Opinion issued May 9, 2017

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-16-00942-CV

———————————

IN THE INTEREST OF T.M. AND E.M., CHILDREN

On Appeal from the 315th District Court

Harris County, Texas

Trial Court Case No. 2014-03559J

MEMORANDUM OPINION

E.M. appeals from the trial court’s judgment terminating his parental rights to 

his daughters, T.M. (“Theresa”) and E.M. (“Emma”). In one issue, E.M. contends 

that the evidence is factually insufficient to support a finding that termination of his 

parental rights is in the children’s best interest. We affirm.
2

Background

On April 18, 2014, the Department of Family and Protective Services received 

a referral alleging neglectful supervision of Theresa (three years old) and Emma (one 

year old) by their mother, A.N.T. The referral alleged that A.N.T. was charged with 

child endangerment after being stopped for driving 84 to 100 miles an hour with 

Theresa in the car. This incident led to her subsequent arrest for possession of 

cocaine.1 Theresa was subsequently released into the care of her father, E.M.

On June 24, 2014, the Department received another referral alleging 

neglectful supervision of Theresa and Emma, this time by E.M. and A.N.T. The 

intake report alleged that E.M. and A.N.T. were fighting because the Department 

had become involved and E.M. refused to take a drug test, E.M. had strangled A.N.T. 

in the apartment, and that A.N.T. had bruises on her back and legs. Theresa and 

Emma were in the apartment at the time of the altercation. According to the report, 

E.M., A.N.T., and the children got into E.M.’s vehicle and A.N.T. later jumped out 

and flagged down police. E.M. was subsequently arrested for possession of a 

controlled substance, cocaine, and for domestic violence. The report alleged that 

E.M.’s apartment was filthy with trash everywhere, Theresa and Emma slept on the 

floor because there was no furniture, E.M. was going to be evicted from the 

apartment, Emma had a diaper rash down to her thighs, Theresa’s hair was knotted, 

 

1 A.N.T. had twenty-five grams of cocaine in her possession at the time of her arrest.
3

and that the children needed to be bathed. The children were removed from E.M.’s 

care the same day.

On June 25, 2014, the Department filed an Original Petition for Protection of 

a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child 

Relationship, accompanied by the affidavit of Jerri Thomas, a Department 

caseworker. In its petition, the Department requested that it be named temporary 

managing conservator of Theresa and Emma. In her affidavit, Thomas cited the 

children’s exposure to A.N.T.’s drug use and possession, E.M.’s drug possession 

while Theresa and Emma were in his care, and the parents’ domestic violence in the 

presence of the children, in support of the Department’s request that the children be 

removed and that it be named temporary managing conservator.

On September 4, 2014, the Department created a family service plan for E.M. 

which required, among other things, that he complete a psychosocial evaluation and 

follow all recommendations; successfully complete domestic violence classes;

maintain contact with the Department caseworker at least once a month; maintain 

stable and safe housing for a minimum of six months consecutively and provide the 

caseworker with a current lease and utility bills; provide the caseworker with all 

sources of income by the 15th of each month or, if not employed, proof of his 

registration with WorkSource and a list of at least three employers to whom he has 

submitted an application; refrain from engaging in any criminal activities; complete 
4

a drug/alcohol assessment and follow all recommendations; participate in 

drug/alcohol testing and show progress by testing negative for drugs and alcohol; 

and successfully complete parenting classes. 

The trial began on November 30, 2015, and was recessed until February 1, 

2016, at the request of A.N.T.’s counsel.2 When trial resumed, Deputy L. Lizcano 

with the Harris County Constable’s Office testified that her sergeant was flagged 

down in response to a disturbance involving A.N.T. and E.M. in June 2014. When 

Deputy Lizcano arrived at the scene, A.N.T. told her that she and E.M. had had an 

argument in his car and that she had jumped out. Deputy Lizcano testified that 

A.N.T. had bruises on her back, neck, and legs. A.N.T. told her that E.M. had hit 

and choked her during an argument that morning and that he had beaten her a few 

days earlier. Deputy Lizcano then accompanied A.N.T. back to her apartment to 

look for the children. Deputy Lizcano described the apartment as dirty with trash 

everywhere, and furnished only with a blow-up mattress on the floor. A.N.T. told 

Deputy Lizcano that she was not supposed to be around her children because she 

had been arrested for having a suitcase full of drugs that belonged to E.M. while one 

of her children was with her, and that the children had been removed from her care.

 

2 The recess was requested so that A.N.T., who was incarcerated at the time, could 

appear at trial.
5

A.N.T. also told Deputy Lizcano that E.M. was a drug dealer, that he kept the drugs 

in his truck, and that she had been with him on several drug deals. 

Deputy Lizcano was then dispatched to a nearby car wash gas station where 

she found E.M., Theresa, and Emma. Deputy Lizcano testified that the two little 

girls “looked bad”: the toddler’s hair was badly matted, and the infant was wearing 

a dirty diaper and had a severe diaper rash down her thighs. Deputy Lizcano testified 

that A.N.T. changed the infant’s diaper and that E.M. had ointment in the car for 

Emma’s rash. Deputy Lizcano testified that E.M. was subsequently taken into 

custody and that the Department picked up the children. 

After a recess, trial resumed on October 7, 2016. Prior to calling its first 

witness, the Department introduced numerous exhibits, which the trial court 

admitted, including the following: E.M.’s conviction for possession of a controlled 

substance, for which he was sentenced to seventy days’ incarceration; E.M.’s plea 

of guilty to misdemeanor theft, for which he received deferred adjudication; E.M.’s 

October 15, 2014 drug test, with positive results for cocaine and marijuana; E.M.’s 

February 4, 2015 drug test, with positive results for cocaine; E.M.’s August 24, 2015 

drug test, with positive results for cocaine and marijuana; E.M.’s November 30, 2015 

drug test, with positive results for amphetamine, methamphetamine, cocaine, and 

marijuana; E.M.’s February 8, 2016 drug test, with positive results for cocaine and 
6

marijuana; E.M.’s March 3, 2016 drug test, with positive results for cocaine; and 

E.M.’s May 20, 2016 drug test, with positive results for cocaine.

Sergeant L. Gonzales with the Harris County Constable’s Office testified that, 

on June 24, 2014, A.N.T. flagged him down and told him that she had been assaulted 

by her husband, E.M. Sergeant Gonzales testified that A.N.T’s neck was red and 

that she had bruising on her back and legs. Sergeant Gonzales accompanied A.N.T. 

to her apartment which he described as “pretty filthy,” with trash in the rooms, and 

no furniture except a blow-up mattress in the living room. Sergeant Gonzales 

subsequently located E.M., Theresa, and Emma and conducted a pat down search of 

E.M. which uncovered thirty-seven light blue pills in E.M.’s right front pocket. E.M. 

told the sergeant that they were his wife’s pills and that he was holding them for her. 

Sergeant Gonzales then searched E.M.’s vehicle where he discovered a bag with 

several grams of cocaine and brass knuckles. According to Sergeant Gonzales, there 

were no car seats in E.M.’s vehicle. Sergeant Gonzales stated that A.N.T. denied 

that the blue pills found on E.M. were hers, and that E.M. denied assaulting A.N.T. 

and instead claimed that she was gone for a couple of days and had the bruises when 

she returned home. E.M. was arrested for possession of a controlled substance.

E.M. testified that the Department first became involved with his children 

when A.N.T. got arrested for drug possession in April 2014. E.M. suspected A.N.T. 
7

had a drug problem because she lost a significant amount of weight quickly. He 

testified that he was not using or selling drugs at that time. 

E.M. testified that, at the time of his arrest, he was in the process of moving 

to another apartment and had left his job as a draftsman to get an oil field job in the 

country because he was having issues in the city. He testified that he was storing 

the children’s furniture at his sister’s house until he moved. E.M. testified that there 

were car seats in his vehicle at the time of his arrest. E.M. stated that the Department 

took custody of the children the day he was arrested and that he was sentenced to 

seventy-four days’ confinement.

3

When asked about his positive drug tests following his release from jail, E.M. 

testified that he had a drug test done somewhere else and that it came back clean. 

With regard to his service plan, E.M. testified that he completed parenting classes

and a substance abuse assessment. He also completed a battering intervention 

program but had to attend a second program after he was discharged from the first 

one due to his failure to show up. E.M. denied engaging in domestic violence with 

A.N.T. He also denied using drugs and explained that his positive tests results could 

have been the result of getting a “contact high” from being around other people with 

 

3 The judgment of conviction reflects that E.M. was incarcerated for seventy days and 

that he was credited with seventy-two days of time served.
8

drugs. He stated that he was around people dealing drugs in 2015 but that he is not

often around them anymore. 

In addition to Theresa, Emma, and his infant son, K.M., E.M. has four other 

children ranging in age from twelve to seventeen years old who live with their 

mother.4 E.M. acknowledged that he has not paid any child support, or provided 

diapers or clothes, for Theresa and Emma since they have been in the custody of the 

Department, but he questioned whether anyone had asked him to pay child support. 

E.M. testified that he has refrained from engaging in criminal activity as required by 

his service plan despite being charged with theft in August 2016. According to E.M., 

he could have gotten the charge dismissed but instead accepted deferred adjudication 

because he did not have time to deal with going back and forth to the courthouse.

E.M. testified that, upon his release from jail in 2014, it took him 

approximately six months to find a job. He worked as a dishwasher at Pei Wei for 

eight months and then at a golf course for approximately two months when he was 

arrested for theft. At the time of trial, E.M. had been working for a printing service 

company for approximately three weeks. E.M. stated that he has had four jobs and 

lived in three different places over the course of the case.

 

4 When asked about child support for his other children, E.M. testified that he “paid 

up in full” and owes no further support to their mother. 
9

E.M. testified that, when A.N.T. was arrested in April 2014, the Department 

approached him about taking Theresa and Emma. According to E.M., the

Department conducted two home visits and that the caseworker did not have any 

concerns about his ability to take care of the children. E.M. testified that the girls 

were in great condition when they lived with him, they were developmentally on 

target, and they had no special needs. E.M. testified that A.N.T. visited the girls 

after she was released from jail in April 2014, but that he never left her alone with 

the girls because that was one of the conditions under which the Department released

the children into his care.

E.M. testified that, on the day he was arrested in June 2014, A.N.T. had come 

over to his apartment at about 6:30 a.m. At 8:00 a.m., Thomas, the Department 

caseworker, called to tell him that A.N.T. had made an allegation to the Department 

that E.M. was using drugs and that he needed to take a drug test. A.N.T. told E.M. 

that she wanted to watch the children instead of E.M. dropping them off with the 

babysitter on his way to work. E.M. testified that when he refused, A.N.T. became 

upset and would not leave the apartment. According to E.M., he picked her up and 

put her outside the apartment but did not harm her. E.M. stated that, after Thomas’s 

call, he had a bad feeling that morning and thought A.N.T. was going to set him up.

E.M. testified that he left the apartment with A.N.T. and the girls and intended 

to drop A.N.T. at her friend’s house. When they were two blocks away from the 
10

apartment, A.N.T. became upset and jumped out of the car. E.M. then took the girls 

to the nearby washateria so he could do some wash. While he waited on the laundry, 

he took Theresa and Emma outside where they played in the dirt. He testified that 

he bought some candy for the girls at the corner store, and that Emma got the candy 

on her clothes and Theresa’s hands became sticky from the candy. According to 

E.M., Theresa has a habit of twirling her hair which causes knotting. He testified 

that the matting in Theresa’s hair was due to her twirling her hair the previous night

and her sticky fingers.

E.M. stated that he found a bag of pills underneath the passenger seat where 

A.N.T. had been sitting before jumping out of the car. When the police arrived at 

the washateria thirty minutes later, they discovered the pills on him. According to 

E.M., after the police searched his vehicle and were unable to find anything, A.N.T. 

got in the car and pulled something out and gave it to an officer. E.M. stated that, 

as a result of his drug conviction, he lost his job and his apartment and his vehicle 

was impounded.

E.M. stayed with his cousin for a month and then lived on the streets for a 

while during which time his younger brother gave him money. E.M. testified that 

his cousin gave him money as well, that he visited his cousin’s house twenty or thirty 

times during the pendency of the case (the last visit was in January 2016), and that 
11

he saw people there using cocaine. He testified that his cousin was later arrested for 

drugs. 

E.M. initially testified that he had not used any drug during the pendency of 

the case. He later stated that, other than smoking marijuana on November 26, 2015, 

he has not used any drugs. E.M. acknowledged that he told the trial court during a 

November 2015 hearing that he had been using cocaine, but only because his 

attorney advised him to admit it.

At the time of trial, E.M. had been living in his apartment since February 2016. 

E.M. admitted that the lease has his friend Gabriel Castada’s name on it, and that the 

leasing office did it so that E.M. would be able to lease the apartment. E.M. stated 

that when the children’s guardian ad litem visited him in April 2016, he owned two 

vehicles. He testified that he bought the second vehicle because the first one began 

to have problems and he needed to be able to drive to work. When asked why he 

bought a second vehicle when he claimed not to have any money to pay child support 

or provide anything for the children, E.M. responded that nobody ever asked him to 

support the children. 

E.M. testified that he had no reason to believe that A.N.T. was using drugs 

before her arrest in April 2014. According to E.M., A.N.T. did not appear unstable 

or unreliable while caring for Theresa and Emma. He further testified that A.N.T. 
12

had previously taken the girls out by herself so he had no reason for concern when 

she left with Theresa the evening of her arrest.

E.M. testified that when he visited the girls during the case, they ran up to him

and smiled, and that he played with them and read booksto them during visits. When 

asked about his future plans for Theresa and Emma, E.M. responded that he intended 

to take great care of them.

Trial continued on October 28, 2016. Tenille Whitlock, the conservator 

caseworker, testified that the Department initially received a referral alleging 

neglectful supervision of Theresa by A.N.T. who reportedly engaged in drug use and 

intercourse in Theresa’s presence. A.N.T. led police on a high-speed chase that 

resulted in her arrest. Pursuant to a parental child safety placement plan, the 

Department released Theresa and Emma into E.M.’s care with an agreement that he 

would not permit A.N.T. unsupervised visitation with them.

Whitlock testified that, in June 2014, the Department received a referral of 

neglectful supervision of the children by E.M. and A.N.T., involving allegations of 

domestic violence and drug possession. She stated that the report was validated after 

police found drugs in E.M.’s vehicle with the children present and A.N.T. was 

observed with bruises. 

Whitlock developed family services plans for A.N.T. and E.M. and reviewed 

E.M.’s plan with him while he was in jail on the drug charge. E.M. gave Whitlock 
13

the following names of several relatives as possible placements for the children: 

Sandra Ortega, Jennifer Ortega, Faye Bishop, and Christy Thornton. Sandra and 

Jennifer Ortega told her Whitlock that they would think about it but that they never 

returned Whitlock’s calls. Faye told Whitlock not to call her again about the case,

and Thornton was not a suitable placement due to a previous history with the 

Department. E.M. gave Whitlock several more names of possible placements: his 

sister, Tierasha Adair, Reverend Ruben Wade, and Lastephine Richards. When 

contacted, Reverend Wade and Richards told Whitlock that they would have to 

discuss it with their families but they neither called back nor returned the 

Department’s calls. As for Adair, the children’s paternal aunt, Whitlock indicated 

that she was a prospective placement but that Adair later called Whitlock back and 

told her that E.M. had come by her house and “suggested some words to her,” and 

that she would not be able to take the children. 

With regard to the required tasks of his family service plan, Whitlock testified 

that E.M. completed a psychosocial evaluation and parenting classes, and that he 

submitted to drug tests, but that he did not follow the recommendation that he attend 

Alcoholics Anonymous meetings. After three failed attempts, E.M. ultimately 

completed domestic violence classes. Whitlock testified that, other than a period 

between February to May 2015, E.M. has maintained contact with her. 
14

The plan also required that E.M. maintain stable housing for a minimum of 

six months and provide proof of a lease and utility bills. Whitlock stated that E.M. 

provided her with an apartment lease but later indicated that he was actually 

sub-letting the apartment from Castada. Whitlock has been unable to validate the 

lease and E.M. has not provided her with any utility bills. Whitlock also stated that 

E.M. has not provided her with the identifying information of any adult living in his 

home as required by his service plan. When Whitlock conducted a visit on May 4, 

2016, there was a female present in E.M.’s apartment. When she asked the woman 

for her information, the woman gave Whitlock her first name only, and E.M stated 

that she was only going to be there a short time. Whitlock testified that there was 

living room furniture and a trundle bed for the girls in the apartment. 

The plan also required E.M. to provide his caseworker with proof of all 

sources of income. Whitlock testified that, other than paycheck stubs presented to 

the court in November 2015, E.M. has not provided any proof of his income. 

Whitlock also testified that E.M. has not complied with the plan requirement that he 

refrain from engaging in criminal activity because he was arrested for theft in August 

2016.

 With regard to E.M.’s drug tests, Whitlock testified that most of E.M.’s 

urinalysis tests were negative but that he had seven positive hair follicle tests 

between October 2014 and May 2016. Whitlock testified that E.M. participated in 
15

a substance abuse assessment in 2014 in which he disclosed that he did not use drugs 

but that, in light of his positive drug test results, he did not provide truthful answers 

in his assessment. 

The plan also required E.M. to demonstrate and verbalize learned behaviors 

consistent with his children’s ages and developmental capacities during family visits

and to verbalize learned behaviors to his caseworker. Whitlock stated that E.M. has 

never verbalized ways in which he can nurture his children. In his visits with the 

children, E.M. would either take selfies or pictures with them, or the children would 

play in the room while he sat back in the corner. Whitlock stated that E.M. had 

bi-monthly visits scheduled during the case, and that he missed visits in October and 

November 2014 as well as his visits from February to May 2015.

During his last visit in October 2016, E.M. came with another woman and her 

two children to the visit. Whitlock testified that E.M. sat in the corner of the room 

during the entire visit, and that after the children began to eat the snacks Whitlock 

had provided for Theresa and Emma, she asked the other woman to take the children 

out of the room. Whitlock stated that E.M.’s eyes were red and glazed, and that 

when she asked him what was wrong, he told her that he had a migraine. Whitlock 

asked E.M. to take a drug test after the visit. The results of the urinalysis test were 

negative but his hair follicle test was positive for cocaine and marijuana. As a result 

of that visit and his regular positive drug tests, the Department requested that E.M.’s 
16

visitation be stopped. E.M. subsequently sent Whitlock several text messages. In 

one text, E.M. wrote, “I took care of my daughters for eight months alone before you 

whores stepped in our life” and “Tenille, I promise you I always get even in the end.” 

E.M. denied that the message was intended as a threat.

Whitlock testified that Theresa and Emma have not once asked her about E.M. 

during the pendency of the case. Whitlock testified that when Theresa came into the 

Department’s care, she had a small frame and the caregivers had to cut her hair 

because of the severe matting. Whitlock stated that Theresa was very quiet and not 

developmentally on target, and that Emma was also very quiet and had some 

difficulty with motor skills, particularly with her ability to walk. While in the 

Department’s care, Theresa has received speech therapy and Emma has received 

speech therapy and occupational therapy. According to Whitlock, the girls have 

since blossomed. Both girls are developmentally on target. Theresa is currently in

kindergarten, is very talkative, follows direction well, and has begun learning sight 

words. Emma is doing much better and is speaking more although she still has some 

issues with her motor skills and her balance that require daily hands-on work to help 

her continue to develop. 

Theresa and Emma have been in an adoptive placement since May 2015. 

Whitlock testified that they refer to their caregivers as Mommy and Daddy, and are 

bonded with them as well as the family’s young adoptive son whom they refer to as 
17

their brother. Whitlock stated that the children’s current placement is appropriate, 

the girls are happy with their caregivers, and the caregivers would like to adopt the 

girls.

After their son K.M. was born, E.M. and A.N.T. provided the following names 

as possible placements for all three children: Cherrelle Valentine, Shatiqua Ross, 

Patricia Hood, Jacqueline Wilmore, Kiara Walker, and Jonathan Manuel. Whitlock 

testified that although Valentine provided her information for a background check 

and told Whitlock that she would discuss it with her family, she never responded to 

the Department’s calls or letter. Ross did not respond to the numerous messages left 

by the Department. Hood stated that she did not have enough furniture and was 

diabetic but would consider being a foster parent in two years once she was retired. 

Wilmore told Whitlock that she was ill and did not have a back-up plan for the 

children, and that she could be a temporary placement only. The Department

attempted to contact Walker but her phone number did not work. Manuel, the

children’s paternal uncle, came to one of the family visits but told Whitlock that he 

barely had a place to stay himself and was unable to take the girls. Whitlock testified 

that the Department has made every effort to try and place Theresa and Emma with 

a family member but that no one has been willing or able to take the children.

Whitlock testified that the Department was seeking termination of E.M.’s 

parental rights to Theresa and Emma and that the Department believed that 
18

termination is in the children’s best interest because E.M. failed to comply with the 

family plan of service and had repeated positive drug tests from October 2014 until 

March 2016. Whitlock stated that E.M. admitted to being in and out of a drug house 

to get money and that he has not shown that he can provide the children with a safe 

and stable environment. She further stated that E.M. never brought diapers, clothes, 

or presents for the girls’ birthdays or for Christmas. Whitlock testified that the 

Department’s goal for Theresa and Emma was unrelated adoption. 

A.N.T. testified that E.M. was a family man and involved in his children’s 

lives. She stated that E.M. provided financially for all of his children and bought 

toys, games, clothes, and shoes for them. A.N.T. stated that E.M. never threatened 

her or became angry with her.

According to A.N.T., she first started using drugs around Easter 2014 because 

she and E.M. were having problems stemming from the fact that E.M. had had an 

affair and A.N.T. was hanging out with her mother, a drug addict. A.N.T. testified 

that she went by the apartment to see the children in June 2014. Before going into 

the apartment, A.N.T. put three grams of cocaine in E.M.’s car because she did not 

want to bring drugs around the children. She testified that she became mad when 

E.M. would not let her watch the girls instead of dropping them off at the babysitter. 

She initially got into the car with E.M. so that he could drop her off at a friend’s 

house but later jumped out because she was still angry at him. She flagged down an 
19

officer and told him that E.M. had hit her because she was “out for revenge.” She 

testified that when she heard E.M. tell the police that the pills were hers, she became 

angry that he would not “take this charge” for her so she also told the police that he 

had drugs in the car. A.N.T. testified that, despite what she told the officer at the 

time, her bruises were not caused by E.M. but rather from sleeping under a bridge 

with her mom the previous night. She also stated that she, not Sergeant Gonzales, 

pulled the cocaine out of the car. After E.M. was released from jail, he and A.N.T. 

were homeless together for a while. A.N.T. testified that she and E.M. had several 

family visits with the girls and that the visits were great.

According to A.N.T., she and E.M. did drugs twice together. She stated that 

E.M. knew she was using drugs and that he used to throw them out of the window 

when he was driving which made her mad. When A.N.T. found out that she was 

pregnant with K.M., E.M. told her to slow down and tried to help her get sober and 

clean. She stated that E.M. began using drugs because of the pressure he was under 

trying to get her clean. She stated that she lied to Thomas when she told her that 

E.M. was using drugs in June 2014 because she was mad that he would not allow 

her to see the children unsupervised.

At the conclusion of trial, the trial court found that termination of E.M.’s 

parental rights to Theresa and Emma was warranted under subsections (D), (E), and 
20

(O) of Family Code section 161.001(b)(1),

5

and that termination was in the 

children’s best interest.6 The trial court signed its termination order on November 

7, 2016. This appeal followed.

Discussion

On appeal, E.M. acknowledges that the evidence is factually sufficient to 

support the predicate findings under subsections (D), (E), and (O) and does not 

challenge those findings on appeal. He also notes that this evidence is legally 

 

5 As relevant here, section 161.001(b)(1) states that the court may order termination 

of the parent-child relationship if the court finds by clear and convincing evidence, 

in addition to the best interest finding, 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; [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) & (O) (West 2014).

6 The trial court also terminated A.N.T.’s parental rights based on her affidavit of 

relinquishment pursuant to section 161.001(b)(1)(K), and found that termination 

was in the children’s best interest.
21

sufficient to support the trial court’s finding that termination was in the children’s 

best interest. In his sole issue, E.M. argues that the evidence is factually insufficient 

to support the trial court’s best interest finding.

A. Burden of Proof and Standard of Review

Protection of the best interest of the child is the primary focus of the 

termination proceeding in the trial court and our appellate review. See In re A.V., 

113 S.W.3d 355, 361 (Tex. 2003). A parent’s rights 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, 1397 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). 

Accordingly, we strictly scrutinize termination proceedings and strictly construe the 

involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 

18, 20 (Tex. 1985).

In a case to terminate parental rights 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. TEX. FAM. CODE 

ANN. § 161.001 (West Supp. 2014). 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.” Id. § 101.007 
22

(West 2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “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.

When conducting a factual sufficiency review, 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 fact finder could not have credited in favor of the finding is so significant 

that a fact finder could not reasonably have formed a firm belief or conviction, then 

the evidence is factually insufficient.” Id. We give due deference to the factfinder’s 

findings and we cannot substitute our own judgment for that of the fact finder. See 

In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

B. Best Interest of the Child

There is a strong presumption that the best interest of a child is served by 

keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116 

(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 

2012, no pet.). Prompt and permanent placement of the child in a safe environment 

is also presumed to be in the child’s best interest. TEX. FAM. CODE ANN. § 

263.307(a) (West Supp. 2014). 
23

Courts may consider the following non-exclusive factors in reviewing the 

sufficiency of the evidence to support the best interest finding: the desires of the 

child; the present and future physical and emotional needs of the child; the present 

and future emotional and physical danger to the child; the parental abilities of the 

persons seeking custody; the programs available to assist those persons seeking 

custody in promoting the best interest of the child; the plans for the child by the 

individuals or agency seeking custody; the stability of the home or proposed 

placement; acts or omissions of the parent which may indicate the existing parentchild relationship is not appropriate; and any excuse for the parent’s acts or 

omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list of factors 

is not exhaustive, however, and evidence is not required on all of the factors to 

support a finding that terminating a parent’s rights is in the child’s best interest. Id.; 

In re D.R.A., 374 S.W.3d at 533. Moreover, we note that evidence supporting 

termination under one of the grounds listed in section 161.001(b)(1) can also be 

considered in support of a finding that termination is in the best interest of the child. 

See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002) (holding same evidence may be 

probative of both section 161.001(b)(1) grounds and best interest). 

In addition, the Texas Family Code sets out factors to be considered in 

evaluating the parent’s willingness and ability to provide the child with a safe 

environment, including: the child’s age and physical and mental vulnerabilities; the 
24

willingness and ability of the child’s family to seek out, accept, and complete 

counseling services and to cooperate with and facilitate an appropriate agency’s 

close supervision; the willingness and ability of the child’s family to effect positive 

environmental and personal changes within a reasonable period of time; and whether 

the child’s family demonstrates adequate parenting skills, including providing the 

child with minimally adequate health and nutritional care, a safe physical home 

environment, and an understanding of the child’s needs and capabilities. TEX. FAM.

CODE ANN. § 263.307(b) (West Supp. 2014); In re R.R., 209 S.W.3d at 116.

1. Children’s Desires and Needs, and Plans for the Children

The first and second Holley factors consider the desires of the child and the 

present and future physical and emotional needs of the child. Holley, 544 S.W.2d at 

372. The sixth Holley factor looks at the plans for the child by the individual or 

agency seeking custody. Id.

When children are too young to express their desires, the factfinder may 

consider whether the children have bonded with the proposed adoptive family, are 

well-cared for by them, and whether they have spent minimal time with a parent. 

See In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. 

denied). A child’s need for permanence through the establishment of a “stable, 

permanent home” has 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 
25

2007, no pet.). Therefore, evidence about the present and future placement of the 

child is relevant to the best interest determination. See In re C.H., 89 S.W.3d 17, 28 

(Tex. 2002).

At the time of trial, Theresa was four years old and Emma was two years old 

and, thus, too young to testify about their desires. See In re T.G.R.-M., 404 S.W.3d 

7, 16 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The trial court heard testimony 

that Theresa and Emma have been in a foster placement since May 2015, that they 

are bonded with their foster parents whom they refer to as Mommy and Daddy, and 

that they are also bonded with the family’s young adoptive son whom they refer to 

as their brother. Whitlock testified that the children’s current placement is 

appropriate, the girls are happy with their caregivers, and that the foster parents 

would like to adopt the girls. E.M. testified that when he visited the girls, they ran 

up to him, smiling. The trial court also heard testimony that Theresa and Emma did 

not once ask about E.M. during the pendency of the case.

E.M. testified that when the children lived with him, they were 

developmentally on target and had no special needs. When asked about his plans 

for Theresa and Emma, E.M. testified that he plans to take great care of them. 

Whitlock testified that when Theresa came into the Department’s care, she was very 

quiet and not developmentally on target. She testified that Emma was also very quiet 

and had some difficulty with motor skills, particularly her ability to walk. While in 
26

the Department’s care, Theresa has received speech therapy and Emma has received 

speech therapy and occupational therapy. According to Whitlock, the girls have 

since blossomed and are developmentally on target. Theresa is currently in 

kindergarten, is very talkative, follows direction well, and has begun learning sight 

words. Emma is doing much better and is speaking more although she still has some 

issues with her motor skills and her balance that require daily hands-on work to 

continue in her development. This evidence supports the trial court’s best interest 

finding under the first, second, and sixth Holley factors. See also TEX. FAM. CODE 

ANN. § 263.307(b) (listing child’s age, child’s physical and mental vulnerabilities, 

and parent’s understanding of child’s needs and capabilities among factors to be 

considered in determining whether child’s parents are willing and able to provide 

child with safe environment).

2. Endangering Conduct and Parental Acts or Omissions

The third Holley factor is the present and future physical danger to the child. 

Holley, 544 S.W.2d at 372. The eighth factor considers acts or omissions of the 

parent that indicate the parent-child relationship is improper. Id.

The evidence shows that E.M. tested positive for illegal drugs, including 

cocaine, seven times between October 2015 and May 2016. With regard to his drug 

usage, E.M. provided conflicting testimony. At trial, E.M. initially testified that he 

did not use drugs and that that his positive drug tests could have been the result of 
27

getting a contact high from being around other people with drugs. He subsequently 

testified that, other than smoking marijuana in November 2015, he has not used any 

drugs during the pendency of the case. However, E.M. later acknowledged that he 

admitted to the trial court at a November 2015 hearing that he had been using cocaine 

but stated that he said it only because his attorney advised him to disclose it.

A parent’s past conduct is probative of his future conduct when evaluating the 

child’s best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San 

Antonio 2013, no pet.). E.M.’s inability to refrain from drug use during the 

pendency of the case reflects an inability to perceive the danger that parental drug 

use would pose to a child. See In re G.A., No. 01-11-00565-CV, 2012 WL 1068630, 

at *6 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (mem. op.) (concluding 

that father’s concealment of drug use and continued relationship with mother who 

abused drugs demonstrated father’s inability to perceive danger that parental drug 

use posed to child).

E.M. argues that the most salient feature of his test results is the declining 

level of drugs over time and the fact that his last test in June 2016 was negative. 

However, a fact finder is not required to ignore a history of narcotics use merely 

because it abates as trial approaches. See Cervantes-Peterson v. Texas Dep’t of 

Family & Protective Servs., 221 S.W.3d 244, 254 (Tex. App.—Houston [1st Dist.] 

2006, no pet.) (concluding that despite mother’s contention that she had stopped 
28

using cocaine and marijuana, trial court was not required to ignore her history of 

narcotics use merely because she testified that it had abated before trial); In re 

M.G.D., 108 S.W.3d 508, 513 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)

(noting that jurors are not required to ignore long history of dependency and abusive 

behavior merely because it abates as trial approaches). Further, Whitlock testified 

that she asked E.M. to take a drug test following his visit with the children in October 

2016, and that the results of the test were positive for cocaine and marijuana.

Moreover, E.M.’s arrest in June 2014 stemmed from A.N.T.’s report to police 

that he had physically abused her, and E.M. was convicted for possession of a 

controlled substance after the police found Xanax in his pocket and cocaine in his 

car. E.M. also testified that he was around people dealing drugs in 2015 but that he 

is not often around them anymore, that he visited his cousin’s house twenty or thirty 

times during the pendency of the case (with the last visit in January 2016) where he 

saw people using cocaine, and that the cousin, with whom he had once lived, was 

later arrested for drugs. See In re M.S.L., No. 14-14-00382-CV, 2014 WL 5148157, 

at *7 (Tex. App.—Houston [14th Dist.] Oct. 14, 2014, no pet.) (mem. op.) 

(concluding father’s series of crimes, including drug-related offenses and domestic 

violence occurring before and after children’s births, supported trial court’s best 

interest finding). 
29

This evidence supports the trial court’s best interest finding under the third 

and eighth Holley factors.

3. Parental Abilities and Stability of the Home

The fourth Holley factor is the parental abilities of the person seeking custody. 

Holley, 544 S.W.2d at 372. The seventh factor looks at the stability of the home or 

proposed placement.

Among other tasks, E.M.’s family service plan required that he demonstrate 

and verbalize learned behaviors consistent with his children’s ages and 

developmental capacities during family visits and verbalize them to his caseworker. 

Whitlock testified that E.M. never verbalized ways in which he could nurture his 

children. During his family visits, E.M. would either sit and take selfies or pictures 

with the children, or sit back in the corner while the children played. E.M. testified 

that, contrary to Whitlock’s testimony, Theresa and Emma ran up to him when he 

arrived for visits, and that he played with them and read them books. Whitlock stated 

that E.M. had bi-monthly visits scheduled during the case and that he missed visits 

in October and November 2014 and the visits from February to May 2015.

Whitlock also testified that E.M.’s eyes were red and glazed at his last family 

visit in October 2016. Whitlock asked E.M. to take a drug test after the visit and the 

results of the urinalysis were negative but the hair follicle test was positive for 

cocaine and marijuana. A parent’s exercise of poor judgment currently and in the 
30

past demonstrates an inability to provide adequate care for the child. See In re K.S., 

420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.) (noting parental drug 

abuse is reflective of poor judgment and is also factor to be considered in best interest 

analysis); Wischer v. Tex. Dep’t of Family & Protective Servs., No. 03-12-00165-

CV, 2012 WL 3793151 at *10 (Tex. App.—Austin Aug. 29, 2012, no pet.) (mem. 

op.).

On the day of E.M.’s arrest in June 2014, Deputy Lizcano and Sergeant 

Gonzales described E.M.’s apartment where he lived with Theresa and Emma as 

dirty with trash everywhere, and with the only furniture being a blow-up mattress on 

the floor. E.M. testified that he was in the process of moving to another apartment 

and that the children’s furniture was at his sister’s house. 

E.M.’s family service plan required that he maintain stable housing for a 

minimum of six months and provide proof of a lease and utility bills. E.M. testified 

that he has held four jobs and lived in three different places over the course of the 

case. Whitlock stated that E.M. provided her with his current apartment lease but 

later told her that he was actually sub-letting the apartment from a friend. At the 

time of trial, Whitlock was unable to validate the lease and E.M. has not provided 

her with any utility bills. Whitlock testified that there was living room furniture and 

a trundle bed for the girls in the apartment.
31

E.M.’s family service plan also required E.M. to provide his caseworker with 

proof of all sources of income. Whitlock testified that, other than paycheck stubs 

presented to the court in November 2015, E.M. has not provided proof of income to 

Whitlock. The trial court heard testimony that E.M. bought a second vehicle while 

at the same time he claimed not to have any money to provide support for the 

children. This evidence supports the trial court’s best interest finding under the 

fourth and seventh Holley factors. See also TEX. FAM. CODE ANN. § 263.307(b) 

(listing adequate parenting skills and a safe physical home environment as factors to 

be considered in determining best interest of child).

In light of the entire record, the disputed evidence that a reasonable fact finder

could not have credited in favor of the best interest finding is not so significant that 

a fact finder could not reasonably have formed a firm belief or conviction that 

termination of E.M.’s parental rights is in Theresa and Emma’s best interest. See In 

re H.R.M., 209 S.W.3d at 108. After considering the relevant factors under the 

appropriate standards of review, we hold that the evidence is factually sufficient to 

support the trial court’s finding that termination of the parent-child relationship is in 

the children’s best interest. Accordingly, we overrule E.M.’s issue.

Conclusion

We affirm the trial court’s judgment.
32

Russell Lloyd

Justice 

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.