INTEREST OF v. << (2025)

OPINION

This accelerated appeal arises from a final order in which, after a final hearing tried to the bench,¹ the trial court terminated the parental rights of appellant K.K. (Mother) with respect to her ten-year-old son (referred to herein by the pseudonym Max),² and appointed appellee Department of Family and Protective Services (the Department) to be Max's sole permanent managing conservator. See Tex. Fam. Code Ann. § 109.002(a-1) (accelerated appeals in parental-termination cases); Tex. R. App. P. 28.4 (same).³

In issue one, Mother argues the trial court abused its discretion because it terminated her parental rights without making the statutorily required findings with the specificity required by the Family Code. In issue two, Mother challenges the legal and factual sufficiency of the evidence to support the trial court's findings that Mother's parental rights should be terminated. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O). In issue three, Mother asserts the trial court erred and abused its discretion by naming the Department as Max's sole managing conservator, instead of Max's current caregiver. In issue four, Mother argues the trial court erred by terminating Mother's parental rights on the basis of subsection (O) because that ground was improper after it had been “remanded to the trial court.”

We hold that the trial court made the statutorily required findings that the Department “made reasonable efforts to return the child to the parent before commencement of a trial on the merits and despite those reasonable efforts, a continuing danger remains in the home that prevents the return of the child to the parent.” Although Mother argues the findings were not specific enough, we conclude that the trial court made sufficient findings to satisfy the statutory requirements, and did not err.

We conclude the evidence is legally sufficient and not factually insufficient to support the trial court's finding on the predicate ground of endangerment pursuant to subsection (E). See Tex. Fam. Code Ann. § 161.001(b)(1)(E). Therefore, we do not address the other predicate grounds supporting termination. We further conclude there is legally sufficient evidence and evidence that is not factually insufficient to support the trial court's best-interest finding. We affirm.

I. Background

Mother first became involved with the Department in October 2023 as the result of a referral for neglectful supervision because her youngest child (one of Max's siblings) had been taken to the hospital unresponsive after ingesting a THC gummy. Mother and her youngest child were driving in a car with Mother's friend whom Mother blamed for having the THC gummy in the car. The case remained open because Mother did not complete her services and tested positive for drugs.

In June 2024, after Max missed more than thirty days of school, an officer from the Hitchcock Independent School District made a visit to Max's home. He did not find Max at home, but did find that Mother's other children were home under the supervision of one of Mother's sisters who had just been discharged from rehabilitation for methamphetamine. Mother's sister advised that Mother had left the area and had not been responsive to communications for weeks. Mother was not cooperative and had already tested positive for drugs, including for cocaine. As a result, Max was removed, and the Department filed its original petition for protection of a child and seeking termination of Mother's parental rights.

A. Documentary evidence

1. Order for Protection of a Child in an Emergency

In the initial emergency order, the trial court found that the Department had “made reasonable efforts consistent with the circumstances and providing for the safety of the children, to prevent or eliminate the need for removal of the children.” Specifically, the trial court found that the Department had made multiple home visits, telephone calls and other various forms of communication aimed at addressing the children's safety. The trial court found that Mother had allowed her children to remain alone with “known drug users and child abusers” and Mother had resisted help. The order further found that the Department had tried to ensure regular school attendance for Max, but Mother had allowed Max to miss more than 30 days of school. It found that Mother had continued to associate with her friend who had THC gummies in her car when Mother's youngest child was a passenger. Finally, the trial court concluded in the temporary order that Mother would not agree to participate in any safety plans or parent counseling.

2. Family Plan of Service

The family service plan, created in July 2024, was admitted in evidence. Initially, the primary goal of the family service plan was reunification of Max with Mother. It reflects that Max was placed with his aunt, whom we will refer to as “Sarah.” Max was noted to have gaps in his education.

The Department described its concern that Mother might continue to “use drugs and leave [her] children for extended periods of time with unsafe and unprotective people that [her] children will be at risk for physical harm, emotional neglect, life-sustaining injuries and or death.” The family service plan further notes that Mother has left her children with “many family members over the years without communication.”

As a result, the family service plan required Mother to remain sober during the pendency of her case and to participate in the following ordered services:

• Initiate, participate, and complete parenting classes by obtaining a certificate and turning it in to the Department; demonstrate the ability to use parenting practices Max's emotional, physical and safety needs throughout the case;

• Attend at least one Parent Collaboration Group Meeting held on the third Thursday of each month by Zoom;

• Initiate and complete a domestic violence assessment and be compliant and successfully complete the program and any recommendations;

• Cooperate fully and actively participate in the completion of a drug/alcohol assessment and follow all recommendations;

• Maintain sobriety by submitting to random drug testing;

• Obtain and maintain legal verifiable employment or other source of verifiable income;

• Maintain a safe and stable home environment that is free from safety and hazardous conditions; maintain a home that is drug and alcohol free;

• Maintain contact with Max during one-hour visits, supervised biweekly;

• Attend all court dates, and conference meetings, and maintain contact with the Department.

The family service plan also explains that Mother's failure to submit to random drug testing would be considered a positive test. Mother acknowledged receipt and understanding of the family service plan.

3. Initial Permanency Hearing

In November 2024, the trial court held an initial permanency hearing and signed an order finding that Mother had not demonstrated adequate or appropriate compliance with the family service plan. Mother did not appear at the hearing, although her sister, Sarah, did appear and participate.

4. February 2025 Permanency Hearing

In February 2025, the trial court held another permanency hearing and made a written finding that Mother had not demonstrated adequate or appropriate compliance with the family service plan.

5. Mother's criminal conviction

Mother's conviction for deadly conduct was admitted into evidence. Tex. Penal Code Ann. § 22.05. Mother was convicted in 2022 and served four days in county jail.

B. Trial testimony

1. DFPS investigator specialist

Marla Allen works for the Department of Family and Protective Services as an investigator specialist. In October 2023, she was assigned to investigate allegations of neglectful supervision against Mother due to Mother's youngest child ingesting a THC gummy.

Allen was concerned with Mother's drug use. She asked Mother about her drug use, and Mother admitted to using marijuana but denied smoking marijuana around her children. Mother was also involved in fighting or violent activities, which was a concern for Allen. Another major concern for Allen was that Mother continued to allow her children to be around the woman in whose vehicle Mother's youngest ingested a THC gummy which triggered the investigation. The Department put in place a safety plan that required Mother to be supervised by other people at all times around her children and Allen referred that case to the Family Based Safety Services (FBSS) division.

2. FBSS caseworker

Anna Laura Scott works for the Department in its FBSS division. Scott became involved with Mother in 2024. Scott's goal at FBSS was to try to keep families together by helping the families with services or resources. Scott was Mother's caseworker in the FBSS division.

Scott testified that Mother did not work any services while she was assigned to the case. She testified that Mother did an assessment, but did not follow up with any recommendations.

Scott testified that Mother had participated in some drug tests. Some of the tests were negative, but others were positive for marijuana. Scott testified that towards the end of the FBSS case Mother tested positive for cocaine. Mother denied using cocaine and claimed that she did not know how that happened.

Scott explained that the Department had tried to work with Mother. However, after the Department discovered that Mother had left her children with her sister—whom Scott testified had just left drug rehabilitation for methamphetamine—for several weeks with no contact, the Department did not believe Max and his siblings could safely remain in Mother's care. The Department made this discovery after a school police officer came to check on Max due to his excessive number of school absences. The case was then moved to a different division as the Department began to pursue removal and termination.

3. First conservatorship caseworker

Tracey Lebeau-Hayes was the first conservatorship worker assigned to Max's case after Max was removed from the home. She also created the family service plan for Mother. Although she reviewed the plan with Mother several times, Lebeau-Hayes testified that Mother did not complete any of her services including parenting classes, individual counseling, and domestic violence classes. She explained that Mother would make appointments but never keep them.

Although Mother was required to complete drug testing including urinalysis and follicle testing, Mother only showed up for some appointments. She tested positive on at least one occasion for both cocaine and marijuana. Mother told Lebeau-Hayes that she tested positive for cocaine because of her weave. The last positive test for Mother would have been some six months before trial.

Mother had regular contact with her caseworker until February 2025 when she stopped responding to any communications. Lebeau-Hayes tried to keep Mother on track with texts and notifications. However, Mother often blamed Lebeau-Hayes and become verbally aggressive with her. Mother missed two permanency hearings despite the fact Lebeau-Hayes sat with Mother the day before one of the hearings and explained the entire plan and process to her. Lebeau-Hayes testified to her impression that Mother was not interested. Mother never identified any issues she might be having other than she repeatedly told the caseworker she was busy.

Initially, Mother's visitation with Max was scheduled to occur every other week. Visits were reduced to monthly because Mother said that schedule was easier for her. Lebeau-Hayes testified that even when visits were monthly Mother often missed or canceled. Lebeau-Hayes further commented that Mother seemed disconnected from Max. When she did have visitation, she would give Max her cell phone to play with or they would put on a movie and watch the movie instead of talking or interacting.

Lebeau-Hayes also testified to her belief that Mother was regularly untruthful with her. Mother would claim she needed to leave a visitation early to go to work, yet she was unable to provide verifiable income or even remember the name of her employer. When asked for employment information, Mother would make excuses or ignore the request. Lebeau-Hayes testified that she attempted to visit Mother's home, but was told Mother did not live there anymore.

Max is currently placed with Sarah, Mother's sister, and Sarah's longtime partner, who we will refer to as Bob. Lebeau-Hayes explained Max is doing very well in his current placement. He is attending school, as well as an after-school program to help him with his homework. Lebeau-Hayes testified that when he came into care he could barely read or write and was two grades behind in school. Now that he is in the care of Sarah and Bob, he has improved. Lebeau-Hayes even noticed an improvement in Max's social skills and interactions. Bob has become a strong male role model for Max and is currently in the process of getting licensed for adoption.

Lebeau-Hayes testified that visitation with Mother was not a priority for Max. Instead, Max expressed interest in seeing his siblings. Lebeau-Hayes further testified that Sarah understands Max's desire to maintain connections with his siblings.

4. Second conservatorship caseworker

Shelly Dean is Mother's second DFPS conservatorship caseworker. She began working on Mother's case in the middle of March 2025 and therefore was relatively new to the case at the May 2025 trial. Dean has never had any contact with Mother. Dean testified that she never learned where Mother was living, and that no visitation had occurred since March 2025 between Max and Mother. She had visited Max once and believes he is doing well.

Dean testified that the Department sought termination of Mother's parental rights with the current goal of adoption by Sarah and Bob.

5. CASA advocate

Marty Fluke is the CASA advocate appointed for Max. Fluke testified that Max “loves his placement, he loves his school, and he loves his friends.” Fluke believed that Max was in a “safe, clean environment” in which Max could thrive. Fluke explained that Max was always dressed nicely, was polite and had a great attitude in his current placement.

Fluke testified that CASA recommended permanency with Sarah and Bob. Although Fluke would not take a position on the termination of Mother's parental rights, he explained that Mother “has not worked any of her service plan, so she hasn't been through domestic violence assessment, she hasn't been through her parental classes, she's failed four drug tests and no-showed the past few times, so I don't see that she's interested in reunification.”

II. Analysis

A. Standards of review

Involuntary termination of parental rights is a serious matter that implicates fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Although parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.”). Given the fundamental liberty interests at stake, “termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent.” Holick, 685 S.W.2d at 20.

Due to the severity and permanency of terminating the parental relationship, the law in Texas requires clear-and-convincing evidence to support such an order. See Tex. Fam. Code Ann. § 161.001(b); In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002). “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 of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007; see J.F.C., 96 S.W.3d at 264.

The heightened burden of proof in termination cases results in a heightened standard of review. See J.F.C., 96 S.W.3d at 266–67. We review the legal sufficiency of the evidence by considering all evidence in the light most favorable to the finding to determine whether a reasonable fact-finder could have formed a firm belief or conviction that its finding was true. Id. at 266. We must assume the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so, and we disregard all evidence a reasonable fact-finder could have disbelieved or found incredible. Id. However, this does not compel us to disregard all evidence that does not support the finding. Id. Because of the heightened standard, we are also mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. Id.

In reviewing the factual sufficiency of the evidence under the clear-and-convincing burden, we consider and weigh all of the evidence, including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). “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, then the evidence is factually insufficient.” J.F.C., 96 S.W.3d at 266. We give due deference to the fact-finder's findings, and we cannot substitute our own judgment for that of the fact-finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).

B. Statutorily required findings

In issue one, Mother argues the trial court abused its discretion when it terminated her parental rights without making the statutorily required findings, based on clear and convincing evidence, and without describing them in writing, with specificity, in a separate section of the Order. This court, on reviewing the briefs in this case, abated the case, and directed the trial court to make the statutorily required findings.

The trial court has since submitted an amended final order. Mother asserts that the amended order is still deficient because “not only did [the trial court] not use the correct verbiage of the statute pursuant to § 161.001(f), but also did not describe with specificity the required findings that ‘the department made reasonable efforts to return the child to K.K.’ and that despite those reasonable efforts, ‘a continuing danger remains in the home that prevents the return of the child to the parent.’ ” The State argues that the trial court's order complied with the statutory requirements.

1. Applicable law

In 2023, the Texas Legislature amended Section 161.001 of the Family Code to require trial courts to make certain written findings as a condition of ordering the termination of parental rights. Family Code sections 161.001(f) and (g) provide that:

(f) In a suit for termination of the parent-child relationship filed by the Department of Family and Protective Services, the court may not order termination of the parent-child relationship under Subsection (b)(1) unless the court finds by clear and convincing evidence and describes in writing with specificity in a separate section of the order that:

(1) the department made reasonable efforts to return the child to the parent before commencement of a trial on the merits and despite those reasonable efforts, a continuing danger remains in the home that prevents the return of the child to the parent; [ ]

․

(g) In a suit for termination of the parent-child relationship filed by the Department of Family and Protective Services in which the department made reasonable efforts to return the child to the child's home but a continuing danger in the home prevented the child's return, the court shall include in a separate section of its order written findings describing with specificity the reasonable efforts the department made to return the child to the child's home.

See Tex. Fam. Code Ann. § 161.001(f), (g). The trial court ordered the termination of the parent–child relationship under subsection (b)(1), and thus, its order must comport with Family Code Section 161.001 (f) and (g).

“Statutory construction is a question of law, and review is conducted de novo.” City of Round Rock v. Rodriguez, 399 S.W.3d 130, 133 (Tex. 2013). “Our ultimate purpose when construing a statute is to discover the Legislature's intent,” and the statute's text is the best indication of legislative intent. Id. We must not interpret the statute in a manner that renders any part or provision meaningless or superfluous. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008). “In ascertaining a term's meaning, courts look primarily to how that term is used throughout the statute as a whole.” Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002).

Statutory terms should be interpreted consistently in every part of an act. Id. Thus, “courts should not give an undefined statutory term a meaning out of harmony or inconsistent with other provisions, although it might be susceptible of such a construction if standing alone.” Id. Given their recent enactment; construction of theses subsections is an issue of first impression for this court.

2. Existing case law

Mother and the Department both cite to a case from our sister court that addressed the required specificity of findings in subsection (f) and (g). In re Y.K., No. 02-25-00069-CV, ––– S.W.3d ––––, ––––, 2025 WL 2006075, at *5 (Tex. App.—Fort Worth July 17, 2025, no pet. h.) (mem. op.). We have not found any other Texas appellate courts that have addressed the required specificity of findings in subsection (f) and (g). Our sister court explained that it found “no authority that defines, clarifies, or discusses the degree of specificity required for the trial court's findings in subsections (f) and (g). We note that the plain language of the subsections does not prescribe the minimum number of findings the trial court must make, nor the degree of specificity required.” Id. at ––––, 2025 WL 2006075, at *6.

In Y.K., the trial court made findings as to the reasonable efforts made by the Department to return the child to the parents in that case: (1) the Department created a family service plan that was narrowly tailored to address any specific issues; (2) the Department made referrals for services, provided services and paid for services to address the reasons the child came into care; (3) the Department discussed safe placement options with the mother in that case; (4) the Department provided an opportunity to the mother to visit with children, and noted Mother missed several visits; and (5) the Department made available vouchers for transportation and virtual services on request. Id. at –––– – ––––, 2025 WL 2006075, at *5–6. In that case, our sister court concluded that the trial court's findings were sufficiently specific. Id. at ––––, 2025 WL 2006075, at *7.

3. Subsection (f)

Subsection (f) requires that, before ordering the termination of parental rights, a trial court must find by clear and convincing evidence and describe in writing with specificity in a separate section of the order that the Department “made reasonable efforts to return the child to the parent before commencement of a trial on the merits and despite those reasonable efforts, a continuing danger remains in the home that prevents the return of the child to the parent.” Tex. Fam. Code Ann. § 161.001(f)(1).

Section 6.1, a separate section of the final order, states: “The Court finds by clear and convincing evidence that the Department made reasonable efforts to return the child to the parents. However, despite those reasonable efforts to return the child home to the parents, a continuing danger remains in the home that prevents return.” Section 6.1 makes the required finding under subsection f(1) and is supported by more specific findings about reasonable efforts, discussed below, in Section 6.2 and 6.3. We conclude the trial court's order complies with subsection (f).

4. Subsection (g)

Similarly, subsection (g) requires the trial court to include, in a separate section of its order, written findings describing with specificity the reasonable efforts the Department made to return the child to the child's home. Tex. Fam. Code Ann. § 161.001(g). Mother maintains that the trial court's findings were not sufficiently specific. Mother takes issue with the general statements about efforts to return Max to the “parents,” instead of any specific statements regarding efforts to return Max to Mother. Mother also asserts the trial court erred because it made no specific findings about the continuing danger in the home. She argues that Y.K. is distinguishable because the parents in that case did not challenge the finding that there was a continuing danger in the home preventing the child's return.

However, we disagree with Mother on her interpretation of the statute. There is nothing in subsection (g) which requires the trial court to make specific findings as to the continuing danger in the home. Although the trial court must reach the conclusion that there is a continuing danger in the home which prevented the child's return, the trial court must only make specific findings as to “the reasonable efforts the department made to return the child to the child's home.” Tex. Fam. Code Ann. § 161.001(g).

The amended final order makes the following findings regarding reasonable efforts undertaken by the Department:

6.2. The Court specifically finds that those reasonable efforts include the following: The Department created a family service plan that is narrowly tailored to address any specific issues identified; The Department made a referral for services[.]

6.3. The Department made the following additional reasonable efforts to return the child home to the parents[:] creating family plans of services, regularly attempting to contact the parents to work services, and offered family based services in an attempt to prevent removal.

The phrase “reasonable efforts to return the child to the parent” is not new to Section 161.001 with the enactment of subsections (f) and (g), it appears in Section 161.001(b)(1)(N), known as the “constructive abandonment” statutory termination ground. Tex. Fam. Code Ann. § 161.001(N). We conclude the analysis of reasonable efforts under subsection (N) is instructive to our analysis under subsection (g). See In re M.N.M., 708 S.W.3d 321, 328 (Tex. App.—Eastland 2025, pet. denied) (“We presume that the Texas Legislature enacted Section 161.001(f) with knowledge of the prevailing judicial understanding of ‘reasonable efforts to return the child to parent’ under Section 161.001(b)(1)(N).”).

The Department's implementation of a family service plan is generally considered a reasonable effort to return the child to the parent. See, e.g., A.D. v. Tex. Dep't of Fam. & Protective Servs., 673 S.W.3d 704, 714 (Tex. App.—Austin 2023, no pet.) (finding that the existence of a service plan, the caseworker's repeated attempts to communicate with the mother, and attempt to initially place the child with a family member constituted reasonable efforts); In re L.C.M., 645 S.W.3d 914, 921 (Tex. App.—El Paso 2022, no pet.); In re L.E.R., 650 S.W.3d 771, 786 (Tex. App.—Houston [14th Dist.] 2022, no pet.); In re J.W., 615 S.W.3d 453, 463, 465 (Tex. App.—Texarkana 2020, pet. denied); In re J.S.S., 594 S.W.3d 493, 503 (Tex. App.—Waco 2019, pet. denied); In re M.R.J.M., 280 S.W.3d 494, 505 (Tex. App.—Fort Worth 2009, no pet.). Although evidence of a service plan is not the exclusive means of establishing reasonable efforts to return the child, it is most often the means by which reasonable efforts are established. See In re Y.T.A.-D., No. 14-24-00161-CV, 2024 WL 3715392, at *7 (Tex. App.—Houston [14th Dist.] Aug. 8, 2024, no pet.) (mem. op.). Ultimately, “the issue is whether the Department made reasonable efforts, not ideal efforts.” In re J.A., No. 04-20-00242-CV, 2020 WL 5027663, at *2 (Tex. App.—San Antonio Aug. 26, 2020, no pet.) (mem. op.).

Although the trial court's findings do appear to be superficially generic, they represent the evidence presented at trial as well as the efforts made by the Department. In this case, the evidence reflected that the Department put together a plan and counseled Mother. The Department had several caseworkers who attempted to work with Mother, making referrals and reminding Mother of her appointments. However, the evidence reflected that Mother was noncompliant and refused to complete any services. In February 2025, Mother stopped communicating with the Department or anyone connected to the case. Although Mother challenges the trial court's findings as well as the reasonable efforts of the Department, it is unclear what additional actions the Department could have taken to return Max when Mother refused to work services or communicate.

Given the nature of the case and evidence adduced at trial, we conclude that the trial court's findings pursuant to subsection (g) were sufficiently specific to comply with the statute. We further conclude there is legally sufficient evidence and evidence that is not factually insufficient to support the trial court's reasonable efforts findings on subsections (f) and (g). We overrule issue one.

C. Predicate-termination grounds

In issue two, Mother argues that the evidence was legally and factually insufficient to establish the termination grounds found by the trial court and set forth in subsections (D), (E), (N), and (O) of section 161.001(b)(1).

The trial court made the predicate-termination findings that Mother had committed acts establishing the grounds set out in subsections (D), (E,) (N), and (O) of section 161.001(b)(1), which provides for termination of parental rights if the fact-finder finds by clear-and-convincing evidence that the parent has:

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;

․

(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and: (i) the department has made reasonable efforts to return the child to the parent; (ii) the parent has not regularly visited or maintained significant contact with the child; and (iii) the parent has demonstrated an inability to provide the child with a safe environment; [or]

(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child[.]

Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O).

Only one predicate finding under section 161.001(b)(1) is necessary to support a judgment of termination when there also is a finding that termination is in the child's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

Due process requires, however, that when a parent has challenged the sufficiency of the evidence to support endangerment findings under Family Code section 161.001(b)(1)(D) or (E), an appellate court must address those findings to ensure a meaningful appeal due to the collateral consequences of a finding under those subsections. See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019); In re P.W., 579 S.W.3d 713, 721 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (even though N.G. was decided on constitutional grounds, “consistency with the high court's recent pronouncements demands that, without first determining whether nonconstitutional law requires review of the trial court's (D) and (E) findings, we determine whether Mother's challenge to the (D) and (E) findings has merit”).

1. Termination under subsection (E)

a. Legal standard

We begin with the trial court's finding of endangerment under subsection (E). Termination of parental rights is warranted under subsection (E) if the fact finder finds by clear and convincing evidence, in addition to the best-interest finding, that the parent has “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.” Tex. Fam. Code Ann. § 161.001(b)(1)(E). “To endanger” means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). A finding of endangerment under subsection (E) requires evidence that the endangerment was the result of the parent's conduct, including acts, omissions, or failures to act. In re S.R., 452 S.W.3d 351, 361 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Termination under subsection (E) must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. Id. Relevant evidence in determining whether a parent engaged in a course of endangering conduct includes conduct that occurred before and after the child's birth, in the child's presence and outside the child's presence, and before and after removal by the Department. See J.O.A., 283 S.W.3d at 345. Further, endangerment “does not require [the parent's conduct] to directly harm the child.” In re N.L.S., 715 S.W.3d 760, 764 (Tex. 2025) (quoting In re R.R.A., 687 S.W.3d 269, 277–78 (Tex. 2024)). Instead, the proper inquiry is whether there is evidence that the parent “exhibited a pattern of behavior presenting a substantial risk of harm” to the child. Id.

A parent's past endangering conduct may create an inference that the past conduct may recur and further jeopardize the child's present or future physical or emotional well-being. See S.R., 452 S.W.3d at 367; In re M.T.R., 579 S.W.3d 548, 568 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (“Routinely subjecting a child to the probability he will be left alone because his parent is in jail endangers the child's physical and emotional well-being.”). “Conduct that subjects a child to [a] life of uncertainty and instability endangers the child's physical and emotional well-being.” Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

b. Evidence at trial

Mother contends that there is no evidence supporting the conclusion that she engaged in a voluntary, deliberate, and conscious course of conduct that endangered Max, or that she knowingly placed Max with someone who endangered Max.

She points to a lack of documentary evidence concerning her failed drug tests, and further argues that children cannot be removed from a parent if the parent tests positive for marijuana unless the State has evidence that the children have suffered a significant impairment to their physical health or mental or emotional development. See Tex. Fam. Code Ann. § 262.116(8). Mother also contends that the Department did not do a good job of developing the record and that there was no evidence that Mother placed Max with anyone who endangered Max.

Mother's arguments ignore the uncontroverted contrary evidence supporting the trial court's finding. As discussed above, the Department became involved with Mother after the Department received a referral after Mother brought her youngest child to the hospital unresponsive after he ate a THC gummy. Witnesses for the Department testified that Mother continued to allow her children around the friend whose vehicle her youngest found the gummy in. Although her actions in this first incident did not relate to Max, they reflect part of a pattern of conduct “presenting a substantial risk of harm[.]” N.L.S., 715 S.W.3d at 764.

While that case was open, a school police officer came to find Max after he accrued an excessive amount of school absences. The Department was informed that Mother had left her children, with her sister for several weeks with no communication. Mother's sister had just returned from rehabilitation for methamphetamine use. Max and his siblings were not attending school. There was also evidence that when the school police officer came to check on Max, he was not there but staying with other relatives. Evidence in the case reflects the Department's concern that Mother had a pattern of leaving her children in the care of family members for extended periods of time. There was also evidence Mother regularly engaged in violent conduct. Her conviction for deadly conduct in 2022 was introduced into evidence and testimony from the DFPS investigator reflects that she was still engaging in violent behavior at least a year or more after that conviction.

There was evidence that Mother failed multiple drug tests and did not show up for several other drug tests. In at least one of the tests, Mother tested positive for marijuana and cocaine. There was also evidence that Mother did not have a consistent residence or employment.

Mother missed several visits with Max and left early or arrived late to several others. A parent's failure to exercise permitted visits with a child also lends support to an endangerment finding. See In re C.W.M.P., No. 14-20-00571-CV, 2021 WL 244865, at *7 (Tex. App.—Houston [14th Dist.] Jan. 26, 2021, pet. denied) (mem. op.) (evidence of mother's missed visits with child was properly considered in endangerment analysis); In re A.R.M., 593 S.W.3d 358, 371 (Tex. App.—Dallas 2018, pet. denied) (“missed visits with the child” relevant to an endangerment finding under subsection (E)). Mother also failed to show up to trial and both permanency hearings.

When all the evidence is considered together, the evidence establishes a pattern of conduct on the part of Mother that endangers Max's well-being. Mother's propensity to leave her children with others and without communication jeopardized Max's well-being. Mother did not prioritize Max's education as reflected by his excessive school absences and his educational gaps. Mother's propensity for violence, drug use and failure to participate in services all reflect a pattern of behavior that endangers Max's emotional and psychological well-being. Mother's lack of a stable home and employment are further evidence that suggest life with Mother presents uncertainty and instability for Max that threatens to endanger his well-being.

There is clear and convincing evidence to support the trial court's determination that termination of Mother's parental rights was justified under Family Code section 161.001(b)(1)(E). See, e.g., J.O.A., 283 S.W.3d at 345 (explaining that a parent's drug use and its effect on his or her parenting may qualify as an endangering course of conduct); In re E.A.D., No. 14-22-00025-CV, 2022 WL 2663981, at *6–7 (Tex. App.—Houston [14th Dist.] July 11, 2022, no pet.) (mem. op.). Further, Mother did not appear at trial to present any contrary evidence. In view of the entire record, we conclude that the limitations on the individual pieces of evidence argued by Mother are not so significant as to prevent the trial court from forming a firm belief or conviction that termination was warranted under subsection (E).

Accordingly, we conclude that legally sufficient evidence and evidence that is not factually insufficient supports the trial court's predicate finding under subsection (E).

2. Termination under subsections (E), (N), (O)

Having affirmed the order of the trial court based on subsection (E), which subjects Mother to the applicability of section 161.001(b)(1)(M) as a potential ground for termination in a future termination proceeding for her other children, we need not address the sufficiency of the evidence supporting the termination of Mother's parental rights under subsection (D). Tex. Fam. Code Ann. § 161.001(b)(1)(M) (court may order termination of parent-child relationship if court finds by clear-and-convincing evidence that parent has had parent-child relationship “terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E)”); see N.G., 577 S.W.3d at 237 n.1 (“We recognize that this holding may mean that appellate courts will review findings under section 161.001(b)(1)(D) or (E) without reviewing other grounds. Because those other grounds carry no weight for parental rights to other children ․ due process demands no more.”).

As we have determined at least one predicate ground for termination is supported by legally sufficient evidence and evidence that is not factually insufficient, we need not consider Mother's challenge to the trial court's findings that Mother had committed acts establishing the grounds set out in subsections (N) and (O).⁴

D. Best interest of the child

Within issue two, Mother also argues that the Department's evidence failed to show by clear and convincing evidence that termination of Mother's parental rights was in Max's best interest. Mother argues that the Department analyzed the evidence as if Mother was seeking custody of Max, when she was not. The Department's ultimate plan was for Sarah and Bob to adopt Max. However, because Sarah and Bob could have provided a permanent residence for Max without terminating Mother's rights, she argues the trial court erred in finding that termination of her parental rights was in Max's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2).

Mother's arguments do not address many of the factors a court must consider with respect to a best-interest finding. Because Mother generally challenges the trial court's best-interest findings, we consider the legal- and factual-sufficiency of the evidence rebutting the presumption that not terminating Mother's parental rights was Max's best interest.

1. Legal standard

There is a strong presumption that the best interest of a child is served by keeping the children with a natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) (citing Tex. Fam. Code Ann. § 153.131(b)). “To rebut this presumption, there must be clear and convincing evidence of the natural parent's present unfitness.” In re C.J.S., 383 S.W.3d 682, 691 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement of children in a safe environment is also presumed to be in the children's best interest. Tex. Fam. Code Ann. § 263.307(a). The considerations the fact-finder may use to determine the best interest of the children, known as the Holley factors, include:

(1) the desires of the child;

(2) the present and future physical and emotional needs of the child;

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

(4) the parental abilities of the person seeking custody;

(5) the programs available to assist the person seeking custody in promoting the best interest of the children;

(6) the plans for the child by the individuals or agency seeking custody;

(7) the stability of the home or proposed placement;

(8) acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate; and

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

See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also Tex. Fam. Code Ann. § 263.307(b) (listing factors to be considered in evaluating “whether the child's parents are willing and able to provide the child with a safe environment”). A best-interest finding does not require proof of any unique set of factors or limit proof to any specific factors. See Holley, 544 S.W.2d at 371–72.

2. Sufficiency of the evidence

a. Desires of the child (Holley factor 1)

Max did not testify at trial but there was evidence that his relationship with Mother was not a priority for him. In contrast, the caseworker testified that Max was very interested in maintaining a relationship with his siblings. The caseworker further testified that when Mother had supervised visitation with Max that their interaction appeared disconnected.

Both the caseworker and the CASA advocate testified that Max had been thriving in the care of Sarah and Bob. Max appeared polite, well-dressed, and well-cared for. Max was making progress at school and was getting the interventions he needed to make up the deficit in his education.

Mother responds to this evidence by rhetorically asking what ten-year old boy prioritizes time with his mother. However, this argument appears to be an opinion, which we cannot credit as evidence. There is no evidence in the record suggesting that it was normal and appropriate for a young boy like Max to have little or no interest in a relationship with his mother.

A child's need for permanence through the establishment of a “stable, permanent home” has sometimes been recognized as the paramount consideration in a best-interest determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.). Therefore, evidence about the present and future placement is relevant to the best-interest determination. See C.H., 89 S.W.3d at 28.

The evidence reflecting the progress made by Max, the bond Max was forming with Bob and having a positive male role model, along with his need for stability, weighs in favor of termination.

b. Physical and emotional needs of the child and the physical and emotional danger to the child (Holley factors 2 and 3)

Evidence of a parent's unstable lifestyle can support a fact-finder's conclusion that termination of parental rights is in the child's best interest. In re S.B., 207 S.W.3d 877, 887 (Tex. App.—Fort Worth 2006, no pet.). Lack of stability, including a stable home, supports a finding that the parent is unable to provide for a child's emotional and physical needs. See In re G.M.G., 444 S.W.3d 46, 59–60 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also Doyle v. Tex. Dep't of Protective & Regulatory Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso 2000, pet. denied) (parent's failure to provide stable home and provide for child's needs may contribute to finding that termination of parental rights is in child's best interest).

On this factor, there was an abundance of evidence that Mother was unable to provide for her child's emotional and physical needs. There was evidence that Mother did not have a stable home environment and that Mother got involved in violent activities, as well as used illegal drugs. There was no evidence that Mother had a job or was able to create a safe, positive environment for Max. That Mother helped the Department place Max with Sarah and Bob is positive, but does not counter balance the overwhelming evidence that Mother was not in a position to provide the environment that Max needed or to make decisions in his best interest.

There was evidence that Mother left her children with relatives for many weeks. During that time period, Mother had no contact with her children and did not ensure that they were attending school or receiving proper care. After the incident precipitating Max's removal from the home, there is no evidence that Mother changed her behavior or made any changes to create a safe, stable environment for her children. In fact, rather than participate in services and make positive changes, the evidence reflects that Mother ceased communications with the Department (and anyone involved with the case) and disregarded court orders. She also tested positive for cocaine and marijuana during the pendency of her case. Although the trial court cannot terminate Mother's parental rights based on her usage of marijuana alone, the trial court could consider her repeated positive drug tests as part of her pattern of conduct. The fact that Mother continued to use drugs after her children were removed and she was counseled by the Department reflected her inability to make positive changes. As discussed above, there was clear and convincing evidence that Mother's conduct created emotional and physical danger to Max.

Max's best interest is served by living in a stable environment in which he can thrive emotionally, academically, and physically. The evidence reflects that it was not in Max's best interests for Mother to retain her parental rights, even if she no longer had managing or possessory conservatorship of Max. We conclude Holley factors 2 and 3 weigh in favor of the trial court's finding that termination of Mother's parental rights was in Max's best interest.

c. Parenting abilities and programs available (Holley factors 4 and 5)

There was clear and convincing evidence that Mother did not have the parenting skills that matched the needs of her children. As this opinion has discussed several times already, Mother allowed her children to be in environments where they were exposed to drugs. She also exposed her children to repeated instability by leaving them for weeks without contact and by not having a stable permanent residence. The evidence also reflects that Mother would not participate in any programs or services to make positive changes in her life. There was testimony that programs and services were available, and Mother refused to participate. The caseworker testified that Mother had a vehicle but claimed that she was too busy to complete her services. Holley factor 4 weighs in favor of the trial court's finding that termination of Mother's parental rights was in Max's best interest.

Given Mother's history and refusal to participate in available programs or services, Holley factor 5—the programs available to assist the person seeking custody in promoting the best interest of the child—is neutral with respect to the trial court's best-interest determination.

d. Mother's family service plan (Holley factor 6)

A parent's performance under a service plan is also relevant to several of the Holley factors, including the emotional and physical danger to the child now and in the future, parental abilities, and stability. Holley, 544 S.W.2d at 371–72. It is also relevant to many of the statutory factors for determining the best interest of the child including: (1) the willingness of the parent to seek out, accept, and complete counseling services; (2) the willingness and ability of the parent to effect positive changes within a reasonable time; and (3) whether the parent demonstrates adequate parenting skills. Tex. Fam. Code Ann. § 263.307(b)(10), (b)(11), (b)(12). Given the connection between a family service plan and the Holley and statutory factors, a parent's actions in response to the family service plan are relevant to a child's best interest. See In re E.C.R., 402 S.W.3d 239, 249–50 (Tex. 2013); see also In re M.G.D., 108 S.W.3d 508, 515 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (“[W]e believe a parent's recent turnaround and compliance with a family service plan are factors jurors should consider, but not determinative ones. If the facts involved show progress may take a very long time ․ reasonable jurors may conclude that termination is clearly and convincingly in the child's best interest.”).

Mother completed an assessment required under her family service plan. However, Mother did not complete any of the services or programs required. Although she did appear for several drug tests, she had multiple positive tests reflecting illegal drugs in her system. Nor was Mother able to secure and maintain stable employment or housing. Mother's clear refusal to engage with the Department and her disregard of court orders supports the trial court's conclusion that termination was in Max's best interest, rather than allowing Mother to retain parental rights.

e. Current placement of the child (Holley factor 7)

Holley factor 7 requires that we consider the stability of the home or proposed placement and the plans for the child. Max was placed with Sarah and Bob. The caseworker testified that Sarah and Bob were interested in adopting Max, but there was also testimony that Sarah might have been unsure about adoption. Even without adoption, there was evidence that Sarah and Bob were willing to provide a permanent home for Max.

Max was bonded to Sarah and Bob and evidence reflected that he was doing very well in his placement. This evidence weighs in favor of the trial court's finding that termination was in Max's best interest. Mother argues in this appeal that Sarah and Bob were willing to provide the placement regardless of whether her parental rights were terminated. Although neither Sarah nor Bob testified at trial, the testimony of the caseworker supports Mother's argument. We conclude this factor is neutral with respect to the termination decision.

f. Acts and omissions of the parent and any excuse for those acts or omissions (Holley factors 8 and 9)

The final two Holley factors consider the acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate and any excuse for the parent's acts or omissions. The evidence addressing Holley factor 8 has already been discussed with respect to other Holley factors. The evidence of Mother's drug use, failure to comply with the family service plan, and her endangerment of Max supports the finding of the trial court that the parent-child relationship was not appropriate. Under Holley factor 9, we consider whether there was any excuse for Mother's acts or omissions. There is no evidence in the record affording any excuse or explanation for Mother's behavior. We further note that although she was represented at trial, Mother did not come to trial to fight for her parental rights.

On appeal, Mother seems to suggest that she might have come to trial had her attorney told her the trial date. However, Mother's argument misrepresents her trial counsel's comments. Mother's appointed counsel told the trial court that she had not been in contact with her client and had been unable to verify Mother's contact information. During the course of trial, it became clear that Mother's appointed attorney had Mother's current phone number but had not received any response from Mother.

We conclude these two factors support the finding of the trial court that termination of Mother's parental rights was in Max's best interest.

g. Analysis

The evidence at trial supports the trial court's finding that termination of Mother's parental rights is in Max's best interest, including the evidence of the stability of his current placement, his progress in that placement, the probability of permanence or adoption in those placements, the instability of Mother's life, as well as the comparative lack of evidence regarding Mother's resources and ability to care for Max. See In re L.M., 572 S.W.3d 823, 838 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“[T]he trial court reasonably could have formed a firm belief or conviction that terminating Father's parental rights was in the child's best interest so that she could promptly achieve permanency through adoption.”).

Considering and weighing the disputed evidence contrary to the best-interest determination against all the evidence favoring the best-interest determination, giving due deference to the trial court's findings, and after a review of the entire record with a healthy regard for the constitutional interests at stake, we conclude the evidence is such that a fact-finder could reasonably form a firm belief or conviction that termination of Mother's parental rights was in Max's best interest. See In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re J.O.A., 283 S.W.3d at 345. Thus, the evidence is legally sufficient and not factually insufficient to support the trial court's best-interest determination.

We overrule issue two.

E. Challenge to conservatorship determination

In issue three, Mother argues she was able to provide her child with a safe and stable environment—through her sister—negating the need for government intervention. Therefore, Mother argues that the trial court should have named Sarah and Bob as the permanent managing conservators of Max without termination of her parental rights. The Department responded that Mother does not have standing to challenge the appointment of the Department as conservator and that Mother's challenge ultimately is subsumed into the appeal of the overall termination order.

In her reply, Mother argues that the Department misunderstands her challenge, which is fundamentally a due process challenge that there was a less restrictive option to keep Max with Sarah and Bob that did not involve terminating her parental rights. Although, she does state that “[i]f nothing else, this issue blends into the best interest argument.” Citing Family Code section 263.404, Mother asserts that the trial court should have named Sarah and Bob as managing conservators without terminating Mother's parental rights. See Tex. Fam. Code Ann. § 263.404. Mother correctly notes that if the trial court had not terminated her parental rights, Sarah and Bob could have been named as managing conservators. However, the trial court did terminate her parental rights. Further, the Texas Supreme Court has explained Section 263.404 applies only when the Department does not seek to terminate parental rights in the trial court proceedings[.]” In re J.A.J., 243 S.W.3d 611, 614 (Tex. 2007).

Due process was afforded to Mother throughout the pendency of her case. Mother received notices and the opportunity to participate and seek the return of her child. Mother's argument that termination was not the least restrictive solution or was not narrowly tailored is considered in various factors of the best-interest analysis. We agree with Mother that her due process challenge to termination is subsumed within the predicate termination grounds and the best-interests analysis. However, Mother's argument that Sarah and Bob could have been named managing conservators does not answer the legal question raised by the Department in this case of whether Mother's parental rights should have been terminated. Having already concluded that there were predicate termination grounds supporting the termination of Mother's parental rights and that termination was in the best interest of Max, this argument is unpersuasive.

To the extent that Mother also argues that the trial court erred by appointing the Department when it should have appointed Sarah and Bob, conservatorship determinations are subject to review for abuse of discretion, and may be reversed only if the decision is arbitrary and unreasonable. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

Mother argues that the Department sought to terminate her rights and appoint the Department as the sole managing conservator because the Department wanted Sarah and Bob to qualify for benefits under the Permanency Care Assistance (PCA)⁵ program. Tex. Fam. Code Ann. § 264.851—.856. There was testimony at trial that if Sarah and Bob were appointed as Max's managing conservators rather than the Department that Sarah and Bob would not be eligible for benefits under the PCA program. Mother seizes on a statement made by the caseworker that Sarah was “wealthy” to argue on appeal that Sarah did not need the PCA benefits and that those benefits did not justify terminating her parental rights. We first note that the record is not clear as to what the caseworker meant by “wealthy” as there were no follow up questions. And, although Mother seems to argue that Sarah should not receive the PCA benefits, nothing in the statute or in our record appears to limit their applicability. Mother also cites no authority supporting her conclusion.

Regardless, once the trial court had concluded that termination of Mother's parental rights was warranted, the determination of Max's managing conservator was within the trial court's discretion. Given that Sarah and Bob had not completed the licensing process to become a verified foster home for Max, we cannot say the trial court abused its discretion. See Tex. Fam. Code Ann. § 264.852(c) (PCA program includes requirements relating to the criminal history background check of a kinship provider and other eligibility criteria). And even if the Department and the trial court were influenced by the potential for Max and his caregivers to receive certain financial benefits, we cannot say that the trial court abused its discretion in appointing the Department as Max's permanent managing conservator.

We overrule issue three.

III. Conclusion

Having overruled issues one, two and three, and without reaching issue four, we affirm the trial court's final order of termination as challenged on appeal.

FOOTNOTES

1.   We refer to the final hearing as the “trial.”

2.   To protect the minors’ identity, we have not used the actual names of the children, parents, or other family members. See Tex. R. App. P. 9.8.

3.   The parental rights of Max's adjudicated father, M.B. (Father), were terminated as well. Father did not appear at trial and has not appealed the final order.

4.   Mother argues in issue four that the trial court erred by terminating her parental rights pursuant to subsection (O). Because the trial court rendered its amended final order after the effective date for the Legislature's repeal of Section 161.001(b)(1)(O), Mother argues that we should modify the final order to remove subsection (O) as a predicate termination ground. However, because we have already concluded at least one predicate ground for termination is supported by legally sufficient evidence and evidence that is not factually insufficient, we need not reach this issue. Termination under subsection (O) carries no collateral consequences with respect to parental rights of other children. We overrule issue four.

5.   The PCA program provides benefits to kinship placements that give an extra permanent option for children and youth who might otherwise grow up in foster care. This program requires that relatives and close family friends become the child's verified foster parents for at least 6 months, along with other requirements before they sign a PCA agreement, and the court grants them Permanent Managing Conservatorship. See Tex. Fam. Code Ann. § 264.851(2)–(4), .852. Testimony at trial established that Sarah and Bob were not licensed so they had not yet fulfilled the requirements necessary to receive benefits in the program.

Tonya McLaughlin, Justice