Opinion issued October 1, 2013

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-11-00791-CV

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IN THE INTEREST OF E.C.R., A Child

On Appeal from the 314th Judicial District

Harris County, Texas

Trial Court Case No. 2010-04599J

MEMORANDUM OPINION ON REMAND

The relevant factual and procedural background is set forth in two previous 

opinions in this case. See In re E.C.R., 390 S.W.3d 22, 24–26 (Tex. App.—

Houston [1st Dist.] 2012), rev’d, In re E.C.R., 402 S.W.3d 239, 240–42 (Tex. 

2013). We previously held that legally insufficient evidence supported the 

judgment terminating M.R.’s parental rights under section 161.001(1)(O) of the 
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Family Code.

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 In re E.C.R., 390 S.W.3d at 27. The Supreme Court of Texas 

reversed, holding that “abuse or neglect of the child,” as used in subsection O, 

“necessarily includes the risks or threats of the environment in which the child is 

placed,” which in turn includes “the harm suffered or the danger faced by other 

children under the parent’s care.” In re E.C.R., 402 S.W.3d at 248. The Court 

remanded for consideration of an issue we did not reach—whether the evidence is 

factually sufficient to support the trial court’s finding that termination of M.R.’s 

parental rights to E.C.R was in E.C.R’s best interest. We conclude that it is and, 

accordingly, we affirm.

Standard of Review

In a factual sufficiency review, “the appellate standard for reviewing 

termination findings is whether the evidence is such that a factfinder could 

reasonably form a firm belief or conviction about the truth of the State’s 

allegations.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). By focusing on whether 

the factfinder could form a firm conviction or belief, the appellate court maintains 

the required deference for the factfinder’s role. Id. at 26. “An appellate court’s 

 1 Section 161.001(1)(O) provides that parental rights may be terminated if the 

parent has “failed to comply with the provisions of a court order that specifically 

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

who has been in the permanent or temporary managing conservatorship of the 

Department of Family and Protective Services for not less than nine months as a 

result of the child’s removal from the parent under Chapter 262 for the abuse or 

neglect of the child.” TEX. FAM. CODE ANN. § 161.001(1)(O) (West Supp. 2012). 
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review must not be so rigorous that the only factfindings that could withstand 

review are those established beyond a reasonable doubt.” Id. We should consider 

whether disputed evidence is such that a reasonable factfinder could not have 

resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d

256, 266 (Tex. 2002). “If, in light of the entire record, the disputed evidence that a 

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

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

conviction, then the evidence is factually insufficient.” Id. 

Applicable Law

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

Family Code, DFPS must establish, by clear and convincing evidence, that (1) the 

parent committed one or more of the enumerated acts or omissions justifying 

termination and (2) termination is in the best interest of the child. TEX. FAM. CODE 

ANN. § 161.001 (West Supp. 2012). Clear and convincing evidence is “the 

measure or degree of proof that will produce in the mind of the trier of fact a firm 

belief or conviction as to the truth of the allegations sought to be established.” Id.

§ 101.007 (West 2008); In re J.F.C., 96 S.W.3d at 264. “Only one predicate 

finding under section 161.001(1) is necessary to support a judgment of termination 

when there is also a finding that termination is in the child’s best interest.” In re 

A.V., 113 S.W.3d 355, 362 (Tex. 2003). 
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There is a strong presumption that the best interest of the child will be 

served by preserving the parent-child relationship. In re A.A.A., 265 S.W.3d 507, 

516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). “The same evidence of 

acts or omissions used to establish grounds for termination under subsection 

161.001(1) may be probative in determining the best interests of the child.” Id. 

When reviewing whether termination of parental rights is in the child’s best 

interest, we may consider, among other factors, the following: (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 individual seeking custody; (5) the programs available to 

assist the individual to promote the best interest of the child; (6) the plans for the 

child by the individual or by the agency seeking custody; (7) the stability of the 

home or proposed placement; (8) the acts or omissions of the parent that may 

indicate that the existing parent-child relationship is not a proper one; and (9) any 

excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 

371–72 (Tex. 1976). This list is not exhaustive, and there is no requirement that 

DFPS prove all of the factors in order for the court to make a valid finding on the 

best interest of the child. In re A.A.A., 265 S.W.3d at 517. 
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Analysis

Reviewing these factors, we first consider evidence of E.C.R.’s desires. 

M.R. notes that E.C.R. was under the age of two at the time of trial and thus was 

unable to express his desires, and DFPS agrees that there is no evidence 

concerning the child’s desires in this case. Accordingly, this factor does not weigh 

in our analysis. 

Next, under the second and fourth Holley factors, we consider the evidence 

of E.C.R.’s present and future emotional and physical needs, and the evidence 

regarding M.R.’s ability to parent and provide for his needs. E.C.R.’s DFPS 

caseworker testified that E.C.R. does not have any special needs and that his 

current foster placement is meeting his physical and emotional needs. Regarding 

M.R.’s ability to parent and provide for those needs, M.R. concedes that she was 

unemployed at the time of trial, did not have stable housing, and had not completed 

her psychiatric evaluation or the follow up recommendation from her 

psychological evaluation. The record contains evidence confirming that M.R. has 

a history of homelessness, is mentally unstable, and has failed to complete a 

psychiatric evaluation or attend treatment. Further, the record shows that while she 

was incarcerated for physically abusing her daughter, M.R. attempted suicide 

twice. Throughout the pendency of this suit, M.R. remained unemployed, and she 

has offered no proof of an ability to provide financial support to E.C.R. Thus, the 
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evidence regarding these factors weighs in favor of the trial court’s finding that 

termination of M.R.’s parental rights was in E.C.R.’s best interest. See In re 

C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.) (“Without 

stability, income, or a home, appellant is unable to provide for the child’s 

emotional and physical needs . . . [and her] unstable life threatens the physical 

well-being of the child and may put the child at risk of injury.”); In re J.I.T.P., 99 

S.W.3d 841, 846–47 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (finding 

evidence that parents could not provide stable environment, were mentally 

unstable, did not have a stable residence, and did not maintain consistent 

employment supported trial court’s finding that termination of parental rights was 

in child’s best interest). 

With respect to the third Holley factor, evidence of the emotional and 

physical danger to E.C.R. now and in the future, M.R. argues that there is no 

evidence that E.C.R. was now in danger or would be in the future. However, 

evidence of past misconduct or neglect can be used to measure a parent’s future 

conduct. See In re A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco 2012, pet. denied). 

Here, M.R. has lost custody of all of her children. Her oldest child was taken into 

DFPS custody based on an allegation of physical abuse, and her parental rights to 

that child were later terminated. Additionally, M.R. pleaded guilty to causing 

injury to her daughter, and received four years deferred adjudication. The 
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evidence related to this factor weighs in favor of the trial court’s best interest 

finding. See In re A.M., 385 S.W.3d at 82–83 (concluding that evidence of 

mother’s history of neglecting and endangering children by exposing them to 

domestic violence supported trial court’s finding that termination was in child’s 

best interest). 

M.R. asserts that there was “scant testimony” regarding the fifth Holley 

factor, programs available to assist her in promoting the best interest of the child. 

She argues that the failure to submit her psychological evaluation into evidence 

meant that the trial court had no knowledge of the recommendations made in the 

evaluation. However, E.C.R.’s caseworker testified that M.R. failed to complete 

“big services . . . which she needed,” including a psychiatric evaluation, as ordered, 

and psychotherapy, as recommended by her court-ordered psychological 

evaluation. M.R. did not object to this testimony. Further, M.R. concedes on 

appeal that she had not completed “her psychiatric evaluation or the follow up 

recommendation from her psychological evaluation.” Thus, there is some 

evidence of programs available to assist M.R., of which she did not avail herself, 

and on balance, this factor weighs in favor of the trial court’s best interest finding. 

See In re J.I.T.P., 99 S.W.3d at 847 (evidence of mother’s failure to follow therapy 

plan as recommended by psychological evaluation weighed in favor of best interest 

finding).
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Concerning factors six and seven, in which we examine the plans for the 

child by the individual and by the agency seeking custody and the stability of the 

home or proposed placement, the record reflects that DFPS’s long term goal for 

E.C.R. is unrelated adoption. M.R. notes there was no evidence about DFPS’s 

definitive plan for E.C.R.’s permanent adoption and few details about his current 

placement. According to M.R., this weighs against termination. But the record 

also reflects that E.C.R. is currently doing well in foster care. He and M.R.’s 

youngest son are in the same foster home, and his foster parents are meeting his 

physical and emotional needs. And we note that “the lack of evidence about 

definitive plans for permanent placement and adoption cannot be the dispositive 

factor [in a best interest analysis]; otherwise, determinations regarding best interest 

would regularly be subject to reversal on the sole ground that an adoptive family 

has yet to be located.” In re C.H., 89 S.W.3d at 28; see also In re G.B. II, 357 

S.W.3d 382, 384 (Tex. App.—Waco 2011, no pet.) (finding that DFPS is not 

required to make permanent placement before party’s parental rights may be 

terminated). 

M.R. asserts that the eighth Holley factor weighs in her favor, because there 

is no evidence of acts or omissions that indicate that the existing parent-child 

relationship between herself and E.C.R. is not a proper one, and that the evidence 

shows that at the time E.C.R. was removed, he was clean, healthy, and 
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developmentally on target. The evidence that E.C.R. was clean, healthy, and 

developmentally on target at the time of removal weighs against termination, but 

we must also consider the fact that M.R. was charged with, and ultimately pleaded 

guilty to, injuring E.C.R.’s sister.

With respect to any excuses for the acts or omissions of the parent, the ninth 

Holley factor, M.R. points to the child advocate’s testimony that M.R. was 

pregnant for most of the pendency of the case, and that M.R. told her that the 

pregnancy was a difficult one which rendered her unable to work. While this 

weighs in M.R.’s favor, we note that M.R. introduced no evidence that showed that 

she was unable to work during the pregnancy. 

M.R. raises two additional factors she claims are relevant to our analysis. 

First, she became pregnant with her first child (not E.C.R.) while she was a minor 

in DFPS custody. Second, M.R. points to the child advocate’s testimony that her 

recommendation if the case went forward at another time might be “different,” but 

that on the date of trial, she was recommending termination. 

M.R. presented some evidence that weighs against termination; nevertheless, 

after considering the entire record, we conclude that the evidence is factually 

sufficient for a reasonable factfinder to have formed a firm belief that termination 

of M.R.’s parental rights was in E.C.R.’s best interest. In re J.F.C., 96 S.W.3d at 

266. 
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Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle

Justice 

Panel consists of Chief Justice Radack and Justices Jennings and Huddle.