Affirmed in Part, Reversed in Part, and Remanded, and Majority and 

Dissenting Opinions filed August 20, 2020.

In the

Fourteenth Court of Appeals

NO. 14-20-00169-CV

IN THE INTEREST OF M.P., A CHILD

On Appeal from the 306th District Court

Galveston County, Texas

Trial Court Cause No. 18-CP-0111

MAJORITY OPINION

The issues in this case involve whether the trial court’s findings to terminate 

a father’s parental rights are supported by legally- and factually-sufficient 

evidence. This accelerated appeal arises from a final order in which, after a final 

hearing tried to the bench,

1

the trial court terminated the parental rights of appellant 

J.P. (Father) with respect to his daughter M.P. (Maria),

2 who was one-year old at 

1 We refer to the final hearing as the “trial.”

2 To protect the minor’s identity, we have not used the actual names of the child, parents, 

or other family members. See Tex. R. App. P. 9.8.
2

time of trial, and appointed appellee the Department of Family and Protective 

Services (the Department) to be Maria’s permanent managing conservator. See

Tex. Fam. Code Ann. § 109.002(a-1); Tex. R. App. P. 28.4 (accelerated appeals in 

parental-termination cases).3

In his first issue, Father challenges the legal and factual sufficiency4 of the 

evidence to support the trial court’s findings in its final order (1) on the predicate 

grounds of endangerment, failure to comply with the court-ordered family-service 

plan, and use of a controlled substance in a manner that endangered the health or 

safety of Maria, and (2) that termination is in the best interest of Maria. See Tex. 

Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (P), (b)(2). In his second issue, 

Father challenges the trial court’s appointment of the Department as permanent

managing conservator of Maria. See Tex. Fam. Code Ann. § 153.131.

We determine the evidence is legally and factually sufficient to support the 

trial court’s findings that the Department proved by clear and convincing evidence 

that (1) Father failed to comply with the court ordered family-service plan under 

the predicate ground of subsection O and (2) termination of Father’s parental rights 

was in Maria’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (b)(2).

As only one predicate finding under section 161.001(b)(1) is necessary to support a 

final order of termination when there also is a finding that termination is in the 

child’s best interest, we affirm the trial court’s termination of Father’s parental 

rights regarding Maria. See Tex. Fam. Code Ann. § 161.001(b)(1). However, under 

the Texas Supreme Court’s decision in In re N.G., we must also address Father’s 

3 Maria’s mother K.S. (Mother) signed an affidavit voluntarily relinquishing her parental 

rights regarding Maria. See Tex. Fam. Code Ann. § 161.103. The trial court terminated Mother’s

parental rights on that basis, and Mother does not appeal.

4 While Father did not file a motion for new trial, “[i]n a nonjury case, a complaint 

regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on

appeal in the complaining party’s brief.” Tex. R. App. P. 33.1(d).
3

legal- and factual-sufficiency challenges to predicate grounds D and E, as due 

process requires this inquiry due to the collateral consequences of an affirmative 

finding under those grounds. See 577 S.W.3d 230, 237 (Tex. 2019). Applying this 

court’s decision in In re L.C.L., we conclude that the evidence is legally sufficient,

but factually insufficient to support the trial court’s affirmative findings on 

predicate grounds D and E. See 599 S.W.3d 79, 84–86 (Tex. App.—Houston [14th 

Dist.] 2020, no pet. h.) (en banc). Accordingly, we sustain Father’s factualsufficiency challenges to the trial court’s affirmative findings under predicate 

grounds D and E, reverse the final order as to those findings, and remand the case 

for a new trial limited to those grounds. 

I. BACKGROUND

A. Pretrial proceedings

1. Pretrial removal affidavit

According to the pretrial removal affidavit, which was admitted into 

evidence at trial, the Department received a report alleging neglectful supervision 

of Maria, including allegations that the home where Father and Mother lived with 

Maria smelled and “was known to be covered in animal feces” and that Father was 

“on drugs.” The following day, the Department received three additional referrals. 

The first alleged that Maria, then three weeks old, had a swollen neck and head, 

was lethargic and unresponsive, was mottled in color, and had a large hematoma 

on the right side of her head. The second and third referrals suggested that swelling 

on the top of Maria’s head was due to non-accidental trauma, and reported that 

Father and Mother “might both have a learning disability” and “lacked basic 

parenting skills needed to ensure the child’s health and well-being.”

Child Protective Services (CPS) investigator (and affiant) C. Archibald
4

visited the family home. She noted in her removal affidavit that she “suspected that 

mother and father might have some intellectual delay.” Father related that he had 

attended “special classes” in school and received Supplemental Security Income

(SSI) “due to a learning disability.” Archibald noted concerns about pillows and 

blankets in the play yard with Maria. She did not, however, express any other 

concerns with the home environment. Father and Mother each took an oral-swab

test, and each showed negative results for all tested substances.

The day after Archibald’s visit, four-week old Maria was admitted to Texas 

Children’s Hospital with bleeding in her brain. Hospital staff did not know the 

cause of the injury, though they noted that Maria did not have a skull fracture and 

stated that her injury may have been caused by seizures. Maria’s urinalysis on the 

day of her admission was positive for cocaine. Hospital staff stated that Mother 

and Father appeared “very concerned” about the positive test, and both denied drug 

use. Eleven days after Maria’s admission, hospital staff informed Archibald that 

Maria had also tested positive for methamphetamine.

Other CPS investigators interviewed Mother and Father at the hospital on 

the day of Maria’s admission. Mother told investigators that Maria was born with a 

soft spot on her head, neither she nor anyone else had hurt Maria, and neither she 

nor anyone else in the home used drugs. Father stated during his interview that he 

was unsure as to what had happened to Maria, but that 9-1-1 had been called after a 

neighbor panicked about Maria’s condition. He said that no one in the home used

drugs, but stated he would not take a drug test “because he does not lie and does 

not use drugs.”

A CPS staff member transported Father and Mother for drug screens. During 

the transport, Mother admitted to using methamphetamine before Maria was born, 

and Father admitted to using methamphetamine and marijuana. Mother took both a 
5

urine-drug screen and a hair-follicle test, while Father took only a urine-drug

screen. The urinalysis results for Father and Mother were negative for any tested 

substance.

Archibald spoke with Father’s aunt M.A. (Aunt) concerning a potential 

placement for Maria. Aunt initially agreed to care for Maria, but then expressed 

reservations, saying Father had asked her to agree to the placement but secretly 

allow Maria to remain in his care. After additional consideration, Aunt refused the 

placement.

Archibald then spoke to Father and Mother to solicit recommendations for a 

placement for Maria. During the conversation, Father again stated he did not use

drugs and said he did not understand why Maria could not go home with him. 

Later in the conversation, Archibald informed Mother that her hair-follicle test had 

returned positive for methamphetamine and amphetamine. When Archibald asked 

Father why he had not taken a hair-follicle test, Father admitted he would have 

tested positive for marijuana and methamphetamine.

Based on the Department’s petition supported by Archibald’s affidavit, the 

trial court removed Maria to the Department’s care.

2. Family-service plan

The Department prepared a family-service plan for Father. The plan required 

Father to complete a list of tasks and services, including:

• maintaining monthly contact with his CPS caseworker;

• notifying his CPS caseworker C. Franklin within five days of 

any change of address or telephone number;

• participating in services designed to alleviate the risks leading 

to Maria’s removal from his care;

• scheduling and completing a drug-and-alcohol assessment and 
6

following recommendations for treatment;

• submitting to random drug testing;

• scheduling and completing a psychological evaluation;

• scheduling and participate in individual counseling;

• completing parenting classes;

• maintaining gainful employment and providing employment 

information to his CPS caseworker;

• maintain safe and stable housing and provide proof of housing 

to his CPS caseworker; and

• attend visitations with Maria as scheduled in the Department’s 

visitation plan.

In a status-hearing order signed September 6, 2018, the trial court found that 

Father “has reviewed and understands the service plan.” There is no explanation as 

to how the trial court reached this conclusion; the order indicates that Father did 

not attend the hearing.

On January 10, 2019, the trial court signed an initial permanency hearing 

order that included the finding that Father “has/has not has not demonstrated 

adequate and appropriate compliance with the service plan., due to an intellectual 

disability. [Father] shall comply with ¶ 6.2 of this order for all services as 

needed.”

5 Paragraph 6.2 of the order states, “It is ORDERED that [G.W.],6 or 

anyone [Father] designates, may accompany [Father] to any and all services (e.g., 

evaluations, classes, outpatient, etc.) that may require any sort of reading.”

In an order signed August 8, 2019, the trial court found that Father “has not 

demonstrated adequate and appropriate compliance with the service plan,” without 

5 The italicized portions of the order as quoted herein reflect handwritten notations on the 

order.

6 According to Father’s brief, G.W. is Father’s mother.
7

qualification.

7

B. Trial

Father did not appear at trial. Aunt testified that Father told her that his

lawyer had advised him not to attend because of an outstanding warrant for his 

arrest. A criminal complaint against Father for resisting arrest by using force 

against a peace officer was admitted into evidence, along with a capias citing

Father’s failure to appear filed in April 2019.

1. Investigator Archibald

Archibald testified that she conducted an investigatory visit after receiving 

multiple referrals. She was concerned that there were items in Maria’s play yard

that were not appropriate for a child her age and observed that Father did not hold 

Maria properly when attempting to feed her. Archibald noted that Father had an 

“intellectual disability” and received SSI payments, and Father told her that he had 

been in special education classes throughout his schooling.

Archibald testified that Maria had been taken to the hospital for emergency 

medical attention after Father called 9-1-1. After being admitted, Maria tested 

positive for cocaine and methamphetamine at one-month old. When Archibald

discussed Maria’s positive test with Father and Mother, they denied using illegal 

drugs.

Before her initial meeting with the family, Archibald received allegations of 

drug use by Father. During her initial meeting, Archibald gave Father and Mother 

instant oral swabs, which were negative for tested substances. Father also tested 

negative for illegal drugs on a later urinalysis but refused to take a hair-follicle test.

Father, however, admitted to Archibald that he had used methamphetamine and 

7 Each of these orders was admitted into evidence.
8

marijuana. Mother also admitted to using illegal drugs and tested positive for 

methamphetamine and amphetamine.

2. CPS Caseworker

CPS conservatorship worker A. Stewart testified that she took over the case 

at the end of July 2019. Before Stewart’s assignment to the case, N. Foster had 

been assigned. Foster, in turn, took over the case from D. Simmons in 

approximately April 2019.8

Stewart testified that, at time of trial, Father had failed to complete a drug 

and alcohol assessment required by the family-service plan. Father also missed two 

consecutive appointments for a psychological evaluation mandated by the service 

plan, failed to participate in individual therapy as requested, “and other than that, 

he completed no other service or made an attempt to schedule any other services,”

according to the Department’s records. Stewart admitted, however, that the case 

had been reassigned from Simmons because Simmons was “not doing what she 

was supposed to do as far as visiting children, documentation.” She admitted it was 

“very possible” that there were “things said and done by the parents or the 

caseworker that are not documented because [Simmons] had a problem with

documentation.”

Regarding family visits, Stewart testified there was one visit with Father and 

Maria recorded on May 7, 2019, though she stated she would not be surprised if 

there were additional family visits that were not documented. Father had not 

contacted her to set up any visits with Maria during her assignment to the case, and 

there were no records indicating that Father had contacted other caseworkers to do 

so. The one documented visit “was described as a really good visit and both

8 Yet another caseworker, C. Franklin, was listed as Father’s contact on the

family-service plan filed in August 2018.
9

parents engaged with the child.”

Stewart stated that she was aware that Father had a disability, although she 

was not aware of the specifics. She was informed that Father cannot read at all, 

although she did not learn this until three months after she was assigned the case; 

to that point, she thought “he could read some” and “just needed help reading.”

Stewart testified that a Bryan caseworker assigned to Father was aware Father

could not read and had “some idea” of Father’s intellectual disability.9 She noted 

that Father was allowed to bring anyone he liked to any services that required 

reading, though she was unaware this was by court order. However, she also 

testified that when she was contacted by Father’s grandfather (Grandfather), “who 

wanted to assist [Father],” she was instructed by her supervisor to inform 

Grandfather that she could not tell him anything about the case, and did so. Stewart 

also testified that, after her call with Grandfather, she sent Father a text message

explaining why she could not give information to Grandfather. In response, Father 

called her back, and she explained the situation to him over the phone.

Regarding other contacts with Father, Stewart testified that she attempted to 

call him on the phone on August 6, September 17, and October 7, 2019, but Father

did not answer or return her calls. Stewart also testified that the Bryan caseworker

instructed Father to go for drug testing on August 1 and September 16, 2019, but 

that Father did not get tested. The caseworker also tried to contact Father on 

October 7 and November 6, 2019, but received no answer. Stewart did not know if 

the caseworker attempted to contact Father by phone or text but believed she made 

one in-person contact with Father. According to Stewart, there was no contact 

9 Stewart testified that, according to case notes, Father and Mother moved from 

Galveston County, where this case originated, to Bryan in July 2019, informing their caseworker

after the fact that they had moved.
10

between Father and the Department after November 6, 2019, up to and including 

trial on January 14, 2020.

Regarding placement, Stewart testified that Aunt and her husband (Uncle) 

initially said they would take Maria, then declined, and Maria was placed in

unrelated foster care. Since December 31, 2019, Maria had been placed with Aunt

and Uncle. She stated that a home study had been conducted and approved for 

Aunt and Uncle and that they would like to adopt Maria.

3. Placement

Aunt testified that Maria had been placed with her and since December 31, 

2019, two weeks before trial. She said Maria was doing “great.” Maria was 

walking, running, and saying nine or ten words. Maria referred to Aunt and Uncle

as “Mama” and “Dada” and referred to their son as “Brother.” She was sleeping 

and eating well and had a “great” nighttime routine. She did not have any medical

needs requiring immediate treatment. Maria attended the same daycare as Aunt’s

son, and Aunt’s plan was for Maria to eventually go to the same school as her son. 

Aunt and Uncle were both employed and had money left over each month after 

paying their expenses. Aunt stated that she and Uncle would “love” to adopt Maria

and planned to do so.

Aunt testified that, before Maria’s removal, the home where Father and 

Mother lived with Maria was “unlivable,” as Father and Mother did not do dishes 

or laundry. She also stated that Father and Mother did not feed Maria in a timely 

fashion. Despite these conditions, Aunt did not consider Maria to be in any danger

at the time.

Aunt testified that, at some point after Maria’s removal, Father was “on 

meth” and entered a 30-day rehabilitation program, but left after one day because 
11

he did not want to be there anymore. She testified that Father appeared 

unconcerned about completing his services and expressed a desire to relinquish his 

rights to Maria. She testified that Father told her, “We know that she would be 

better with you guys. We want her—we want you to have—to have her to take care 

of her.”

Aunt estimated Father had the intelligence of a 15- or 16-year old, and noted 

he was able to finish high school. She said she had seen him reading on his phone

and that he had never told her she could not read. She also testified that she had 

never received anything in writing from Father, and that, according to her 

brother-in-law, Father said that he does not understand a lot of what he reads. 

Regarding Father’s service plan, Aunt testified that Father was “refusing to take 

certain drug tests at certain times” and “refusing to do his plans that he needs to 

do,” and that he appeared unconcerned about complying with the plan.

4. CASA

Court Appointed Special Advocate (CASA) supervisor R. Rodriquez 

testified that Maria was doing “really well” with Aunt and Uncle, and compared to 

her previous placements, she was thriving and seemed like a “completely different 

child.” Rodriquez further testified that three family visits occurred, on November 

28, 2018, May 7, 2019, and May 23, 2019. According to CASA reports, Father was 

affectionate towards Maria and appeared to be a loving, caring father. During one 

visit, he reminded Mother to hold Maria correctly, as he had been taught by the

Department.

II. ANALYSIS

In Father’s first issue, he challenges the legal and factual sufficiency of the

evidence to support the trial court’s finding on the predicate grounds of 
12

endangerment under subsections D and E, failure to comply with the court ordered 

family-service plan under subsection O, and use of a controlled substance in a 

manner that endangered the health or safety of Maria under subsection P, and also 

challenges the legal and factual sufficiency of the evidence to support the trial 

court’s finding that termination is in Maria’s best interest. See Tex. Fam. Code 

Ann. § 161.001(b)(1)(D), (E), (O), (P), (b)(2). In Father’s second issue, he

challenges the trial court’s appointment of the Department as Maria’s permanent

managing conservator. See Tex. Fam. Code Ann. § 153.131.

A. Standards of review

Involuntary termination of parental rights is a serious matter that implicates

fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

Although parental rights are of constitutional magnitude, they are not absolute. In 

re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is imperative for courts to 

recognize the constitutional underpinnings of the parent-child relationship, it is 

also essential that emotional and physical interests of the child not be sacrificed 

merely to preserve that right.”). Given the fundamental liberty interests at stake, 

“termination proceedings should be strictly scrutinized, and involuntary 

termination statutes are strictly construed in favor of the parent.” Holick, 685 

S.W.2d at 20.

Due to the severity and permanency of terminating the parental relationship, 

the law in Texas requires clear and convincing evidence to support such an order.

See Tex. Fam. Code Ann. § 161.001(b); In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 

2002). “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.” Tex. Fam. Code Ann. § 101.007; 

In re J.F.C., 96 S.W.3d at 264.
13

The heightened burden of proof in termination cases results in a heightened 

standard of review. See In re J.F.C., 96 S.W.3d at 266. We review the legal

sufficiency of the evidence by considering all evidence in the light most favorable 

to the finding to determine whether a reasonable factfinder could have formed a 

firm belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d 336, 

344 (Tex. 2009). We must assume that the factfinder resolved disputed facts in 

favor of its finding if a reasonable factfinder could do so, and we disregard all

evidence that a reasonable factfinder could have disbelieved or found incredible.

Id. However, this does not compel us to disregard all evidence that does not

support the finding. In re J.F.C., 96 S.W.3d at 266. Because of the heightened 

standard, we also must be mindful of any undisputed evidence contrary to the 

finding and consider that evidence in our analysis. Id.

In reviewing the factual sufficiency of the evidence under the clear and

convincing burden, we consider and weigh all of the evidence, including disputed 

or conflicting evidence. In re J.O.A., 283 S.W.3d at 345. “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.

(internal quotation marks omitted). We give due deference to the factfinder’s 

findings, and we cannot substitute our own judgment for that of the factfinder. In 

re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).

B. Predicate termination grounds

The trial court made predicate termination findings that Father had 

committed acts establishing the grounds set out in subsections D, E, O, and P of 

section 161.001(b)(1), which provides for termination of parental rights if the 

factfinder finds by clear and convincing evidence that the parent has:
14

(D) knowingly placed or knowingly allowed the child to remain in 

conditions or surroundings which endanger the physical or emotional 

well-being of the child;

(E) 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;

. . .

(O) 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; [or]

(P) used a controlled substance, as defined by Chapter 481, Health

and Safety Code, in a manner that endangered the health or safety of 

the child, and:

(i) failed to complete a court-ordered substance abuse treatment 

program; or

(ii) after completion of a court-ordered substance abuse 

treatment program, continued to abuse a controlled substance[.]

Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (P).

Only one predicate finding under section 161.001(b)(1) is necessary to 

support a judgment of termination when there also is a finding that termination is 

in the child’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1); In re A.V., 

113 S.W.3d 355, 362 (Tex. 2003). 

1. Failure to comply with court order under subsection O

We first address Father’s challenge to the trial court’s finding by clear and 

convincing evidence that he:

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

established the actions necessary for the parent to obtain the return of 
15

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(b)(1)(O). Father does not dispute that: (1) his

family-service plan was a “court order” for purposes of subsection O; (2) Maria

was in the temporary managing conservatorship of the Department for not less than 

nine months; and (3) Maria was removed under Family Code chapter 262 for abuse 

or neglect. See id. In addition, Father does not contend that he complied with the

service plan. Indeed, we note that there is substantial evidence that he did not, as 

he failed to complete, at minimum, drug and psychological evaluations and random 

drug testing. While there is some doubt whether Father completed services while 

Simmons was the caseworker, Stewart, who was assigned the case from July 31, 

2019 until trial in January 2020, testified that Father had not completed any 

services at all during that time period or maintained any contact with the 

Department for at least the last two months of the case. Cf. In re M.C.G., 329 

S.W.3d 674, 676 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (“The 

Family Code does not provide for substantial compliance with a family services 

plan.”).

Instead, Father argues that the service plan was not sufficiently “specific”

under subsection O because, as a general matter, it did not contain deadlines for 

completion of tasks. This argument has been rejected by at least one of our sister 

courts on the ground that, even when the deadline for completion of a task is not 

specifically delineated, a parent could reasonably infer from the proceedings that, 

at the very least, “the deadline for compliance for each requirement would have 

been prior to termination.” In re O.R.F., 417 S.W.3d 24, 43 (Tex. App.—

Texarkana 2013, pet. denied) (concluding arguments that service plan was 
16

insufficiently specific due to lack of deadlines was “wholly without merit”). 

Moreover, Father’s plan included some tasks for which deadlines were either 

stated or inapplicable. For example, the plan instructed Father to contact his 

caseworker monthly, yet the evidence showed that the Department had not had any 

contact with him at least since November 7, 2019, more than two months before

trial. Likewise, the service plan required Father to submit to “random” drug testing. 

See id. (explaining there could be “no date certain” for random drug testing).

Stewart testified that the Bryan caseworker instructed Father to attend drug testing 

at least twice, but he did not go. We reject Father’s argument that the evidence was 

legally and factually insufficient to support the trial court’s subsection O finding 

due to a lack of deadlines in the service plan.

10

Father next argues the subsection O finding should be reversed because he 

proved his affirmative defense that he was unable to complete the plan:

(d) A court may not order termination under Subsection (b)(1)(O) 

based on the failure by the parent to comply with a specific provision 

of a court order if a parent proves by a preponderance of evidence

that:

(1) the parent was unable to comply with specific provisions of 

the court order; and

(2) the parent made a good faith effort to comply with the order 

and the failure to comply with the order is not attributable to 

10 Throughout his treatment of subsection O, Father also argues that the service plan was 

not presented to him in a language he could understand, or made otherwise available, as required 

by Family Code section 263.102. See Tex. Fam. Code Ann. § 263.102. We construe this as an 

argument supporting his subsection (d) defense, and not as a separate due-process challenge, as 

Father has not argued in the trial court or in this court that the Department violated his 

due-process rights by failing to comply with section 263.102. See Tex. R. App. P. 33.1(a). 

Likewise, while Father argues in his brief that the Department failed to comply with the 

Americans with Disabilities Act by failing to accommodate his “intellectual disabilities” in 

conjunction with his service plan, he clarifies in his reply that this argument is for illustrative 

purposes only, and that he does not seek relief under the ADA. See generally 42 U.S.C.

§§ 12101–12213 (2018).
17

any fault of the parent.

Tex. Fam. Code Ann. § 161.001(d). The trial court found that Father failed to 

prove this defense by a preponderance of the evidence.

Regarding the first prong of his subsection (d) defense, Father argues that he 

was unable to understand the service plan, and accordingly was unable to comply 

with it, because he cannot read due to his intellectual disabilities.11 While the 

statute requires the parent to prove that he could not comply with “specific 

provisions” of the court order in question, evidence that a parent cannot read at all 

may support a blanket determination that the parent was unable to comply with any 

part of the court order due to a lack of comprehension. See id.

Here, however, the evidence is not so clear-cut. Father did not attend trial, 

leaving us to depend on the testimony of others—and sometimes the second- or 

third-hand testimony of others. Stewart testified that she first thought that Father 

could read to some extent before later learning that Father could not read “at all.”

This, combined with the trial court’s pre-trial finding, entered into evidence, that 

Father could not comply with the service plan due to “intellectual disabilities” and 

was to be provided an accommodation for services that that “require any sort of 

reading,” constitutes significant evidence that Father’s inability to read prevented 

him from complying with the service plan.

By failing to identify specific portions of the service plan he was unable to 

comply with, however, Father assumes the burden to prove that he could not 

comply with the service plan at all because of his lack of comprehension of it. See 

In re N.W.L.T., No. 14-18-00497-CV, 2018 WL 6217313, at *8 (Tex. App.—

Houston [14th Dist.] Nov. 29, 2018, pet. denied) (mem. op.) (parent must prove

11 While Father asserts that he cannot read due to his intellectual disabilities, the record 

does not contain evidence clarifying the precise nature of his disabilities.
18

subsection (d) defense as to all possible grounds supporting trial court’s judgment). 

We note some evidence in the record conflicting with such a conclusion, including 

Aunt’s testimony that she had seen Father “maybe reading things on his phone” as 

well as the trial court’s pre-trial finding that Father “has reviewed and understands

the service plan.” Moreover, Father does not explain how his inability to read 

prevented him from completing tasks such as maintaining contact with the 

Department (the evidence shows he contacted Stewart by phone at least once, so he

was aware of how to do so), attending family visits (which he did at least once), or 

submitting to random drug screening, particularly in light of Aunt’s testimony that

Father was “refusing to take certain drug tests at certain times” and “refusing to do 

his plans that he needs to do.” See id.

In addition, to prove his defense Father must also show that he made a 

good-faith effort to comply with the service plan. Tex. Fam. Code Ann. 

§ 161.001(d). Father’s only evidence that he attempted to comply with the service

plan is Stewart’s testimony that Father’s grandfather called Stewart in an attempt 

to “assist” Father. The evidence is not clear, however, that Grandfather did so at 

Father’s behest, so even this testimony does not necessarily reflect Father’s goodfaith efforts to comply. In addition, there is evidence that Father took action 

inconsistent with making any effort to comply with the service plan, including 

repeatedly failing to return calls from his caseworkers for the final six months of 

the case. When Aunt was asked whether Father wanted to work the services 

required by the family-service plan, she testified that Father “never really seemed 

to worry about the plan about what he was supposed to do,” in addition to her 

testimony that Father was “refusing” to take drug tests or otherwise attempting to 

complete required services. This evidence supports a finding that Father did not 

make a good-faith effort to comply with the service plan as required by subsection 
19

(b). See id.

Our review of the record indicates that the Department succeeded in proving 

by clear and convincing evidence that Father failed to comply with the courtordered service plan under subsection O and that Father failed to prove his 

subsection (d) affirmative defense by a preponderance of the evidence. We 

accordingly overrule Father’s challenge to the trial court’s subsection O finding. 

Having determined that one predicate ground for termination supports the 

trial court’s termination order, we need not address Father’s arguments concerning 

predicate ground P. See In re A.V., 113 S.W.3d at 362. Due process requires, 

however, that when a parent has raised the issue of insufficiency of the evidence to 

support the jury’s findings under Family Code section 161.001(b)(1)(D) or (E), an 

appellate court must address those endangerment findings to ensure a meaningful

appeal due to the collateral consequences of a finding under those subsections. In 

re N.G., 577 S.W.3d at 237. Due-process and due-course-of-law requirements also

mandate that an appellate court detail its analysis for an appeal of termination of 

parental rights under Family Code section 161.001(b)(1)(D) or (E). Id.

Accordingly, we proceed to the trial court’s endangerment findings under section

161.001(b)(1)(D) and (E). See Tex. Fam. Code Ann. § 161.001(b)(1).

2. Endangerment under subsection D

“To endanger” means to expose a child to loss or injury or to jeopardize a 

child’s emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex.

1996) (per curiam); In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th 

Dist.] 2014, pet. denied). Endangerment under subsection D is established by 

evidence related to the child’s “conditions or surroundings.” Tex. Fam. Code Ann. 

§ 161.001(b)(1)(D). Analysis of the child’s conditions or surroundings may include 

evidence of the acceptability of living conditions, parental conduct in the home, 
20

and other issues concerning the child’s environment. See In re S.R., 452 S.W.3d at

360. A child is endangered when the environment creates a potential for danger 

that the parent is aware of but consciously disregards. See id. Inappropriate,

abusive, or unlawful conduct by a parent or other persons who live in the child’s 

home can create an environment that endangers the physical and emotional 

well-being of a child as required for termination under subsection D. See id. In 

evaluating endangerment under subsection D, we consider the child's environment 

before the Department obtained custody of the child. Id.

The Department first addresses parental drug use as grounds for 

endangerment. The evidence of drug use before removal shows that the 

Department received a referral stating that Father was “on drugs.” Father tested 

negative for tested substances on an oral swab given by investigator Archibald

during her initial home visit. Father also tested negative on a urine-drug screen he 

took after Maria was admitted to the hospital but before the Department removed 

Maria. However, Father refused a hair-follicle test at that time, admitting to the 

CPS worker who drove him to the test and to Archibald that, had he taken the test, 

he would have tested positive for methamphetamine and marijuana. The evidence 

also shows that Mother, who lived with Father and Maria, admitted to using 

methamphetamine before Maria’s birth and tested positive for methamphetamine 

and amphetamine on a hair-follicle test. Finally, Maria herself tested positive for 

cocaine and methamphetamine at the hospital.

Our court recently clarified that a showing that a parent used illegal drugs is 

not, on its own, sufficient evidence of endangerment, and that there must be a 

showing of a causal connection between the parent’s drug use and endangerment 

of the child. In re L.C.L., 599 S.W.3d at 84–86. While Father admitted that he used 

methamphetamine, which Maria later tested positive for, as well as marijuana, 
21

there is no evidence as to when, how often, or where Father used these substances. 

It is entirely possible that Father used these substances outside of the home (or 

otherwise away from Maria), or before Maria’s birth, under which circumstances it

is difficult to determine how Father’s drug use caused an endangering environment 

for Maria. See id.

The Department also points to evidence that Mother used drugs, testing 

positive for methamphetamine and admitting to using the drug before Maria was 

born. However, there is no evidence in the record showing that Father knew that 

Mother used methamphetamine or any other drug until after Maria was already in 

the hospital, and accordingly this evidence does not support a finding of 

endangerment under subsection D. See Tex. Fam. Code Ann. § 161.001(b)(1)(D) 

(requiring that parent “knowingly” allowed child to remain in endangering 

conditions).

We turn to the Department’s other arguments concerning endangerment

under subsection D. The Department points to evidence that Aunt described the 

home whether Father and Mother lived with Maria as “unlivable,” testifying that

Father and Mother did not wash dishes, do laundry, or feed Maria in a timely 

manner. Aunt, however, also testified that, despite her description of these 

conditions, she “didn’t know that [Maria] was in any danger or anything like that.”

Moreover, Archibald did not note any such concerns during her investigatory visit

to the family home, despite detailing that she was concerned about the presence of

pillows and blankets in Maria’s play yard.

Aunt also testified that she was concerned that Father and Mother lacked 

adequate parenting skills, though she also testified she “thought that was normal

because they were new parents.” Archibald noted in her affidavit that Father did 
22

not hold Maria properly.12

Reviewing this evidence in the light most favorable to the trial court’s

ruling, there is legally-sufficient evidence to support the finding of endangerment 

under subsection (D), and accordingly we overrule Father’s issue in that regard.

Viewed in a neutral light, however, the evidence is factually insufficient. With

regard to Father’s drug use, while there is evidence that Father used 

methamphetamine and that Maria tested positive for methamphetamine, there is no 

evidence linking Father’s drug use to Maria’s positive test or otherwise suggesting 

that Father’s drug use created endangering conditions or surroundings for Maria, 

particularly as there is no evidence in the record concerning where or in what 

manner Father used illegal drugs. See In re L.C.L., 599 S.W.3d at 84–86. Likewise, 

there is no evidence that Father was aware of Mother’s methamphetamine use 

before Maria’s birth. See Tex. Fam. Code Ann. § 161.001(b)(1)(D). Indeed, the 

evidence that Mother used drugs not only fails to support the inference that Father

knowingly allowed Maria to remain in endangering conditions, it also provides an 

alternate basis for inferring how illegal drugs entered Maria’s system. Cf. City of

Keller v. Wilson, 168 S.W.3d 802, 814 (Tex. 2005) (“[W]hen the circumstantial 

evidence of a vital fact is meager, a reviewing court must consider not just 

favorable but all the circumstantial evidence, and competing inferences as well.”).

The evidence concerning Maria’s living environment and Father’s parenting skills

is conflicting and scant, and likewise fails to provide a factually-sufficient basis to 

conclude by clear and convincing evidence that Father knowingly placed or 

knowingly allowed Maria to remain in conditions or surroundings that endangered

her physical or emotional well-being. See Tex. Fam. Code Ann. 

12 The Department also notes in its argument on endangerment that Maria was admitted 

to the hospital with bleeding in her brain, but concedes that there is no evidence that Father 

caused Maria’s injury.
23

§ 161.001(b)(1)(D). We sustain Father’s challenge to the factual sufficiency of the 

evidence supporting the trial court’s finding of endangerment under subsection D.

3. Endangerment under subsection E

A finding of endangerment under subsection E requires evidence that the

endangerment was the result of the parent’s conduct, including acts, omissions, or

failures to act. In re S.R., 452 S.W.3d at 360. Termination under subsection E must 

be based on more than a single act or omission; the statute requires a voluntary,

deliberate, and conscious course of conduct by the parent. Id. A trial court properly 

may consider actions and inactions occurring both before and after a child’s birth

and before and after removal to establish a course of conduct. Id. at 360–61. 

“While endangerment often involves physical endangerment, the statute does not 

require that conduct be directed at a child or that the child actually suffers injury; 

rather, the specific danger to the child’s well-being may be inferred from parents’

misconduct alone.” Id. at 360 (citing Tex. Dep’t of Human Servs. v. Boyd, 727 

S.W.2d 531, 533 (Tex. 1987)). A parent’s conduct that subjects a child to a life of 

uncertainty and instability endangers the child’s physical and emotional 

well-being. Id.

In addition to pre-removal evidence discussed regarding subsection D, we 

consider the following post-removal evidence. There is some evidence that Father

used illegal drugs after Maria was removed. Aunt testified that Father was “on 

meth” and that he attended a rehabilitation facility for drug use, but that he left the 

facility after one day. However, Aunt did not testify regarding the frequency or 

severity of Father’s drug use or the details of his rehabilitation program.

The Department also points to evidence that Father failed to complete his 

court-ordered service plan and failed to visit Maria for more than seven months 

before trial. Regarding the service plan, Stewart testified that Father had failed to 
24

complete drug-and-alcohol assessment, a psychological evaluation, or individual

therapy, failed to submit to drug testing as directed, and “completed no other

service or made an attempt to schedule any other services.” Stewart also testified,

however, that Simmons, the caseworker until approximately April 2019, was “not 

doing what she was supposed to do as far as visiting children, documentation,”

such that it was “very possible” that there were “things said and done by the 

parents or the caseworker that are not documented because [Simmons] had a 

problem with documentation.”

Moreover, as discussed above, there was evidence in the record that Father 

cannot read, including Stewart’s testimony of her understanding that Father cannot 

read “at all,” Aunt’s testimony of her understanding that Father “does not 

understand a lot of what he reads,” and the trial court’s pre-trial finding that Father 

was unable to complete the service plan due to “intellectual disabilities” and was to 

be allowed to bring a second person with him to any service that required “any sort 

of reading.” The substantial evidence that Father was unable to read, and that this 

affected his ability to comply with the service plan at least to some extent, 

undermines the Department’s argument that Father endangered Maria by failing to 

comply with the plan.

Likewise, regarding family visits, Stewart testified that the last recorded visit 

was in May 2019, and there had been no visits since she took over the case on July 

31, 2019, but also testified she would not be surprised if there were additional 

family visits that were not documented. Indeed, CASA supervisor Rodriquez 

testified that CASA records showed three family visits, one in November 2018, 

and two in May 2019. Nonetheless, the evidence shows that Father did not visit 

Maria, or request a visit with Maria, from the time that Stewart took over the case

on July 31, 2019 though the trial on December 14, 2020, although the Department 
25

cannot say for sure how many visits occurred before that time.

Regarding parenting skills, Stewart testified that the one post-removal 

family visit in the Department’s records was “really good,” that Father “engaged”

with Maria. Rodriquez testified that the CASA report showed reflected that Father 

was “affectionate” and “caring” when visiting Maria, and that he showed Mother 

how to properly hold Maria based on the instructions he had received.

The Department also points to evidence that Father did not attend trial due 

to a warrant for his arrest as evidence of Father’s endangering conduct. While 

criminal violations and incarceration are not enough to show endangerment by 

themselves, they can be evidence of endangerment if shown to be part of a course 

of conduct that is endangering to the child. See Boyd, 727 S.W.2d at 533–34. Here,

however, the record does not reflect that Father was ever convicted or incarcerated 

for this alleged transgression, nor does it show any other criminal history for 

Father.

Viewed in the light most favorable to the trial court’s finding, we conclude

there is legally-sufficient evidence that Father endangered Maria under subsection 

E and overrule Father’s issue in that regard. Viewing the evidence in a neutral 

light, however, we again reach a different conclusion. Considering both pre- and 

post-removal evidence, the record shows that Father used methamphetamine both

before and after Maria’s removal. However, as discussed above in subsection D, 

there is no evidence concerning the when, where, or to what extent Father used 

illegal drugs, and no evidence of a causal connection between Father’s drug use 

and endangerment to Maria. See In re L.C.L., 599 S.W.3d at 84–86. Regarding 

service-plan compliance, while there is evidence that Father took little action to 

complete the plan, there is the looming question of to what extent his difficulty 

reading prevented his compliance. Further, the evidence shows that the Department
26

does not know what services Father completed, given caseworker Simmons’s 

issues with documentation. While the evidence shows that Father did not contact 

Stewart during the last several months of the case, either to request a family visit or 

otherwise, the record also shows that Father attended at least three family visits 

during the life of the case and that Father was caring and attentive during those 

visits. Finally, while there is some evidence that Father did not attend trial due to 

fear of incarceration, there is no evidence in the record that Father was convicted 

of any crime.

Based on the gaps and conflicts in this evidence, the trial court could not 

have reasonably concluded under a clear and convincing standard that Father 

engaged in conduct or knowingly placed Maria with persons who engaged in 

conduct that endangered Maria’s physical or emotional well-being. Tex. Fam. 

Code Ann. § 161.001(b)(1)(E). We sustain Father’s factual-sufficiency challenge 

to the trial court’s finding of endangerment under subsection E.

As we have determined that at least one predicate ground for termination is 

supported by legally- and factually-sufficient evidence, we proceed to Father’s 

challenge to the trial court’s finding that termination of his parental rights was in 

Maria’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1).

C. Best interest of the child

1. Legal standard

Father challenges the legal and factual sufficiency of the evidence to support 

the trial court’s finding that termination of his parental rights is in the best interest

of Maria. See Tex. Fam. Code Ann. § 161.001(b)(2). There is a strong presumption 

that the best interest of the children is served by keeping the children with their

natural parents. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) (citing 
27

Tex. Fam. Code Ann. § 153.131(b)); In re D.R.A., 374 S.W.3d at 533. However,

prompt and permanent placement of the children in a safe environment is also 

presumed to be in the children’s best interest. In re S.R., 452 S.W.3d at 366 (citing 

Tex. Fam. Code Ann. § 263.307(a)). Proof of acts or omissions under section 

161.001(b)(1) is probative of the issue of the children’s best interest. See id. The 

considerations that the factfinder may use to determine the best interest of the 

children, known as the Holley factors, include:

(1) the desires of the child;

(2) the present and future physical and emotional needs of the child;

(3) the present and future physical and emotional danger to the child;

(4) the parental abilities of the person seeking custody;

(5) the programs available to assist the person seeking custody in 

promoting the best interest of the children;

(6) the plans for the child by the individuals or agency seeking 

custody;

(7) the stability of the home or proposed placement;

(8) acts or omissions of the parent that may indicate the existing 

parent-child relationship is not appropriate; and

(9) any excuse for the parent’s acts or omissions.

See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also Tex. Fam. 

Code Ann. § 263.307(b) (listing factors to be considered in evaluating “whether 

the child’s parents are willing and able to provide the child with a safe

environment”). A best-interest finding does not require proof of any unique set of 

factors or limit proof to any specific factors. See Holley, 544 S.W.2d at 371–72.

In reviewing the legal and factual sufficiency of the evidence to support the

trial court’s finding on best interest, we are mindful that the focus in a best-interest 

analysis is not only on the parent’s acts or omissions, but also on the nature of the 
28

relationship the children have with the parent. See In re E.N.C., 384 S.W.3d 796, 

808 (Tex. 2012).

2. Sufficiency of the evidence

We begin by addressing collectively the desires of the child, her present and 

future physical and emotional needs, the stability of the home or proposed

placement, and the plans for the child by the individuals or agency seeking 

custody. Regarding the desires of the child, Maria was removed when she was

approximately four-weeks old and was one-year old at time of trial. When children 

are too young to express their desires, the factfinder may consider that the children 

have bonded with the foster parents, are well cared for by the foster parents, and 

have spent minimal time with a parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. 

App.—Houston [14th Dist.] 2016, pet. denied). Here, the evidence reflects that 

Maria was placed with Aunt and Uncle and was doing well, with no special 

medical needs. Although Maria was placed with Aunt and Uncle only two weeks 

before trial, Aunt testified that she was calling Aunt and Uncle “Mama” and 

“Dada” and their son “Brother,” was saying nine or ten words, and was eating and

sleeping well. Aunt testified that Maria was attending the same day care as her son 

and was doing “great” with the transition, and that she planned to send Maria to the 

same school her son attended for kindergarten. Aunt testified that both she and

Uncle worked and that they had additional income left over each month after their 

expenses were paid. Aunt testified that she and Uncle would “love” to adopt Maria.

CASA supervisor Rodriquez testified that she was concerned about how 

Maria would handle the transition from foster care to Aunt and Uncle’s home, but

that Maria was doing “really well.” She related that, although Maria had been a 

“difficult” child in prior placements, the CASA advocate who visited Maria after 

her placement with Aunt and Uncle stated that Maria was a “completely different 
29

child. She’s happy. She’s thriving, walking, talking more, friendlier, just 

completely different. It’s really interesting and wonderful.”

Father did not testify at trial, and there was no evidence as to his plans for 

Maria, his employment status, or his habitation. Aunt testified that, after Maria’s 

removal, Father indicated to her his desire to surrender his parental rights to Maria

so that Aunt and Uncle could take care of her. Rodriquez testified that the CASA 

advocate assigned to the case had described Father as “affectionate” and a “loving,

caring father.” While Archibald had concerns that Father did not hold Maria 

properly during her investigation, Rodriquez testified that Father later learned how 

to properly hold Maria and was instructing Mother as to how to do so. Although 

Father participated in at least three family visits, the last recorded visit was in May 

2019, when Maria was less than a year old.

We next consider evidence of present and future physical and emotional 

danger to Maria and acts or omissions of the parent that may indicate the existing

parent-child relationship is not appropriate. Although we determined above that 

evidence concerning Father’s conduct was factually insufficient to support a 

finding of endangerment under subsections D or E, we reconsider that evidence for 

best-interest purposes. See In re S.R., 452 S.W.3d at 366. The evidence shows that 

Father used methamphetamine both before and after Maria’s removal, though there 

is no evidence of how often or how much. Father also lied about his drug use on 

multiple occasions and asked Aunt to take custody of Maria only to return her to 

Father’s care. There is also evidence that Father did not complete the court-ordered 

services assigned to him.

Father argues, under the factor concerning any excuse for the parent’s acts or 

omissions, that he could not complete his service plan because he cannot read. We 

agree that the evidence that Father cannot read weighs against a conclusion that not 
30

completing his service plan should be held against him in the best-interest analysis. 

The vast majority of the remaining evidence, however, supports the trial court’s 

finding that termination of Father’s parental rights is in Maria’s best interest, 

including the evidence of the stability of Maria’s placement, Maria’s progress in 

that placement, Aunt and Uncle’s intention to adopt Maria, and the comparative 

dearth of evidence regarding Father’s resources and plans for taking care of Maria.

See In re L.M., 572 S.W.3d 823, 838 (Tex. App.—Houston [14th Dist.] 2019, no 

pet.) (“[T]he trial court reasonably could have formed a firm belief or conviction

that terminating Father’s parental rights was in the child’s best interest so that she 

could promptly achieve permanency through adoption.”). Moreover, Father’s lack 

of reading ability does not excuse his continued drug use or his not taking basic 

steps, such as returning calls to his caseworker and making a good-faith effort to 

complete assigned services, consistent with returning Maria to his care. See id. at 

837–38 (holding that court “may consider whether a parent demonstrated 

willingness to effect positive environmental and personal changes within a 

reasonable amount of time.”).

Our review of the Holley factors indicates that the trial court’s finding by 

clear and convincing evidence that termination of Father’s parental rights is in 

Maria’s best interest is supported by legally- and factually-sufficient evidence, and 

accordingly we overrule Father’s issue in this regard. See Tex. Fam. Code Ann. 

§ 161.001(b)(2); Holley, 544 S.W.2d at 371–72.

We sustain Father’s first issue with regard to his challenge to the factual 

sufficiency of the trial court’s findings concerning predicate grounds D and E. We 

overrule the remaining challenges in Father’s first issue. 
31

D. Conservatorship

In his second issue, Father challenges the trial court’s appointment of the 

Department as Maria’s permanent managing conservator. We review a trial court’s 

appointment of a non-parent as sole managing conservator for abuse of discretion 

and reverse only if we determine the appointment is arbitrary or unreasonable. In 

re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). When, as here, an appellant challenges 

the legal and factual sufficiency of the evidence in a case where the proper 

standard is abuse of discretion, we engage in a two-pronged analysis: (1) whether 

the trial court had sufficient information upon which to exercise its discretion and 

(2) whether the trial court erred in its application of discretion. In re J.J.G., 540 

S.W.3d 44, 55 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

Family Code section 161.207, entitled “Appointment of Managing 

Conservator on Termination,” provides: “If the court terminates the parent-child 

relationship with respect to both parents or to the only living parent, the court shall 

appoint a suitable, competent adult, the Department of Family and Protective 

Services, or a licensed child-placing agency as managing conservator of the child.” 

Tex. Fam. Code Ann. § 161.207(a). The trial court’s appointment of the 

Department as sole managing conservator may be considered a “consequence of 

the termination pursuant to Family Code section 161.207.” In re A.S., 261 S.W.3d 

76, 92 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Having concluded the 

evidence is sufficient to support the termination of Father’s parental rights, we 

conclude the trial court had sufficient information on which to exercise its 

discretion, and did not abuse its discretion in appointing the Department as sole 

managing conservator of Maria. See In re L.G.R., 498 S.W.3d at 207 (finding no 

abuse of discretion in conservatorship finding in which evidence was sufficient to 

support termination of parental rights). We overrule Father’s second issue.
32

III. RESPONSE TO DISSENT

The dissent begins with a strawman parade-of-horribles argument that the 

court is trying to enable bad parenting. This form of argument is often used to 

deflect attention from the work of deciding cases with troubling facts.

On the merits, the dissent acknowledges that N.G. instructs appellate courts 

to “review the legal and factual sufficiency of the evidence” of D and E predicate 

termination grounds to satisfy due process. See In re N.G., 577 S.W.3d at 239 

(emphasis added). Nonetheless, the dissent suggests that a factual-sufficiency 

review is unnecessary in this case. 

This court and others, however, routinely review the legal and factual 

sufficiency of the evidence in parental-termination cases of (1) predicate 

termination grounds and (2) best interest, and, when the law and the facts require, 

reverse on factual-sufficiency grounds even when there is legally-sufficient 

evidence. See, e.g., In re A.J.A.R., No. 14-20-00084-CV, 2020 WL 4260343, at 

*7–9 (Tex. App.—Houston [14th Dist.] July 24, 2020, no pet. h.) (mem. op.) 

(Wise, J., majority) (reversing best-interest finding on factual, but not legal, 

sufficiency and remanding case for further proceedings). The dissent states that 

A.J.A.R. is distinguishable because, in that case, the court reversed the trial court’s 

final order of termination instead of affirming as we do here, but does not explain 

why the ultimate result of an appeal should dictate the standard of review applied 

by this court.

Instead, the dissent appeals to the Supreme Court of Texas to follow the 

Court of Criminal Appeals and further nullify the factual-conclusivity clause in 

Texas Constitution article V, section 6. While there is no question that such a 

nullification would make our work easier, that is not a legitimate legal rationale for 
33

limiting our review.

The dissent also disagrees with our remand for a new trial because “[t]he 

result of such a new trial will have no impact on Father’s parental rights to 

[Maria].” That is an unquestionably true statement. It is also irrelevant. 

The essential holding of N.G. is that affirmative findings on predicate 

grounds D and E must be reviewed on appeal not only because they may affect the 

current appeal, but also because the Family Code allows findings on D and E 

grounds to be used in any future termination of parental rights for a different child. 

In re N.G., 577 S.W.3d at 237; see Tex. Fam. Code Ann. § 161.001(b)(1)(M).

While following the holding of N.G. does not affect Father’s parental rights to 

Maria, it does protect Father’s due-process rights.

IV. CONCLUSION

We conclude that the evidence is factually insufficient to support the trial 

court’s findings, by clear and convincing evidence, that Father:

7.2.1. knowingly placed or knowingly allowed the child to remain in 

conditions or surroundings which endanger the physical or 

emotional well-being of the child, pursuant to 

§ 161.001(b)(1)(D), Texas Family Code; [and]

7.2.2. 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, pursuant to 

§ 161.001(b)(1)(E), Texas Family Code[.]

The remedy for a successful factual-sufficiency challenge is a new trial. See

Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986). Accordingly, we 

reverse the portion of the trial court’s final order in paragraphs 7.2.1 and 7.2.2 and

remand the case to the trial court for the limited purpose of a new final hearing on 

predicate grounds D and E. Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). We 
34

affirm the remainder of the trial court’s final order as challenged on appeal, and in 

so doing affirm the termination of Father’s parental rights regarding Maria.

/s/ Charles A. Spain

Justice

Panel consists of Justices Wise, Bourliot, and Spain (Wise, J., dissenting).