### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO . 03
- 23
- 00184
- CV NO. 03
- 23
- 00191
- CV

M. E. and D. R. , Appellant s

v. Texas Department of Family and Protective Services, Appellee

FROM THE 274TH DISTRICT COURT OF COMAL COUNTY NO. C2022-0420C , TH E H O NO RABLE MELISSA MC CLENAHAN , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
In these two related appea ls, 1 M.E. (Mother) and D.R. (Father) appeal from the trial court ’ s orders terminating Mother ’ s parental rights to three of her children

— Kevi n, L aur a, and Mary (the “ Chi ldren ”)—and Father ’ s parental rights as to Laura and Mary (the “Daughters”). 2 Moth er challenges the legal and f actual sufficiency of the evidence supporting the best interest finding as to the termination of her parental rights

. S ee Te x. Fam. Code § 161.001(b)( 2) (best inte rest ). Father challenges the legal and factual sufficien cy of the evidence supp orting the predicate statutory grounds for terminati on . See id. § 161.001(b)(1) (D) (endangering environment), (E) (endangering cond uct) , (N) (constructive abandonment) ,

1 Mother filed notices in both appeals; Fathe r only filed a notice of appeal in c ause number 03 -23-00191- CV.

2 For the ir privacy, we will refer to the children by aliases and to their fami ly members by their rel ationships to them or by al ias es. See Tex. R. App. P. 9.8.2 ( O) ( failure to comply with court order)

. Father also challenges the legal and factual sufficiency of the eviden ce supporting the best interest finding and the conservatorship appointment. For the following reaso ns, w e a ff irm the trial court’s termination orders

.
BAC KGROUND Moth er is the biological mother of Kevin, Laura, and Mary, who were ten, five, and three, respectively, at the time of the bench trial

. Father is the biological father of Laura and Mary. Mot her’ s ch ildren had been removed at least three previous times, with the most recent removal occurring in 2017 or 2018. On January 24, 2022, the Department received an intake alleging neglectful supervision of the children by Mother. During a traffic stop ,
me tham phetamine and related paraphernali a were discovered in M o ther ’ s car, although Mother reported that the drugs be longed to Megan, her oldest daughter who was of the age of the majority at the time of the final order s . Father , who did not l ive wit h M othe r at the time , told the Department’s investigator that Mother called him from jail and said she had been arrested leavi ng a “ trap house

. ” 3 Mother in itially tested positive for amphetamines on a February 1, 2022 uranalysis test. The Department filed a pet itio n seeking temporary orders to require Mother to participate in services, but after Mother tested positiv e for methamphetamines on a hair

- f ollicle drug test on March 31, 2022, the Department sought r emoval of all three children. All three children subs eque ntly tested positive for amphetamine, with Laura and Mary also test ing positive for methamphetamine , on A p ril 4, 2022

. Kevin was placed with his maternal grandmother for the remainder of the case. Laura and Mary were placed with Father from April 12 thro ugh

3 A “ trap house ” is a reside nce used for selling narcotics. United States v. Johnson , 14 F .4th 342, 345 (5th Cir. 2021)

.3 June 23 , 2022, but they were subsequently removed and placed into a foster placement for the remainder of the case.

Mother ’ s Bench Trial A one

- day bench trial as to Mother’s parental rights was held on January 12, 2023 , at which Foster Mother ; Sara C ar dwell, the Department family

- base d safety services (FBSS) ca seworker; Cecilia Ramirez, Department investigator ; Leslie Whiteley, permanency specialist ; and M o ther testif ied. Foster Mother testifi ed that Laura and Mary were placed in her home on Jun e 23 , 20 22 and that the Daug hters are now “ doing well ” and “ very bo nded to each other

. ” When they first a rrived, she described them as scared and explained that Laura “ was ve ry parental towa rds her younger sister. ” She testified that Laura o riginally wor e pu ll u ps , “defecat[ed] on herself hourly,” and suffered from encopresis, which she described as “ chronic constipat ion , ” and

enures is. 4 Laura also c ried from pain when she at e. According to Foster Mother ’ s testimony,

s ince their placement Lau ra has been rec ei vi ng treatment for her medical d iagnos es and although “[s]he still has trouble with encopresis and enuresis daily, [] that has improved dramatically.” Foster M o ther stated Laura now wears und erwear but still has some accidents. Foster Mo ther also to ok L au ra to multiple dental visits to resolve her dental issues, and she explained that Laura is no longer underweight , no longer c ries when she eats, and “ eats freely and loves” food

. Foster M o ther also testified that Mary was not potty traine d initially , bu t th at Mary is now fully potty

4 “ Encopresis is fecal incontinence and enuresis is urinary incontinence. ” In re A.P. , 184 S.W.3d 410, 413 (Te x. App.

— Dallas 2006, no pet.) ; see also In re M.A. A. , No. 01

- 20

- 00709

- CV, 2021 WL 1134308, at *19 (Tex. App.

— Hous ton [1st Dist.] Mar. 25, 2021, no pet.) (mem. op.) (describing “ encopresis ” as involving child being “ unable to control [their] bow el m ovem ents ” and defecating on themselves )

.4 trained

. Foster Mother testified that the girls “trust me and definitely are responding as kids that feel s afe and happy.” S he clarified that she is not a foster

- to

- adopt placement, but she “would continue to look after the m an d of course advocate for whatever is best for them ” and would be willing to be a l ong - term foster placement. On cross

- examination, Foster M o th er stated that the children “miss their family,” but that Mary has spoken about staying with the foster pl acem en t (or having her parents live with her at the foster placement). When asked about the D aughter s ’ attachment when initially placed, Foster Mothe r testified that Mary c alled Laura “mommy ” and that Laura acted maternal towards Mary. S he also testified tha t Mo ther attended several vis its with Daughters, but also cancelled and missed many visits ; s h e later clarified that M other had attended at least t wo visits with Daughters , but then Mother stopped attending visits

. She also testified that Daughters ha d

se ve ra l visitations with their brother Kevin and that the children enjoyed the visits. Sara Cardwell , the Department FBSS ca seworker, then testified t hat the Department had concerns about Mother’s “drug use, methamphetamines specifically.” Cardwell
test ifie d th at Mother initially told her that she was not abusing methamphetamine and instead “her friend offered to give her gas money if she would go and pick up the friend and t ransport them to the house where the meth was located at so [the f riend ] could b uy t he m eth.” Cardwell testified that Mother told her “she was sober” and that “[h]er issue was alcohol,” and that “she was really adamant that she was not abusing drugs.” She also relayed that Mother described h er behavior al changes after the previous r emov al c ase, including that she was sober, working full time, and she completed her “accountability court.” Cardwell testified that Mother tested positi ve for amphetamines on a ur inalysis drug test on February 1, 2022. The Department was unable to get a v alid t es t from a subsequent5 hair

- follicle spe cim e n collected on February 8, 2022; Mother ther eafter d eclined to take another hair

- follicle drug test mul tiple times. During this time , Mother continued to deny she was using any drugs outside of her prescrip tion m ed ication for Vy v an se . 5 Mother ultimately agreed to take

a hair

- follicle drug test on March 18, which showed positive for amphetamine and metham p heta mine

. Mother thereafter told Cardwell that she had been unable to get her prescription for Vyvanse the pr ev ious month, that she had resorted to buying her medication “from off the street , ” and that Mother’s friend told Mother that her “Vyvanse was bein g filled with meth.” Cardwell testified that Mother told her that “she didn’t realize it was meth beca use th e only difference between meth and V yvanse is it keeps you awake.” Cardwell testified that buying prescription medication “off the street” was sti ll illegal and that the Department was “already involved because she had [been] pulled over with meth i n he r ca r.” Cardwell conf irmed that the children were living with Mother at this point in the
case, but the Department sought removal of t he Children on March 31, 2022 . The Children were sent for drug testing, and o n April 4, 2022, a hair

- follicle drug te st f o r K evin was positive for amphetamine and similar drug tests for Laura and Mary were positive for methamphetamine and amph etamine s . When confronted with the children’s drug test results, Mother told Cardwell that “she believes it was her boyfriend bec ause her boyfriend would do meth in the house.” Cecilia Ramirez , the Department investigator, re iterated that the De partment became involved based on a report of neglectful supervision by M o ther and that Father had told her that Mother “had called from jai l a n d th at she had been arrested lea ving a trap house.” She relayed that Father did not know if Mother was using methamphetamines b ut that “he wouldn’ t

5 Vyvanse is a prescription medication used for treating attention

- deficit / hyperactivity disorder (A DHD ) in adults. See, e.g. , In re N.T. , 474 S.W.3d 465, 471 (Tex. App.

— Dallas 2015, no pet.)

.6 be surprised by it if she was.” Ramirez then testified that Mother told her that a friend “was paying her $50 to pick up methamphetamine for t hat friend

. ” Leslie Whi teley, the permanency specialist , then testified that the Department was concerned th is was Mother ’ s fourth Department case and that she and the children had tested positive for methamphetamin e s. Whit el ey described the requirements under Mother ’ s s ervice plan, explaining that Mother only partially complied with the drug testing requiremen ts ; that Mother ’ s contact with her was sporadic ; and that Mother attended sixteen visitations with the Child ren, mis sed eight additional vis its, and that Mother did not inform her she would be missing said visits. Whiteley also testified that Mother teste d positive for amphetamines and methamphetamines on a Septembe r 7, 2022 drug test and that Mother responded that “ it couldn ’ t be true ” because she “ doesn ’ t do drugs. She doesn ’ t do meth. ” Whiteley later testified that when she asked Mo ther about the chil dren’s positive drug tests, Mother blamed “a person in her home that was working on a fence and this person was smok ing methamphetamines around her children.” Whiteley testified that Kevin was placed with his maternal grandmother, was “doing good, ” and tha t Mother had last visited Kevin approximately three months earl ier

. She confirmed that the Daughters were p lace d in a foster home, and she testified that she had no concerns about the Daught er ’s safety and well

- being and that they were bonding with Foster Mother. When asked for further explanation, she explained that the girls are “thriving ” and that they have met mil estones that “for [Laura] should have been met a while ago,” including knowing how to write her name and addre ssing her bathroom issues. White ley testified that the Department continues to have concerns about Mother’s drug usage and failure to fol low thro ugh7 on services and whether the chil dren would be properly cared for if retur ned to Mother’s care

. She confirmed that the D epartment was seeki ng termination of Mother ’ s parental rights. On cross

- examination, W hitel e y testified that psychological t esti ng o n Laura recommended “ therapy, play therapy, and I believe intellectual and cognitive assistance ” and that

an “ early childhood interventi on ” was completed on Mary. When challenged on whe ther it was unusual that Laura did not know her numbers or le t ters wel l at four years old, Whiteley responded that “[i]t is unusual in my experience that a four year old cannot sing the ABC song

. ” Whiteley testified that Mother had initially informed her that Laura had “an enlarged colon due to the size of her poop, ” but tha t Father told her La ura’s medical issues were caused by what Mother was feeding Laura because Father believed Laura was lactose intolera nt. Whiteley testified that during this time, Laura was not being seen by a physician but was being treated wi t h ov er - t he

- counter suppositories. Whiteley testified that Laura had difficulty eating and had not been to a dentist or physician abo ut her eati ng issues prior to her placement with Foster Mother. When asked for further clarification, Whiteley testified t hat she did not have records of Laura’s dental issues prior to when she was place d with Foster Mother, but that she had previous records of Laur a being seen by a gastroenterologist “for stomach pooping/issues, but her treatment was never followed up on ” a n d th e me dication “ was not being provided to her. ” Whiteley testified that she had received Laura ’ s medical records from the gastroenterologist but that she did not believe Laura had seen that medical provider since 2020. When asked how Laura is doing me d ical ly n ow, Whiteley respond ed that she is “doing phenomenal right now ,” although she still has some struggles. Whiteley testifie d that Mothe r told her that she does not speak to Father but that she was living in a house that had been leased by Father beca use “he was helping her to get into8 the home at the beginning of the case.” She conceded that Mother ’ s residence was nice and suitable for child ren , but she cautioned that the lease ends in a few months

. Whiteley testified that Mother stated she woul d do “an ythi ng and everything to get her children back,” but she then confirmed that Mother has failed to complete her services. W hiteley testif ied that Mother had not seen the children since October 2022. Whitel ey testified that Kevin had expr essed that he “ want s to see his mom. ” When asked about th e desires of the girls, Whiteley testified that she could not speak as to Mary’s desires because s he is th ree years old ; Laura “has not specifically said to me that she wants to live with her mom or her da d ” b ut r athe r in dicated she would like to see her older siblings. She testified that the childr en are well

- settled in their current foster placement , that they are attending medical and dental appointments, and she recommend ed they remain in the current place ment unt il a more permanent placement is established. She also testified that Kevin is currently placed with his maternal grandmother and that he is doi ng well in the placement. When asked about the Department’s long

- term goal for the Children , Whiteley resp onde d th at “[w]e are looking for a safe and stable home for them.” Mother then test ified, stating she was aware Laura had been suffering fr om fecal incontinence and soiling herself. She explained that Laura had not been to the gast roenterologist sin ce May 202 0 an d that the pre scription was expired because it was taken “ as needed ” and Laura could not take it for a time because she had the flu

. Mother denied that Laura is lactose intolerant, and she testified that she took Laura to the pediatrician “[ w]hene ver she was ill.” When asked why Laura had cavities because of her lack of nutrition, Mother explained that Laura refused to eat because of her “poop pro blem , ” so Mother would “give her whatever she wanted to eat

. ” Mother testified that she was awa re of Laur a’s cracked tooth, but that she “didn’t9 see that it was that bad at all,” and she disputed that Lau ra “cried incessantly.” Mother testif ied that the C hildren go to the dentist once a year , but she could not recall the exact date she last took th e m. Mo ther tes tified that she was still employed an d had a home suitable fo r the Children. Mother denied using m ethamphetamine , and when asked why she has not submitted herself for the last two drug tests, Mother explained that “[the Department] won’t com munica te

w ith me and they won’t communicate with my doctors. I don’t understand why I’m supposed to communicate with them.” Mother testified that she had not taken methamphetamine since the las t time she took her Vyvanse

. Mother later reiterated that sh e o nly had met hamphetamine in her system from that prescription medication she bought on the street, that buying such medication was not pruden t, and that she was no longer using i t without a prescription. Mother confirmed that her children had been remov ed thr ee t imes from her care. She also testified that she had been arrested on December 5, 2022, for driving without a license, no insurance, and having an open container and that she had not re ported that arrest to Whiteley. Mother testified that she m iss ed he r ch ildr en “[m]ore than anything in the world.” Discussing the children being returned to her, Mother explained that Kevin and Laura w ould be in school, and that Mary would go to daycare. She testified that she would not keep her job because she would ne ed t o “ w ork days and not nights, ” and she also clarified that she had not picked a specific daycare for Mary but that “there’s a bunc h close.” Mother conceded that she does not have a dr iver’s license, and when asked how she would transport the ch ild ren t o ap poin tments and other things, she stated she would “fi nd a way.” Mother explained that her current lease will end in a few months, but if the children were returned, she would sign another lease. Mother testified that her rent is approximately $2,000/ mont h, t hat she currently makes10 approximately $600/week from her work, and that she would be able to afford rent because she would rece ive child support if the children were returned. D escribing the person who she blamed for e xposing her children to metham phet amin e, Mot her testified that she partnered with the man to build fences “ just to make
money and keep my home , ” that the man somet imes sta yed with her and her ch ildren , and that he was the individual smoking “ that stuff. ” She later clarified under cros s - ex amin ation that she had been in a relationship with the man, but it was not “ boyfriend/girlfriend , ” and testified that she kic ked him out when she learned he was smoking methamphetamine in the house

. She later admitted she continued to commun icate with her for mer partner while he was incarcerated. Mot her testified th at her former par tner must have been the cause of the Children ’ s positive test results because “ there ’ s no one else smoking meth in the house. ” Kerri Bechtel, the CASA volunteer for Laura a nd M ary, recommended that the children not be returned to Mother because she is “unfit at this point,” “ has no clue what’s goin g on,” and “has not participated in her services.” Bechtel also expressed concern about Mother’s “lack of accountabi lity” and he r co ntin ued blaming of “the Department and CASA for all of this.” Shea Schmidt, the CASA volunteer for Kevin, also recommended that Mother’s parental rights be terminated based on the testimony, Mother’ s recent arrest and missed visits, and la ck of “a cle an h air

- follicle” drug test

. At the end of the hearing, the trial court admonished that “I don’t find [Mother’s] testimony lik ely to be truthful at all.” The trial court then terminated Mot her’s parental rights as to all three Children (Kevin , Laura, and Mary ) pu rsuant to subsection (D), (E), (O), and (P) statutory grounds and found that termination was in the C hildren’s best interest. See Tex. Fam. Code § 161.001(1)(D), (E), (O), (P), (2) . Mother then appealed

.11 Father ’ s Jury Trial On March 13, 2023, a j ury tr ia l then beg a n on termination of Father ’ s parental rights as to Laura and Mary. 6 During the four

- day trial, the jury heard testimony from Ramirez ; Cardwell ; F a ther ; Whiteley ; Elizabeth Greenhill, the direct or of the Daughter s ’ daycare; Foster Mother ; Be chte l; Daughter s ’ Cousin ; Pete Ruth, Father ’ s friend; Daughter s ’ Aunt ; and Daughter s ’ Paternal Grandmother

. Cecilia Ram irez , the D epartment ’s investigator, returned to the stand, descr ibing how the ini tial referral co ncerned allegations of neglectful s uper visi on by Mother after she was pulled over for possession of methamphetamine and dru g paraphernalia. Ramirez testified that Father soon thereafter contacted her, told her that Mot her “had called him from jail and she told him that she had gotten pulle d ov er l eaving a trap house,” and that he wanted his children. Ramirez testified that the Daughters were initially placed in the home of Father ’ s parents in late January 2022, pending the results of Father ’s initial drug test , which was negat ive. As she late r cl arified, the Daughters were “placed with their dad, but legally on paper, the gr andparents were in charge.” She te stified that the children appeared to ea t with him and that he “seemed to know what he was doing” with the children. S h e also clarif ied that Father was not part of the initial referral and that he was not the target of the initial investigation

. Ram irez noted , however, that F ather had a “ blower ” on his v ehicle relating to a previous conviction for driving while intoxicate d (DWI)

. Ram irez tes tified that her investigation concluded when the matter was referred to FBSS

.

6 A s for Kevin, t he oth er parties sig ned a mediated settlement agreement appointing Kevin’s father (not Father involved in this appeal) and the maternal grandmot her as joint managing conservators afte r the termination of Mother ’ s parental rights

. The action concerning L aura and Mary, the biological children of Fa t her, was seve red into a separate cause number

.12 Cardwell, the Department FBSS caseworker, then testified that the matter only remained with FBSS for a “ short time ” because of Mother ’ s and D aughters ’ subseq uent positive dru g te st results. Cardwell explained that the Daughters were re turned to Mother at some point between February and A p ril 2022 , but after the drug test results , the Department sought removal and the Daughters were placed with Father on April 12, 2022. C ardw ell testified that at the time she did a home visit at Father’s residence and found he was an appropriate placement

. Father testified that he owns his home and has four children, two older children from a previous marriage (not subject t o the present p roce edin g) and the D aughters. Father acknowledged he was the biological father of t he Daughters, that he and Mother began thei r relationship in 2015 and that t hey had “ split up probably about five or six or seven times over the course of ou r relationship. ” H e te stified that he lived with Mother in 2016 when the D epartment became involved because Mother had been drinking while pr egnant with Laura, but he disputed that he knew Mother was drinking at the time because he “ had a full

- time job ” a nd she “ would h ide her alcohol. ” Father also confirmed that Laura was removed from his care in F ebruary 2017 after she was born but she was then returned after he completed s ervices. Father testified that he stopped living with Mother “sometime in 2019.” Fathe r testifi ed t hat alcohol “ was her problem ” and denied having knowledge that Mother had a drug problem. When asked why he told the D epartmen t he was not “surprised” that Mother had been arrested for drugs, Father testified that it “wasn’t surprising because she got arr este d for it. I had no idea what she was doing.” Father testified that he “ did not struggle with alcohol , ” but then later adm itted that he had been convic ted of DWI on four occasions (including DWIs in December 2019, Marc h 2021, and Ap r il 2021) , that he had an i gnition interlock device installed on his vehicle as part of his probation , and that he would go to jail for13 up to on e year if he violated his probation

. Father, however, explained that “ it was never when I was in possession of my children ” an d “ n ever with my children. ” Father later testified that he had not had alcohol in almost two years , had been clean his whole pro bation, and that no motion
to rev oke his probation had been filed. Father test ified that, because he was the non

- o ffending pare nt i n th e present case, he believed he should not “have to work any services” beyond “the initial proving that I wasn’t doing any drugs or alcohol.” Father thereafter testified that he “would absolutely do anything for my childre n” but conf irmed that he r efus ed t o work any type of services. Father testified he agreed to a temporary managing conservatorship with the Department “und er duress

. ” F a ther acknowledged that he knew services would be required at the time he agreed to the
conservato rship, and he c onfi rmed he refused to do any services and refused to cooperate on the service plan. Fa ther explained that the girls were in his care fr om April 12 through June 23, 2022 , and he did no t recall why the children were placed back with Mother b etween January a nd A pril 2022

. Describing his living sit uation, Father testified that his home was next to a
p layground, that he had previous cooking ex perience owning multiple food business es and that the allegations he l et his children “ starve ” was “ rid iculous , ” and th at L aura and Mary shared the bottom bunk of a bunk bed at his home ( another of his children slept on the top bunk ). Father testified that the Daughters ha d a strong rela tionship with his older two children. He also testified that he was i n the process of pot ty t raining the D aughters when they were removed

. Father conceded that he did not take either Laura or Mary to the med ical evaluation within thirty days as requi red as part of their placement with him

. Father clarified that he did ta ke Mary to the eme rgen cy r oom for treatment of conjunctivitis. When asked about14 his failure to comply with the requirement to take the girls to the requir ed medical evaluations , Father explained that he was not given “the insurance information so I can ma ke the actual
appo intm ents to get t hem to the doctor.” When asked whether “nothing you have failed to do is your fault, but it’s the Department’s fault,” Father respond ed , “Absolutely.” Describing the Daughters ’ medica l issues, Father testified that Mary contracted conjunc tivi tis at daycare and had to get medication from the doctor; Father disputed, however, that the treatment did not resolve the conjunctivi tis, arguing that in s tead Mary contracted it a second time. Father testified that Laura was “ overly constipated from eati ng t oo many dairy products that was causing her to have a prolapsed anus” that made it difficult for her to have normal bowel movement s. Father testi fied that he had notified the daycare about Laura’s dietary restrictions and that he would pack a lunc h fo r he r when required, but he dis puted that he told the daycare o r the Department that Laura was lactose intol eran t

. When asked how he was treating Laura, Father testified that he was not giving her medicatio n, that he was giving her “ a healthy diet wit h le ss c heese and less dairy , ” and that the treatment was based on medical advice he recei ved from a previous medical appointment. Father disputed that h e administered suppositories to Laura as part of her treatment, stating that Mother gave her supposito ries

. Fa ther confirmed that neither Laura nor Mary had seen a dentist , that he failed to take the Daughters to the dent ist as required as part of the placement, and that he “ was not aware of any dental issues that they had.” L ater dur ing cross - examination , Fa ther reiterated that he did not know about Laura ’ s six cavi ties , chipped tooth , or that a back molar was “ b lack. ” H e a lso testified that La ura was “not continuously crying in my care” when eating

. Father con firmed that Laura and Mary were removed on J une 23 , 2022 , due to concerns about the health and safety of the girls and his lack of cooperatio n with the Department.15 Father disputed allegations that Daughters were sent to daycare hungry, explaining that he “fed [his] children. ” Fat her also reiterate d th at h e did not take the children for their medication evaluations because he contended the Department took “over a month a nd a half to get me the insurance informa tion, ” that he had set a medical appointment for the “day after [the Dep artment] took them , ” a nd t hat the Department did not ask him about the appointment before removing the girls or rem ind him ab out other assessments requir ed as part of the placement. When la ter questioned about the insurance information contained in docume nts Father receiv e d

on Apr il 12, 2022 , and May 6, 2022, Father responded that he “ was not aware that ’ s what I was supposed to use ” for scheduling the Daug hter ’ s medical evaluations

. Father agreed that he “got very aggressive” after the Department removed t he children and th at , for a time , his conta ct with the Department was required to go through text
message or e mail. Father confirmed that testing was requ ired under his service plan but that he had not completed alcohol testing except for at least two te s ts early in th e pr oces s . Father complained that he worked in San Antonio and therefore it is “ [e]xtremely ” difficult to comply with testing requests from the Department b eca use the testi ng is in New Braunfels

. Father confirmed he never requested a weeken d appointment for drug tes ting, and when asked why he did not request one , he responded that “I would think that that’s something the Department should have th ought about.” Father testified that he had “ no concerns” that he would test positive on any test ing by the Departm ent, but he confirmed that he has refused “ for the last nine months, to do anything that the Depa rtment has asked ” of him. Fa ther repeatedly tes tified that he had refused to work with the Department or do anything the Department asked of him and that he di d no t li ke the Department

. He also confirmed he had not vi sit ed the Daughters in the nine months since they were removed and he16 explained that he att empted to visit them “by getting in front of the Court. ” Father expressed that he wante d his parents to “ faci lita te the visit ” with the Daughters but he refused to go through the visitation scheduling application required by the Court because the Departme nt “is requiring me to pay to visit my children” and he refused to “ pay the person who s tole my children.” Fa ther confirmed that if he had worked his services, he would have been considered comp l iant , and then his children would have been returned. Father also testified that he knew visitation was important for children but that he has not done visitation. But when asked about his inability to put his differences with the Department aside in the interest of his children, Father responded that “[m]e not see ing my children through the Department is in the interest of my children, in my opinio n.” When asked ab out the children bonding with their caregiver, Father responded that “I would say the Department has successful ly brainwashed my children and that they sh ould be completely [ to ] b lame for what t hey have done.” Whiteley , the permanency s pecialist, then retu rned to the stand and confirmed that the placement paperwork required Father to take Laura and Mary to a medical evaluation within thirty days and that she provided the information necessary to schedule th e visits. Whiteley explained t hat the checkup was impo rtan t in this case because both girls tested positive for methamphetamines and “we don’t know what’s happening to their little bodies.” She t estified that Father was also supposed to take the Daughters to a dentist visit within six ty days of placement

. S he t estified t hat she showed the service plan to Father during a family group conference, but that father “told us all to fuck off and hung up .” After Father passed his initial drug test, the required services under the service pla n included additiona l al coho l testing. She clarified that Father completed several tests “in the very beginning when the girls were still placed with him,” but that he otherwise did not comply with that requirement. She testifie d that17 she asked Father to take approximately t hir teen alcohol and/or drug tests, but that Father only completed approximately four tests, including his initial drug test. Whiteley testified that the dentist visits are necessary to confirm “their ne eds are being met ” and that Fat her failed to take the gir ls t o the dentist. She testified that she requested Father take the girls to the dentist, that Father initially told her that “he would as soon as possible,” but when “I clarified that as soon as possibl e meant within the next we ek,” Father responded : “Fu ck y ou.” Whiteley testified that the medical placement paperwork also requires doctor’s visits, that Father received the information ne cessary to schedule the doctor’s visits, and that Father received by e mail signed copies of th e documents the night the girl s were placed with him

. She resent the relevant do cuments again on May 6. She testified that Father failed to take the girls to the required medical evaluations , even though Father had als o told the Department that Laura was suffering from “softb all

- size d poop” ; she ultimately was not officially diagnosed with encopresis and enuresis until she was placed with Foster Mother. Whitel ey testified that Father “discussed it with me that they did over

- the

- cou nter child suppositorie s.” Whiteley testifie d th at L aura was not potty trained “when she came into care” and that children her a ge are typically potty trained. When asked whether La ura knew how to change her own pull

- up at four, Whitele y testified that Laura “never tried to do it for me,” that Laur a “d id n ot tell me that she had a dirty diaper or a wet diaper or anything like that,” and that Laura “wou l d continue to play” if an adult did not notice it. Whiteley explained that Mary contracted conjunctivitis, stating that she r eceived antibiotic eyedr ops and that Father “told me she w as much better; she was a hundred percent improved” about five days later; however, Whiteley later had a face

- to

- face visit with Mary and she still had a red eye and was feverish. When Whiteley cau tioned Father that “he w as r iski ng18 placement of his girls if he didn’t get them to their medical appointments,” Father responded , “Fuck you. Take me to court.” W hiteley testified the Daughters were removed because of concerns about their medic al needs and Father “was refusing to tak e th em to any of the appointments and then he would get very aggressive and angry with me.” Sh e explained that she removed the girls from daycare because she was afraid of confronting Father in person, citing his aggression thr ough out the case, includ ing “cal ling me names, telling me to fuck off ” ; s he explained that Father had been ordered by the courts to only commu nicate with her throug h e mail and text messages. Whiteley testified that Father was able to take time off from wo rk for his own personal medi cal appointment s, but that he had not “gotten the time off” for the alcohol tests. She testified that Father would need to do his visi tations with the girls through a paid service for supervising the visits so that she was not involved in any way, and tha t th e reason for having to use the service was “[d]ue to the way he behaved with me and for my safety.” She test ified that Father has not had any in

- person visits with the girls in approximately nine months

. Whiteley testified that Laura has started k inde rgar ten while i n the foster placement, can spell her name, does her homework, and is “doing phenomenal in school.” She testified that Mary stays home with Foster Mother , can now spell her name and write it, and that she is now “very independent, which is not something that she was in the beginning when I first became the caseworker.” She testified that Laura’s medi cal needs have been ad dres sed and she has improved since starting treatment ; Laura now wears “bi g - girl panties” and is no longer in pull

- up s (a ltho ugh she still has some accidents). Whiteley also noted that neither Laura nor Mary was potty trained when placed, but that both are now potty trained. She described the girls’ typical demeanor now as “very happy to see me” and “just happy little girl s.” She testified19 that if Father’s rights were terminated, the Department has a potential adoption p lacement for the girls that woul d be a safe place for them and would love the girls. She expressed concern that Father “saw wh at was happening” to the Dau ghte rs but he “didn’t do anything about it” and that his inaction endangered the children. When asked whether Father completed his s ervice plan requirements, Whiteley responded: “Not at all,” explaining that he has no

- showed to multiple alcohol tests and has failed to communicate with the Department. Whiteley also testified to her belief that Father had abandoned the girls because “he has n’t even attempted to contact them. He’s not in any way trying to show that he cares what’ s happening to them.” S he t esti fied that she was asking for Father’s parental rights to be termin ated because Father “has not once shown that he can put forth the n eeds of his children over his own,” that he’s not shown concern regardin g Laura’s medical i ssues, and her concerns that “if he’s not going to help [Laura], he’s not going to help [Mary].” On cross

- examination, Whiteley clarified that she did not have any c oncerns of Father’s home, which she described as “clean, well kept, and free of smells.” W hen asked to clarify how Fat her was be ing aggressive in front of the children, Whiteley explained that Father would get “really agitated at me” in front of the child ren about the alcohol testing and she had to ask him to stop. She later expounded that Fat her was profane, loud, y elli ng, and “very irritated” during that conversation, which took place i n the kids’ bedroom. Whiteley also explained that they have made ef forts to locate relative placements for the children, but that they “have not found anybody that is able to take th em, that is willing to take them, or that would be approved to take them.” She clarified that she reviewed the placement paperwork with Fath er the night the children were placed, that she emailed him copies of th e paperwork the sam e night, and that she th en r e - se n t the portions of the paperwork concerning the medical consenter on May 6 after20 Father told her “that he didn’t know what he needed to do.” She further explained that the Medicaid information on the placement materials is sufficient for schedulin g ap poin tments. Whiteley explained that she consented to Laura’s dental procedures and that Laura receiv ed a diagnosis of her dental issues within three days of placement in foster care. Whiteley explained that p rior to the dental procedure, Laura “was ve ry u ncom fortable” and did not like putting things in her mouth except for “soft foods.” After the procedure, Laura now “eats everything” an d “she didn ’ t seem to be in pain anymore. She didn ’ t cry. She doesn’t flinch.” Whiteley e xplained that Laura was unde rwei ght when she arrived at the foster placement, but she has since gai ned weight. She clarified that they had concerns about Father’s alcoholism and previous Department cases, and that after caring for the g irls they had addit ional

concerns relating to t he D aughter s ’ “medical neglect, their nutrition [ ] , and the concerns of his behavior in general.” She also clarified that they did not b elieve Father caused the medical issues Laura was experiencing, but that Father failed to ad dress tho se medical issu es d urin g the months that the girls were in his care. Whiteley testified that Father told her that L a u ra was lactose intolerant, but t hat she is unaware of any medical records confirming that diagnosis. Elizabeth Greenhill, t he dir ector at the Daughters ’ dayc are, then testified t hat both girls attended full time daycare, five days a week, for approximately two months. She testified that Fat her or the grandparents dropped the girls off and pick ed them up at the daycare

. Greenhill c onfirmed that neither gi rl w as p otty trained

. Greenhill later clarified that Laura’s lack of potty trai ning was “highly unusual fo r a child her age,” but that Mar y’s lack of potty training was not unusual

. Greenhill testified that Father told the daycare that Laura had a dairy alle rgy, that she suffered some bowel incontinence because of the allergy, and that neither girl had much dairy at home. She testified tha t Laura was still having incontinence issues even though she was21 not receiving dairy and she recommended that Father “try to get a diagnosis and see what was wrong” and how to help Laura. Greenhill testified that t he daycar e provided a weekly menu to the parents of the lunch meals and that the parents have to provide alternative lunch meals (or
p ortions of meals) for t h eir chil dren to eat on days when the daycare

- provided meal contains dairy product s. Greenhill testified that this policy was communicated to Father, but that Laura “brought lunch only a couple of times.” She testified that the gir ls usually arrive d soon afte r th e daycare opened at 6:30 a.m., that she not iced that the girls “would come in hungry fairly frequen tly,” which she described as “a few days out of the week,” and she let the parents know and asked them to bring something for the girls to eat in the mor ning (or make sure they ate before coming in). Greenhill agreed that children sometimes complain of hunger when not actually hungry, but she testified that how often Laura and Mary were complaining about being hungry was a red flag t o her. She also c lari fied that the daycare does not generally give the children candy or sweets. Greenhill described the day Mary had conjunctivitis at schoo l, stating Mary ’s eye was red in the morning and t he symptoms got p rogressively worse un til they requested Mary be
p icke d up to go to the doctor. She testified that there were no other cases of conjunctivitis in Mary’s class at the time. She testif ied that Mary was taken to a doctor, received medication , and was treated, and that her sympto ms improved before the y reoc curr ed a nd she had to be sent home again. Foster Mother then testified that Laura and Mary were place d with her on June 23, 2022. She testified that both Daught ers were in diapers when they were first placed with her, and she had concerns about Laura in d iape rs b ecause she w as almost five years old and she would n o t verbalize when she needed to be changed. F oster Mother testified that the girls22 were underweight when they first were placed, and that Mary “seemed food challenge d ” in that she would go “strai ght for any food that was out.” She testified that when she fed Laura the first day, she “would begin to eat , [ and ] sh e would cry ,” but Laura could not tell her wh y she was crying. Foster Mother testified that the first day Laura also had multiple soiled pul l up s with “smearing” but none were a bowel movement, and after a bath she discovered Laura had a

“ prol apsed anus. ” She took Laura to a doctor’s appointment and L aura was diagnosed with
encopre sis, which she described as her bowels not working correct ly b ecau se of “chronic constipation.” The prescribed treatment was “a pretty aggressive clean

- out with medi cation” and Foster Mother testified it took seven days f o r Laura to have a “ true bowel movement. ” Foster Mother testi fied that Laura’s belly was di sten ded initially, but returned to normal once she started treatment; Foster Mother also explained that Laur a is continuing the medication to “evacuate proper ly” and that “it could take months, year s ” to resolve. She testifie d that suppositories were not reco mmen ded as medication and that more fiber in Laura’s diet was needed, along with doctor

- directed medi cation. Foster Mother testified that Laura h as not been diagnosed with lactose intolerance, but that since she began her treatment, her medical issues hav e im proved so she is now able to have bowel movements and can understand her body’s signals. She tes tified that the diagnosis also dee ply affected Laura because children had “made fun of her” for being smelly, bei ng chang ed so frequently, and being un awar e sh e soiled herself

. Foster Mother also observed a damaged tooth in Laura ’ s mouth after Laura was i n pain from eating

. Foster Mother testified that she took Laura to the denti st within a week, who confirmed she had six cavities, and Laura had to have two mol ars “capped” because the nerve s

were exposed. She testified that Laura has not had problems eat ing since her dental issue

was resolved.23 Foster Mother tes tified the girls lacked certain basic skills when they arrived , explaining they did not know h ow t o br ush their teeth, use the toilet, clean themselves in the bath, or their “ABCs.” She also sta ted that Mary was bonded to Laura and viewed Laura as a maternal figure, calling her “Mommy.” Fo ster Mother testified, howe ver, that the “biggest surprise ” to her was the girls, and L a u ra i n particular, were “expecting me to change their diapers.” She te stified that the children are now “thriving,” have learned the skills they lacked when th ey were first placed with her. Fo ster Mother testified that no vis its occu rred with Father, that Father did not reach out about visits, did not participate in any ph one call s with the girls, and did not send gifts to the girls in the nine months they were placed with her. She stated that the Daught ers have expressed the y mi ss t heir family generally , bu t not specifically about Mother or Father; she testified that they have sometimes spoken about their older siblings. O n cross - examination, Foster Mother explain ed that the distress experien ced by Laura was “extreme” when s he w as f irst placed, with crying almost every day. She also testified that she did not have Father’s

c ontact information and s he did not believe Father had hers, but she explained that usually after getting to know parents she will exchange numbers w ith t hem for additional communicat ion, which did not happen here. Foster Mother emphasized that “ [i] n all my years, I’ve never seen abandonment by both parents” and that the girls are very attac hed to her. Foster Mother testifi ed that her opinion was the child ren had been neglected based on “the amount of crying, the inability for basic care to do for themselve s, [and] the infantizing of the interaction that I’ve seen.” When asked whe ther Laura was in a health crisis when she w as placed in the foster home, Fos ter Moth er responded “absolut ely. ”24 Bechtel , the CASA volu nteer for the Daughters, returned to the stand and testified that during her visits Father had properly dressed the childre n and his home was appropriate, but she als o expressed concerns about the gi rls shar ing a bed at Father’s home and Laura’s bathroom habit s. She confirmed that Father did not take the girls to the do ctor for their required visits, and she confirmed that Father had told them to “F off” and hung up d uring a call to discuss the famil y pl an. She also confirmed she witnesse d Father bein g aggressive towards Whiteley in front of the Daug hter s . She expresse d concern about the girls’ nutrition in Father’s care, and she explained that since being removed th ey are “gaining weight” and “thri ving .” She explained that in the nine months since removal, the girls have improved medically, educationally, and nutritio nally and seem happier. She confirmed Father had not visited the children after their removal, and she explained that Father only se nt a vid eo message to Mother f or the Daughters , telli ng Mary happy birthday and telling the girls he loved them. Bechtel t estified that Father had endangered the Daughters and that not returning them to Father was in their best interest because Father “is not abl e to provide medical and nutritional needs to his children.” She testified that Father did not take responsibilit y for what happened and did not take “obvious” steps to assi st the children with their medical needs, explaining that Father could hav e “t aken them to the doctors

. ” Bechtel testified that Father told her that he was potty training the children, but whe n

s he visited “there was never any attempts to take the girls to the bathroom,” h e never asked them “if they needed to go,” and Father me rely cha nged Laura’s diaper on the couch. Cousin , who is F a ther ’ s ne phew, testif ied that he lived with his grandparents

w hen the Daughters were placed with them at the beginning of the case. He described Father ’ s in teract io n with Daug hters as always “ plea sant ” an d that they had positive inte ractio ns with their

s iblings. Cousin testified that Fa ther is a good cook, that he would cook for the girls when he25 visited, and that the girls did not seem hungry. He testified that Father was attentive to the girls’

nee ds a nd that his grandparents were potty training the girls. Cousin tes tified that he also did not observe the girl s crying more than n ormal and had not observed Mary calling Laura “mommy.” Cousin testified that “all [Father] talks about is that he wa nts to s ee his kids” and expressed doubt that Father had not asked to see the children since their removal. Cousin expr essed surprise that Father had refused to take alcohol test s or that Father had refused to take the gir ls to doctor or dentist visits. Cous in e xplained that he had not seen the D aug hters since they lived at his grandparents ’ home early the previous year and that he did not know what happene d in Father ’ s home when the girls lived with him “[o]ther than the times that I went and visited.” Cous in c onfirmed he had visited Father’s house about once a month , and he described it as “very organized, well kept, c lean.” He test ified that when he visited, the girls were happy and as “well

- mannered as a four

- year - old and a one

- year - old can be.” Cou sin conf irmed he was aware Father had multiple DWI convictions and that Mother has alcohol and drug issues. Cousi n the n denied having seen Father drink in front of the children, drink excessively, or drink excessively befo re driving a vehicle. Pete Ruth t hen test ified that he has known Father for 27 years and that he “rarely, but on occasion” saw Father with his childre n remotely thro ugh “ technological me dia ” because he lived out of state. Ruth described Father as “fun

- l oving, kind, generous” and dep endab le. Rut h characterized Father as participating in “responsible drinking” but that he “would not characterize him as a drunk.” Ruth described Father as an “unequivocally” good cook, and that he would think someone was “d runk or crazy” if they s aid Father did not feed his kids. On

cross - examination, Ruth explained that he had not seen Father in person for over a decade and had not per sonally met Laura or Mary. Ruth was not aware that Father had three DWI26 convictions in T exas, and w hen asked whether he wou ld c all Father a “responsible drinker” knowing that Father had several DWIs, Ruth responded , “Probably not.” When ask ed about Father’s refusal t o visit the children since their removal, Ruth relayed that Father had expre ssed he could not afford “to have s omeo ne l ike a court

- appointed person or whatever that he had to pay just to be there to supervise the visits.” Aunt, F ather ’s s ister, then testified that she liv ed out of state but visited the family twice a year and they communicated weekly either by phon e or Fac e Time. She stated that her last visit to Texas was around May 2022. She testified she saw the Daughters at Fathe r’s house, and that the girls “loved it there.” She stated that the girls had a sibling bond with their two older siblings. When ask ed w heth er the kids claimed to be hungry, Aunt responded that “nothing like they weren’t being fed, kind of hungry.” Sh e also testified that if the Daughters ’ diapers were soiled, then “they usually, you know, say someth ing and then they’d get changed rig ht a way” and that they were “always getting checked on.” She testified that she did not observe the children screaming beca use “they were upset” and that she did not observe Mary calling Laura “Mommy .” When describing F ather’s interaction with the childr en, Aunt testified that “you couldn’t ask for a more loving, devoted father” and that “he’s a great dad and he spends all of hi s time focusing on the kids and teaching them things and playi ng and having fun.” Aunt testif ied that she never saw the children cry ing during mealtime

. She testified that Father was “very upset” about his children being taken from him , but that he was n ever aggressive or yelled at the children. She testified that Father was “an excellent cook,” and that he was working on potty
t rain ing with the Daughters

. On cro ss - examination, Aunt testified when she visited around May 2022 t he Daughters “were much im proved from the time I had seen them previously

. ” Aunt testified that27 she did not know Mary a nd Laura had tested positive for meth amph etam ines in April 2022 and that the information “shocked” her. She testified that Father has not visited the girls since they were removed because “ he doesn’t want the same thing happening that happened to their

mo ther,” which she described as the Dep artm ent “watching her every moment with them.” Paternal Grandmother then testified that the girls and Father lived with her and her husband around February 2022 before Father got his own house in March. She testified that Father took care of the kids

— bath ing them , clothing them, feeding them, “everything”

— and she helped. She testified that Father is “totally engaged, involved , fully there dad” and that he “ loves those kids more than anything in the whole world.” She testified that she never saw Mary refe r to Lau ra as “mommy” or treat her as a mother figure. Grandmother testified that she and her husband would drop the childr en off at the daycare in the morni ngs and that they would feed them a snack in the mornings be fore hand

. She confirmed Mary suffered con junc tivitis while at daycare and that she was treated with medicated eyedrops

. She also testified that Laura had an

“ enla rged bowel,” would suffe r constipation and “painful bowel movement,” and that Father was
tre ating this through diet. She explaine d th at t he y delayed full medical evaluations of the Daughters because they w ere waiting for the “insurance cards” and vacc ination records for the girls. G randmother testified that they found a doctor that would take t he insurance a few days before the chi ldre n we re removed. When asked wheth er she had told the Department they did not want to be a permanent placement, Grandmo ther testified that “I said I would do nothing to help CPS take m y son’s children away.” When a sked if her response would have been d iffe rent had she understood the Department was seeking placement during the pending case, she responded “absolutely” and c larified that she only “objected to was [b ecoming] a legal guardian and tak [ing] the [Daughters ] away” from Father

.28 On cross

- examinati on, she confirmed that Father told her that “he had to get the kids in for a well check,” but she was not aware of the deadline s for completing the medical evaluations. She testified that she was unaware that the insu rance information had been provided
to Fat her on two earlier occasions. She testified that they “finally got insurance cards” for both girls seven or ten days befor e they found t he pediatrician and they “still had not received their vaccin ation records.” Father returned to the stand, and he t esti fied that he has purchased a second bed so the girls could sleep in two separate beds. He denied th e children had notice ably soiled clothing in his house, that he raised his voice at his children unless he neede d their attention when “something immedi atel y wr ong is going to endanger them,” or that Mary ever called Laura “mommy.” He explaine d that six months before the case , he took Laura to the doctor for “constant constipation , ” that he was working on a consist ent diet for her to resolve those issue s ,
an d th at he tried to eliminate dairy and cheese from her diet but did not ever say she was “lactose intolerant.” He des cribed his plans if the Daughters were returned , and he emphasize d that he did not have plans for Mother to be in the D aughters ’ lives

. A f ter deliberations, t he jury found that Father’s parental rights should be terminated pursuant to subsections (D), (E) , (N), and (O) statutory grounds and found termination as in the Daughters ’ best interest

. T he trial court ther eafter signed a final o rder

con sistent with the jury ’ s verdict

. Th ese appeals followed.

S TAN DA R D OF REVIE W To terminate the parent

- child relations hip, a court must find by clear and convincing evidence that (1) the parent has commit ted one of the enumerated statutory grounds29 fo r te rmin ation and (2) it is in the child’s best interest to terminate the parent’s ri ghts. Tex. Fam. Code § 161.001(b ). Cl ear and convincing evidence is “the measure or degree of proof that will produce i n th e mind of the trier of fact a firm belief or c onvi ctio n as to the truth of the allegations sought to be established.” Id. § 101.00 7. In this context, “[t]he distinctio n between legal and factual sufficiency lies in the extent to which disputed evidence contrary to a finding may be considered.” In re A.C

. , 5 60 S.W.3d 624, 630 (Tex. 2018). When evaluating legal sufficiency of the evidence , we

con sider whether “a reasonable factfinder could form a firm belief or conviction that the finding was true” when the evidence is viewed in the light most favorab le t o th e factfinder’s determination and undisputed contrary evidence is considered. Id. at 631. When evaluati ng factual sufficiency of the evidence , we consider whether “in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding
was tru e.” Id. We must “provide due deference to the decision s of the factfinder, who, having full opportunit y to obs erve witness testimony first

- hand, is the sole arbiter when assessing the credibility and demeanor of wit nesses.” In re A.B. , 437 S.W.3d 498, 5 03 (Tex. 2014); see also In re P.A.C. , 498 S.W.3d 210, 2 14 (Tex. App.

— Houston [14th Dist.] 2016, pet. de nied ). H owever, “an appellate court’s review must not be so rigorous that the only factfindings that could withst and review are those established beyond a reasonable doubt.” I n re C.H. , 89 S.W.3d 17, 26 (Tex . 2002). “While parental rights are of constitu tion al m agnitude, they are not absolute.” Id. “Just as it is imperative for courts to recognize the constitutio nal underpinnings of the parent

- child r elationship, it is also essential that emotional and phy sical interests of the child not be sacrificed m erel y to preserve that right.” Id.30 DISC USSIO N On appeal, Mother challenges the legal and factual sufficiency of the evidence supporting that terminat ion of her parental righ ts was in the best interest of L aura, Mary, and Kevin. Father challenges the lega l an d fa ctual sufficiency of the evidence supporting the jury ’ s finding that termination of his parental rights as to Laura and Mary is warranted under subsections (D), (E), (N), and (O) of Sec ti on 161.001 of the Texas Family Code ; the legal and factual su ffic ienc y of the evidence supporting the finding that termination was in Laura ’ s or Mary ’ s best interest, and the sufficiency of the evidence rebutting the presumption that he should be appointed conservato r of the Daughters

.
Best Interest Finding as to Mo ther “[T ]here is a strong presumption that the best interest of a child is served by keeping the child with a parent.” In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). “In parental

- ter mination proceedings, [the D epartment’s] burden is not simply to prov e that a parent should not have custody of [the] child; [the Department] must meet the heightened burden to prove, by clear and convincing evidence, that the parent should no longer have any relat ionship with the c h ild whatsoever.” S.B. v. Texas D ep’t of Fam. & Protective Servs. , 654 S.W.3d 246, 255 (Tex. App.

— Austin 2022, pet. denied) (quoting In re D.L.W.W. , 617 S.W.3d 64, 81 (Tex. App.

— Housto n [1st Di st.] 2020, no pet.) ). We may consider several factor s to det ermine whether termination is in a child’s b est interest , including : the child’s wishes, the child’s emotional and physical needs now and in the future, any emotional or physical danger to the c hild now and in the future, the p arenting abilities of any par ties seeking access to the child, programs a vailable to help those parties, plans31 for the child, the stability of any proposed placement, any evidence that the parent

- child relationship is impro per, and any excuses for the pare nt’s conduct. Holley v. Adam s , 544 S.W.2d 367 , 371

– 72 (Tex. 1976); see a lso In re A.C. , 560 S.W .3d at 631; S.B. , 654 S.W.3d at 255 . The party seeking termination has the burden of establishing that termination is in the c hild’s best interest. See I n re J.F.C. , 96 S.W.3 d 25 6, 2 66 (Tex. 2002). The set of factors is not exhaus tive; although one factor is not necessarily dispositive, in some instances evidence of a single factor may suffice to support the best interest findi ng. See Holley , 544 S.W.2d at 371

– 72; se e also I n

re C.H

. , 89 S.W.3d at 27; S.B. , 654 S.W.3d at 2 55 . Ult imately, the Holley factors focus on the child’s best interest, not the parent’s. In re C.L.C. , 119 S.W.3d 382, 399 (Tex. App.

— Tyler 2003, no pe t.). Evidence proving one o r more statutory grou nds for termination can be probative evidence that termination is in the best interest of the child. In re C.H. , 89 S.W.3d at 28. As for the Children’s wishes, there was some testimony that the Daughte rs “miss their family” and “talk about their parents l ivin g wi th [Foster Mother], living here together.” Other test imony indicat ed that Mary had not expressed any specific desi re, and Laura did not say she “wants to live with her mom or her dad ” but indic ated she would like to see her ol der siblings. Kevin indi cate d that he “wants to see his mom.” Relevant to the Chil drens’ emotional an d physical needs and any emotion al or physical risks now and in the future, this case began after police discovered met hamphetamine and parapher nalia in Mother’s vehicle durin g a traf fic stop. See A. W. v. Texas Dep ’ t of Fam

. & Protectiv e Serv s. , No. 03

- 21

- 00324

- CV, 2021 WL 5911975, at *6 (Tex. App.

— Austin Dec. 15, 2021, no pet.) (me m. op.) (explaining factfinder could inf er as part of best intere st determination that evidenc e of p ast endangering conduct was probati ve of future conduct). Mother denied she used methamphe tamines and provided various confli cting reas ons for her circumstances and32 positive drug test s , including the drugs belonged to her oldest daughter, that she was onl y vi siting the “trap house ” because “a friend was paying h er $50 to pick up methamphetamine , ” and that she had been buying her pres cription medication “off the stre et ” and that medication was unknowin gly filled with methamphet amine. See E.F.

- B. v. Texas D ep’t of Fam. & Protective Servs. , No. 03

- 2 2

- 00443

- CV, 2022 WL 17478423, at *4 (Tex. App.

— Austin Dec. 7, 2022, no pet .) (mem. op.) (“[A] trial court is not bound to accept the truth or accuracy of a
pa rent’s testimony, either a s to past actions or future in tent ions .” (quoting In re D.M. , 452 S.W.3d 462, 472 (Tex. App.

— San Antonio 2014, no pet.) ) . All three Children then tested positive for methamphetamine, and Mother blamed her boyfriend who “would do meth in the house” and cl aimed she kicked him out as soo n as she learned he was using. See In re A.B. , 437 S.W.3d at 503 (recognizing that fac tfinder had “full opportunit y to observe witness testimony first

- hand” and assess “the credibility and demeanor o f witnesses”). B ut then Mother continued to communicate wit h hi m afterwards, even when he was incarcerated. Nor w as Mother’s issues with drugs and stability limited only to the time period before the children’s removal. “[S] tability and permanenc e are pa ramount considerations in evaluating th e needs of a chil d.” N. K . v. Tex as Dep ’ t of Fam

. & Protective Serv s. , No. 03

- 22

- 00028

- CV, 2022 WL 2673236 , at *8 (Tex. App.

— Austin July 12, 2022, no pet.) ( mem. op.) . Mother continued to test positive during th e cas e, refused to attend half of her requir ed drug testing, show ed u p late to several visitations, and failed to atten d a third of her scheduled visitation. See A. C. v. Tex as Dep ’ t of Fam

. & Protective Serv s. , 577 S.W.3d 689, 706 (Tex. App.

— Austin 2019, pet. denied ) (explaining that factfinder coul d reasonabl y inf er f rom parent’s failure to complete required services and failure to visit child “on a consistent, regular basis” that parent was “not ready, willing, or able to be a parent to the child”). Mo r e over , t his was Mother ’ s33 fourth case with the Department , the chi ldre n had been previously removed , and Mother had
purp ortedly changed her behavi or and gotten sober since the l ast removal. The trial court could reasonably infer from such evidence that her “lac k of ef fort to resolve the issues [leads ] to the conclus ion that if the children stayed in her care, they would co ntinue to be exposed to these beha viors .” In re G.Z. , No. 02

- 21

- 00122

- CV, 2021 WL 3796049, at *9 (Tex. App.

— Fort Worth Aug. 26, 2021, no pet. ) (mem. op.). Fin ally, as to parenting a bility, availabl e pr ogra ms, and the plans for the children, the trial cour t heard testimony that Mother had not tak en adequate steps to ensure Laura received proper care for her medical issues and that Mother knew La ura ha d a cracked tooth but that she “d idn’t see that it was tha t bad at all

. ” Mother also testified that she was employed and had a home suitable for the C hildren. But when pressed, Mother conceded that she would not be able to keep her current job , tha t she did not have a driver ’ s license but would “find a way” to transport the Children when needed , th at her curre nt lease would end soon, and that she would be able to afford rent only because she assumed she would receive child support if the children we re returned. At the end of the hearing, the trial court exp ress ly admonished that it did not find Mot her’s testim ony “likely to be truthful at all.” See In re A.B. , 437 S.W.3d at 503 ; see also C

. C. v. Tex as Dep ’ t of Fam

. & Protective Serv s. , No. 03

- 20

- 00 351

- CV, 2020 WL 6811997, at *3 (Tex. App.

— Austin Nov. 20 , 20 20, no pet.) (mem. op.) (explaining factfinder could h ave reasonably decided that parent’s testim ony was not credible). In contrast, the Depar tment presented testimony that Kevin was placed with his maternal grandmother and doing well , and that the Da ught ers were placed in a foster home that, while not a fos ter

- to

- adopt placement, would remain willing to be a long

- term foster p lacement and “would continue to look after them and of course advocate for whatever is best for them.”34 Taken tog ether, we concl ude that the trial court could have reasonably believed th at termination of Mother’s parental rights was in the Childr en’s best interest. See In re C.H. , 89 S.W.3d at 27. Moreover, there is not any disputed evidence that is so significant as to prevent
t he t rial court from forming that firm conviction. In re A .C. , 560 S.W.3d at 630. We conclude that the evidence is l egally and factually sufficient to support the trial court’s finding that terminati on of Mother parental rights was in the best interest of the Chi ldren. We overrule Mother’s sole issue on appeal.

Best Interest Finding as to Father In Father ’ s fi fth issue on appeal, he challenges the legal and factual sufficiency of the evidence suppor ting the jury ’ s finding that termination was in the best inte rest of Laura and Mary. See Holley , 544 S.W.2d at 371

– 72; se e also In re C.H. , 89 S.W.3d at 27

. 7
B eginning with the Daughter s ’ wishes, there was no testim ony that either girl adequately expresse d her desires beyond testimony that t he girls had express ed s ome feelings of missing their family generally (but wi thout any specific reference to Mother or Father). However, there was also testimony that the Daughters were happy in the foster home, doing well and developing appropriate ly , and bonded with Foste r Mo ther

. See S. L. v. Tex as Dep ’ t of Fam

. & Protective Se rv s. , No. 03

- 22

- 00722

- CV, 2023 WL 3512412, at *7 (Tex. App.

— Austin May 18, 2023, no pet. ) (mem. op.) (considering evidence that child was bon ded with and loved by foster family when too you ng to exp ress wis hes). Father also failed to pursue any visitation of the girls for nine months following removal (except for a single video message). See N. K. ,

7 The analysis of Father ’ s b est interest finding differs from the analysis of Mother ’ s because the evidence presented at Father ’ s jury trial differed at times from the evi dence presented at Mother ’ s bench trial (even thou gh th e same legal standard applies)

.35 2022 WL 2673236, at *7 (explaining fact finde r “could have inferred that the long absence

wou ld render it less likely that the girls would want to maintain a r e lationship with a Father”). Considering the Daughters’ emotional and physical needs and any emotional or physical risks now and in the f utu re, “it is well settled that stability and perma nence are p aram ount considerations in evaluating the needs of a c hild .” Id. at *8 . The jury heard testimony about Father’s endangering conduct in failing to take Laura to necessary medical an d dental evalua tions while the Daughters were placed with him a nd the subs eque nt m edical and dental treatment required for Laura aft er placement with Foster Mother. See A. W

. , 2021 WL 5911975, at *6 ( considering evidence of past endangering conduct as probative of fut ure conduct). Although there was conflicting testim ony abo ut Fath er’s ability to feed and meet the nutritional needs of the Daughters while in his care, testimony concerning Father’s actions (and inactions) after Daughters’ removal was undisputed. Father di d not attempt to visit his children for the nine months fol lowi ng r emoval; refused to cooperate with the Department, participate in services, or respond to the caseworker about visitations; and failed to maintain a relationship with the Daughters beside s a single video message for nine months. See A. C. , 577 S.W.3 d at 706 ( explaining that parent ’ s failure to complete req uired services and failure to visi t child showed that parent was “not ready, willing, or able to be a parent to the child”). Finally, as to parenting ability, available programs, the pla ns for the c hild ren, and excuses for a parent’s conduct, there was tes timony that Father was a loving parent who was in vested in and involved in raising Daughters; that Father had experience raising children , including his two older children; that Father had a well

- ke pt a nd c lean home with beds for Daughters; and that Father had stable income

. However, Father also extensively testified that he did not believe he “should have to work any services, ” that he wa s willing to do anything for his36 children but refus ed to “par tici pate in services in ord er for them to be returned to [ him ] as the sole managing conservator,” and that Father failed to schedule any visitation with Daughters after their removal. See id. A nd when Father was asked whether what “ you have fa iled to do is [ not] your fault, but it’s the Department’s fault” inst ead, Father responded , “Absolutely.” See In re M.A.C. , No. 05

- 22

- 01262

- CV, 2023 WL 3267867, at *10 (Tex. App.

— Dallas May 5, 2023, pet. d enied) (mem. op.) (concluding parent’s failure to complete se rvic es a nd “failure to take responsibility for [their] act ions” supported best interest finding). Furthermore, there was also testimony that Daughters were currently p laced in a safe and thrivin g temporary foster placement and that the Department was purs uing a p ermanent placement for them

. Reviewing the record under the appropriate standards of review, considering the relevant factors, and understanding that the jury had the “full opportunity to observe witness
t estimony first

- hand” to assess credibility and dem e anor of the witnesses, In re A.B. , 437 S.W.3d
at 5 03 , we conclude that the jury could have reasonably believed that termination of Father’s parental rights was in the Daughters’ best inte rest. See In re C.H. , 89 S.W.3d at 27. Moreover, there is n ot a ny d isputed eviden ce that is so significant as to prev ent the jury from forming that firm conviction. See I n re A.C. , 560 S.W.3d at 630. We conclude that the evidence is legally and factual ly sufficient to support the jury’s finding that termination of F athe r ’s parental righ ts was in the best interest of th e Daughters. We overrule Father’s fifth issue

.37 Predicate Sta tutory Grounds as to Father In his first, second, third, and fourth issues, Father challenges the legal and factual sufficiency of the evid ence supporting termination of his parental right s und er subsections (D), (E), (N), and (O) o f Section 161.001 of the Texas Family Code. See Tex. Fam. Code § 161.001(b)(1) (D) (endangering env ironment), ( E) (endangering conduct) , (N) (constructive aban donm ent) , ( O) ( failure to comply with court order)

. We be gin our analysis with the subsection (D) and (E) findings

. See In re N.G. , 577 S.W.3d 230, 237 (Tex. 2019) (per curiam). Subsection (D) “ focuses on the child’s environment and may be utilized as a
grou nd f or termination when the parent has ‘knowi ngly plac ed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well

- being of the child .’” In re J .W. , 645 S.W.3d 726, 749 (Tex. 2022) (quoting Te x. F am. Code § 161.001(b)(1)(D)). Subsection (E) foc uses on a parent’s conduct and “allows for termination of parental rights if clear and convincing evidence supports that the parent ‘engaged in conduct or knowingly placed the child with persons who enga ged in c onduct which endangers the physical or em otio nal w ell

- being of the child.’” In re N.G. , 577 S.W.3d at 234 (quoting T e x. Fam. Code § 161.001(b)(1)(E)). The relevant inquiry under Subsectio n (D) is whe ther “the child’s environment, including the chi ld’s liv ing condition s and conduct by parents or othe rs in the home, endangered the child’s well

- being.” J. M. v. Texas Dep’t of Fam. & Protective Servs. , No. 03

- 21

- 00274

- CV, 2021 WL 5225432, at * 5 (Tex. App.

— Austin Nov. 10, 2021, pet. denied) (mem. op.). “A chil d is endangere d when the environment creates a pot ential for danger and the parent is aware of the danger but consciously disregards it.” In re J.E.M.M

. , 532 S.W.3d 874, 881 (Tex. App.

— Ho uston [14th Dist.] 2017, no pet.). “A single act or omissio n ca n su pport terminat ion under38 subsection (D).” J.G. v. Texas Dep’t of Fam. & Protective Servs. , 592 S.W.3d 515, 524 (Tex. App.

— Austin 2019, no pet.). In contrast, the relevant inquiry under Subsection (E) is whether evidence exists that the endangermen t of the child’s well

- being “was the direct result of Appe llant’s conduct, including acts, omissions, or failures to act,” In re M.E.

- M.N. , 342 S.W.3d 254, 262 (Tex. App.

— Fort Worth 2011, pet. den ied), and “must be based on more than a single act or omissi on,” C.B . v. Texas Dep ’t of Fam. & Protective Servs. , 458 S.W.3d 576, 582 (Tex. App.

— El Paso 2014, pet. denied). For both the child’s environment under Subsection (D) and the parent’s conduct unde r Subsection (E), “endanger” means “to expose to loss or inj u ry; to jeopardize.” In re J.W. , 645 S.W.3d at 748 (q uoti ng Texas Dep’t of Hum. Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987)). “‘[E]ndanger’ means more than a threat of metaphysical injury or the possible ill effects of a less

- than

- ideal family enviro nmen t, [ but] it is not necessary that the conduct be d irec ted at the child or that the child actually suffers injury.” In re M.C. , 917 S.W.2d 268, 269 (Tex. 1996) (quoting Boyd , 727 S.W.2d at 533 ); see also A.C. , 577 S.W.3d at 699 . Thus, “conduct that

su

b

jec ts a child to a life of uncertainty and instabilit y en dangers the physical and emotional well

- being of a child.” J.G. , 592 S.W.3d at 524 (quoting In re J.O.A. , 283 S.W.3d 33 6, 3 45 n .4 (Tex. 2009)). “Because the evidence pertai ning to subsections (D) and (E) is interrelated, we consolidate our review of the evidence.” J.M. , 2021 WL 5225432, at *5. At trial, the jury heard extensive testimony concerning Father’s actions (and i nac tion s) before the Department’s case initiated, d uring the placement of Laura and Mary with Father, and after the girls were removed and placed with Foster Mother. Exhibit s and testimony showe d Father had four DWI convictions, the most recent of which was in 2 021 , and that Father had an ignition interlo ck dev ice installed in his vehicle as part of his probation. See E.A.H.39 v. Tex as Dep ’ t of Fam

. & Protective Serv s. , No. 03

- 17

- 00816

- CV, 2018 WL 2451824, at *4 (Tex. App.

— Austin June 1, 2018, no pet.) (me m . o p.) (explaining evidence of parent’s history of alcoho l abuse and related criminal convictions supported endangerment finding); In re S.N. , 272 S.W.3d 45, 52 (Tex. A pp.

— Waco 2008, no pet.) (ex plaining evidence of alcohol abuse by parent may support fin ding par ent’s conduct endangered child). Father t estified that he did not drink around his children , but endangering conduct “may include the parent’s action s before the child[ren’s] birth[s]” an d may include use outside the child’s immediate presence. S e e I n re J.O.A. , 283 S.W.3d at 345

– 46 (concluding sufficie nt evidence supported that father endangered children based in part on evidence of father’s drug usage before birth of removed children an d outside presence of his older child). Similarly, Father t esti fied that he had not drank alcohol for the approximate ly tw o years since his previous DWI conviction, but such “a recent turn

- around in behavior by the parent does not totally offset evidence of a pattern of instability and harmful behavior in the past .” N.P . v. Texas Dep’t of Fam. & Protective Servs. , No. 03

- 19

- 00217

- CV, 2019 WL 3952842, at *8 (Tex. App.

— Austin Aug. 22, 2019, no pet.) (mem. op.) (quoti ng Smith v. Texas Dep’t of Protective & Regul. Servs. , 160 S.W.3d 673, 681 (Tex. App.

— Austin 2005,

n o pe t.))

. Then when the girls were pl aced with Father from Ap ril 12, 2022 , through June 23 , 2022, the jury heard testimony that Fathe r failed to take Laura or Mary to their required medical eval uations or to any dental visits

. See In re J.H. , No. 01

- 22

- 00 629

- CV, 2023 WL 2169952, at *14 (Tex. App.

— Houston [1st Di st.] Feb. 23, 2023, pet. denied) (mem. op.) (“[A] parent ’ s neglect of [his] child ’ s medical or dental needs endangers the child.”). Fat her’s and Grandmother’s testimony confirmed that neither daugh ter atte nd ed any of the medical evaluations within the dea dline required as part of placement with Father. See D. H.40 v. Tex as Dep ’ t of Fam

. & Protective Serv s. , 652 S.W.3d 54, 60 (Tex. App.

— Aust in 2021, no pet.) (“The failure to provide or obtain appropria te m edic al care for a child can constitute endangering con duct under subs ect ion (E).”). Father and Gr andmother testified that the Department did not timely provide insurance information necessa ry for scheduling those medical evaluations, but other testimo ny s howe d that Father was provided all the necessary infor mation for making the appointments on the day the Daughters were placed with Father (and again several weeks later). See In re A.B. , 43 7 S.W.3d at 503 (explaining that factfinder “is the sole arbit er w hen assessing the credibi lity and demeanor of witnesse s”). Within two weeks of the children being removed from Father’s home, Foster Mother testified that Laura was taken both for a medical evaluation

— where she received her formal diagnos e s a nd treatm ent

— an d for an emergent dental exam to treat her cavities and e xposed nerve on her molars. See In re A.M. , No. 07

- 18

- 00141

- CV , 2018 WL 3799885, at *10 (Tex. App.

— Amarillo Aug. 9, 2018, no pet.) (mem. op.) (neglecting medical and dental needs endangers chi ld’s phy sical well

- being “even if the parent did not cause the condition that requires medical treatme nt”). Although the jury heard conflicting testimony about whether Father may have taken Lau ra for a medical evaluat ion prior to the Department’s case and the eff icacy of Father’s efforts to treat Laura’s medical condition through d a i ry elimination and diet , the testimon y was undisputed that Father failed to take either daughter to their requi red medical evaluations while placed with Father; the only testim ony rega rding a medical evaluation received by the girls d ur ing those two months concerned Mary ’ s

emer gency treatment of conjunctivitis. Foster Mother also provided testimony that the girls wer e underweight when they were initially placed in her home, and tha t La ura’s eating habits and weight improved after trea tm ent of her dental symptoms. See T. A. W. v. Tex as Dep ’ t of Fam

. & Protective Serv s. , No. 03

- 20

- 00364

- CV, 2021 WL 81866, at *4 (Tex. App

. — Austin Jan. 8,41 2021, pet. denied) (mem. op.) (concluding tha t ev iden ce of neglect of necessary medical and dental care a nd concerns about children “not having eno ugh food” supported finding under subsection (D)); In re T.B. , No. 09

- 20

- 00172

- CV, 2020 WL 6 787523, at *7 (Tex. App.

— Beaumont Nov. 19, 2020, no pet.) (mem . op .) ( “Neglect of a child ’ s medical needs, including fai lu re to thrive resulting from nutritional neglect, endangers a child.”). After the girls were removed and placed wi th Foster Mother, t he jury heard testimony that Father failed to participate in or sche dule any visitation with the Daughters for nine months

. See In re J.A.V. , 632 S.W.3d 121, 132 ( Tex. App.

— El Paso 2021, no pet.) (“Finally, a parent ’ s inconsistent visit ation may also be c onsidered as part of the endangerment analysis, as can the paren t ’ s fail ure to participate in a service plan.”); D. L. G. v. Tex as Dep ’ t of Fam

. & Protective Serv s. , No. 03

- 20

- 00314

- CV, 2020 WL 6789208, at *5 (Tex. App.

— Austin Nov. 19 , 2020, no pet.) (mem. o p.) (explaining missed visitations , lack of contact with child, and fail ure to complete service plan suppo rt endangerment finding). Although there was testimony th at Father sent a single video message to other family members to be shared with Daughters, F athe r otherwise refused to maintain or seek contact with the Dau ghte rs w hile they were placed with Foster Mother. See In re U.P. , 105 S.W.3d 222, 236 (Tex. App.

— Houston [14th Dist.] 2003, pet. denied) ( characterizing parent ’ s absence as creating an “emoti onal vacuum” endangering child’s well

- being) , overruled on other gro unds by In re L.C.L

. , 599 S.W.3d 79, 82 (Tex. App.

— Hou sto n [14th Dist.] 2020, no pet.)

. We conclude that this evidence is legally and factually sufficient to support the jury ’ s finding th at Father knowingly placed or knowingly allowed Laura and Mar y to rem ain in conditions and surroundings which endangered th ei r physical or emotional well

- b eing and its finding that Father engaged in conduct or knowingly placed Laura and Mary with persons w ho42 engaged in conduct which endangered their physical or emotiona l we ll

- b eing. See Tex. Fam. Code § 161.001(b)(1)(D)

– (E ); In re J.W. , 645 S.W.3d at 749

. 8 We overrule Father ’ s first, second, third, and fourth issues.
Conservatorship as to Father In his fi nal issue , Father argues that the trial court abused its discretio n by
app ointing the Department as permanent managing conse rvator. See Tex. Fam. Code § 153.131(b). B ecause Father ’ s parental rights have been terminated and we are affirming th e district c ourt order terminating his parental rights, Father lacks standing to c hall enge the district
court ’ s conservatorship dec ision

. See Tex. Fam. Code § 161.206(b) ; see also R. G. v. Tex as Dep ’ t of Fam

. & Protective Serv s. , No. 03

- 23

- 00042

- CV, 2023 WL 4239802, a t *9 (Tex. App.

— Austin June 29, 2023, no pet. h.) (mem. op.) ; A. K. v. Tex a s Dep ’ t of Fam

. & Protective Serv s. , No. 03

- 22

- 002 85

- CV, 2022 WL 14989625, at *10 (Tex. App.

— Austin Oct. 27, 2022, pet. denied) (mem. op.). Moreover , Section 153.131(b) is inapplica ble here because it only creates “a statutory preference f or placem ent with a parent while a parent still retains [his] paren tal rights.” T.J. v. Texas Dep ’t of Fam. & Protective Servs ., No. 03

- 14

- 00351

- CV, 2014 WL 6845198, at *5 (Tex. App.

— Austin Nov. 25 , 2014, no pet.) (mem. op.). Father , however, no longer e njoys any

con serv atorship presumption after his parental rights hav e been terminated. See Tex. Fa m. Code

8 B ecause there is suffic ient evidence supporting the jury ’ s finding under subsection ( D) and ( E), we need not address Father ’ s challenges to t he other predicat e st atut ory grounds challenged on appeal. See In re N.G. , 577 S.W.3d 230, 232 (Tex. 2019) (per curiam) (explaining that appellate court may affirm terminati on judgment by upholding best interest and one termination ground under section 161.001(b)(1)); see als o E. F

. - B. v. Tex as Dep ’ t of Family & Protective Serv s. , No. 03

- 22

- 00443

- CV, 2022 WL 17478423, at *3 (Tex. App.

— Austin Dec. 7, 2022, no pet.) (mem. op.) (same).43 § 101.024(a) (noting that , for purposes of Family Code, “the term [parent] does not include a parent as to whom the parent

- child relationship has been terminat ed”)

. F ather has failed to demonstrate his entitlement to appointment as managing conserv ator under Section 153.131. See In re M.S ., No. 02

- 21

- 00007

- CV, 2021 WL 2654143, at *21 (Tex. App.

— Fort Worth June 28, 2021, pet. denied) (mem. op.) (conclud ing no a buse of discretion in appointing Department managing conse rvator after termination of parent’s parental rights) . We overrule his final issue.

CONCLUSION Havin g concluded there was suffic ient evidence sup porti ng the t rial court ’ s best interest finding as to M othe r, and the jury ’ s best interest finding a nd its fi ndings under

s ubs e cti o n s (D) and (E ) as to Father , we a ff irm the trial court ’ s dec r ee s terminati ng Mother ’ s par ental rights to the C hi ldren and Father ’ s parental rights to the Daug hters

.

__________ ____ ____ ________________________ Darlene Byrne , Chief Justice Before Chief J ustice By rne, Justices Kelly and T heo fanis Affirmed Filed: Septembe r 2 2 , 20 2 3