’s best

interest and did not believe either parent was able to provide R.B. with a safe and

stable home. On cross-examination by Father’s counsel, Hodridge testified:

[FATHER’S COUNSEL]: In your recommendation today, you
recommended that termination is in the best interest of the child. Is that
correct?
[HODRIDGE]: That is correct.

[FATHER’S COUNSEL]: Upon what do you base that decision?
[HODRIDGE]: Solely based off since I’m believing that [Mother] and
[Father] have gotten back together and that since [Mother] has not
finished services at this time, due to them being on the family service
plan together, that is normally the Department’s stand is that if they are
united as one, then both need to complete. Otherwise, we may still be
placing the child back in an unsafe situation. And then I was also made
aware of the allegations of that other things have come to light in
reference to the abuse. If any of those allegations are true, then I would
have to stand by not allowing [R.B.] to return home.

–31–
 In criticizing this testimony, both parents selectively quote only a portion of

this answer, focusing only on the witness’s reference to the Department’s normal

stance on family service plans. The parties ignore the remainder of the answer.

Father and Mother also ignore the testimony about R.B.’s best interest

provided by CASA, R.B.’s guardian ad litem. Debra Panos, the volunteer who

testified on behalf of CASA, testified that it is in R.B.’s best interest to have

Father’s and Mother’s parental rights terminated because “the ongoing mental

health issues with [Mother] and the issues of domestic violence – potential

domestic violence with [Father] would prevent us from recommending

reunification.” Panos indicated that to determine R.B.’s best interest, she attended

monitored visits, visited with R.B. twice a month at his placement for the two

years before trial, reviewed medical and court records, attended hearings, and was

in contact with CPS. She also took various things into account, including the

parents’ medical history, the services undertaken and the programs utilized by the

parents during the period of time the case had been open, R.B.’s emotional and

physical needs during that period of time, any emotional or physical danger R.B.

had suffered or might suffer in the future, the parents’ parenting abilities and what

–32–
they could provide if reunification with R.B. occurred, the stability of the parents’

home, and the information shared in trial.

Finally, the parents ignore other evidence, including the evidence summarized

above regarding the long history of family violence between Father and Mother—a

history that, according to the record before us, began before R.B. was born and

continued well after, including both before and after R.B.’s removal and even after

Father completed BIPP.

The Department argues that the trial court’s best interest finding is supported

by legally and factually suffiient evidence, particularly with regard to the third and

seventh Holley factors and the fourth, sixth, seventh, and eleventh factors listed

under section 263.307(b). See Holley, 544 S.W.2d at 371–72; TEX. FAM. CODE

§ 263.307(b). We agree with the Department.

Based on the record evidence, when viewed in the light most favorable to the

ruling and as a whole, we conclude that a reasonable trier of fact could have formed

a firm belief or conviction that termination of Father’s and Mother’s parental rights

is in R.B.’s best interest and therefore hold the evidence is both legally and factually

sufficient to support the trial court’s best interest findings as to both parents under

section 161.001(b)(2). See Holley, 544 S.W.2d at 371–72; TEX. FAM. CODE

§§ 161.001(b)(2), 263.307(b).

We overrule Father’s fourth issue and Mother’s third issue.

–33–
C. Conservatorship

In her fourth issue, Mother argues the trial court erred by appointing the

Department, a non-parent, as R.B.’s conservator because, in her view, the evidence

did not support a finding that appointing her as R.B.’s conservator would

significantly impair R.B.’s physical health or emotional development. Mother cites

family code section 153.131(a) and Lewelling v. Lewelling, 796 S.W.2d 164, 166

(Tex. 1990) to support her position. Section 153.131 states:

(a) Subject to the prohibition in Section 153.004, unless the court finds
that appointment of the parent or parents would not be in the best
interest of the child because the appointment would significantly impair
the child’s physical health or emotional development, a parent shall be
appointed sole managing conservator or both parents shall be appointed
as joint managing conservators of the child.
(b) It is a rebuttable presumption that the appointment of the parents of
a child as joint managing conservators is in the best interest of the child.
A finding of a history of family violence involving the parents of a child
removes the presumption under this subsection.
See TEX. FAM. CODE § 153.131. Lewelling discussed similar evidentiary standards

under a now-repealed statute, but in a divorce context, and not in a situation where

the conservatorship determination at issue resulted from the termination of parental

rights. See Lewelling, 796 S.W.2d at 165, 167 (concluding court of appeals erred in

affirming trial court’s award of permanent custody to paternal grandparents in

divorce proceeding when no evidence showed mother’s appointment would

significantly impair child’s physical health or emotional development).

–34–
 The Department argues that Mother lacks standing on this issue and cites as

support In re C.J.B., No. 05-19-00165-CV, 2019 WL 3940987, at *9–10 (Tex.

App.—Dallas Aug. 21, 2019, no pet.) (mem. op.) and In re J.D.G., 570 S.W.3d 839,

856 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).

We agree with the Department. As we stated in In re C.J.B.:

When the parents’ rights are terminated, the trial court must appoint ‘a
suitable, competent adult, the Department of Family and Protective
Services, or a licensed child-placing agency as managing conservator
of the child.’ ‘The best interest of the child shall always be the primary
consideration of the court in determining the issues of conservatorship
and possession of and access to the child.’ Conservatorship
determinations are reviewed for an abuse of discretion and will be
reversed only if the decision is arbitrary and unreasonable.

An order terminating the parent-child relationship divests the parent of
all legal rights and duties with respect to the child. Because we have
decided against [appellant] regarding her challenge to the portion of the
trial court’s order terminating her parental rights, that order has divested
[appellant] of her legal rights and duties respecting [the child]. As a
result, [appellant] does not have standing to challenge the portion of the
order appointing the Department as sole managing conservator of [the
child] because any alleged error could not injuriously affect her rights.

In re C.J.B., 2019 WL 3940987, at *9–10 (citations omitted); see In re E.M., No.

05-18-01161-CV, No. 05-18-01162-CV, No. 05-18-01163-CV, No. 05-18-01164-

CV, No. 05-18-01165-CV, No. 05-18-01166-CV, No. 05-18-01167-CV, 2019 WL

1449791, at *9 (Tex. App.—Dallas Apr. 1, 2019, no pet.) (mem. op.) (same) (citation

omitted).

As we did in In re C.J.B. and In re E.M., in light of our rulings on Mother’s

other issues and our decision to affirm the termination of her parent-child

–35–
relationship with R.B., we conclude Mother lacks standing to challenge the

appointment of the Department as R.B.’s permanent non-parent managing

conservator. See In re C.J.B., 2019 WL 3940987, at *9–10; In re E.M.. 2019 WL

1449791, at *9. We overrule Mother’s fourth issue.

V. CONCLUSION

For the reasons explained above, we affirm the trial court’s judgment.

/Ken Molberg/
210043f.p05 KEN MOLBERG
JUSTICE

–36–
 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

IN THE INTEREST OF R.B., On Appeal from the 199th Judicial
A CHILD District Court, Collin County, Texas
Trial Court Cause No. 199-30016-
No. 05-21-00043-CV 2019.
Opinion delivered by Justice
Molberg. Justices Reichek and
Nowell participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

Judgment entered this 9th day of July, 2021.

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