Opinion issued April 1, 2021

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-20-00764-CV

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IN THE INTEREST OF N.S.M., A CHILD

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Case No. 2019-02994J

MEMORANDUM OPINION

This is a parental-termination suit in which the trial court entered a decree

terminating a mother’s rights as to her daughter. The mother appeals contending that 

the evidence is factually insufficient to support the trial court’s finding that 

termination of her parental rights is in her daughter’s best interest. We affirm.
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BACKGROUND

The Department of Family and Protective Services sought to terminate the 

mother’s parental rights as to her daughter, N.S.M., who was 14 months old at trial. 

As grounds for termination, the Department relied on Section 161.001(b)(1)(M) of 

the Family Code, which authorizes termination when a parent has “had his or her 

parent-child relationship terminated with respect to another child based on a finding 

that the parent’s conduct was in violation of Paragraph (D) or (E).” Paragraph (D) 

and (E), in turn, concern conditions and conduct that endanger the physical or 

emotional wellbeing of a child. TEX. FAM. CODE § 161.001(b)(1)(D)–(E). 

The case was tried to the bench. The facts were largely undisputed. The 

Department presented several exhibits and the testimony of three witnesses: the 

caseworker, the child’s guardian ad litem, and the child’s current caregiver. Neither 

the father nor the mother testified. Nor did they offer any evidence.

N.S.M. was born in July 2019. The Department took her into its care three 

days later because her mother was homeless, and her father was in jail for assaulting 

her mother during the pregnancy.

The mother has a history of drug use. When N.S.M. was born, she and her 

mother tested negative for drugs. But the record does not disclose what type of test

the hospital administered. When the mother submitted a hair sample for testing nine 

days after N.S.M.’s birth, the result was positive for cocaine. The mother nonetheless
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told the Department she had never used cocaine. When the mother was last drug 

tested, several months before trial, the result was negative. But on this occasion, she 

only submitted a urine sample; she did not submit a hair sample. 

The mother has a long history with the Department. The Department 

introduced six prior decrees terminating the mother’s parental rights as to her other 

nine children:

• a July 2009 termination decree as to four children;

• a July 2009 termination decree as to a fifth child;

• a June 2016 termination decree as to a sixth child;

• an August 2016 termination decree as to a seventh child;

• a November 2016 termination decree as an eighth child; and

• an October 2017 termination decree as to a ninth child.

Both July 2009 decrees include findings that the mother had knowingly placed or 

allowed the children to remain in conditions or surroundings that endangered their 

physical or emotional wellbeing and engaged in conduct or knowingly placed the 

children with persons who engaged in conduct that endangered their physical or 

emotional wellbeing. See FAM. § 161.001(b)(1)(D)–(E). The November 2016 decree 

likewise included these same child-endangerment findings. See id.

N.S.M.’s mother “has a history of depression and anxiety,” which is

unmanaged by treatment or medication. She also has a criminal history, including a 
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2015 charge for child abandonment or endangerment, which resulted in 2 years’ 

probation. See TEX. PENAL CODE § 22.041(b)–(c).

After N.S.M. came into the Department’s care, her mother obtained housing. 

She has not been homeless since. The mother has maintained regular contact with 

the Department. She has visited N.S.M. and has behaved appropriately during these 

visits. But the mother’s visits with the child have been infrequent. In the nine months

before trial, she visited her daughter on just three or four occasions. 

Since April 2020, N.S.M. has lived with a caregiver who has adopted some of 

her half-siblings. According to the caseworker, N.S.M. loves the caregiver and her 

siblings. N.S.M. is now walking and playing. The caseworker had no concerns about 

N.S.M.’s safety in her current placement. The caseworker testified that if the 

mother’s rights are terminated, the caregiver plans to adopt N.S.M. The caseworker 

opined that termination and adoption was in N.S.M.’s best interest because it would

give N.S.M. a permanent, stable home and maintain her relationships with the halfsiblings with whom she currently resides as well as her other half-siblings whom her 

current caregiver ensures she visits. 

The mother gave the Department the names of several persons with whom 

N.S.M. could be placed. But the Department ruled them out on various grounds. A 

maternal aunt was unsuitable due to her criminal history and history of drug abuse. 

A friend of the mother was discounted because she had no prior relationship with 
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the family and had a history with Adult Protective Services. The Department ruled 

out another ostensible friend of the mother based on her lack of a prior relationship

with the family. Finally, another relative identified by the mother did not give the 

Department the information it needed to evaluate her suitability. 

N.S.M.’s guardian ad litem also recommended that the mother’s parental 

rights be terminated. The guardian ad litem testified that she based her 

recommendation on the mother’s “history of previous terminations and lack of 

stability in her life.” With respect to the mother’s lack of stability, the guardian ad 

litem specifically referred to the mother’s history of drug abuse and inability or 

unwillingness to remain employed. 

Like the caseworker, the guardian ad litem testified favorably about N.S.M.’s 

current placement. The guardian ad litem testified that N.S.M. “has a very strong 

bond with the caregiver and her siblings in the home.” N.S.M. is “happy,” “very 

active,” and receives lots of attention and affection. 

Finally, N.S.M.’s current caregiver testified. She characterized her bond with 

N.S.M. as “very strong.” She testified that she intends to adopt N.S.M. if the 

mother’s parental rights are terminated. In her opinion, termination and adoption are 

in N.S.M.’s best interest. 

The trial court issued a decree terminating the mother’s parental rights as to 

N.S.M. because her parental rights as to other children had been terminated on child-
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endangerment grounds and termination was in N.S.M.’s best interest. It also 

terminated the father’s parental rights. 

The mother appeals.

DISCUSSION

The mother does not contest that the previous decrees terminating her parental 

rights as to her other children on child-endangerment grounds constitute a valid basis

for termination of her parental rights in this case. See FAM. § 161.001(b)(1)(M). Nor 

does she contest that the evidence is legally sufficient to show that the termination 

of her parental rights is in N.S.M.’s best interest. See id. § 161.001(b)(2). Instead, 

the mother contends that the evidence is factually insufficient to show that the

termination of her parental rights is in N.S.M.’s best interest. See id.

Legal Standard for Terminating Parental Rights

A parent’s rights to the care, custody, and management of his or her child are 

constitutional in scope. Santosky v. Kramer, 455 U.S. 745, 758–59 (1982); In re 

M.S., 115 S.W.3d 534, 547–48 (Tex. 2003). But parental rights are not absolute; the 

Department may seek termination of the rights of those who are not fit to accept the 

responsibilities of parenthood. In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). The 

primary focus in a termination suit is protecting the child’s best interest. Id.

To terminate a parent’s rights, the Department must establish that the parent 

committed one or more statutorily enumerated predicate acts or omissions and that 
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termination is in the child’s best interest. FAM. § 161.001(b)(1)–(2). The Department 

need only establish one of these predicate acts or omissions in conjunction with the 

best-interest finding. See id.; In re A.V., 113 S.W.3d at 362. Though the two 

requirements are distinct, evidence that is probative of the parent’s acts and 

omissions may be probative of the child’s best interest. In re M.D.M., 579 S.W.3d 

744, 769 (Tex. App.—Houston [1st Dist.] 2019, no pet.). The Department must 

make both showings by clear and convincing evidence, which is “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.” FAM. §§ 101.007, 161.001(b).

Because of the constitutional nature of parental rights, the best-interest inquiry 

begins with a presumption that it is in a child’s best interest to be raised by his or her 

parents. See In re G.M., 596 S.W.2d 846, 846–47 (Tex. 1980). But like any other 

presumption, this presumption yields to contrary evidence, provided the evidence is 

clear and convincing. See id. at 847; see also Cervantes-Peterson v. Tex. Dep’t of 

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

2006, no pet.) (en banc) (Department has burden to rebut presumption that child’s 

best interest is served by remaining in parents’ custody).

Multiple non-exclusive factors bear on a child’s best interest. Holley v. 

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include:

• the child’s desires;
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• the child’s physical and emotional needs now and in the future;

• the physical and emotional danger to the child now and in the future;

• the parental abilities of those seeking custody;

• the programs available to assist them to promote the child’s best interest;

• their plans for the child of those seeking custody;

• the stability of the home or proposed placement;

• the acts or omissions of the parent that may indicate the existing parentchild relationship is not proper; and

• any excuse for the parent’s acts or omissions.

Id.; Yonko v. Dep’t of Family & Protective Servs., 196 S.W.3d 236, 243 (Tex. 

App.—Houston [1st Dist.] 2006, no pet.). These factors are not exhaustive, no one 

factor is controlling, and a single factor may be adequate to support termination on 

a particular record. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); In re J.M.T., 519 

S.W.3d 258, 268 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). Multiple 

additional factors may be relevant in assessing a parent’s willingness and ability to 

provide a child with a safe environment in a given case. See FAM. § 263.307(b).

Factual Sufficiency Review in Termination Cases

Because of the elevated burden of proof in a termination suit—clear and 

convincing evidence—we do not apply the traditional formulation of factual 

sufficiency on appeal. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).

In a factual-sufficiency review in a termination case, we must weigh disputed 

evidence contrary to a finding against all the evidence in its favor. Id. at 631. We 
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consider whether the disputed evidence is such that a reasonable factfinder could not 

have resolved it in the finding’s favor. Id. The evidence is factually insufficient if, 

in light of the entire record, the disputed evidence a reasonable factfinder could not 

have credited in a finding’s favor is so significant that the factfinder could not have 

formed a firm belief or conviction that the finding is true. Id.

In reviewing for factual sufficiency, however, we must be careful not to usurp 

the factfinder’s role. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). The factfinder is 

the sole arbiter of witness credibility. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

In a bench trial, the trial judge is the factfinder who weighs the evidence, resolves 

evidentiary conflicts, and evaluates the demeanor and credibility of witnesses. In re 

R.J., 579 S.W.3d 97, 117 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).

Because the trial judge saw the witnesses firsthand, we must give him or her due 

deference, notwithstanding the heightened factual-sufficiency standard. In re J.S., 

584 S.W.3d 622, 634 (Tex. App.—Houston [1st Dist.] 2019, no pet.).

Analysis

The mother contends the evidence is factually insufficient to support the trial 

court’s best-interest finding. In support of this contention, the mother argues that the 

evidence shows she continues to have a bond with her daughter. She further argues 

that termination is not necessary to keep her daughter in her current placement.
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N.S.M.’s Desires

N.S.M. is too young to make her desires known, which ordinarily results in 

this factor being neutral as to termination. In re M.A.J., 612 S.W.3d 398, 410 (Tex. 

App.—Houston [1st Dist.] 2020, no pet.). The mother concedes that this is so, but 

she nonetheless argues that the trial court should have considered the motherdaughter bond in lieu of an expression of N.S.M.’s desires. At multiple points in her 

brief, the mother asserts that there remains a bond between her and her daughter. But 

the mother does not cite to any evidence supporting her assertion. She instead argues

that the bond is evident from her consistent visitation with her daughter or that the 

mother-daughter relationship makes the existence of a bond self-evident.

The record, however, does not support the mother’s argument. The 

Department took N.S.M. into its care three days after she was born. At trial, N.S.M.

was 14 months old. In the preceding nine months, the mother visited N.S.M. three 

or four times. The evidence does not show that these visits created a bond between 

the two or that a bond otherwise existed. So while we agree that evidence of a parentchild bond may substitute for evidence of a child’s desires when the child is too 

young to communicate them, the trial court could have reasonably found that no such 

bond exists in this instance. See In re N.J.H., 575 S.W.3d 822, 834 (Tex. App.—

Houston [1st Dist.] 2018, pet. denied) (when child is too young to express desires, 

factfinder may consider evidence that child has spent minimal time with parent); In 
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re T.G.R.-M., 404 S.W.3d 7, 16 (Tex. App.—Houston [1st Dist.] 2013, no pet.) 

(factfinder could infer lack of mother-son bond from evidence that mother had not 

taken care of son who was under the age of two since two months after his birth).

To the extent the mother argues that a parent and child have a natural affinity

and a factfinder must give some evidentiary weight to this innate bond, we disagree. 

The law already accounts for the affinity that usually exists between a parent and 

child by presuming that continuation of their relationship is in the child’s best 

interest. See In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). But evidence of a 

biological relationship, standing alone, is not proof of a parent-child bond. For 

purposes of the best-interest inquiry, a parent-child bond exists only if the two have 

formed a relationship “based on shared feelings, interests, or experiences.” See NEW 

OXFORD AMERICAN DICTIONARY 194 (3d ed. 2010) (defining “bond”). Whether such 

a relationship exists necessarily turns on evidence other than a biological connection. 

See, e.g., In re S.C.F., 522 S.W.3d 693, 702 (Tex. App.—Houston [1st Dist.] 2017, 

pet. denied) (reasonable factfinder could decide based on conflicting evidence that 

father lacked bond with children). To hold otherwise would deprive an alleged

parent-child bond of evidentiary value as a proxy for the child’s desires.

Thus, this factor remains neutral with respect to N.S.M.’s best interest.
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N.S.M.’s Physical and Emotional Needs and Danger to N.S.M.

As for the physical and emotional needs of N.S.M. and the physical and 

emotional danger to N.S.M., the mother concedes that she “could not as of the time 

of trial provide a safe and stable home for her daughter” and that this “weighs heavily 

in favor of termination.” Because N.S.M. is very young and thus especially 

vulnerable, the trial court could have reasonably found that the mother’s admitted 

inability to provide a safe and stable home for N.S.M. heavily weighed in favor of

termination. See In re J.M.T., 519 S.W.3d at 270–71 (14-month-old’s vulnerability

weighed in favor of finding that termination was in her best interest).

In addition, as previously discussed, the mother visited N.S.M. three or four 

times in the nine months before trial. The trial court could have reasonably found 

that the mother’s sporadic and minimal visitation of the child constituted further 

evidence that the mother is incapable of or unwilling to meet N.S.M.’s physical or 

emotional needs now and in the future. See In re R.J., 579 S.W.3d at 115 (minimal 

visitation relevant to multiple Holley factors, including child’s current and future 

physical and emotional needs and parent’s ability to care for child).

Furthermore, the mother has repeatedly failed to provide a safe and stable 

home for other children in the past, a circumstance which the trial court could 

consider in evaluating her ability to meet N.S.M.’s needs. See In re M.D.M., 579 

S.W.3d at 770 (factfinder may infer parent’s future conduct from past conduct and 
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should consider history of child neglect in best-interest analysis). The mother’s

parental rights have been terminated with respect to nine other children. As to five 

of these children, her rights were terminated on child-endangerment grounds. The 

trial court could have reasonably found that these prior terminations evidenced that 

the mother cannot meet N.S.M.’s physical or emotional needs now or in the future 

and that she poses a physical or emotional danger to N.S.M. See, e.g., In re J.M.G., 

608 S.W.3d 51, 54–55 (Tex. App.—San Antonio 2020, pet. denied) (considering 

prior termination decree that included endangerment findings as evidence that 

termination of parental rights was in best interest of another child).

On this record, these two factors—N.S.M.’s physical or emotional needs and 

the danger posed to N.S.M.—support the trial court’s best-interest finding.

Parental Abilities of Those Seeking Custody of N.S.M.

The mother has a history of depression and anxiety. She has not managed 

these conditions through treatment or medication. She concedes that she “is unable 

to protect her children due to her own emotional fragility” and that “mental illness 

forever may prevent her from effectively parenting,” which she further 

acknowledges “weighs considerably in favor of termination.”

Mental illness, in and of itself, is not a ground for the termination of parental 

rights. Liu v. Dep’t of Family & Protective Servs., 273 S.W.3d 785, 791 (Tex. 

App.—Houston [1st Dist.] 2008, no pet.). But the impact of a parent’s mental illness 
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on the ability to parent and the stability of the home are relevant when assessing a 

child’s best interest. In re R.J., 579 S.W.3d at 118. Here, the trial court could have 

reasonably found that the mother’s history of untreated depression and anxiety 

evidenced that termination is in N.S.M.’s best interest. See id. at 119 (best-interest 

finding supported by evidence that father with history of mental illness was not 

receiving adequate treatment, potentially subjecting son to uncertainty and 

instability); Jordan v. Dossey, 325 S.W.3d 700, 732 (Tex. App.—Houston [1st Dist.] 

2010, pet. denied) (evidence that mother failed to take medications prescribed for 

severe mental illness, did not attend all medical appointments, and discontinued 

therapy supported finding that termination was in son’s best interest).

In addition, the mother has a history of drug abuse, which the trial court was 

entitled to afford great weight in assessing her parental fitness and N.S.M.’s best 

interest. See In re N.J.H., 575 S.W.3d at 834 (pattern of drug use relevant to multiple 

Holley factors, including parenting ability, stability of home, child’s physical and 

emotional needs, and physical and emotional danger to child); In re J.M.T., 519 

S.W.3d at 269 (parental drug abuse reflects poor judgment and may be factor in 

deciding child’s best interest). Here, the mother’s hair tested positive for cocaine 

within nine days of N.S.M.’s birth, a fact from which the trial court could have 

reasonably inferred drug use during pregnancy or soon afterward. The trial court 

could have reasonably further found that either circumstance indicated an inability 
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or unwillingness to properly parent N.S.M. See In re A.C., 394 S.W.3d 633, 642 

(Tex. App.—Houston [1st Dist.] 2012, no pet.) (drug use during pregnancy was 

evidence termination was in child’s best interest); Toliver v. Tex. Dep’t of Family & 

Protective Servs., 217 S.W.3d 85, 100 (Tex. App.—Houston [1st Dist.] 2006, no 

pet.) (mother’s drug use took on added significance because child was fragile and 

needed constant supervision).

Moreover, rather than conceding that she had used cocaine, the mother denied

it and said she did not understand how she could have tested positive. Sitting as 

factfinder, the trial court was entitled to disbelieve the mother’s denial. See Walker 

v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 618–19 (Tex. App.—

Houston [1st Dist.] 2009, pet. denied) (rational factfinder could credit positive drug 

test results over father’s testimony denying drug use). Based on the evidence of the 

mother’s history of drug use and the positive drug test result, the trial court could 

have reasonably inferred that she remains at risk for continuing drug use or relapse. 

In re J.M.T., 519 S.W.3d at 269. The trial court could have reasonably further found 

that the mother’s apparent lack of candor about her drug use increases this risk. See 

Wyatt v. Dep’t of Family & Protective Servs., 193 S.W.3d 61, 70 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) (considering parent’s lack of candor as to illegal 

drug use in best-interest inquiry).
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The mother argues that the record contains contrary evidence as to drug use 

too, and she is correct. The drug test she took in the hospital was negative. In 

addition, her most recent April 2020 drug test was negative as well.

Given the record as a whole, however, the trial court could have reasonably 

found the evidence on which the mother relies less persuasive than the evidence of 

her drug use. The record does not divulge what method of test the hospital 

administered, and the mother’s later negative result was from a urine test. Soon after 

the unspecified hospital test and well before the urine test, the mother had a hair test

with a positive result. It is not uncommon for a person to contemporaneously submit 

a urine sample that is clean and a hair sample that shows drug use due to the differing 

timeframe of use that each method of testing is capable of detecting. See, e.g., In re 

J.S., 584 S.W.3d at 636 (father’s urine test results were clean but contemporaneous 

hair test results showed continued drug use); In re D.J.W., 394 S.W.3d 210, 217 

(Tex. App.—Houston [1st Dist.] 2012, pet. denied) (mother’s urine test was negative 

at same time her hair test was positive). And while the last drug test the mother took 

was negative, this single urine test did not negate the uncontradicted evidence that 

she had a history of drug use. See In re N.J.H., 575 S.W.3d at 835 (father’s single 

negative drug test after treatment for substance abuse did not negate prior history of 

drug use); see also In re R.J., 579 S.W.3d at 118 (father’s nonuse of drugs for 

extended period and completion of outpatient drug treatment program did not 
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disallow factfinder from inferring he was at risk of continuing substance abuse from 

evidence of past use).

Finally, the record contains evidence that the mother was charged with 

abandoning or endangering another child several years ago, which the trial court 

could have reasonably found indicative of a lack of parental ability. See Walker, 312 

S.W.3d at 619–20 (prior arrest for child neglect evidenced lack of parental ability).

Likewise, we think the repeated termination of the mother’s parental rights with 

respect to multiple other children is indicative of a lack of parental ability.

In contrast, the caseworker testified without contradiction she had no concerns 

about safety or endangerment with respect to N.S.M.’s current placement. The 

caseworker also testified that N.S.M.’s half-siblings have lived with N.S.M.’s 

current caregiver for quite a while without any indication of abuse or neglect.

On this record, this factor—the parental ability of those seeking custody of 

N.S.M.—supports the trial court’s best-interest finding.

Plans for N.S.M. and Stability of Home or Proposed Placement

N.S.M.’s current caregiver intends to adopt her if the mother’s parental rights 

are terminated. It is undisputed that N.S.M. is doing well in her current placement

and has developed a strong bond with her caregiver and half-siblings. The trial court 

could have reasonably considered this evidence in finding that termination is in 

N.S.M.’s best interest. See In re N.J.H., 575 S.W.3d at 834 (when child is too young 
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to express desires, factfinder may consider evidence that child has bonded with and 

is well-cared for by foster family); Jordan, 325 S.W.3d at 731 (considering evidence 

of plan to adopt and stability of placement in best-interest inquiry).

In contrast, the mother has not articulated any specific plans for N.S.M. The 

mother nonetheless argues that these factors do not support termination because she 

has demonstrated a “willingness to parent” and the preservation of her “parental 

rights, arguably, would do little to disrupt or prevent” the continuation of N.S.M.’s 

current placement. But the trial court could have reasonably discounted the mother’s 

avowed willingness to parent given the evidence of her repeated failure to properly 

care for multiple children. See Jordan, 325 S.W.3d at 731 (discounting mother’s 

stated intent to be good mother because record indicated she lacked ability). 

Moreover, we reject the mother’s argument that the preservation of her parental 

rights will not disrupt N.S.M.’s current placement because it cannot be reconciled 

with the mother’s concession that a prompt and permanent placement in a safe 

environment is in her daughter’s best interest See FAM. § 263.307(a) (“prompt and 

permanent placement of the child in a safe environment is presumed to be in the 

child’s best interest”); Walker, 312 S.W.3d at 619 (goal of permanent stable home 

for child is compelling state interest).

On this record, these two factors—the plans for N.S.M. and the stability of 

her placement—support the trial court’s best-interest finding.
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N.S.M.’s Best Interest

In sum, multiple Holley factors support the trial court’s best-interest finding,

and none of the Holley factors contradict or undermine its finding. The evidence is 

quite one-sided. Considering all the evidence in the record, the disputed evidence 

that a reasonable factfinder could not have credited in favor of the trial court’s bestinterest finding is not so significant that the trial court could not have formed a firm 

belief or conviction that termination of the mother’s parental rights is in N.S.M.’s 

best interest. Thus, we hold that the evidence is factually sufficient to support the 

trial court’s best-interest finding. We overrule the mother’s sole issue.

CONCLUSION

We affirm the trial court’s decree terminating the mother’s parental rights.

Gordon Goodman

Justice

Panel consists of Chief Justice Radack and Justices Goodman and Farris.