In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-19-00289-CV 

IN THE INTEREST OF M.G. AND M.G., III, CHILDREN 

 

On Appeal from the 320th District Court 

Potter County, Texas 

Trial Court No. 91,446-D-FM, Honorable Pamela C. Sirmon, Judge Presiding 

 

February 7, 2020 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and PARKER and DOSS, JJ. 

In this accelerated appeal, appellant, Father, seeks reversal of the trial court’s 

judgment terminating his parental rights to M.G. and M.G. III.1 Father challenges the

sufficiency of the evidence to support the trial court’s findings under the predicate 

grounds, and the finding that termination is in the best interest of the children. We affirm 

the judgment of the trial court.

1 To protect the privacy of the parties involved, we refer to the father of the children as “Father” and 

to the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2018); TEX. R. APP. P.

9.8(b). The mother’s parental rights were also terminated in this proceeding. She has not appealed.
2

Background

In February 2018, the Texas Department of Family and Protective Services 

received a report alleging neglectful supervision and physical abuse of M.G. and M.G. III 

by Father.2 The Department’s investigator found the home in a deplorable condition and 

“not livable.” There was food and trash throughout the home. As a part of the 

Department’s investigation, drug testing was performed, and Father tested positive for 

methamphetamine and marijuana. The Department filed its petition for protection, 

conservatorship, and termination of parental rights. Following an adversary hearing, the 

Department was appointed temporary managing conservator, and M.G. and M.G. III were 

placed in separate foster homes.

The Department scheduled a family group conference and sought Father’s input 

on the creation of a family service plan. Father attended the conference and participated 

in the creation of a family service plan. The caseworker reviewed the service plan with 

Father after it was created and periodically reviewed it with him as he completed services.

The court-ordered service plan set out several tasks and services for Father to 

complete before reunification with the children could occur. These tasks and services 

included the following: complete a psychological evaluation and follow recommendations; 

maintain regular contact with his caseworker; abstain from the use of illegal drugs; submit 

to random drug screens; locate and maintain stable housing that is free from drugs and 

2 Father was previously indicted for injury to a child, a state jail felony, for recklessly causing bodily 

injury to M.G. in August of 2012. Father pleaded guilty and received four years’ deferred adjudication 

community supervision. In January of 2015, Father’s deferred adjudication was revoked, he was 

adjudicated guilty of injury to a child, and he was sentenced to confinement for one year in the Texas 

Department of Criminal Justice.
3

violence; locate and maintain stable employment; complete a psychosocial assessment 

and follow recommendations; attend individual counseling; take parenting classes;

participate in rational behavior therapy (RBT); complete the Battering Intervention and 

Prevention Program (BIPP); and participate in a substance abuse assessment at 

Outreach, Screening, Assessment, and Referral (OSAR) and follow recommendations. 

The purpose of the family service plan was to work with Father to mitigate the reasons 

for the removal of the children. The plan warned Father that if he was “unwilling or unable 

to provide [M.G. and M.G. III] with a safe environment, [his] parental . . . rights may be 

restricted or terminated or [M.G. and M.G. III] may not be returned” to him.

The trial court conducted a status hearing on May 17, 2018, and Father and his 

counsel attended the hearing. Following the hearing, the trial court signed a status 

hearing order, approving and adopting the Department’s service plan as an order of the 

trial court. In the order, the trial court found that Father had reviewed, understood, and 

signed the service plan.

Father satisfied the plan’s requirement that he maintain stable employment, 

complete a psychosocial evaluation, participate in RBT, and attend a parenting class.

The Department caseworker scheduled an OSAR evaluation for Father three 

times, but he failed to complete the evaluation. Father did not participate in individual 

counseling or BIPP. Father admitted to his caseworker that he was continuing to use

drugs “because he’s coping with the stress of his children being removed.” He did not 

consistently comply with the requirement to drug screen, but when he did submit to drug 

screens, he tested positive for methamphetamine and marijuana.
4

In March of 2019, the caseworker visited Father at his home and discussed 

appropriate living conditions for the children. The caseworker took photographs of the 

home which showed a lack of cleanliness and the presence of what appeared to be 

methamphetamine on a kitchen counter. According to the worker, two photographs 

showed “little baggies on the glass—the piece of glass” and “crumbling white residue on 

the glass piece.” The last time the caseworker visited Father’s home, Father said he had 

to leave, and the worker “was just able to see inside the living room, the kitchen, just 

glancing in for a moment.” The general condition of the home at that time remained 

unchanged from her previous visits to the home. The caseworker stated she would have 

concerns with returning the children to Father’s home because of the condition of the 

home and the presence of drugs. In April 2019, Father’s visitation with the children was 

discontinued by the judge because of high levels of drug usage on his drug screens.

The maternal grandmother testified that the children need “some normal,” but she 

was not able to have the children live with her. She said it was in the best interest of the 

children for the Department to find an adoptive home for both children together. The 

caseworker testified that Father loved the children and that there is a bond between the 

children and Father. The Department’s plan for the children was termination of parental 

rights and adoption. The Department had located an adoptive placement so that both 

children could live together. The children assisted the Department in choosing an 

adoptive family. The children have met the prospective adoptive family and the children 

are very happy. The prospective adoptive family is “very happy as well.”

On June 27, 2019, the associate judge held a final hearing concerning termination 

of Father’s parental rights to M.G. and M.G. III. Father did not appear. After testimony, 
5

the associate judge terminated Father’s parental rights on the grounds set forth in Texas 

Family Code section 161.001(b)(1)(L) and (O), and found that termination would be in 

M.G. and M.G. III’s best interest. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 

2019).3 The court appointed the Department as the managing conservator of M.G. and 

M.G. III.

On appeal, Father raises three issues challenging the trial court’s order of 

termination of his parental rights.

Standard of Review

When reviewing the legal sufficiency of the evidence in a termination case, the 

appellate court should look at all the evidence in the light most favorable to the trial court’s 

finding “to determine whether a reasonable trier of fact could have formed a firm belief or 

conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). To 

give appropriate deference to the factfinder’s conclusions, we must assume that the 

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

so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or 

found to have been not credible, but we do not disregard undisputed facts. Id. Even 

evidence that does more than raise surmise or suspicion is not sufficient unless that 

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

re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency 

review, we determine that no reasonable factfinder could have formed a firm belief or 

3 Further references to provisions of the Texas Family Code will be by reference to “section__” or 

“§ __.”
6

conviction that the matter that must be proven was true, then the evidence is legally 

insufficient and we must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).

In a factual sufficiency review, we must give due consideration to evidence that the 

factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 

S.W.3d at 266. We must determine whether the evidence is such that a factfinder could 

reasonably form a firm belief or conviction about the truth of the Department’s allegations. 

Id. We must also consider whether disputed evidence is such that a reasonable factfinder 

could not have resolved the disputed evidence in favor of its finding. Id. 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. Id.

Applicable Law

Involuntary termination of parental rights is a serious proceeding implicating 

fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). A 

parent’s right to the “companionship, care, custody, and management” of his or her child 

is a constitutional interest “far more precious than any property right.” Santosky v. 

Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re M.S.,

115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination

proceedings and strictly construe the involuntary termination statutes in favor of the 

parent. Holick, 685 S.W.2d at 20. However, “the rights of natural parents are not 

absolute” and “[t]he rights of parenthood are accorded only to those fit to accept the 

accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re 

J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may forfeit his or 
7

her parental rights by his or her acts or omissions, the primary focus of a termination suit 

is protection of the child’s best interest. In re T.G.R.-M., 404 S.W.3d 7, 12 (Tex. App.—

Houston [1st Dist.] 2013, no pet.).

In a case to terminate parental rights by the Department under section 161.001 of 

the Family Code, the Department must establish, by clear and convincing evidence, that 

(1) the parent committed one or more of the enumerated acts or omissions justifying 

termination and (2) termination is in the best interest of the child. § 161.001(b). Clear 

and convincing evidence is “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.” § 101.007 (West 2019); In re J.F.C., 96 S.W.3d at 264. Both elements 

must be established and termination may not be based solely on the best interest of the 

child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 

531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. 

denied). “Only one predicate finding under section 161.001[(b)](1) is necessary to 

support a judgment of termination when there is also a finding that termination is in the 

child’s best interest.” In re A.V., 113 S.W.3d at 362. We will affirm the termination order 

if the evidence is both legally and factually sufficient to support any alleged statutory 

ground the trial court relied upon in terminating the parental rights if the evidence also 

establishes that termination is in the child’s best interest. In re K.C.B., 280 S.W.3d at 

894-95.

The clear and convincing evidence standard does not mean the evidence must 

negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S., 

902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall 
8

that the trier of fact has the authority to weigh the evidence, draw reasonable inferences 

therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the 

right to resolve credibility issues and conflicts within the evidence and may freely choose 

to believe all, part, or none of the testimony espoused by any particular witness. Id. 

Where conflicting evidence is present, the factfinder’s determination on such matters is 

generally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 

1997, no writ).

The appellate court cannot weigh witness credibility issues that depend on 

demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d 

570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript, 

the appellate court must defer to the factfinder’s determinations, as long as those 

determinations are not themselves unreasonable. Id.

Analysis

Conviction for Serious Injury to a Child Under § 161.001(b)(1)(L)

In his first issue, Father challenges the legal and factual sufficiency of the evidence 

to support the termination of his parental rights under section 161.001(b)(1)(L). Parental 

rights may be terminated under subparagraph L if the trial court finds that the parent has 

“been convicted or has been placed on community supervision, including deferred 

adjudication community supervision, for being criminally responsible for the death or 

serious injury of a child under . . . [certain] sections of the Penal Code.” TEX. FAM. CODE

ANN. § 161.001(b)(1)(L); In re D.J.V., No. 14-15-00419-CV, 2015 Tex. App. LEXIS 10961,

at *6 (Tex. App.—Houston [14th Dist.] Oct. 27, 2015, no pet.) (mem. op.).
9

The Department offers no argument in response to this ground and relies solely

on subparagraph O as the statutory ground supporting termination. Because only one

statutory ground is required to support termination,

4 we will evaluate the parties’

arguments pertaining to the legal and factual sufficiency of the evidence to support

termination under subparagraph O. In light of our ultimate conclusion, consideration of

Father’s first issue challenging termination under subparagraph L is pretermitted. TEX.

R. APP. P. 47.1.

Failure to Comply with Court-Ordered Service Plan Under § 161.001(b)(1)(O)

In his second issue, Father challenges the Department’s “failure to prove by clear 

and convincing evidence each of the elements required to support a termination finding 

under subsection (O).”

A trial court may terminate parental rights based on section 161.001(b)(1)(O) if the 

Department establishes by clear and convincing evidence that the child was removed 

under Chapter 262 because of abuse or neglect, the Department has been the permanent 

or temporary managing conservator for at least nine months, a court order specifically 

established the actions necessary for the parent to obtain the return of the child, and the 

parent failed to comply with that order. § 161.001(b)(1)(O); In re J.F.C., 96 S.W.3d at 

278-79. The Supreme Court has broadened the “abuse or neglect” elements to include 

risks or threats of the environment in which the child is placed. In re E.C.R., 402 S.W.3d 

239, 248 (Tex. 2013). In 2017, the Legislature amended section 161.001 and added 

subsection (d), which provides that termination under subsection (b)(1)(O) is disallowed 

4

In re A.V., 113 S.W.3d at 362.
10

if the parent proves, by a preponderance of the evidence, that the parent was unable to 

comply with the specific provisions of the court order, and made a good faith effort to 

comply but was unsuccessful through no fault of the parent. § 161.001(d). However, in 

the absence of proof under subsection (d), we cannot consider “substantial compliance” 

with a court-ordered family service plan to be the same as completion. In re C.R., No. 

07-19-00009-CV, 2019 Tex. App. LEXIS 3082, at *9 (Tex. App.—Amarillo Apr. 16, 2019, 

no pet.) (mem. op.).

This Court has held that, to support a termination order based on section 

161.001(b)(1)(O), there must be a court order rather than simply a Department-generated 

service plan. In re B.L.R.P., 269 S.W.3d 707, 710-11 (Tex. App.—Amarillo 2008, no pet.); 

see also In re Z.B. & Z.B., No. 07-16-00026-CV, 2016 Tex. App. LEXIS 7420, at *13 (Tex. 

App.—Amarillo July 12, 2016, no pet.) (mem. op.) (holding that failure of the appellate 

record to contain a court order establishing the actions necessary for a parent to obtain 

the return of his child defeats a termination order based on subsection (O)). A family 

service plan that is signed by a parent alone does not satisfy the court-order requirement 

of the statute until it has been specifically incorporated into a subsequently signed court 

order. In re C.R., 2019 Tex. App. LEXIS 3082, at *14-15.

Section 161.001(b)(1)(O) makes clear that an order must be sufficiently specific to 

warrant termination of parental rights for failure to comply with the order. In re N.G., 577 

S.W.3d 230, 238 (Tex. 2019) (per curiam). On appeal, a court must consider whether the 

order, and the service plan, if it was incorporated into the order, was sufficiently specific. 

Id. A trial court order referenced by section 161.001(b)(1)(O) that establishes the actions 

necessary for the parent to obtain return of a child in the Department’s custody is 
11

sufficiently specific when the terms for compliance are set forth with certainty so that the 

parent knows what duties and obligations have been imposed. Id. at 238.

A Department caseworker testified that the children were removed due to concerns 

of the unsanitary conditions of the home and drug use by Father. During the Department’s 

investigation, Father admitted to using methamphetamine and marijuana and drug testing 

confirmed his drug use. The trial court entered an “order for protection of a child in an 

emergency,” recognizing that the children had been removed and finding that there 

existed a continuing danger to their physical health and safety. The Department was 

appointed the temporary managing conservator of M.G. and M.G. III in March of 2018. 

When the case was tried before the associate judge on June 27, 2019, M.G. and M.G. III 

had been in the Department’s care for approximately fifteen months. This evidence 

supports a finding of the first two elements required under subsection (O), that the children 

were removed from a parent due to abuse or neglect and that the Department has been 

the children’s temporary managing conservator for at least nine months.

The next two elements are whether there was a court-ordered service plan and 

whether the parent complied with the provisions of the order. In this case, the temporary 

order filed on April 3, 2018, ordered Father’s compliance “with each requirement set out 

in the Department’s original, or any amended, service plan during the pendency of this 

suit.” Father participated in the creation of his family service plan at the family group 

conference. Additionally, Father and his attorney attended the status hearing on May 17, 

2018, and the court made the following findings in its status hearing order:

2.1 The Court, having reviewed the pleadings, and considered all evidence 

and information required by law, including all service plans and court reports 

filed by the Department . . .
12

2.5 The Court, having reviewed the service plans filed by the Department, 

finds, except as specifically noted below, that the service plans are 

reasonable, accurate, and in compliance with the previous orders of the 

Court.

2.11 The Court finds that [Father] has reviewed the service plans.

2.12 The Court finds that [Father] has signed the plan.

4.1 IT IS ORDERED that, except as specifically modified by this order, the 

permanency plans and recommendations for the child, set out in the service 

plans filed with the Court, are approved and adopted by the Court as if set 

out verbatim in this order.

At the status hearing, the associate judge found that Father has reviewed the 

service plan and signed the plan. The status hearing order “approved and adopted”

Father’s filed service plan “as if set out verbatim in this order.” At the final hearing, the 

service plan was admitted into evidence as an exhibit. The service plan is the only service 

plan in the record for Father. There is no record evidence to indicate that Father’s plan 

of service was changed or modified. Consequently, we conclude that this evidence 

supports the finding that the family service plan in this case was court-ordered.

In addition to evidence supporting that the family service plan was court-ordered, 

the record evidence also supports a finding that the family service plan was sufficiently 

specific to support termination. The family service plan incorporated into the trial court’s 

order in May 2018 specifically stated the actions and responsibilities that are necessary 

to achieve the plan goal during the period of the service plan.5 Regarding those tasks, 

the caseworker testified that Father completed some of these services, but not all of them. 

5 The plan detailed a task/service required, a timeframe for accomplishing the task/service, and an 

address and contact information for service providers.
13

Father completed RBT, submitted to a psychosocial evaluation, maintained stable 

employment, and attended one parenting class.

The caseworker also testified that Father has not maintained a drug-free lifestyle 

or an appropriate home. The caseworker testified that Father has not consistently 

complied with the requirement to drug screen and the drug screens he has taken have 

been consistent with his admission of use of methamphetamine and marijuana. 

Additionally, Father told the caseworker that he continued to use drugs during the case, 

because “[h]e’s coping with the stress of his children being removed.” Less than three 

months before trial, the home was “definitely not clean” and had food and trash 

“everywhere.” Further, Father did not complete parenting classes, participate in individual 

counseling, complete BIPP, or complete a substance abuse assessment by OSAR.

As to drug testing, the plan provided:

[Father] will maintain a drug-free lifestyle and abstain from the use of illegal 

drugs or drugs for which he does not have a valid prescription. [Father] will 

submit to random drug tests (including saliva test, UAs, and hair follicle) as 

requested by the Department on the day requested and at the location 

requested. [Father] will test “negative” during these random tests—

indicating non-use of illegal drugs or drugs for which he does not have a 

valid prescription. Failure to take the random drug test on the date 

requested will be considered as “positive” to the Department. It is also seen 

as failure to follow the court order or service plan. The Department will pay 

for the drug tests.

The plan then identified the name, address, and phone number of the site where drug 

tests would be administered.

As to housing, the plan provided:

[Father] will locate and maintain stable housing that has working utilities and 

is free from drugs and violence. [Father] will remove or lock up anything in 

the home that poses a risk of harm to his children. [Father] will establish 

daily routines and schedules, and learn to live a less chaotic lifestyle. 

[Father] will allow announced and unannounced home visits to his home.
14

As to parenting classes, the plan provided:

[Father] will actively participate in and complete parenting classes. [Father] 

will participate in a class that teaches him parenting skills which are 

appropriate for the ages of children. [Father] will be responsible for 

attending two one-day classes if he does not take a ten week class. [Father] 

will exhibit proper parenting skills in all of his interactions with his children. 

[Father] will be responsible for any payments regarding his classes.

The plan then provided the name, address, and phone number of three local 

organizations where parenting classes are offered.

As to individual counseling, the plan provided:

[Father] will attend individual counseling with [a] therapist to address the 

issues related to his drug abuse, separation from his children, his criminal 

history and pending criminal charges, issues related to the removal of the 

children, and any addition[al] issues that arise during the sessions. [Father] 

will attend at least six (6) bi-weekly sessions of counseling or until released 

by the therapist. [Father] will follow any and all recommendations made by 

the therapist.

The plan then provided the name, address, and phone number of the counseling service.

As to completion of BIPP, the plan provided:

[Father] will participate in and complete the Battering Intervention and 

Prevention Program (BIPP). [Father] will attend BIPP classes weekly until 

completing the program. He will provide a certificate to this worker no later 

than 10 days after the completion of classes. [Father] will demonstrate an 

understanding of the material presented and be able to apply it to his 

everyday interactions. [Father] will follow through with any and all 

recommendations made by the class instructor.

The plan then stated the name, address, and phone number of the BIPP provider.

As to the substance abuse assessment, the plan provided, “[Father] will participate 

in and complete a substance abuse assessment with OSAR. Father will follow through 

with any and all recommendations from OSAR.” The plan then provided the name and 

address where OSAR would be administered.
15

Father does not assert that the order was vague or that he did not know where to 

go or who to call to schedule classes or individual counseling. In fact, the evidence 

indicates otherwise, as Father completed several services under the plan. While Father 

indicated to the caseworker that, for services in general, he needed to maintain his job 

rather than complete services, Father did not request an accommodation for his work 

schedule. If he had done so, the Department has “multiple” therapists that it can utilize, 

and some therapists are available as late as 8:00 p.m. to 9:00 p.m. The caseworker also 

testified that Father had a work truck available for transportation. Moreover, Father 

attended an OSAR assessment, but failed to return with information needed to complete 

the assessment. This evidence suggests that the family service plan was sufficiently 

specific to put Father on notice as to what tasks he was required to complete.

We conclude the trial court was presented with clear and convincing evidence 

sufficient to support a finding that Father failed to comply with specific, itemized tasks, 

which were contained within a court order, required to obtain the return of his children. 

See In re N.G., 577 S.W.3d at 238. As such, Father’s second issue is overruled.6

Best Interest of the Children

In his third issue, Father challenges the legal and factual sufficiency of the 

evidence supporting the best interest finding made under section 161.001(b)(2). A 

determination of best interest necessitates a focus on the child, not the parent. See In re 

B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts 

6 Father did not expressly raise an issue under section 161.001(d), which provides exceptions to 

termination of parental rights under section 161.001(b)(1)(O). See § 161.001(d). As such, we do not 

address section 161.001(d) in our analysis of this issue.
16

examine the entire record to decide what is in the best interest of the child. See In re 

E.C.R., 402 S.W.3d at 250. There is a strong presumption that it is in the child’s best 

interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 

2006).

In assessing whether termination is in a child’s best interest, the courts are guided 

by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 

1976). These factors include: (1) the desires of the child, (2) the emotional and physical 

needs of the child now and in the future, (3) the emotional and physical danger to the 

child now and in the future, (4) the parental abilities of the individuals seeking custody, 

(5) the programs available to assist these individuals to promote the best interest of the 

child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) 

the stability of the home or proposed placement, (8) the acts or omissions of the parent 

that may indicate that the existing parent-child relationship is not proper, and (9) any 

excuse for the acts or omissions of the parent. Id. “[T]he State need not prove all of the 

factors as a condition precedent to parental termination, ‘particularly if the evidence were

undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E., 

95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re 

C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory 

grounds for termination may also constitute evidence illustrating that termination is in the 

child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis 

may consider circumstantial evidence, subjective factors, and the totality of the evidence 

as well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, 

no pet.). We must also bear in mind that a child’s need for permanence through the 

establishment of a stable, permanent home has been recognized as the paramount 
17

consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex. 

App.—Dallas 2007, no pet.).

The desires of the children

At the time of trial, M.G. was eleven years old and M.G. III was nine years old. The 

caseworker testified that Father loved the children and that there is a bond between the 

children and Father. There was also testimony that the children assisted the Department 

in choosing an adoptive family and that the children are happy with the prospective 

adoptive family. This factor weighs neither for nor against termination.

The emotional and physical needs of and danger to the children

The next two factors are the child’s emotional and physical needs now and in the 

future, and the emotional and physical danger to the child now and in the future. The 

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

physical and emotional needs. Edwards v. Tex. Dep’t of Protective & Regulatory Servs.,

946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ). A parent’s inability or 

unwillingness to provide adequate care for his children, lack of parenting skills, and poor 

judgment may be considered when looking at the children’s best interest. In re C.A.J.,

122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.). A parent’s ongoing drug 

use is conduct that subjects children to a life of uncertainty and instability, which 

endangers the physical and emotional well-being of the children. In re J.O.A., 283 S.W.3d 

336, 346 (Tex. 2009).

Father dismissed concerns expressed by the Department caseworker about the 

cleanliness of the home, and the physical condition of the home changed very little during 
18

the Department’s involvement. Moreover, Father did not complete his plan of service and 

his continued use of marijuana and methamphetamine pose a risk to M.G. and M.G. III’s 

safety and stability. Less than three months before trial, the caseworker testified that 

there was a substance she identified as methamphetamine on Father’s kitchen counter. 

Father’s unwillingness or inability to maintain a drug-free home suggests that similar 

conduct will occur in the future, thereby constituting evidence of emotional and physical 

danger to the children now and in the future. In re D.L.N., 958 S.W.2d 934, 941 (Tex. 

App.—Waco 1997, pet. denied). The trial court could have concluded that Father is 

unable to meet the physical or emotional needs of M.G. and M.G. III and is unable to 

protect the children from physical or emotional danger. These two factors weigh heavily 

in favor of the trial court’s best interest determination.

Parenting ability and programs available to assist party seeking custody

The fourth and fifth factors will be discussed together. In reviewing the parenting 

ability of the parent, a factfinder can consider the parent’s past neglect or past inability to 

meet the physical and emotional needs of the child. In re G.N., 510 S.W.3d 134, 139 

(Tex. App.—El Paso 2016, no pet.). “A parent’s drug use, inability to provide a stable 

home, and failure to comply with his family service plan support a finding that termination

is in the best interest of a child.” In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort 

Worth 2006, no pet.). The factfinder can infer from a parent’s failure to take the initiative 

to avail himself of the programs offered to him by the Department that the parent “did not 

have the ability to motivate [him]self to seek out available resources needed now or in the 

future.” In re J.M., No. 01-14-00826-CV, 2015 Tex. App. LEXIS 2130, at *21 (Tex. App.—
19

Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem. op.) (citing In re W.E.C., 110 S.W.3d 

231, 245 (Tex. App.—Fort Worth 2003, no pet.)).

Father did not testify at trial regarding his parenting abilities. However, the 

Department introduced evidence concerning Father’s 2012 indictment for injury to a child. 

The indictment alleged that Father struck M.G.’s face with a remote control and he

pleaded guilty and received deferred adjudication community supervision. While Father

completed some of his court-ordered services, he failed to complete a substance abuse 

assessment, failed to abstain from the use of illegal drugs, and continued to live in an 

unsafe home environment despite the Department’s intervention. Father’s failure to 

complete these necessary services could have led the trial court to infer that Father did 

not have the ability to motivate himself to seek out available resources now or in the 

future. See id. at *21-22. The trial court was entitled to find that this evidence weighed 

in favor of the best interest finding.

Plans for the children and stability of the home or placement

We will consider the sixth and seventh factors together. The sixth factor examines 

the plans for the children by those individuals or the agency seeking custody. The 

seventh factor is the stability of the home or proposed placement. Stability and 

permanence are paramount in the upbringing of children. In re J.D., 436 S.W.3d 105, 

120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may compare the 

parent’s and the Department’s plans for the children and determine whether the plans 

and expectations of each party are realistic or weak and ill-defined. Id. at 119-20.

Since Father did not appear at the final hearing, there is no evidence of his plans 

for the children should the children be returned to his care. There is evidence that Father 
20

is unable or unwilling to provide a safe, stable, and drug-free home environment suitable 

for M.G. and M.G. III. Conduct that subjects children to a life of uncertainty and instability 

also endangers the children’s physical and emotional well-being. In re M.R.J.M., 280 

S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.).

The Department’s plan for the children was termination of parental rights and 

adoption. The maternal grandmother testified that the children need “some normal,” and 

it is in the best interest of the children for the Department to find an adoptive home for 

both children together. The children assisted the Department in choosing an adoptive 

family and the children have met the family. “[T]he children are very happy,” and the 

prospective adoptive family is “very happy as well.”

The Department’s plan for the children would provide permanence and stability for 

M.G. and M.G. III. This evidence supports the trial court finding that termination was in 

the best interest of the children.

Acts and omissions of the parent

The eighth factor is the parent’s acts or omissions that may indicate that the 

existing parent-child relationship is not a proper one. The record indicates Father pleaded 

guilty to injury to a child in 2012 and that M.G. was the victim. Father admitted to using 

methamphetamine and marijuana prior to the children’s removal and during the pendency 

of this case. Father’s drug use was of such a magnitude that the judge discontinued his 

visitation with the children two months before trial. Moreover, Father did not attend the 

final hearing. The absence of a parent at the trial to terminate his parental rights is 

prejudicial to the parent. In re J.D.S., 111 S.W.3d 324, 327 (Tex. App.—Texarkana 2003, 

no pet.). Father was aware from the time that M.G. and M.G. III were taken into care by 
21

the Department that his parental rights were in jeopardy and that he was required to 

complete services offered by the Department in order to be reunited with the children. 

Although the evidence showed that Father completed some of the service plan’s 

requirements, the evidence showed that Father did not comply with the portion of his plan 

designed to address the reasons the children were taken into care, including: Father’s

failure to maintain stable housing that is free from drugs, maintain a drug-free lifestyle 

and submit to random drug screens, and participate in and complete a substance abuse 

assessment.

In considering this evidence, the trial court could have found that the existing 

parent-child relationship is not a proper one.

We conclude that the evidence is both legally and factually sufficient to establish 

a firm conviction in the mind of the trial court that termination of Father’s parental rights 

is in the best interest of M.G. and M.G. III. Issue three is overruled.

Conclusion

The judgment of the trial court terminating Father’s parental rights is affirmed.

Judy C. Parker

 Justice

Quinn, C.J., concurs in the result.