TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00158-CV

K. B., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-FM-22-005771, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

K.B. (Mother) appeals the trial court’s final decree of termination, following a 

jury trial, terminating her parental rights to her child (Kevin), who was four years old at the time 

of trial.

1

 In five issues, Mother asserts that the evidence is legally and factually insufficient 

to support the trial court’s findings that statutory grounds for termination exist, see Tex. Fam. 

Code § 161.001(b)(1)(D), (E), (O), and that termination of her parental rights is in Kevin’s best 

interest, see id. § 161.001(b)(2), and, additionally, Mother contends that there was error in the 

court’s charge. We will affirm.

1

 For the child’s privacy, we refer to him using a pseudonym and to his parents and other 

relatives by their familial relationships to each other. See Tex. R. App. P. 9.8.
2

BACKGROUND

In July 2022, Mother was living in her own apartment with Kevin and working 

when Kevin was in daycare. Mother had recently successfully completed an eighteen-month 

program with the Travis County Family Drug Court in connection with a prior suit brought by

the Texas Department of Family and Protective Services (the Department) against Mother and 

Kevin’s father (Father).

2

 Following her graduation from the drug-court program, in May 2022, 

the trial court signed an agreed order appointing Mother as temporary sole managing 

conservator; appointing Father, who failed to successfully complete the drug-court program, as 

temporary possessory conservator, with supervised possession; and dismissing the Department’s

suit.

Around 7:30 a.m. on July 21, 2022, while Kevin was at daycare, Mother 

discovered Father passed out in his vehicle in front of her apartment. Mother suspected that 

Father was high on drugs, and she assisted him into her apartment. For several hours, Father lay

on the couch as Mother worked on household chores. Around 2 p.m., Mother checked Father’s 

pulse and, believing that he was not in immediate distress, left the house to purchase marijuana. 

A few hours after she returned, Mother checked on Father and observed that his appearance had 

deteriorated and that he was not breathing. At approximately 4:30 p.m., Mother called 9-1-1, 

and upon arrival, EMS discovered that Father had died from an apparent overdose.

Two days later, members of Father’s family arrived to collect his belongings, and 

Father’s cousin and his wife offered to let Kevin stay with them for a week, to which Mother 

2 According to the evidence presented at trial, parents with Department cases that 

participate in the Travis County Family Drug Court program receive fully funded drugrehabilitation services. During the program, the child remains in the custody of his or her 

parents, and upon successful completion of the program, the pending case may be dismissed by 

the Department.
3

agreed. That same day, the Department received a referral alleging that Father had died from a 

fentanyl overdose and that Mother and Father had used drugs together the night before. During 

the investigation that followed, Mother admitted that on the night before Father’s death, she had 

taken Father to purchase illegal drugs and that Kevin was with them. Mother also told the 

Department investigator that she had been prescribed Adderall but had recently started taking 

Adderall obtained without a prescription, or “street Adderall.” She told the investigator that she 

had been taking the “street Adderall” for the last month and that she had recently learned that 

it may contain a “micrometer of methamphetamine.” In addition, during a conversation with 

Mother, the investigator suspected that Mother was under the influence, and when the 

investigator questioned her about his suspicion, Mother confirmed that she had taken “street 

Adderall” that day. When the Department asked Mother to submit to a drug test, Mother stated

that she would likely test positive for methamphetamine, amphetamine, and marijuana, which 

she did.

On August 2, 2022, the Department filed a petition to terminate Mother’s parental

rights and sought the emergency removal of Kevin from Mother’s care. In October 2022,

following an adversary hearing, the Department obtained emergency temporary managing 

conservatorship, and Kevin was formally placed with Father’s cousin and his wife (foster 

parents).

3

 In addition, the trial court ordered Mother to “[s]ubmit to random drug screenings 

within twenty-four hours of the Department’s request, at a location provided by the Department” 

and to “[a]ttend and actively participate in individual counseling that shall address parenting and 

substance abuse . . . and follow all recommendations until successfully discharged.”

3

 This is the same cousin and wife that Mother agreed to let Kevin stay with two days 

after Father’s death, and Kevin has resided with them since that time.
4

In February 2024, the trial court conducted a five-day jury trial on the 

Department’s petition to terminate. The evidence presented at trial included testimony by

Mother, the Department Investigator, the Department conservatorship caseworker, the Travis 

County Family Drug Court caseworker, the CASA (Court-Appointed Special Advocates) 

volunteer, Mother’s mother, Mother’s sister, Kevin’s paternal grandparents, and Kevin’s foster 

parents. At the conclusion of the proceedings, the trial court signed a final decree in accordance 

with the jury’s verdict, terminating Mother’s parental rights and appointing the Department as 

Kevin’s sole managing conservator.

STANDARD OF REVIEW

“While parental rights are of constitutional magnitude, they are not absolute.” 

In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). To terminate a parent-child relationship, the 

Department must prove that (1) the parent’s acts or omissions constitute at least one of the 

enumerated statutory grounds for termination, and (2) termination is in the child’s best interest. 

Tex. Fam. Code § 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The 

Department must prove both elements by clear and convincing evidence. See Tex. Fam. Code 

§ 161.001(a). 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. “This heightened proof standard carries the 

weight and gravity due process requires to protect the fundamental rights at stake.” In re A.C., 

560 S.W.3d 624, 630 (Tex. 2018).

In an appeal from an order terminating parental rights, we apply a standard of 

review that reflects this heightened standard of proof. In re J.F.C., 96 S.W.3d 256, 264 (Tex. 
5

2002). In this context, “[t]he distinction between legal and factual sufficiency lies in the extent 

to which disputed evidence contrary to the finding may be considered.” In re A.C., 560 S.W.3d 

at 631. When evaluating the legal sufficiency of the evidence, we view all the evidence in the 

light most favorable to the finding and consider any undisputed contrary evidence to decide 

whether “a reasonable factfinder could have formed a firm belief or conviction that the finding 

was true.” Id. A factual-sufficiency review, in contrast, requires “weighing disputed evidence 

contrary to the finding against all the evidence favoring the finding.” Id. “Evidence is factually 

insufficient if, in light of the entire record, the disputed evidence a 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 true.” Id.

ANALYSIS

In three issues, Mother challenges the legal and factual sufficiency of the 

evidence supporting the jury’s findings as to each statutory ground alleged by the Department 

and found by the trial court—namely, subsections (D), (E), and (O) of Section 161.001(b)(1), 

and as to the jury’s best-interest finding. We will begin our analysis with Mother’s argument 

that the evidence is insufficient to support the trial court’s findings of endangerment under 

subsection (E). See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam) (holding that 

due process requires appellate courts to review challenged subsection (D) and subsection (E) 

findings, even when factfinder made another statutory finding upon which termination could 

be upheld).
6

Endangering Conduct

A trial court may order termination of the parent-child relationship under 

subsection (E) if clear and convincing evidence establishes that the parent “engaged in conduct 

or knowingly placed the child with persons who engaged in conduct which endangers the 

physical or emotional well-being of the child.” Tex. Fam. Code § 161.001(b)(1)(E). When 

evaluating the evidence with respect to subsection (E), the relevant inquiry is whether the child’s

physical or emotional well-being was endangered as a direct result of the parent’s conduct, 

including acts and omissions or failures to act. V.P. v. Texas Dep’t of Fam. & Protective Servs., 

No. 03-19-00531-CV, 2020 Tex. App. LEXIS 938, at *10 (Tex. App.—Austin Feb. 4, 2020, no 

pet.) (mem. op.); A.S. v. Texas Dep’t of Fam. & Protective Servs., 394 S.W.3d 703, 711 (Tex. 

App.—El Paso 2012, no pet.). “Termination under subsection (E) requires more than a single act 

or omission, and the evidence must demonstrate a voluntary, deliberate, and conscious course of 

conduct by the parent, considering a parent’s actions both before and after the child was removed 

from the home.” T.M. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00174-CV, 2021 

Tex. App. LEXIS 8226, at *19-20 (Tex. App.—Austin Oct. 8, 2021, pet. denied) (mem. op.).

A child is “endangered” if the child is exposed to loss or injury or if the child’s 

emotional or physical health is jeopardized. D.H. v. Texas Dep’t of Fam. & Protective Servs., 

652 S.W.3d 54, 61 (Tex. App.—Austin 2021, no pet.); A.S., 394 S.W.3d at 711. Although 

endangerment means “more than a threat of metaphysical injury or the possible ill effects of a 

less-than-ideal family environment,” Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 

(Tex. 1987), it is not necessary to show that the conduct was directed at the child or that the child 

suffered injury, In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. 

denied). Moreover, endangerment does not have to be established as an independent proposition. 
7

A.C. v. Texas Dep’t of Fam. & Protective Servs, 577 S.W.3d 689, 699 (Tex. App.—Austin 2019, 

pet. denied) (citing Boyd, 727 S.W.2d at 533). Instead, a factfinder may reasonably find

endangerment from a course of conduct that presents a substantial risk to the child’s physical or 

emotional well-being. In re R.R.A., 687 S.W.3d 269, 277 (Tex. 2024).

Although not automatic, a parent’s illegal drug use and its effect on his or her 

ability to parent may qualify as an endangering course of conduct under subsection (E). 

In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); A.C., 577 S.W.3d at 699; see D.H., 652 S.W.3d 

at 61 (“[I]n some circumstances, a parent’s drug use might be so pervasive or serious that the 

factfinder could reasonably infer that the drug use is endangering, despite a lack of evidence 

showing that the drug use caused some other endangering activity or even that the drug use 

occurred while the children were in the parent’s direct care.”). Drug use exposes the child to the 

possibility that the parent may be impaired or imprisoned. J.M. v. Texas Dep’t of Fam. & 

Protective Servs., No. 03-21-00274-CV, 2021 Tex. App. LEXIS 9127, at *5 (Tex. App.—Austin 

Nov. 10, 2021, pet. denied) (mem. op.). Evidence that the parent used illegal drugs while a 

suit to terminate the parent’s rights is pending is especially supportive of termination under 

subsection (E). A.S. v. Texas Dep’t of Fam. & Protective Servs., No. 03-23-00658-CV, 

2024 Tex. App. LEXIS 2560, at *8 (Tex. App.—Austin Apr. 12, 2024, no pet.) (mem. op.). Plus,

when a parent fails to attend a scheduled drug test, the factfinder may reasonably infer that the 

parent was avoiding the test because he or she was using drugs. S.S. v. Texas Dep’t of Fam. & 

Protective Servs., No. 03-21-00695-CV, 2022 Tex. App. LEXIS 4662, at *35 (Tex. App.—

Austin July 8, 2022, pet. denied) (mem. op.) (citing In re W.E.C., 110 S.W.3d 231, 239 (Tex. 

App.—Fort Worth 2003, no pet.)).
8

In this case, several witnesses testified as to the length and severity of Mother’s 

illegal drug use. In her testimony, Mother described herself as a drug addict, meaning that she is 

unable to cope “in a normal way” and instead “tend[s] to turn to drugs.” As to her drug use at 

the time of Father’s death, Mother testified that she was sober when she was discharged from 

the drug-court program but started smoking marijuana again shortly after. She explained that 

when her psychiatrist found out that she was using marijuana again, the psychiatrist stopped 

prescribing her Adderall, which Mother had been taking for ADHD. Consequently, Mother 

“started buying Adderall on the street,” and according to her testimony, she later learned that the 

substance she had been purchasing was not Adderall but instead was a mix of amphetamine and 

methamphetamine. Nevertheless, Mother continued to take the substance because she had 

become addicted.

At the time of trial, Mother was residing at Texas Recovery Center (TRC), a drug 

rehabilitation facility. Mother testified that during the pendency of this case, she had difficulty

getting admitted to a rehabilitation facility because she needed to arrive at rehab with a complete 

thirty-day supply of her psychiatric medications and she was having a hard time getting her 

prescriptions refilled. She also acknowledged, however, that even after gaining admission to 

several rehabilitation facilities, she voluntarily left each of those facilities after a short period of 

time. Mother described one incident where she was discharged from a rehabilitation facility 

after one day for bringing in alcohol. Upset by the discharge, Mother called a suicide hotline, 

and a social worker from TRC came and picked her up, and at the time of trial, she had been 

at TRC for thirty-two days. Mother explained that TRC has been very beneficial because the 

“people care here, and they have doctors on-site that can help . . . stabilize you” and “nurses onsite every single—twenty four hours a day to help medicate symptoms.” Mother also admitted, 
9

however, that during the pendency of this case, she had used methamphetamine and marijuana 

and that she had done so as recently as six weeks before trial.

Mother testified that she has been “to about nine [rehabilitation facilities] over the 

course of [her] whole life” but ended up leaving five of those facilities within twenty-four hours.

She also testified that she was currently on step four of the twelve-step program for sobriety and 

that she has previously completed the twelve-step program “at least six times.” Nevertheless, 

Mother told the jury that she believed this time would be different and that she would maintain 

her sobriety because she now has a child and wants “to be a good mom to him” and for him 

“to be safe, and I am not providing him a happy, and healthy life if I’m using drugs.” Mother 

explained that her attempts to stay sober have been negatively impacted by the recent death of 

her father and her mother’s cancer diagnosis, and later by Father’s death and Kevin’s removal.

Mother testified that she was scheduled to be successfully discharged from TRC a few days after 

trial; that after leaving TRC, she planned to go into a year-long, sober-living housing program 

for women; and that Kevin would be allowed to live with her at the sober-living housing.

As to the events surrounding Father’s death, Kevin’s foster mother testified that 

on the day of Father’s death, she talked to Mother on the phone. According to foster mother’s 

testimony, in that phone call, Mother told her that “[Father] had gotten paid the day before and 

that they had gone and bought . . . Percocet, cocaine, and [Xanax] bars. And I said, and what, 

you proceeded to just do these drugs? Yes. . . . So that means that she and the baby drove back 

to the apartment by themselves. But she had been doing drugs with [Father] too.” Similarly, in 

her testimony, Mother admitted to taking Father to purchase illegal narcotics the night before, 

that she took Kevin with them, and that Father had a seizure in the car as Mother drove him back 

to his home. Mother also acknowledged knowing that Father had almost overdosed three times 
10

in the three months prior to his death, but on the day of his death, she did not call 9-1-1 until she 

discovered that he was not breathing, hours after finding him passed out in his vehicle.

Mother’s caseworker from the Travis County Drug Court testified as to the 

services that Mother received when she was in the drug-court program, including ninety days

of inpatient treatment, outpatient therapy, housing assistance, and parent education. The 

caseworker testified that Mother had struggled with addiction since she was seventeen, that she 

had been sober for a year before the birth of Kevin, and that she was prescribed Suboxone for 

heroin withdrawal while she was in the drug-court program. According to the drug-court 

caseworker, Mother was optimistic about her recovery when she first entered the drug-court 

program, but she later began to express that “she didn’t think she should really be in drug court, 

she shouldn’t have that CPS case.” In addition, the caseworker testified that the drug-court 

program provided many free services that ordinarily are not available to parents and that to be 

successfully discharged from the program, Mother had to maintain her sobriety for six months. 

According to the caseworker, Mother was tested for drugs eighteen times while she was in the 

program and did not test positive for any drugs other than Suboxone.

Finally, the Department conservatorship caseworker testified that between 

November 2022 and February 2023, Mother was asked to take fifteen to twenty drug tests but 

only took four to six tests. In addition, Mother refused to accept the results of those tests when 

they came back positive for methamphetamine. In March 2023, Mother was asked to engage in 

an OSAR (Outreach, Screening, Assessment and Referral) evaluation, which she initially failed 

to do. Once Mother did engage in OSAR, the caseworker made several referrals for her to 

receive inpatient treatment, but she did not stay in the facilities very long, sometimes not even

twenty-four hours. In addition, throughout the case, Mother would tell him that she promised 
11

that she was going to stay sober, but she would not. Finally, he explained that based on Mother’s 

history and her actions in this case, he did not believe that she would be able to successfully 

maintain her sobriety after leaving TRC.

Based on this record, the jury could have reasonably determined that Mother has a 

serious and on-going problem with drugs, including methamphetamine, which began before 

Kevin was removed from her custody and continued afterwards, and that this drug use poses a 

“substantial risk to [Kevin’s] physical or emotional well-being. See In re R.R.A., 687 S.W.3d 

at 277. After considering all the evidence in the light most favorable to the jury’s finding, along 

with any undisputed evidence contrary to the finding under subsection (E), we conclude that a 

reasonable factfinder could have formed a firm belief or conviction that Mother’s illegal drug use 

constitutes a course of conduct that endangered Kevin’s physical or emotional well-being. See

A.C., 560 S.W.3d at 630-31; Tex. Fam. Code § 161.001(b)(1)(E). In addition, in view of the 

entire record, we conclude that the disputed evidence is not so significant that the jury could not 

have formed a firm belief or conviction that Mother engaged in endangering conduct. See A.C., 

560 S.W.3d at 631. We overrule Mother’s second issue on appeal.

Because proof of one statutory predicate ground is sufficient to support 

termination, we need not consider Mother’s challenges to the sufficiency of the evidence 

supporting termination under subsection (D) and (O), her first and third issues on appeal. See

Tex. R. App. P. 47.1.

Best-Interest Finding

Next, we consider Mother’s argument that the evidence is factually and legally 

insufficient to support the jury’s best-interest finding. See Tex. Fam. Code § 161.001(b)(2).
12

“[T]he prompt and permanent placement of the child in a safe environment is presumed to be in 

the child’s best interest.” Id. § 263.307(a). We review a factfinder’s best-interest finding in light 

of the non-exhaustive list of considerations set out in Holley v. Adams: the child’s wishes, the 

child’s emotional and physical needs now and in the future, emotional or physical danger to the 

child now and in the future, the parenting abilities of the parties seeking custody, programs 

available to help those parties, plans for the child by the parties seeking custody, the stability of 

the proposed placement, the parent’s acts or omissions indicating that the parent-child 

relationship is improper, and any excuses for the parent’s conduct. 544 S.W.2d 367, 371–72 

(Tex. 1976); see A.C., 560 S.W.3d at 631; In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012); C.H., 

89 S.W.3d at 27. The Holley factors are not exhaustive, not all factors must be proved, and a 

lack of evidence about some of the factors does not “preclude a factfinder from reasonably 

forming a strong conviction or belief that termination is in the child’s best interest, particularly if 

the evidence were undisputed that the parental relationship endangered the safety of the child.” 

C.H., 89 S.W.3d at 27. “We must consider ‘the totality of the circumstances in light of the 

Holley factors’ to determine whether sufficient evidence supports” the best-interest finding. In 

re J.M.G., 608 S.W.3d 51, 54 (Tex. App.—San Antonio 2020, pet. denied) (quoting In re B.F., 

No. 02-07-00334-CV, 2008 WL 902790, at *11 (Tex. App.—Fort Worth Apr. 3, 2008, no pet.)

(mem. op.)).

Proof concerning the statutory predicate under section 161.001(b)(1) does not 

relieve the Department of proving that termination is in the best interest of the child, but 

“the same evidence may be probative of both issues.” C.H., 89 S.W.3d at 28. Moreover, in 

evaluating a parent’s fitness for providing for a child, a factfinder may measure a parent’s future 

conduct by her past conduct. V.P., 2020 Tex. App. LEXIS 938, at *23-24. As previously 
13

detailed, the jury heard evidence from which it could reasonably conclude that Mother engaged 

in endangering conduct—that she has a long history with illegal drug use and an inability to 

remain sober, despite repeated attempts to do so, even when termination of her parental rights is 

at stake.

In addition, the jury heard testimony from several witnesses concerning the 

stability of Kevin’s foster parents, who stated they wish to adopt him. Kevin’s foster mother 

testified that he has a great relationship with them and with their daughter and that he is like a 

son to them. Kevin enjoys being outside, playing sports, making pancakes, and spending time 

with his paternal grandparent and paternal half-siblings. Foster mother also explained that it is 

important to her that Kevin maintain a relationship with his maternal grandmother, Mother’s 

mother, and that they currently spend a lot of time together and have a close relationship. Foster 

mother testified that when Kevin first arrived at their home, he would have frequent tantrums and 

that anything could “trigger” him emotionally. However, Kevin has never required therapy for 

his behavior, and in the months that have followed, his behavior has improved. In addition, 

Kevin goes to school and plays with friends, and his foster parents plan to enroll him in soccer 

and other after-school activities “to develop other skills and just help him to grow to the 

individual that he needs to be.” Finally, foster mother testified that even if Mother’s parental 

rights were terminated, she would encourage a relationship between Mother and Kevin, so long 

as “she’s sober and has a good attitude.”

The jury was also presented with evidence suggesting that termination of 

Mother’s parental rights is not in Kevin’s best interest. Specifically, Mother’s drug-court 

caseworker and Department conservatorship caseworker testified that Mother and Kevin appear 

to have a good relationship and that there is no indication that Kevin has been physically harmed 
14

or that his basic needs have not been met while in Mother’s care. In addition, neither the 

caseworkers nor investigator expressed any concern with the condition of Mother’s apartment 

or with Kevin’s physical or emotional development at the time of removal, and there was no 

evidence that Kevin has special medical needs. The conservatorship caseworker did, however, 

express concern that during the pendency of the case, Mother has been unable to maintain stable 

housing and reliable transportation.

As to Mother’s plans for the future, including her plans for Kevin, the jury heard 

that she plans to live in a year-long sober housing and that once she could verify that it was a 

“good, healthy, sober environment,” Kevin could live with her there. Mother also plans to 

continue to work on her mental health and to find a stable job and a daycare for Kevin. As to her 

financial stability, Mother stated that she would soon be receiving a substantial inheritance from 

her father’s estate, and that once she receives that inheritance, she plans to hire a financial 

advisor who could set up a trust that would allow her to receive money for her monthly basic 

bills. Finally, she testified that if her parental rights were not terminated and the foster parents

instead were appointed as conservators, she would work on her relationship with the foster 

parents.

The CASA volunteer testified that at the beginning of this case, CASA was

concerned about Kevin’s safety and stability and that those concerns had not been alleviated 

because during this case, Mother had failed to test negative for drugs, follow through on 

recommendations for individual therapy, and take responsibility for her actions. The volunteer 

acknowledged that Mother’s visits with Kevin “went very well” and that they have a “a good 

mother-son relationship” but stated that CASA was recommending termination of Mother’s 
15

rights and not conservatorship because the relationship between Mother and the foster parents is 

not “a trusting relationship” and it “would be very disruptive to Kevin.”

There is a strong presumption that a child’s best interest will be served by 

preserving the parent-child relationship, see In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per 

curiam), and parental rights may not be terminated merely because a child might be better off 

living somewhere else, In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.). 

Nevertheless, a factfinder can consider that a child’s best interest may be served by termination 

of parental rights so that adoption may occur rather than the impermanent foster-care 

arrangement that would result if termination were not ordered. V.P., 2020 Tex. App. LEXIS 

938, at *29 (citing D.O. v. Texas Dep’t of Human Servs., 851 S.W.2d 351, 354 (Tex. App.—

Austin 1993, no writ), disapproved of by In re J.F.C., 96 S.W.3d 256 (Tex. 2002)).

Considering all the evidence in the light most favorable to the best-interest

finding, and considering undisputed contrary evidence, we conclude a “reasonable factfinder 

could form a firm belief or conviction” that termination of Mother’s parental rights is in Kevin’s 

best interest. See A.C., 560 S.W.3d at 630-31. In addition, viewing the evidence in a neutral 

light and weighing all the evidence, we conclude that the disputed evidence that a reasonable 

factfinder could not have credited in favor of the best-interest finding is not so significant that the 

factfinder could not have formed a firm belief or conviction that termination of Mother’s parental 

rights was in Kevin’s best interest. See id. at 631. Because the evidence is legally and factually 

sufficient to support the jury’s best-interest finding, we overrule Mother’s fourth issue on appeal.
16

Charge Error

Finally, in her fifth issue, Mother contends that the trial court erred in submitting 

a charge that asked the jury to consider whether her parental rights should be terminated 

before considering whether she should be appointed managing conservator under the parental 

presumption.4 In response, the Department contends that “this issue is inadequately briefed, and 

therefore waived.” See Tex. R. App. P. 38.1(i). Assuming without deciding that this issue has 

been adequately preserved for review, we cannot conclude that the trial court abused its 

discretion in its organization of the charge. See Rogers v. Texas Dep’t of Fam. & Protective 

Servs., 175 S.W.3d 370, 375 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d w.o.j.) (“We 

review jury charge error under an abuse-of-discretion standard, and a trial court abuses its 

discretion only when it acts without reference to any guiding principle.”).

Because an order terminating the parent-child relationship divests the parent of 

all legal rights and duties with respect to the child, Tex. Fam. Code § 161.206, when the court 

terminates parental-rights as to both parents or to the only living parent, it must appoint “a 

suitable, competent adult, the Department of Family and Protective Services, or a licensed childplacing agency as managing conservator,” id. § 161.207, and the parental presumption does not 

apply, see In re M.M.M., NO. 01-16-00998-CV, 2017 Tex. App. LEXIS 5554, at *50 (Tex. 

App.—Houston [1st Dist.] June 16, 2017, no pet.) (mem. op.). For this reason, courts of appeals 

have recognized that when a decision to terminate the parental rights is upheld or unchallenged 

on appeal, the parent lacks standing to challenge that portion of the decree appointing a

4 Under the parental presumption, a child’s parent or parents must be named managing 

conservators of the child, unless the trial court finds that appointment of the parent or parents 

as managing conservators would not be in the child’s best interest because the appointment 

would significantly impair the child’s physical health or emotional development. Tex. Fam. 

Code § 153.131.
17

managing conservator. J.H. v. Texas Dep’t of Fam. & Protective Servs., No. 03-24-00017-CV, 

2024 Tex. App. LEXIS 4674, at *34-35 (Tex. App.—Austin July 3, 2024, no pet.) (mem. op.); 

see also In re C.J.B., No. 05-19-00165-CV, 2019 Tex. App. LEXIS 7470, at *29 (Tex. App.—

Dallas Aug. 21, 2019, no pet.) (mem. op.).

Because a parent whose parental rights have been terminated cannot be appointed 

as a managing conservator, the trial court did not abuse its discretion by conditioning the jury’s 

consideration of Mother’s appointment as managing conservator on negative finding on the issue 

of whether her parental rights should be terminated. We conclude that there is no error in the 

jury charge and that the trial court did not abuse its discretion. We overrule Mother’s fifth issue 

on appeal.

CONCLUSION

Having overruled all of Mother’s issues on appeal, we affirm the trial court’s 

decree of termination.

__________________________________________

Chari L. Kelly, Justice

Before Justices Baker, Triana, and Kelly

Affirmed

Filed: August 22, 2024