COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-18-00080-CV

IN THE INTEREST OF G.H. AND 

G.H., CHILDREN

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 323-103932-16

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MEMORANDUM OPINION1

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I. INTRODUCTION

This is an ultra-accelerated appeal2in which G.H. (Father) and K.B.

(Mother) appeal the termination of their parental rights to their children, Gail and 

 

1See Tex. R. App. P. 47.4.

2See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of 

appeal from a judgment terminating parental rights, so far as reasonably 

possible, within 180 days after notice of appeal is filed). 
2

Grant,

3

following a bench trial. In three issues, Father challenges the sufficiency 

of the evidence to support the trial court’s findings under section 

161.001(b)(1)(D), (E), and (2) and argues that the trial court improperly took 

judicial notice of the permanency-hearing orders. See Tex. Fam. Code Ann. 

§ 161.001(b)(1)(D), (E), (2) (West Supp. 2017). In nine issues, Mother 

challenges the sufficiency of the evidence to support the trial court’s findings 

under section 161.001(b)(1)(D), (E), (O), and (2) and the trial court’s decisions to 

deny various motions, to admit testimony about a prior termination, and to take 

judicial notice of allegedly unadjudicated facts. See id. § 161.001(b)(1)(D), (E), 

(O), (2). Because we hold that sufficient evidence supports the unchallenged

subsection (M) findings and the best-interest findings as to both parents, we will 

affirm the trial court’s judgment terminating Father’s and Mother’s parental rights 

to Gail and to Grant.

II. FACTUAL BACKGROUND4

A. Overview

Father and Mother are not married and do not live together, but they have 

“been together” for more than eleven years and have had four children together. 

Father’s and Mother’s parental rights to their first two children—twins Ginny and 

 

3See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to 

minors in an appeal from a judgment terminating parental rights). Aliases are 

used for all children referenced in this opinion.

4Because both Father and Mother challenge the sufficiency of the evidence 

to support the termination order, we set forth a detailed factual background.
3

Gavin—were terminated in 2014 based on family code section 161.001(b)(1)(D) 

and (E)—endangering environment and endangering conduct based on Father’s 

and Mother’s drug use.

5 Gail was born in September 2015. When Grant was 

born in July 2016, the Department received a referral alleging neglectful 

supervision because Grant had tested positive for cocaine at birth. After Mother 

violated the safety plan set up by Family Based Safety Services (FBSS), the 

Department removed Gail and Grant and gave Father and Mother service plans. 

Father and Mother did not make the changes the Department requested of them, 

which resulted in the termination of their parental rights to Gail and to Grant.

B. Gail’s Birth and Mother’s Care of Gail

Mother testified that she had learned her lesson when her parental rights 

to her twins were terminated. So when she became pregnant with Gail, she “got 

[her] life together.” Mother worked throughout her pregnancy with Gail. Both 

Mother and Gail tested negative for drugs when Gail was born in September 

2015. Mother stayed home with Gail for the first year after she was born. During 

that time, Mother’s aunt supported her financially, and her sister gave her rides to 

doctor appointments. When Mother returned to work, her sister cared for Gail. 

 

5The order terminating Father’s and Mother’s parental rights to Ginny and

to Gavin was admitted during the underlying termination trial. 
4

C. Grant’s Birth, CPS’s Initial Contact with Gail and Grant,

and Case Opened with FBSS

Grant was born in July 2016 at thirty-four weeks’ gestation. CPS received 

a referral alleging neglectful supervision of Grant because he had tested positive 

for cocaine at birth and because Mother’s midwife had reported that Mother had 

tested positive for cocaine during her pregnancy with Grant at her February 2016 

and March 2016 appointments. Mother admitted to CPS investigator Valerie 

Robertson that she had used cocaine in September 2014 when her parental 

rights to the twins were terminated, but Mother denied cocaine use while she was 

pregnant with Grant. Robertson spoke with Mother’s midwife, who said that 

Mother had disclosed at her March 2016 appointment that she was taking 

antianxiety medication. Mother told Robertson that the medication was not 

antianxiety medication but was instead hydrocodone that she had taken from her 

uncle. Robertson was concerned. She asked Mother to take a hair-follicle drug 

test, and she opened a case with FBSS requiring Mother to live at her sister’s 

house with Gail and Grant and prohibiting Mother’s unsupervised contact with 

Gail and Grant. 

When Robertson asked Mother about the children’s father, Mother 

explained that Father was Gail and Grant’s father but said that he did not have 

any contact with them and was not their caregiver. Mother said that a previous 

CPS worker had told her to not allow Father to have contact with the children. 

When Robertson asked if that restriction was due to Father’s drug use, Mother 
5

would not confirm that Father used drugs. Mother said that she did not have any 

contact information for Father. 

On August 1, 2016, Robertson and Mother’s FBSS caseworker met with 

Mother to talk about the results of her July 2016 hair-follicle drug test. It was 

positive for cocaine. At this point, Mother admitted that, contrary to her denial of 

drug use while pregnant with Grant, she had, in fact, “slipped up” and had used 

cocaine in December 2015. 

Robertson expressed concern that Mother had used cocaine after Gail’s 

birth because drug use impairs a parent’s ability to properly care for her children. 

Robertson disposed of the allegations against Mother as reason to believe for 

neglectful supervision of Grant due to the positive drug test results during 

pregnancy and as reason to believe for neglectful supervision of Gail because 

Mother was her primary caretaker. 

D. Violation of the FBSS Safety Plan Results in a CPS Case

About two months later, on October 19, 2016, the Department received a 

referral alleging neglectful supervision of Gail by Mother. Mother had been in a 

car accident and had left Gail with an acquaintance, who ultimately took Gail to 

the police station. 

CPS Investigator Britni Wortham spoke with Mother while Mother was in 

an ambulance being checked out by paramedics for a possible head injury 

following the accident. When Wortham told Mother that she was aware of the 

open FBSS case that required Mother not to have unsupervised contact with her 
6

children, Mother said that she was not unsupervised because her sister was 

following behind her in a car prior to the accident.

6 Mother then took off the 

diagnostic medical equipment that was attached to her, said that she no longer 

needed medical attention, and exited the ambulance. While Wortham was on the 

phone with her supervisor, Mother walked away. Mother’s sister, who was

present, went to find Mother. 

When Mother’s sister returned with Mother, Mother explained to Wortham 

that after the accident, she had left Gail with a woman she knew “from the club”7

while she (Mother) received medical attention in the ambulance. Wortham 

expressed concern that Mother had left Gail with a stranger, and Mother said, “I 

know I messed up.” The unnamed woman left with Gail without telling Mother 

where she was going, and Mother called the police to report Gail missing. 

Wortham told Mother that Gail and Grant needed to be placed outside the home 

because Mother had violated the FBSS safety plan by leaving Gail with a 

stranger and because Mother’s sister had violated the FBSS safety plan by 

failing to supervise Mother’s contact with Gail. Mother provided the names of 

several individuals—including Father, for whom she had said she did not have a 

phone number or address—to serve as possible placements for the children. 

 

6Mother explained that her sister had a doctor appointment and could not 

fit both children in her car, so her sister had asked her brother to follow her. 

Mother and Gail rode with Mother’s brother, and Grant rode with Mother’s sister. 

Mother said that her brother lost control of the car and hit a wall. 

7Mother did not know the woman’s name. 
7

CPS did not deem any of the named individuals to be adequate placement 

options for the children, so Wortham decided to place the children in foster care. 

Wortham went to the police station and spoke with the woman who had 

brought Gail to the police station. The woman told Wortham that she did not 

know Mother’s name but knew her from “the club scene.” The woman said that 

she was having lunch at Golden Chick when Mother ran in, said that she was not 

supposed to have her children, and asked her to watch Gail while she went to the 

ambulance to be checked out. The woman took Gail home and cleaned her up 

and then took her to the police station where she learned that Gail had been 

reported missing. 

Wortham found Father’s phone number in a computer database and 

contacted him the following day. Father told Wortham that Mother had called 

and had informed him that Gail and Grant were in foster care. Wortham invited 

Father to come to the courthouse that afternoon for a hearing on the 

Department’s removal petition. Father responded that he would not attend the 

hearing because after CPS performed a background check on him, drug tested 

him, and instructed him to attend classes, he would not get custody of Gail and 

Grant.

Following the hearing on the State’s petition, the trial court granted the 

Department temporary managing conservatorship of Gail and Grant. The 

Department thereafter created service plans for Father and Mother.
8

E. Father’s Services and His Compliance

Father’s initial service plan required him to notify his caseworker within 

forty-eight hours of any involvement with law enforcement; to attend all 

scheduled visitations with his children; to maintain steady and legal employment; 

to maintain safe, stable, and appropriate housing; to submit to a drug 

assessment and to follow through with all recommendations; to maintain contact 

with his caseworker; to actively engage in and complete STEP parenting classes; 

and to submit to random drug and alcohol tests within twenty-four hours of his 

caseworker’s request. On December 7, 2017, the trial court added a requirement 

to Father’s service plan requiring him to attend the FOCUS for Fathers class. 

Initially, Father did not want to work his services or to be involved in the 

case. Father ultimately began working his services around July 2017. 

Crystal Lewinson, who served as the children’s conservatorship worker, 

received the case in November 2017 and had a conversation with Father via text 

message on December 19, 2017, in which she asked about his progress on his 

service plan. Father informed Lewinson that he had completed a drug 

assessment but not the recommendations made as a result of the drug 

assessment, which included attending drug-therapy classes. Father said that he 

had attended a few of the drug classes but had stopped when he was arrested 

for possession of a controlled substance and unlawful possession of a firearm on 

September 24, 2017, and had not resumed attendance after his release from jail 

in October 2017. Father claimed that he was not attending drug therapy because 
9

he did not have transportation; but when Lewinson offered Father bus passes, 

Father said he would not ride the bus. Father refused to provide Lewinson with 

his “sober date”—the date he last used illegal drugs—and told Lewinson that 

although Gail and Grant were important, he was focused on maintaining his 

freedom because he would not be able to help his children from jail. 

According to Lewinson, Father had attended the majority of the visits with 

his children, and his interactions with them were positive. Father’s housing 

situation was unknown at the time of the termination trial. Although Father told 

Lewinson he had his own apartment, he refused to provide an address or details. 

With regard to Father’s service plan, Lewinson testified that Father had 

completed STEP parenting classes and a drug assessment, had attended 

parent-child visits, and had kept in contact with her. Father had not participated 

in group outpatient drug treatment three times per week as recommended by the 

drug assessment; had not taken two requested drug tests; had tested positive for 

cocaine on his June 1, 2017 urinalysis and his August 4, 2017 urinalysis; and 

had not completed the FOCUS for Fathers class. Lewinson concluded that 

Father had not been fully compliant with the services requested of him to 

demonstrate change. 

F. Mother’s Services and Her Compliance

Mother’s service plan required her to maintain contact with her 

caseworker; to notify her caseworker within forty-eight hours of any involvement 

with law enforcement; to maintain steady and legal employment; to attend all 
10

scheduled visitations with her children; to maintain safe, stable, and appropriate 

housing; to participate in individual counseling; to undergo a psychiatric 

evaluation at MHMR; to submit to random drug testing; and to fully participate in 

and complete outpatient drug treatment at CATS. The evidence concerning 

Mother’s compliance with these requisites is set forth below.

1. Contact with Caseworker and

Involvement with Law Enforcement

The record does not indicate that Mother ever failed to maintain contact 

with her caseworker, nor does it show that Mother had any involvement with law 

enforcement while the termination case was pending.

2. Employment

Mother had been employed at Denny’s for four or five years, minus the 

time she was on leave for her pregnancies with Gail and with Grant. Mother 

usually worked on Sundays from 2 p.m. to 10 p.m., on Mondays and Tuesdays

from 6 a.m. to 6 p.m., and on Wednesdays and Thursdays from 6 p.m. to 6 a.m. 

Mother testified that her boss would modify Mother’s work schedule to 

accommodate her children if the trial court returned them to her. Mother had 

been saving money to provide for Gail and Grant in the event the trial court 

allowed them to be returned to her care. 

3. Visits

The initial service plan for each of the children notes that both Gail and 

Grant have “a significant relationship with” and appear to be “very bonded” with 
11

Mother. Mother continued that bond by attending weekly visits with her children. 

Lewinson testified that Mother was loving and supportive at the visits with her

children. Lewinson further testified that Mother’s interactions with her children 

were positive during all of her visits. 

4. Housing

While the case was pending, Mother lived at her sister’s house, at her 

sister-in-law’s house, and in her own efficiency apartment before moving to a 

two-bedroom apartment to accommodate her children. Mother testified that she 

had lived in her two-bedroom apartment for six or seven months prior to the 

termination trial. 

5. Individual Counseling

Christopher Hooker, Mother’s counselor with Merit Family Services, 

interviewed Mother in May 2017. Hooker testified that Mother indicated some 

past suicidal ideation, a considerable level of depression, some anxiety, and 

some anger behavior. At her July 24, 2017 appointment, Mother presented with 

noticeable fatigue, which Hooker attributed to possible illegal substance abuse 

but which Mother attributed to her work schedule.8 Mother told Hooker that she 

had resumed taking her prescribed psychotropic medications. Hooker testified 

that it was concerning that Mother had not taken her medication consistently. At 

her September 22, 2017 appointment, Mother presented with indications of 

 

8Hooker did not recall the type of job Mother worked. 
12

depression, anxiety, and symptoms of a thought disorder. On October 31, 2017, 

Hooker observed that Mother exhibited slurred speech and fatigue; she said that 

she had been in bed for the previous twelve hours. Hooker explained to Mother 

that spending the majority of her day off in bed was not a positive indication of 

her overall mood and mood management for the future. During the November 7, 

2017 appointment, Mother presented in an agitated mood; she cried a lot, had a 

conversation with herself without any interaction from Hooker, and used rapid 

speech. On November 28, 2017, Mother reported to Hooker that she was no 

longer spending her days off in bed and that she was able to complete tasks. 

Hooker instructed Mother to continue to take her psychotropic medications as 

prescribed, but Mother said that she did not want to be dependent on her 

medication and that she wanted to manage her mood without medication. 

Hooker testified that this concerned him because given her history of moodrelated issues, not continuing on her medication for a period of time “could 

potentially be clinically risky for her.” 

Mother did not return for future counseling sessions with Hooker following 

November 28, 2017, so Hooker did not discharge her for successfully completing 

individual counseling. On cross-examination, Hooker agreed that Mother may 

have been upset or shown signs of depression during her sessions because she 

did not have her children. Hooker testified that there was a lot of fluctuation 

during the course of Mother’s treatment, which consisted of sixteen sessions
13

over a six-month period; he said that there were periods of improvement followed 

by periods of clinical regression.

When Lewinson talked to Mother on January 18, 2018, about individual 

counseling, Mother said that she had not contacted Merit to schedule her 

counseling appointments but that she was going to request a new counselor 

when she returned to counseling because Hooker was non-emotional and was 

not as supportive as her prior counselor had been. Lewinson testified that 

Mother returned to counseling at Merit after she spoke with her in January 2018. 

6. MHMR

Although the record does not disclose whether Mother underwent a 

psychiatric evaluation at MHMR, Mother had obtained her own peer counselor 

through MHMR. 

7. Random Drug Testing and Outpatient Drug Treatment

During the CPS case, Mother tested positive for cocaine on three

urinalysis tests: February 24, 2017; March 2, 2017; and July 25, 2017. When 

asked during cross-examination whether Mother had tested negative on 

urinalysis tests from September 2017 through February 2018, Lewinson said that 

she did not have the results of those tests in front of her but that CPS had 

received “some negative UA tests” from Mother.9

 

9The last progress report that was completed by the conservatorship 

worker on November 7, 2017, mentioned that the September 15, 2017 and 

October 23, 2017 urinalysis tests were negative. Mother also tested negative on 

urinalysis tests on March 22, 2017; April 25, 2017; and May 16, 2017. 
14

Mother’s hair-follicle test results during the CPS case are as follows:

January 27, 2017 Cocaine >20,000 pc/mg 

July 25, 2017 Cocaine 11,219 pc/mg 

October 24, 2017 Cocaine 1,163 pc/mg 

January 24, 2018 Cocaine 7,829 pc/mg 

February 18, 2018 Cocaine 926 pc/mg10

After Mother’s January 24, 2018 hair-follicle drug test showed an increase 

in the level of cocaine, Mother requested to pay for her own hair-follicle drug test 

because she believed the test results were incorrect and because she wanted to 

prove that she was not using drugs. Mother then paid for a hair-follicle drug test 

that Lewinson agreed was the same type of hair-follicle drug test that CPS 

utilized. Mother gave Lewinson a copy of her February 18, 2018 hair-follicle drug 

test results, which reflected that the level of cocaine had decreased almost 7,000 

picograms per milligram in less than three weeks. 

Prior to the termination trial, Mother filed a “Motion For Extension Of 

Dismissal Date And Motion For Continuance Of Trial Setting” and a “Motion For 

Appointment Of Testifying Forensics Expert,” requesting a toxicology expert to 

explain the decrease between Mother’s January 2018 and February 2018 hairfollicle drug test results. The trial court heard argument on the motion for 

continuance prior to the start of the trial. After hearing argument from the 

 

10Mother paid for this test herself because she did not believe that the 

January 24, 2018 hair-follicle test results were accurate. 
15

attorneys, the trial court denied the motion for continuance and implicitly denied 

Mother’s request for the appointment of a toxicology expert. 

8. Summary of Mother’s Compliance with Service Plan

Lewinson testified regarding Mother’s compliance with her service plan. 

Mother had been successfully discharged from CATS drug-treatment therapy, 

had regularly attended her parent-child visits, had obtained a two-bedroom 

apartment, and had maintained employment as an assistant manager at 

Denny’s. According to Lewinson, Mother had not been successfully discharged 

from individual counseling, had not successfully completed anger-management 

classes,11 and had not remained drug free while the case was pending. 

G. The Children’s Status in Foster Care

Gail’s service plan describes her as a “happy and joyful child” who “enjoys 

being around others and loves to play” and who has no special needs or high risk 

behaviors. Grant’s service plan describes him as a “happy and alert infant” who 

“enjoys being around others and watches them closely” and who “is playful and 

loves doing tummy time.” Grant’s service plan further states that he has been 

diagnosed with gastroesophageal reflux disease (GERD) but that it is managed 

 

11The record does not reflect that the trial court ever ordered Mother to 

complete anger-management classes; Mother enrolled in them on her own. The 

record further reflects that Mother did not complete the course because she was 

required to admit to drug use for CPS to pay for the program or to pay $300 out 

of pocket for it; Mother told Lewinson that she would not admit to using drugs

when she was clean. Mother testified that she had been successfully discharged 

from one anger-management program. 
16

with the use of Alimentum formula. He has no other special needs and no highrisk behaviors. 

Lewinson testified that Gail and Grant had been in two foster homes12 and 

were “doing really well” and were flourishing in their environment. Lewinson 

testified that Gail and Grant were currently in an adoption-motivated foster home 

and that CPS would pursue having the children adopted if the trial court 

terminated Father’s and Mother’s parental rights to Gail and to Grant. Lewinson 

said that the foster parents were “great with the kids.” Lewinson noted that Gail 

and Grant love their foster parents and seek help and comfort from them. 

Lewinson testified that the foster parents provide a safe and stable home for Gail 

and Grant. Lewinson said that the programs available to help the foster parents 

include financial assistance through a postadoption subsidy; counseling services;

case management; college tuition; and Medicaid coverage, if the children qualify. 

 

12The record reflects that the children were moved to a new foster 

placement on August 8, 2017. The children’s service plans that were completed 

on May 9, 2017, state that they are very bonded with their foster parents and that 

they recognize the foster parents as their caregivers, but these service plans 

were completed prior to the children being moved to another foster home. 
17

H. The Department’s Recommendations13

Lewinson testified that CPS’s goal changed from reunification to 

termination and adoption in January 2018 based on the results of Mother’s hairfollicle drug test, which showed an increase in the level of cocaine from the prior 

hair-follicle drug test and thus showed that Mother had not demonstrated 

“changed behavior.” 

Lewinson testified that Father cannot meet the physical and emotional 

needs of the children now and in the future because he has a history of drug use, 

he supports Mother’s claims that she is not using drugs and believes that her 

positive drug tests are invalid, and he has a pattern of neglect and the inability to 

be protective of his children as demonstrated by the termination of his parental 

rights to his twins. Lewinson also testified that Father cannot protect the children 

from emotional and physical danger now and in the future based on his history of 

drug use, his pending criminal cases, his support of Mother’s drug use, his 

pattern of neglect and inability to be protective of his children, and his failure to 

complete his service plan. Lewinson opined that it was in the children’s best 

interest for the trial court to terminate Father’s parental rights to Gail and to Grant 

because Father had stated at the outset that he did not want to be involved in 

 

13The record does not contain a recommendation from the children’s 

guardian ad litem. And though the record mentions a Court-Appointed Special 

Advocate, it appears that he was assigned and served only during the FBSS

case because the record does not contain any reports or recommendations from 

him, nor did he appear for trial.
18

their lives, he was not compliant with his service plan, he had a history of drug 

use, and he had not presented CPS with any certificates saying that he had 

completed drug therapy. 

Lewinson opined that Mother could not meet Gail’s and Grant’s emotional 

and physical needs now and in the future because Mother’s drug use impaired 

her ability to supervise and to protect Gail and Grant, her cocaine relapse 

indicates that she placed her needs above her children’s needs, she had not 

demonstrated changed behavior as reflected by her continued drug use, and she 

had not taken her psychotropic medication as prescribed. Lewinson further 

opined that it was in Gail’s and Grant’s best interest for the trial court to terminate 

Mother’s parental rights because she had admitted to using cocaine after Gail 

was born in 2015; Mother had continued to deny drug use despite numerous 

positive tests, including testing positive while pregnant with Grant; she had 

admitted to taking hydrocodone that was not prescribed to her; she had 

unsupervised contact with the children in violation of the FBSS safety plan; she 

gave Gail to a stranger following a car accident; and she had not consistently 

taken her prescribed psychotropic medications.

I. Mother’s Case in Chief

1. Mother’s Testimony

Mother testified that she knew she was in violation of the FBSS safety plan 

on the day of the car accident because she had Gail in her care without her sister 

supervising her. Mother testified that the police told her to leave Gail with her 
19

friend—whom Mother described as an old friend that she had not had contact 

with in a few years—while Mother went to check on her brother. Mother’s friend 

provided Mother with her cell phone number, but Mother misplaced the number. 

Because Mother’s friend had no way to contact Mother, Mother “put out an 

Amber Alert” for Gail. Mother’s friend then took Gail to the police station. 

Mother said that she made a one-time mistake when she used drugs in 

December 2015. She testified that she is dedicated to staying off drugs. Mother 

said that she disagreed with the last hair-follicle drug test that she took for CPS 

and that she paid almost $400 from her savings to have another hair-follicle drug

test performed. On cross-examination, Mother maintained that she had not used 

cocaine in over two years. 

Mother testified that she had seen a difference in herself since her parental 

rights were terminated to her twins. She testified that she is “[w]ay more stable” 

than she was in 2014. She had maintained a job, she had obtained a car and a

two-bedroom apartment to accommodate her children, she had taken classes for 

her children, and she had support from her large extended family to help her with 

her children. Mother explained that the behavior fluctuations that Hooker noted 

during her counseling sessions were due to missing Gail and Grant and to 

working long hours. 

Mother testified that she had found someone to keep the children while 

she worked. Mother explained that when the children become school age, she

does not want to send them to public school because she felt like “it’s too much 
20

going on.” So Mother had made arrangements for the children to be 

homeschooled by one of their foster mothers. Mother testified that she and the 

foster mother had a great connection and had developed a relationship while Gail 

and Grant were in her home and that Gail loved the foster mother’s children. 

The trial court asked Mother if Father had done anything to support Gail 

and Grant, and she said that if she needed help with “anything, diapers, wipes, 

help with a bill, he did come through.” Mother said that Father also regularly 

came to see Gail and Grant when they were born to check on them and on

Mother. 

2. Mother’s Supporters

Marie Brown Vaquerfernandez, who had worked at Denny’s with Mother 

for three years, testified that Mother had requested to work the day shift because 

it would be a better schedule for having her children back with her. 

Vaquerfernandez testified that Mother’s ability to manage a restaurant is 

excellent and that she works long hours and goes “above and beyond.” 

Mother’s younger sister testified that Mother had tried harder to work her 

service plan with this case than she did in her twins’ case. Mother’s younger 

sister further testified that she would feel comfortable leaving her children in 

Mother’s care. 

Stephanie Hill, Mother’s long-time best friend, testified that she would be 

willing to help Mother. Hill said that she “[o]ne hundred percent” thinks Mother is 

appropriate to watch Hill’s son and that her son would be safe in Mother’s care. 
21

J. Outcome

After hearing the above testimony and reviewing the evidence admitted at 

trial, the trial court found by clear and convincing evidence that Father had 

violated subsections (M) and (O) of section 161.001(b)(1) and that termination of 

his parental rights was in Gail’s and in Grant’s best interest. The trial court also

found by clear and convincing evidence that Mother had violated subsections

(D), (E), (M), and (O) of section 161.001(b)(1) and that termination of her 

parental rights was in Gail’s and in Grant’s best interest. Following the 

termination trial, Mother filed a second amended motion for new trial, which the 

trial court heard and denied. Father and Mother each perfected an appeal from 

the trial court’s termination order.

III. BURDEN OF PROOF AND STANDARDS OF REVIEW

In a termination case, the State seeks not just to limit parental rights but to 

erase them permanently—to divest the parent and child of all legal rights, 

privileges, duties, and powers normally existing between them, except the child’s 

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West Supp. 2017); Holick v. 

Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to 

sever permanently the relationship between a parent and a child, it must first 

observe fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 

2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–

92 (1982)). We strictly scrutinize termination proceedings and strictly construe 
22

involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d 

796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.

Termination decisions must be supported by clear and convincing 

evidence. See Tex. Fam. Code Ann. §§ 161.001(b), 161.206(a); E.N.C., 384 

S.W.3d at 802. Due process demands this heightened standard because “[a] 

parental rights termination proceeding encumbers a value ‘far more precious 

than any property right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. 

at 758–59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see

also E.N.C., 384 S.W.3d at 802. Evidence is clear and convincing if it “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 (West 

2014); E.N.C., 384 S.W.3d at 802.

For a trial court to terminate a parent-child relationship, the Department

must establish by clear and convincing evidence that the parent’s actions satisfy 

one ground listed in family code section 161.001(b)(1) and that termination is in 

the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 

S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must 

be established; 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 C.D.E., 391 S.W.3d 287, 295 (Tex. App.—

Fort Worth 2012, no pet.).
23

In evaluating the evidence for legal sufficiency in parental-termination 

cases, we determine whether the evidence is such that a factfinder could 

reasonably form a firm belief or conviction that the Department proved the 

challenged ground for termination. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 

2005). We review all the evidence in the light most favorable to the finding and 

judgment. Id. We resolve any disputed facts in favor of the finding if a 

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

reasonable factfinder could have disbelieved. Id. We consider undisputed 

evidence even if it is contrary to the finding. Id. That is, we consider evidence 

favorable to termination if a reasonable factfinder could, and we disregard 

contrary evidence unless a reasonable factfinder could not. See id. We cannot 

weigh witness credibility issues that depend on the appearance and demeanor of 

the witnesses because that is the factfinder’s province. Id. at 573–74. And even 

when credibility issues appear in the appellate record, we defer to the factfinder’s

determinations as long as they are not unreasonable. Id. at 573.

We are required to perform “an exacting review of the entire record” in 

determining whether the evidence is factually sufficient to support the termination 

of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In 

reviewing the evidence for factual sufficiency, we give due deference to the 

factfinder’s findings and do not supplant the judgment with our own. In re 

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire 

record, a factfinder could reasonably form a firm conviction or belief that the 
24

parent violated one of the provisions of section 161.001(b)(1) and that

termination of the parent-child relationship would be in the best interest of the 

child. See Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re C.H., 89 S.W.3d 17, 

28 (Tex. 2002). If, in light of the entire record, the disputed evidence that a 

reasonable factfinder could not have credited in favor of the finding is so 

significant that a factfinder could not reasonably have formed a firm belief or 

conviction in the truth of its finding, then the evidence is factually insufficient. 

H.R.M., 209 S.W.3d at 108.

IV. SECTION 161.001(B)(1) GROUND

A. Father’s Challenge to (b)(1) Grounds

In his first issue, Father argues that the evidence is legally and factually 

insufficient to support the trial court’s judgment under section 161.001(b)(1)(D) 

and (E). The trial court, however, did not terminate Father’s parental rights to 

Gail and to Grant under subsections (D) and (E) but instead terminated Father’s 

parental rights under subsections (M)14 and (O). Father’s counsel concedes in 

his brief that the Department “proved element (M) of the petition in that the prior 

 

14Section 161.001(b)(1)(M) states that the trial court may order termination 

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

that the parent has “had his or her 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) or substantially equivalent provisions of the law 

of another state[.]” Tex. Fam. Code Ann. § 161.001(b)(1)(M). The subsection 

(D) and (E) grounds mentioned in subsection (M) thus relate to the parent’s 

conduct toward another child in a prior termination suit—not to the parent’s 

conduct in the present case. See id.
25

termination was proved by clear and convincing evidence.” Because the record 

contains sufficient evidence to support Father’s concession regarding the trial 

court’s subsection (M) finding—the prior termination order that was admitted at 

trial showing that Father’s parental rights to another child were previously 

terminated based on a finding under subsection (D) or (E)—and because only 

one ground under section (b)(1) is necessary to support termination, we overrule 

Father’s first issue. See In re N.J.D., No. 14-17-00711-CV, 2018 WL 650450, at 

*5 (Tex. App.—Houston [14th Dist.] Feb. 1, 2018, pet. denied) (mem. op.) 

(stating that unchallenged fact finding is binding unless it is unsupported by 

evidence and holding evidence sufficient to support termination finding under 

subsection (O), which mother conceded on appeal); In re K.C., 23 S.W.3d 604, 

607 (Tex. App.—Beaumont 2000, no pet.) (“Were we to hold the record contains 

insufficient evidence to support the trial court’s finding that [father] engaged in 

conduct which endangered [the child], the decree of termination would be 

supported by the unchallenged findings.”).

15

 

15Because, along with a best-interest finding, a finding of only one ground 

alleged under section 161.001(b)(1) is necessary to support a judgment of 

termination, we need not address Father’s second issue challenging the

evidence the trial court judicially noticed to support its finding under subsection 

(O) of section 161.001(b)(1). See Tex. R. App. P. 47.1; see also In re E.M.N.,

221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.); In re S.B., 207 

S.W.3d 877, 886 (Tex. App.—Fort Worth 2006, no pet.).
26

B. Mother’s Challenge to (b)(1) Grounds

In her first, second, and third issues, Mother argues that the evidence is 

factually insufficient to support the trial court’s subsection (D), (E), and (O) 

findings. Mother, however, specifically states in her brief that “[t]he finding of the 

trial court in regard to § 161.001(b)(1)(M), prior termination of parental rights 

pursuant to § 161.001(b)(1)(D) and (E), is not disputed.” Because the record 

contains sufficient evidence to support the trial court’s unchallenged subsection 

(M) finding—the prior termination order that was admitted at trial showing that 

Mother’s parental rights to another child were previously terminated based on a 

finding under subsection (D) or (E)—and because only one ground under section 

(b)(1) is necessary to support termination, we overrule Mother’s first, second, and 

third issues.

16 See N.J.D., 2018 WL 650450, at *5 ; K.C., 23 S.W.3d at 607.

 

16In her fourth issue, Mother argues that the trial court erred by denying her 

motion requesting that a toxicology expert be appointed to examine the results of 

the drug tests Mother took because it prevented her “from fully defending [t]he 

Department’s request to terminate her parental rights pursuant to [section] 

161.001(b)(1)(D) and (E)”; in her fifth issue, Mother argues that the trial court 

erred by denying her motion for new trial on the grounds alleged in her fourth 

issue. In her eighth issue, Mother argues that the trial court erred by taking 

judicial notice of several orders that adopted service plans. Because these 

issues attack the trial court’s subsection (D), (E), and (O) findings, and because 

we hold that the trial court’s termination order can be upheld solely based on the 

subsection (M) finding, we need not address Mother’s fourth, fifth, and eighth 

issues. See Tex. R. App. P. 47.1; see also E.M.N., 221 S.W.3d at 821; S.B., 207 

S.W.3d at 886.
27

In her sixth and seventh issues,

17 Mother argues that the trial court abused 

its discretion by admitting testimony regarding facts that formed the basis of a 

previous order terminating her parental rights to her twins, that the evidence was 

irrelevant to the instant case, that it was unfairly prejudicial, and that the trial 

court erred by denying her motion for new trial alleging these same arguments. 

Mother contends that testimony regarding her prior drug use and being 

discharged from an inpatient-treatment program at a Volunteers of America 

facility was irrelevant to prove any fact of the current case and was more 

prejudicial than probative. Mother admitted in her second amended motion for 

new trial that “[n]o objection to such inquiries was made” by her trial counsel. 

Because Mother did not object to the complained-of evidence, her complaints are 

not preserved for our review. See Tex. R. App. P. 33.1(a); Bushell v. Dean, 803 

S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). 

Even if Mother’s trial counsel had objected to the complained-of testimony 

during the trial, any relevancy or more-prejudicial-than-probative objections most 

likely would not have kept out the complained-of testimony. In addition to 

supporting the subsection (M) ground, the testimony about Mother’s prior drug 

abuse and her unsuccessful discharge from the Volunteers of America inpatient 

program was relevant both to the endangering conduct finding under subsection 

 

17To the extent that Mother’s sixth and seventh issues conflict with her 

concession by challenging the evidence supporting the subsection (M) finding, 

we address them. See Tex. R. App. P. 38.9 (requiring briefs to be construed 

liberally).
28

(E) and to the best-interest analysis. See Tex. R. Evid. 401; Tex. Fam. Code 

Ann. § 263.307(b)(8), (11) (West Supp. 2017) (setting forth factors court can 

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

the child with a safe environment, including whether there is a history of 

substance abuse by the child’s family and the willingness and ability of the child’s 

family to effect positive environmental and personal changes within a reasonable 

period of time); Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.—Houston 

[1st Dist.] 2010, pet. denied) (stating that evidence as to how a parent has 

treated another child is relevant regarding whether a course of endangering 

conduct has been established). Moreover, Mother’s blanket statement—that 

“[s]uch testimony only served to prejudice the court against [her]”—does not 

meet her burden of showing how the complained-of testimony was unfairly 

prejudicial. See Tex. R. Evid. 403; In re M.G.N., 491 S.W.3d 386, 403 (Tex. 

App.—San Antonio 2016, pet. denied) (stating that the opponent of the proffered 

evidence has the burden to show why the evidence is prejudicial and how the 

prejudicial attributes “substantially outweigh the probative value of the 

evidence”); Murray v. Tex. Dep’t of Family & Protective Servs., 294 S.W.3d 360, 

369 (Tex. App.—Austin 2009, no pet.) (stating that mother did not explain on 

appeal how the evidence was unfairly prejudicial). Accordingly, we hold that the 

trial court did not abuse its discretion by admitting the complained-of testimony or 

by overruling Mother’s motion for new trial based on such testimony, and we

overrule Mother’s sixth and seventh issues.
29

V. SECTION 161.001(B)(2) GROUND

In Father’s third issue, he argues that the evidence is factually insufficient 

to support the trial court’s best-interest finding. In Mother’s ninth issue, she 

argues that the evidence is legally and factually insufficient to support the trial 

court’s best-interest finding.18 We analyze the best-interest finding as to each 

parent below.

A. Best-Interest Factors

There is a strong presumption that keeping a child with a parent is in the 

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

We review the entire record to determine the child’s best interest. In re 

E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative 

of both the subsection (1) ground and best interest. Id. at 249; C.H., 89 S.W.3d 

at 28. Nonexclusive factors that the trier of fact in a termination case may also 

use in determining the best interest of the child include the following: (A) the 

desires of the child; (B) the emotional and physical needs of the child now and in 

the future; (C) the emotional and physical danger to the child now and in the 

future; (D) the parental abilities of the individuals seeking custody; (E) the 

 

18Although Mother’s ninth issue references only a factual sufficiency 

challenge to the evidence supporting the trial court’s best-interest finding, the 

argument and analysis sections of her brief include a legal sufficiency challenge. 

We therefore broadly construe Mother’s ninth issue as challenging both the legal 

and factual sufficiency of the evidence to support the trial court’s best-interest 

finding. See Tex. R. App. P. 38.1(f) (“The statement of an issue or point will be 

treated as covering every subsidiary question that is fairly included.”); see also 

Tex. R. App. P. 38.9 (requiring briefing rules to be construed liberally).
30

programs available to assist these individuals to promote the best interest of the 

child; (F) the plans for the child by these individuals or by the agency seeking 

custody; (G) the stability of the home or proposed placement; (H) the acts or 

omissions of the parent which may indicate that the existing parent-child 

relationship is not a proper one; and (I) any excuse for the acts or omissions of 

the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 

402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we consider, 

among other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807. These 

factors are not exhaustive, and some listed factors may be inapplicable to some 

cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one 

factor may be sufficient in a particular case to support a finding that termination is 

in the best interest of the child. Id. On the other hand, the presence of scant 

evidence relevant to each factor will not support such a finding. Id.

B. Father’s Best-Interest Challenge

With regard to the children’s desires, neither child testified at trial; they 

were both under four years old, and there is no evidence in the record about the 

children’s desires regarding placement. The record reflects that the children love 

their foster parents and seek help and comfort from them. Although there is 

evidence that Father had positive interactions with the children during the visits

he attended, his involvement in their lives was minimal prior to the CPS case, 

and he waited nine months after the children were removed to begin visiting 

regularly with the children. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—
31

Houston [14th Dist.] 2014, no pet.) (stating that when a child is too young to 

express his or her desires, the factfinder may consider whether the child has 

bonded with his or her current caregiver, is well-cared for, and whether the child 

has spent minimal time with the parent). The trial court was entitled to find that 

this factor weighed in favor of terminating Father’s parental rights to Gail and to 

Grant.

With regard to the children’s emotional and physical needs now and in the 

future, Gail does not have any special needs, but Grant has been diagnosed with 

GERD. The children’s basic needs include food, shelter, and clothing; routine 

medical and dental care; a safe, stimulating, and nurturing home environment; 

and friendships and recreational activities appropriate to their ages. The record 

reflects that Father provided for some of the children’s physical needs when 

Mother sought assistance from him, but he did not live with or act as a caretaker

for the children and did not provide details regarding whether his home was 

suitable for the children. The trial court was entitled to find that this factor 

weighed in favor of terminating Father’s parental rights to Gail and to Grant.

With regard to the emotional and physical danger to the children now and 

in the future, the evidence demonstrates that Father had been arrested while the 

CPS case was pending and that he had not completed the recommendations 

from his drug assessment and would not provide his sober date. The trial court 

was entitled to find that this factor weighed in favor of terminating Father’s 

parental rights to Gail and to Grant.
32

With regard to Father’s parental abilities, the record demonstrates that

Father had completed parenting classes but that he had not completed the 

FOCUS for Fathers class. Father had never lived with the children or been their 

caretaker; his interactions with the children were limited to checking on them 

after they were born and to seeing them at the one-hour weekly visits that he 

attended after the children were removed from Mother. Moreover, a factfinder 

could reasonably form a firm conviction or belief that Father was still using drugs 

because he had not provided his caseworker with a sober date, had tested 

positive on two urinalysis drug tests, and had failed to take two requested drug 

tests. The trial court was entitled to find that this factor weighed in favor of 

terminating Father’s parental rights to Gail and to Grant.

With regard to the programs available to assist Father and the foster

parents to promote the best interest of the children, the record reveals that 

Father had not completed the services that CPS had offered him. The foster

parents could obtain financial assistance through a postadoption subsidy; 

counseling services; case management; college tuition; and Medicaid coverage, 

if the children qualify. The trial court was entitled to find that this factor weighed 

in favor of terminating Father’s parental rights to Gail and to Grant.

With regard to the plans for the children by the individuals seeking custody 

and the stability of the home or proposed placement, Father wanted his children 

to grow up to be happy and healthy, but he expressed to Lewinson that he was 

focused on maintaining his freedom by staying out of jail and never provided 
33

details when asked about the apartment where he lived. Although the children 

had been in two foster homes during the case, the children had been in their 

second foster home for almost seven months at the time of the trial, and the 

Department planned for the children to be adopted by their foster parents. The 

trial court was entitled to find that this factor weighed in favor of terminating 

Father’s parental rights to Gail and to Grant.

 With regard to the acts or omissions of Father that may indicate the 

existing parent-child relationship is not a proper one, the analysis set forth 

above—which details Father’s criminal history, his failure to address his drug 

abuse, and the termination of his parental rights to his twins—reveals that the 

existing parent-child relationship between Father and the children is not a proper 

parent-child relationship. The trial court was entitled to find that this factor 

weighed in favor of terminating Father’s parental rights to Gail and to Grant.

As for any excuse for the acts or omissions of the parent, Father’s excuse 

for not finishing his drug classes was that he had gone to jail and had not 

resumed his drug classes upon his release because he did not have 

transportation and would not ride the bus. Father contends in his brief that he 

was not at fault for the children’s removal, which was based on Mother’s 

shortcomings. The trial court was entitled to find that this factor weighed in favor 

of terminating Father’s parental rights to Gail and to Grant. 

Reviewing all the evidence with appropriate deference to the factfinder, we 

hold that the trial court could have reasonably formed a firm conviction or belief 
34

that termination of the parent-child relationship between Father and Gail and 

Grant was in the children’s best interest, and we therefore hold the evidence 

factually sufficient to support the trial court’s best-interest finding. See Tex. Fam.

Code Ann. § 161.001(b)(2); Jordan, 325 S.W.3d at 733 (holding evidence 

factually sufficient to support the trial court’s best-interest finding when most of 

the best-interest factors weighed in favor of termination); In re T.R.M., No. 14-14-

00773-CV, 2015 WL 1062171, at *11–12 (Tex. App.—Houston [14th Dist.] Mar. 

10, 2015, no pet.) (mem. op.) (holding evidence factually sufficient to support 

best-interest finding based on mother’s lack of a safe, stable home environment; 

noncompliance with services; and drug use). We overrule Father’s third issue.

C. Mother’s Best-Interest Challenge

With regard to the children’s desires, as mentioned above, both children 

were too young to testify at trial, so there is no evidence in the record about the 

children’s desires regarding placement. The record contains evidence that the 

children were very bonded with Mother when they came into foster care and that 

Mother’s interactions with the children were all positive during their weekly visits.

The record also reflects that the children love their foster parents and seek help 

and comfort from them. This factor weighs neither for nor against terminating 

Mother’s parental rights to Gail and to Grant.

With regard to the children’s physical needs now and in the future, 

Mother—who was employed full time and had a two-bedroom apartment—was 

able to provide for the children’s physical needs regarding food, clothing, and
35

housing. Concerning Mother’s ability to provide for Gail and Grant’s emotional 

needs, the evidence demonstrates Mother’s continued struggle with cocaine 

use.19 Although Mother testified that she had not used cocaine for over two 

years prior to the termination trial that started on February 27, 2018, she had 

tested positive for cocaine in both February 2016 and March 2016 when she was 

pregnant with Grant (Grant was born in July 2016); had tested positive for 

cocaine on all five of her hair-follicle drug tests that were performed in 2017 and 

2018; and had also submitted three urine specimens that were positive for 

cocaine on February 24, 2017; on March 2, 2017; and on July 25, 2017. The trial 

court was entitled to find that this factor weighed in favor of terminating Mother’s 

parental rights to Gail and to Grant.

With regard to the emotional and physical danger to the children now and 

in the future, the Department expressed concern over Mother’s failure to take her 

prescribed psychotropic medications, her drug use while she was the children’s

sole caretaker, and her failure to successfully complete individual counseling. 

Although Mother had begun taking her prescribed psychotropic medications, she 

told her counselor that she wanted to manage her mood without medication, 

 

19Mother asserts that the results of the January 24, 2018 hair-follicle drug 

test of 7,829 pc/mg and the February 18, 2018 hair-follicle drug test of 926 pc/mg

are incompatible. We agree. But the tests were not performed by the same lab, 

and Mother’s February 18, 2018 hair-follicle drug test was not confirmed by a 

second lab, as were the hair-follicle drug tests paid for by CPS. Moreover, even 

Mother’s February 18, 2018 hair-follicle drug test shows that she tested positive 

for cocaine.
36

which concerned her counselor because discontinuing her medication for a 

period of time “could potentially be clinically risky for her.” And although Mother 

had completed drug treatment, she tested positive for cocaine on five hair-follicle 

drug tests and three urinalysis drug tests while the case was pending. The trial 

court was entitled to find that this factor weighed in favor of terminating Mother’s 

parental rights to Gail and to Grant.

With regard to Mother’s parental abilities, the record demonstrates that 

Mother’s interactions with her children at the weekly visits were always positive 

and that she had completed parenting classes while the case was pending. The 

record demonstrates that Mother had used drugs while she was pregnant with 

Grant, which endangered him in utero and which also endangered Gail, for whom

she was the sole caretaker. Mother had also continued to test positive for 

cocaine during the CPS case. Moreover, during the FBSS case, Mother left Gail 

with a woman she barely knew. The trial court was entitled to find that this factor 

weighed in favor of terminating Mother’s parental rights to Gail and to Grant.

With regard to the programs available to assist Mother and the foster

parents to promote the best interest of the children, the record reveals that 

Mother knowingly violated the FBSS safety plan by having unsupervised contact 

with Gail and then trying to conceal her violation by leaving Gail with an unnamed 

woman whom Mother knew from the club scene. Mother had not completed all 

of her CPS services; she was not successfully discharged from individual 

counseling and had not remained drug free while the case was pending. The 
37

foster parents could obtain financial assistance through a postadoption subsidy; 

counseling services; case management; college tuition; and Medicaid coverage, 

if the children qualify. The trial court was entitled to find that this factor weighed 

in favor of terminating Mother’s parental rights to Gail and to Grant.

With regard to the plans for the children by the individuals seeking custody 

and the stability of the home or proposed placement, Mother had made plans for 

the children’s return by renting a two-bedroom apartment approximately seven 

months prior to trial, purchasing a car, starting a savings account, securing child 

care for when she was at work, and arranging for the children to be 

homeschooled when they become school age. The children had been in two 

foster homes while in the Department’s care—with their second placement 

occurring approximately seven months prior to trial, and the Department planned 

for the children to be adopted by their current foster parents. This factor weighs 

neither for nor against terminating Mother’s parental rights to Gail and to Grant.

 With regard to the acts or omissions of Mother that may indicate the 

existing parent-child relationship is not a proper one, the analysis set forth 

above—which reflects that Mother left Gail with an unnamed woman, that Mother 

did not successfully complete individual counseling, and that she used drugs 

while pregnant with Grant and continued to test positive for cocaine throughout 

the pendency of the case—reflects that the existing parent-child relationship 

between Mother and the children is not a proper parent-child relationship. The 
38

trial court was entitled to find that this factor weighed in favor of terminating 

Mother’s parental rights to Gail and to Grant.

As for any excuse for the acts or omissions of the parent, Mother admitted 

that she had “slipped up” or had “messed up” when she used cocaine in 

December 2015. Mother also admitted that she had “messed up” by leaving Gail 

with a friend after the accident and explained why Gail was in the car with her 

instead of in the car with her sister and Grant. This factor weighs neither for nor 

against terminating Mother’s parental rights to Gail and to Grant.

After reviewing the entire record, it reflects that Mother has made 

numerous positive changes in her life. In conducting a legal and factual 

sufficiency review of the evidence to support the trial court’s best-interest finding, 

however, our focus is on whether clear and convincing evidence exists

supporting termination based on the (b)(2) best-interest ground, not only on the 

positive progress made by Mother to better herself and her situation. Our review 

of the evidence must also give due deference to the factfinder’s credibility 

determinations; we are not allowed to supplant them with our own to reach the 

opposite result. H.R.M., 209 S.W.3d at 108. Here, constrained by the standard 

of review and the required deference to the factfinder’s credibility determinations,

and after reviewing all the evidence and applying these standards, we hold that 

the trial court could have reasonably formed a firm conviction or belief that 

termination of the parent-child relationship between Mother and Gail and Grant 

was in the children’s best interest. We therefore hold that the evidence is legally 
39

and factually sufficient to support the trial court’s best-interest finding. See Tex. 

Fam. Code Ann. § 161.001(b)(2); Jordan, 325 S.W.3d at 733 (holding evidence 

legally and factually sufficient to support the trial court’s best-interest finding 

when most of the best-interest factors weighed in favor of termination); S.B., 207 

S.W.3d at 887–88 (“A parent’s drug use . . . and failure to comply with [a] family 

service plan support a finding that termination is in the best interest of the child.”).

Accordingly, we overrule Mother’s ninth issue.

VI. CONCLUSION

Having overruled Father’s first and third issues, which are dispositive of his 

appeal, we affirm the trial court’s judgment terminating his parental rights to Gail 

and to Grant. Having overruled Mother’s first, second, third, sixth, seventh, and 

ninth issues, which are dispositive of her appeal, we affirm the trial court’s 

judgment terminating her parental rights to Gail and to Grant.

/s/ Sue Walker

SUE WALKER 

JUSTICE

 

PANEL: WALKER, KERR, and PITTMAN, JJ.

DELIVERED: August 16, 2018