In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-13-00298-CV 

IN THE INTEREST OF M.Y.G., C.R.J., N.R., CHILDREN 

 

On Appeal from the 64th District Court 

Castro County, Texas 

Trial Court No. A9422-1201, Honorable Robert W. Kinkaid Jr., Presiding 

 

January 31, 2014 

 

OPINION 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

In this accelerated appeal, Amber and Carl1appeal an order terminating their 

respective parental rights to the children. Amber appeals as to all of the listed children 

and Carl appeals as to M.Y.G. and C.R.J. The father of N.R. has not appealed the trial 

court‘s ruling. 

Amber and Carl each contest the legal and factual sufficiency of the evidence to 

support the trial court‘s judgment terminating their respective parental rights for 

knowingly placing or knowingly allowing the children to remain in conditions or 

 

1 Amber and Carl are pseudonyms for the appealing parents and will be referred 

to by these names throughout. 
2

surroundings that endangered their physical or emotional well-being. TEX. FAM. CODE.

ANN. § 161.001(1)(D) (West Supp. 2013).

2

Likewise, each contest the legal and factual 

sufficiency of the evidence to support the trial court‘s judgment terminating their 

respective parental rights for engaging in conduct or knowingly placing the children with 

persons who engaged in conduct that endangers the physical or emotional well-being of 

the children. § 161.001(1)(E). Finally, each contends that the evidence is legally and 

factually insufficient to support the trial court‘s judgment that termination was in the best 

interest of the children. § 161.001(2). 

Separately, Carl contends that the evidence was legally and factually insufficient 

to support his termination for his knowingly engaging in conduct that resulted in his 

conviction for an offense and confinement or imprisonment and inability to care for the 

children for not less than two years from the date of filing of the petition. §

161.001(1)(Q). Additionally, Carl contends that section 161.001(1)(Q) is constitutionally 

invalid on its face and as applied in this case. 

We will affirm the judgment of the trial court as to both Amber and Carl.

Factual and Procedural Background

On January 7, 2012, law enforcement officers raided the home of Amber and 

Carl. During the raid, marijuana, cocaine, hydrocodone and drug paraphernalia were 

found in the home. Both Amber and Carl were arrested. The children were all present 

in the home when the raid occurred and their parents were arrested. 

 

2

Further reference to the Texas Family Code will be by reference to ―section 

____‖ or ―§ ____.‖
3

As a result of the drug raid, the Texas Department of Family and Protective 

Services (Department) opened a negligent supervision file regarding the children. 

Assigned to investigate this file was investigator Mario Moreno. During his 

investigation, Moreno confirmed from Amber and Carl that the children were present at 

the time of the drug raid. Although Amber and Carl refused to admit to possession of 

the drugs found at the home, both admitted to smoking marijuana the day before the 

raid. Eventually, only Carl was charged as a result of the drug raid. However, as a 

result of the drug raid, the Department filed a petition for temporary conservatorship and 

for termination of Amber and Carl‘s parental rights. Subsequently, Moreno developed a 

joint service plan for Amber and Carl. Amber and Carl each reviewed the plan and, at 

that time, neither was incarcerated. The plan had specific items that both Amber and 

Carl were required to complete, maintain, or refrain from doing. 

The file on the children was then placed in the hands of a Department 

conservatorship worker, Kristen McClure, to complete. Initially, the children were 

placed with their paternal grandmother. However, the children were again removed 

when in August of 2012, the Department learned that the grandmother had simply 

returned the children to Amber and Carl. This action was in contravention of the order 

of the trial court that Amber and Carl not have unsupervised visitation with the children. 

Prior to the Department finding out that the children were back with Amber and Carl, 

neither Amber nor Carl had advised the Department of this fact; in fact, the record 

reflects that Amber advised that the children were not living in the marital home.

In October of 2012, Amber and Carl‘s home was again the scene of a drug raid. 

There were four individuals arrested in the home at that time. Those arrested were the 
4

relatives of Carl: Ruben, Ishmael, Sr., Ishmael, Jr., and Frank. The drugs seized were 

methamphetamine, cocaine, and marijuana. Neither Amber nor Carl was arrested or 

charged as a result of this drug bust. 

On November 8, 2012, Carl entered a plea of guilty to possession of a controlled 

substance, charges that arose in the January drug raid, and was sentenced to serve a 

term of confinement of eight years in the Institutional Division of the Texas Department 

of Criminal Justice. Carl was incarcerated at the time of the trial.

On March 28, 2013, after Amber had made significant progress on her service 

plan, the children were returned to her as part of a monitored return. However, the 

children were quickly removed and placed back in foster care. The return of the 

children to foster care was precipitated by a shoplifting incident at the Dollar General 

Store in Dimmitt, Texas. While Amber had two of the children with her, she was seen 

inside Dollar General in the general accompaniment of Ishmael, Ruben, and another 

person, all three of whom were involved in shoplifting from the store. Ishmael and 

Ruben are two of the individuals arrested in the second drug bust at Amber‘s home. No 

charges were filed against Amber; however, she did receive a criminal trespass notice. 

This incident occurred on March 27, 2013; however, the Department did not learn of this 

incident until April 5, 2013, after the children had been returned for a monitored return. 

The record reflects that Amber never notified the Department of the incident at the 

Dollar General Store. 

In a visit to Amber‘s home shortly after the incident at Dollar General, McClure 

discovered two people living in the home who were not approved to be living there. 
5

According to McClure, when the children were returned to Amber‘s care, Amber agreed 

that no other individuals would live in the home. At that same visit, Amber advised 

McClure that all three children were with her but, when confronted with the fact that this 

was not true, Amber simply said she lied because she was afraid it would look bad. 

Based upon the continued association with individuals who were involved with 

criminal activity and Amber‘s own dishonesty with the Department, the Department 

removed the children and Amber was required to begin counseling again with Sonya 

Higgins. The new requirement for counseling was to be eight sessions. In the final 

analysis, Amber only attended two of the eight sessions. Amber‘s excuse for her nonattendance at the counseling sessions was that she lacked any transportation. 

The trial court heard the testimony of the Department‘s witnesses and that of 

Amber. At the conclusion of the testimony, the trial court found that Amber and Carl 

had committed the predicate acts alleged against them and that termination of their 

respective parental rights was in the best interest of the children. Accordingly, the trial 

court entered an order terminating the parental rights of Amber and Carl, and this 

appeal ensued. 

The issues presented by the appeals of Amber and Carl deal with the sufficiency 

of the evidence, legally and factually, to support either the predicate acts alleged by the 

Department and the best interest finding by the trial court. Additionally, Carl contends 

that the section 161.001(1)(Q) is constitutionally invalid on its face and as applied to 

him. Disagreeing with Amber and Carl‘s positions, we will affirm the judgment of the 

trial court.
6

Standard of Review

The natural right existing between parents and their children is of constitutional 

dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer, 

455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A decree terminating 

this natural right is complete, final, irrevocable, and divests for all time that natural right 

as well as all legal rights, privileges, duties, and powers between the parent and child 

except for the child‘s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are 

required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846 

(Tex. 1980). However, parental rights are not absolute, and the emotional and physical 

interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89 

S.W.3d 17, 26 (Tex. 2002).

The Texas Family Code permits a court to terminate the parent-child relationship 

if the petitioner establishes (1) one or more acts or omissions enumerated under section 

161.001(1), and (2) that termination of the parent-child relationship is in the best interest 

of the child. § 161.001. Though evidence may be relevant to both elements, each 

element must be proved, and proof of one does not relieve the burden of proving the 

other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground and best interest 

of the child must be proved, only one statutory ground is required to terminate parental 

rights under section 161.001. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Therefore, 

we will affirm the trial court‘s order of termination if legally and factually sufficient 

evidence supports any one of the grounds found in the termination order, provided the 

record shows that it was also in the best interest of the child for the parent‘s rights to be 

terminated. See id.
7

Due process requires the application of the clear and convincing standard of 

proof in cases involving involuntary termination of parental rights. In re J.F.C., 96 

S.W.3d 256, 263 (Tex. 2002); see § 161.206(a) (West 2008). ― ̳Clear and convincing 

evidence‘ means the measure or degree of proof that will produce in the mind of the 

trier of fact a firm belief or conviction as to the truth of the allegations sought to be 

established.‖ § 101.007 (West 2008). This standard, which focuses on whether a 

reasonable jury could form a firm belief or conviction, retains the deference a reviewing 

court must have for the factfinder‘s role. In re C.H., 89 S.W.3d at 26.

In reviewing the legal sufficiency of the evidence supporting an order terminating 

parental rights, we look at all the evidence in the light most favorable to the finding to 

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

conviction as to the truth of the allegations sought to be established. See In re J.F.C.,

96 S.W.3d at 266. ―To give appropriate deference to the factfinder‘s conclusions and 

the role of a court conducting a legal sufficiency review, looking at the evidence in the 

light most favorable to the judgment means that a reviewing court must assume that the 

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

do so.‖ Id. In other words, we will disregard all evidence that a reasonable factfinder 

could have disbelieved or found to have been incredible. Id.

When reviewing the factual sufficiency of the evidence supporting a termination 

order, we determine ―whether the evidence is such that a factfinder could reasonably 

form a firm belief or conviction about the truth of the [Department]‘s allegations.‖ In re 

C.H., 89 S.W.3d at 25. In conducting this review, we consider whether the disputed 

evidence is such that a reasonable factfinder could not have resolved the disputed 
8

evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. ―If, in light of the entire 

record, the disputed evidence that a reasonable factfinder could not have credited in 

favor of the finding is so significant that a factfinder could not reasonably have formed a 

firm belief or conviction, then the evidence is factually insufficient.‖ Id.

Applicable Law and Analysis

Predicate Acts

The trial court found that the evidence supported termination of Amber‘s and 

Carl‘s parental rights based upon subsection (D)‘s endangering environment or 

conditions and subsection (E)‘s endangering conduct. See § 161.001(1)(D), (E). 

Evidence concerning subsections (D)‘s and (E)‘s statutory grounds for termination is 

interrelated; therefore, we will consolidate our review of the evidence supporting these 

grounds.3 See In re N.K., 399 S.W.3d 322, 329 (Tex. App.—Amarillo 2013, no pet.); In 

re I.G., 383 S.W.3d 763, 770 n.6 (Tex. App.—Amarillo 2012, no pet.). Endangerment of 

the child‘s physical or emotional well-being is an element of both subsections (D) and 

(E). See § 161.001(1)(D), (E); see also In re N.K., 399 S.W.3d at 329–30.

―[E]ndanger‖ means ―to expose to loss or injury; to jeopardize.‖ Tex. Dep’t of 

Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although ― ̳endanger‘ means 

 

3

Indeed, this Court has observed the interrelated nature of evidence that could 

support these two statutory grounds for termination: ―Although the focus of subsection 

(D) is on the child‘s living environment and not on the parent‘s conduct, parental 

conduct may produce an endangering  ̳environment.‘‖ In re D.R.J., No. 07-08-00410-

CV, 2009 Tex. App. LEXIS 5231, at *7 (Tex. App.—Amarillo July 8, 2009, pet. denied) 

(mem. op.) (citing In re D.T., 34 S.W.3d 625, 633 (Tex.App.—Fort Worth 2000, pet. 

denied)). That is not to say, however, that the two subsections require the same 

evidence. See In re U.P., 105 S.W.3d 222, 236 n.7 (Tex. App.—Houston [14th Dist.] 

2003, pet. denied) (discussing the distinctions between subsections (D) and (E)).
9

more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal 

family environment, it is not necessary that the conduct be directed at the child or that 

the child actually suffers injury.‖ Id.; see In re P.E.W., 105 S.W.3d 771, 777 (Tex. 

App.—Amarillo 2003, no pet.) (observing that child ―need not develop or succumb to a

malady‖ in order to prove endangering conditions). In our review, we not only look at 

evidence regarding the parent‘s active conduct, but we also consider evidence showing 

the parent‘s omissions or failures to act. In re A.B., 125 S.W.3d 769, 777 (Tex. App.—

Texarkana 2003, pet. denied). The Texas Supreme Court has reiterated that 

endangering conduct is not limited to actions directed toward the child: ―It necessarily 

follows that the endangering conduct may include the parent‘s actions before the child‘s 

birth, while the parent had custody of older children, including evidence of drug usage.‖ 

In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see In re T.N., 180 S.W.3d 376, 383 

(Tex. App.—Amarillo 2005, no pet.)

Analysis of Carl‘s Arguments

Carl‘s position on appeal seems to be that the evidence does not show any direct 

harm to the children and, thus, the Department has not proved endangerment. This 

coupled with the fact that Carl has made significant strides in his efforts to provide 

supervision and a safe environment for the children prior to his incarceration means that 

the Department has not met its burden of proving the predicate behavior by clear and 

convincing evidence. See In re J.F.C., 96 S.W.3d at 263; see § 161.206(a) (West 

2008).
10

However, Carl‘s position simply ignores certain facts. First, Carl minimizes the 

effect of his conviction for possession of a controlled substance. The record further 

reflects that the children were present in the home when a drug raid occurred and Carl 

was arrested and that marijuana and cocaine were found in the home. Even after his 

arrest for possession of controlled substances, Carl had his family in the home when 

several members were in possession of various controlled substances. We know this to 

be because the record reflects that a second drug raid on Carl‘s home resulted in the 

arrest of several members of his family for various drug offenses. Even if we assume 

that Carl is correct and the record shows no actual injury to any child, this is of no avail 

to him. The law does not require that a child suffer actual injury; rather, it is enough 

when the parental conduct produces an endangering environment. See In re D.R.J., 

2009 Tex. App. LEXIS 5231, at *8. In fact, a parent‘s abuse of drugs while having 

custody of children supports termination under section 161.001(1)(E). See In re J.O.A., 

283 S.W.3d at 346. Additionally, unlawful conduct by persons who live with the child or 

with whom the child must associate on a regular basis is a part of the child‘s conditions 

or surroundings for purposes of section 161.001(1)(D). See In re C.L.S.E.H., No. 02-

10-00475-CV, 2011 Tex. App. LEXIS 6853, at *11 (Tex. App.—Fort Worth, no pet.) 

(mem. op.) (citing In re D.T., 34 S.W.3d at 632). 

Thus, the record demonstrates that Carl was not providing proper supervision or 

a safe environment for the children. Therefore, the trier of fact could form a firm belief 

or conviction that Carl‘s parenting fostered an endangering environment and he allowed 

or took part in endangering conduct. In re J.F.C., 96 S.W.3d at 266. Accordingly, 
11

Carl‘s issues regarding the legal and factual sufficiency of the evidence to support 

termination under section 161.001(1)(D) and (E) are overruled.

Carl contends that he had made substantial progress on his ability to provide a 

safe environment for the children prior to his incarceration. While it is true that Carl did 

many of the tasks required of him by the court, another fact is equally true. Carl does 

not contend he completed the plan, and the Department does not allege failure to 

complete the plan as a predicate ground for termination of Carl‘s parental rights. It was 

up to the trier of fact to weigh this fact of Carl‘s efforts in deciding whether to terminate 

his parental rights. It should be remembered that had the Department alleged section 

161.001(1)(O) as a ground for termination partial compliance is not sufficient to defeat 

such an allegation. In re I.G., 383 S.W.3d at 771.

Because only one of the statutory predicate grounds for termination need be 

proved to support a termination order, we do not reach Carl‘s issue regarding section 

161.001(1)(Q). See In re A.V., 113 S.W.3d at 361. Accordingly, we express no opinion 

regarding Carl‘s issue on that subject.

Analysis of Amber‘s Arguments

Our review of the record reveals that the facts regarding the two drug raids which 

were discussed under the section of this opinion regarding Carl are applicable to Amber 

with the exception that the individuals arrested at the time of the second raid were Carl‘s 

relatives and not Amber‘s. That factual distinction aside, we are still faced with the 

children residing in a home where drugs were apparently routinely present. 
12

In addition to those facts, the trial court had before it testimony that directly 

implicated whether Amber could or would change her method of parenting to provide for 

more suitable supervision and direction of the children so as to eliminate the 

endangering aspects of the home life. Specifically at issue are two incidents that either 

occurred shortly after the Department allowed the children to return to Amber under a 

monitored return or the Department found out about shortly after the monitored return.

The incident at the Dollar General Store occurred before the monitored return, 

but the Department did not find out about it until after the monitored return. Amber 

contends that she did not participate in the shoplifting at the Dollar General Store and 

did not know about it. However, it is worth observing that the individuals who were 

directly involved in the incident were some of the same individuals who were arrested at 

the time of the second drug raid. Amber‘s testimony was not that she was not at the 

Dollar General when the shoplifting took place, but rather, she did not participate in or 

know about it. In connection with investigating the shoplifting incident, the Department 

went to Amber‘s residence to visit with her about it and discovered that two people were 

living in the home with Amber of whom the Department had no knowledge and not 

approved to be there. This was in violation of the Department‘s agreement with Amber 

that no other individuals would be living in the home. Further, at that same meeting 

Amber was asked where the children were, and she advised the Department 

caseworker that all three were at home when, in fact, M.Y.G. was not at home. These 

incidents reflect upon the credibility of Amber‘s testimony before the trial court. 

Remembering that the trial court was acting as the factfinder and, as such, is the sole 

judge of the credibility of the witnesses and the weight to be given their testimony, these 
13

incidents of less-than-truthful statements by Amber undercut her allegations of no 

knowledge about the events at the Dollar General Store. See City of Keller v. Wilson, 

168 S.W.3d 802, 819 (Tex. 2005). 

In the final analysis, we are faced with a situation regarding Amber where drugs 

are in the home and drug usage occurs when the children are in the home. Despite 

contending that she has changed and those influences are no longer present, Amber 

continues to associate with the same people who provided the impetus for the second 

drug raid. Although she claims no knowledge of or participation in the shoplifting, the 

trial court has heard testimony about Amber‘s less-than-truthful dealings with the 

Department. Under this factual scenario, the trial court could have chosen to believe 

the Department‘s version of the events and totally discounted Amber. See id. In so 

doing, the factfinder could have formed a firm belief or conviction that Amber created an

endangering environment and engaged in endangering conduct. In re J.F.C., 96 

S.W.3d at 266. Accordingly, Amber‘s issues regarding the legal and factual sufficiency 

of the evidence to support termination under section 161.001(1)(D) and (E) are 

overruled.

Best Interest of the Children

There is a strong presumption that a child‘s interest is best served by preserving 

the conservatorship of the parents; however, clear and convincing evidence to the 

contrary may overcome that presumption. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) 

(per curiam). The Texas Supreme Court has recognized a non-exhaustive list of factors 

that are pertinent to the inquiry whether termination of parental rights is in the best 
14

interest of the child: (1) the desires of the child, (2) the emotional and physical needs of 

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

and in the future, (4) the parental abilities of the individuals seeking custody, (5) the 

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

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

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

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

any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 

367, 371–72 (Tex. 1976); see also § 263.307 (West 2008) (providing extensive list of 

factors that may be considered in determining child‘s best interest). In examining the 

best interest of the child, we may consider evidence that was also probative of the 

predicate act or omission. See In re C.H., 89 S.W.3d at 28. The best interest 

determination may rely on direct or circumstantial evidence, subjective facts, and the 

totality of the evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, 

no pet.).

The Department need not prove all nine Holley factors, and the absence of 

evidence relevant to some of those factors does not bar a finding that termination is in 

the child‘s best interest, especially in the face of undisputed evidence that the parental 

relationship endangered the child. See In re C.H., 89 S.W.3d at 27. No one Holley

factor is controlling, and evidence of one factor may be sufficient to support a finding 

that termination is in the child‘s best interest. In re A.P., 184 S.W.3d 410, 414 (Tex. 

App.—Dallas 2006, no pet.) The evidence supporting the predicate grounds for 

termination may also be used to support a finding that the best interest of the children 
15

warrants termination of the parent-child relationship. In re D.S., 333 S.W.3d 379, 384 

(Tex. App.—Amarillo 2011, no pet.). 

Analysis

Before beginning the analysis, a recounting of the testimony needs to be set forth 

as it impacts the best interest of the children. The record before this Court is one of 

drug possession, drug dealing, and drug usage by Carl, with Amber‘s knowledge and 

participation in at least the drug usage. All of this occurred in the home with the children 

present. Subsequently, Carl‘s family was in the home when another drug raid ensued, 

again with the children apparently present. After the children were removed to the 

paternal grandmother, she turned them back over to the parents who knew they were

not to have unsupervised visitation or custody of the children as per their agreement 

with the Department. Yet, no effort was made to advise the Department of this 

development. 

Carl was subsequently sent to ID-TDCJ for eight years and will have no 

meaningful contact with the children during that period. The caseworker testified that, 

although Carl took steps to complete the family plan prior to incarceration, he has not 

been able to complete any further services. Additionally, and probably more 

importantly, Carl has not made any efforts to make any arrangements for the care of the 

children should they be returned to the family. Instead, Carl has apparently left all of 

these arrangements up to Amber.

Regarding Amber, the record indicates a pattern of poor choices and less-thanhonest dealings with the Department. Initially, there was the aforementioned regaining 
16

possession of the children from the paternal grandmother against the express directions 

of the court and the Department. Next, the act of hiding this information does not speak 

well for Amber. After that incident, she appeared to be completing the steps necessary 

to regain custody of the children and, in fact, subsequently was allowed custody on a 

monitored return. Yet, before the monitored return even took place, Amber was 

involved in the shoplifting incident at Dollar General. Though Amber protests she knew 

nothing about the shoplifting, the fact that those involved were the same family 

members arrested in her home during the second drug raid brings in to question her 

candor and her ability to make sound judgments. Additionally, again Amber failed to 

apprise the Department of the incident at Dollar General. After this incident, the 

children were again placed in the Department‘s care, and Amber was required to 

reinitiate counseling. She was asked to attend eight sessions. The record establishes 

that she attended only two sessions. Amber subsequently contended that she did not 

attend the other sessions because she did not have transportation. Yet, during the time 

she failed to attend counseling, Amber had requested her visitation with her children be 

moved to another date so that it would not conflict with her counseling. In testimony at 

the final hearing, Amber had only the most vague plans about moving to Lubbock to get 

away from the negative past. However, she had made no inquiries about a job or a 

place to live. The caseworker testified that the home Amber was living in was not clean 

and did not have food to support Amber and three children. All of this brings the 

stability of any arrangements Amber might claim to be making into serious question.
17

Desires of the Children

The desires of the children are the first Holley factor listed, and we shall consider 

it first. The trial court heard testimony that the children want to return to their parents. 

While we must certainly factor in the children‘s desires, those desires are not allowed to 

overrule their physical safety and emotional health. See In re R.M., No. 07-12-00412-

CV, 2012 Tex. App. LEXIS 10239, at *19-20 (Tex. App.—Amarillo Dec. 12, 2012, no 

pet.) (mem. op.) (citing In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana 

2003, no pet.)). Thus, we will consider the children‘s request; however, such a request 

militates only slightly against the trial court‘s best interest finding.

The Emotional and Physical Needs of the Children Now and in the Future

The Emotional and Physical Danger to the Children Now and in the Future

The next two Holley factors will be considered together. As previously noted, the 

evidence that proves the predicate acts may also be used to support the trial court‘s 

best interest finding. In re D.S., 333 S.W.3d at 384. Further, a parent‘s future conduct 

may be measured by his or her past conduct. Id. The record clearly supports that the 

emotional and physical needs of the children were not being met in the past and, in fact, 

those needs were in danger. The record further supports a conclusion that neither Carl 

nor Amber have any definitive plans regarding the children in the future. Carl, 

apparently because of his current incarceration status, has voiced no plans. Amber has 

voiced only the most general and vague plans. The problem with accepting Amber‘s 

vague plans at face value is that her conduct demonstrates an inability to follow through 

with any plans or to stop the behaviors that have led to the current situation. It is 

recognized that past behavior may be used to measure a parent‘s future conduct when 
18

making a best interest determination. See In re D.S., 333 S.W.3d at 384. Therefore, 

the emotional and physical needs in the past and the future and the emotional physical 

danger in the past and the future strongly support termination as in the best interest of 

the children. We are also reminded that it is up to the factfinder to resolve conflicts in 

testimony. See In re J.F.C., 96 S.W.3d at 266. These two Holley factors are strongly 

weighed in favor of the trial court‘s ruling regarding the best interest of the children. 

Stability of the Home or Proposed Placement

The issue of the stability of Carl and Amber‘s home was thoroughly discussed in 

the previous portion of this opinion. There is virtually no stability in the home of Carl 

and Amber. The case worker testified that the only way to seek true permanency was 

through adoption and that this should occur sooner rather than later. This, in turn, 

supports a finding that the best interest of the children would be served by termination. 

The Parties‘ Plans for the Children

Again, the record demonstrates that Carl has no real plans and that Amber‘s 

plans are vague at best. Her fall back plan, obtaining a job at the cafeteria where the 

children attend school, was at best illusory. Amber had not sought employment and did 

not testify to any facts that she would be able to gain that employment. The 

Department‘s plans were far more definite and more suitable to permanency for the 

children. The Department had located two potential adoptive families who were 

interested in adopting the children. This factor strongly supports that termination is in 

the best interests of the children. 
19

From a review of these Holley factors, it is clear that the trial court had sufficient 

testimony and facts before it upon which to find by clear and convincing evidence that 

termination was in the best interests of the children. In re J.F.C., 96 S.W.3d at 266. 

Accordingly, Carl‘s and Amber‘s issues to the contrary are overruled.

Conclusion

Having overruled all of Carl‘s and Amber‘s issues regarding the sufficiency of the 

evidence to support termination and the best interests of the children, we affirm the 

judgment of the trial court.

Mackey K. Hancock

 Justice