Affirmed in P a rt, Reversed in Part , and Remanded , and Majority and

Dissenting Opinion s filed August 20, 2020.

In t he 

## Fourteenth Court of Appeals

NO. 14
- 20
- 00 169
- CV

IN THE INTEREST OF M.P
. , A CHILD

On Appeal from the 3 06 th District Court Galvest on Count y , Texas T rial Court Cause No. 18
- CP
- 0111

MAJORIT Y OP INION
Th e 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. Th is accelerated appea l a rises fr o m a final order in w hi ch , after a final hearing tried to the benc h , 1 t he tria l court terminated the parental rights of appellant J.P. ( Father ) with resp e ct to his d aughter M.P

. ( M a ria ) , 2 who was one

- year old at

1 We refer to the final hearing as the “ trial

. ”
2 To protect the mi n or ’ s id entit y , we h ave not used th e ac tual na mes o f the child , par ents, o r other fami ly membe rs. See Te x. R. A pp. P . 9.8.2

time of trial , and app oint ed a p pe l lee the Department of F ami l y a nd P rotecti ve Servi ces (the D e partment) to be M a ria ’ s permanent managing conservator

. See Tex. Fam. Code Ann. § 109.002(a

- 1) ; Tex. R. App. P. 28.4 (accelerated appeal s in parental

- termination cas es). 3
In his first issue, F a th e r challenges the legal and f actual su fficiency 4 of the evidence to support the trial court ’s fi ndings in its final orde r (1) on the pre dicate grounds of endang erment , failure to comply wi th the court

- ordered f amily

- s ervice p la n , and use of a co ntrolled su b st ance in a manner that end a n gered the health or safety of M a ria , and (2 ) that termina tion is i n the best interest of M a ria

. See Tex. Fam. Code Ann. § 1 61.001(b)(1)(D), (E), (O), (P), (b)(2). In his second issue, Father chall e nges the trial cou rt ’ s app o in t ment of the De partment as p e r manen t managing conservato r of Maria. See Tex. Fam. Code Ann. § 15 3 .131.
We determine the evidence is legall y and factually suffici ent to s upport the trial court ’ s findings that the Department proved by clear and convinc i ng ev i dence th at (1) Father failed to co mp ly w ith the court orde red family

- service pla n under the predicate ground of subsection O and (2) termination of Fathe r ’ s parental rights was in Maria ’ s best interest. See Tex. Fam. Code Ann. § 1 61.001(b)(1 ) (O), (b ) (2). A s o nly one pr edicate fin di ng u nder secti on 161.001(b)(1) is neces sary to support a final order of termination when there also i s a finding t ha t termination i s in the child’s best interest , we affirm the tr ial court ’ s termination of F ather ’ s p arental ri g ht s regarding Maria

. See Tex. Fam. Co de Ann. § 161.001 (b ) (1) . However, un der the Texas Supreme Court ’ s dec ision in In re N.G. , we must also address Father ’ s

3 M aria ’ s mother K.S. ( M other) signed an affidav it volu ntarily reli nquis h ing he r par ent al rights regarding Maria

. See T ex. Fam . Code Ann. § 161.10 3

. T he trial court termina ted Mot her ’ s parental rights on that basis , and Mother d oes not a ppeal.

4 Whi le Father did no t file a motion for new trial , “ [i] n a no njury case, a complaint regarding the legal or factual insufficiency of the evidenc e
. . . may b e made for the first time on appeal in the complaining party’s brief. ” Te x. R. Ap p. P. 33.1 (d).3

legal

- and factual

- sufficiency challenges to predicate grounds D and E , as due process r equires th i s i nquiry due to the collateral conse quences of a n affirmative finding under those grounds. See 577 S .W .3d 230 , 23 7 ( Tex. 2019 )

. Applying this
court ’ s decision in In re L.C.L. , w e conclude that the evidence is legally sufficient , but factua lly insuf

ficient t o s upport the trial court ’ s affirma tive findings on predicate gro unds 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 fa ctu al

sufficiency challe nges to the trial court ’ s affirm a tiv e findings under predicate grounds D and E , r everse the final order as to those findings, and remand the case for a n ew t rial limited to those grounds

. I. B ACKGROUND A
. Pretri al proceedings
1. Pr etrial removal affid a v it According to the pretrial removal a ffi davit, which was admitte d into evi de nce at trial, the Depa rtment re ceived a report a ll e gi ng n eglectful supervision of M a ria, incl uding allegations that the home wher e Father an d Mother lived with M a ria sm elled and “ was known to be covered in an imal fec e s ” and that Father was

“ on drugs. ” Th e following da y, the Depar tment received three add itional r e ferrals

. The first alleged that Ma r ia , then three weeks old, had a swol l en neck an d head, was leth argi c and unrespo nsive, was mottled in color , and had a l arg e he matoma on the right side of her he ad. The second and th i rd referrals suggested that swelling on the top of Maria ’ s head was due t o non
- accidental trauma, and reporte d that Father a nd Mother “ might b oth have a learning disability ” and “ lacked basic pare n tin g skill s needed to ensure the chil d ’ s health and well

- being. ”
Child Protective Services ( CPS ) investigator ( a nd affiant) C

. Ar chibal d4

visited the family h o me
. S he noted i n her removal a ffi davit tha t she “ suspected tha t

mo ther and f

at her might have so me intellectual delay. ” Fat her rel ated that h e had attended “ special classes ” in scho ol and r eceived Supplemental Securi ty Income ( SSI ) “ due to a learning disability

. ” Archi b a ld noted concern s ab out pillows and blan ke ts in the p lay yard wit h Maria

. She did n ot, however, express a ny other

c oncern s with the home en vironment. Father and Mother each t ook an oral

- swa b
test , and each show ed negative results for all tested s u bstance s
. The day after Archibald ’ s visit, four

- week old M a ria was admitt ed to Texas Ch ild re n ’ s H ospital with b lee ding in he r b rai n
. Hospital staff di d not know th e

caus e of the injur y, though the y noted that M aria did no t have a s kull fracture and stated that he r inj ury may have been caused by sei zures. M a ria ’ s urin alysis on t he day of her adm is sion was positive for cocaine

. H ospit al sta ff stated that Mother and Father appeared “ very concerned ” a bout the positi v e test, and both denied drug

use. E lev en day s after M a ria ’ s admi ssion , hospital staff i nformed Archibald that M a ria ha d also tested pos it ive for methamph etamine

. O t her C PS in vestig ators interviewed Mother and Fathe r at the hospi tal on the day of Maria ’ s a dmission

. Mother told investigators that M a ri a was bo r n with a soft s po t on he r head , neither she nor anyone else had h urt Maria, and ne it her she nor anyone else in the h ome used drugs. Father state d during his interview that he

was unsure a s to w hat had h ap pened t o Maria , but that 9

- 1

- 1 had been cal l ed afte r a neighbor panicked about Maria ’ s condi tion

. H e said that no one in the h ome u sed d rugs , but stated he would not ta ke a drug test “ beca use he does not lie and does not use dr ugs. ”
A CPS sta ff member tr ansported Father and Mother for dr u g screen s
. D uring the transport, Mother admitted to using methamph etamine before Maria was born , a nd Fa ther admitted to using methamphe t amine and marijuana. Mother took bo th a5

uri ne
- drug screen and a h air

- follicle test, w hile Fath er took only a urine

- dr ug

s creen. Th e u rinalysis results for Fathe r and Mother were negative for any tested

s ubstan ce
. Archi bal d spoke with Fa ther ’ s aunt M.A. (A unt ) concerning a potential placement for M aria. Aunt initi ally agreed to care for Mar ia , but t hen expressed reservation s , saying F a ther had asked her to agree to the placement but secre tly allow Maria to remain in his car e. After additional cons ider ation, Aunt re f used the p l acement.
Ar c hibald then spoke t o Father and Mother to solicit reco mmendatio ns for a placement for M a r i a
. During the conversation , Father again stated he did not use drugs and said he did not understa nd wh y Maria could not go hom e with h im

. Later in the c onversation, Archibal d informed M other th at her hair

- follicle test h ad
return ed posi tive for methamphe t a mine and a mphetamine. When Archibal d asked Father why h e had no t taken a hair

- follic le test, Fath er ad mitted he would have tested posi tive for marijuana and methamphetamine.
B a sed on the Depart ment ’ s petition supported b y Archi ba l d ’ s affidavit , the trial c ourt remo v ed M a ria to the Department ’ s care
. 2
. Family
- s er vic e p lan
The Depar tme nt prepared a f am ily

- s e rv i ce pl an for Father

. T he plan re quired Fat her to complete a list o f tasks and services , including :

• m aintaining mont h ly con ta ct with h i s CPS caseworker ;

• notifyin g his CPS c aseworker C

. Fran klin within five days of any change of address or tele p hon e numbe r;

• participating in se rvi ce s des igned to alleviate the risks lea d ing to Maria ’ s remo va l from his ca re;

• s ch eduling an d comp leting a d ru g
- and

- alcohol assessment and6 following recommendations for tr eat ment ;

• submitting to random drug testing ;

• schedul ing and co mpleting a psychological ev alua tion;

• scheduling and participate in individual counseli ng ;

• complet ing pa re nting cl as s es ;

• ma intain i n g gainful em ployment and pro v iding empl oyment information to his C PS caseworker;

• maint ain safe and stable housing an d p rovide proof o f housing to his CPS c a seworker; and

• attend visitations with M a ria as scheduled in the De partme n t ’ s visita t i on plan

. In a s tatus

- hearing order signed S e ptember 6, 2018, the trial court foun d that Father “ has reviewed and understands the se rvi ce plan

. ” There is no explanation as to ho w the trial court reached this conclusion ; the or de r indicates that Father did
not atte nd t he hea r i ng. On January 10, 2019, the trial court signed a n initial per man e ncy hearin g order that includ ed the finding th at Father “ has/has not has not de mons trated adequate and appropriate compliance with the service pla n
. , due to a n intell ec tual disabilit y. [Fa t h er

] sha l l comply with ¶ 6.2 o f this or der for all services as need ed. ” 5 P a ragraph 6.2 of the order states, “ I t i s O RDERED that [ G.W. ] , 6 or anyone [Fa ther] designates, may accompany [Father] to any and all se rvice s (e. g.,

e valuatio ns , class es, outp a t ient, e tc.) that may require any so r t of reading

. ”
In an order signed Aug ust 8, 2019 , the trial court found that Father “ h as not demonstrated adequate and a ppropriate compliance with the service plan , ” without

5 The i tali ciz ed portions of the ord er as q uoted herein refl ect hand written notation s on the order.
6 According to Fath er ’ s b rief, G .W. i s F ather ’ s mo ther.7

q ua lifica tion

. 7
B
. Trial
Fat her did not appe ar at t r ial

. Aunt testified that Fat h er told her that his la wyer had a dvis ed him not to attend because of an outs tand ing wa rrant f or his

arre st. A crimi nal c omplaint against Father for resis ting arrest by using force ag ainst a p eace o fficer was ad mitted i n t o evidence, a l ong with a capias cit i ng Father ’ s failure to a

ppe ar f iled in April 2019.
1
. Investigator Archi bald
Archib ald testif

ied that she conducted an i nvestigatory visit after receiv ing multiple referrals. She was conc erned that there w e r e i tems in M aria ’ s play y ard that were not appro p riate f or a child her a ge and ob s erv ed that Fathe r did not hold Maria properly when at tempti n g to feed her. Archibal d no ted th at Father had an

“ intellectual disabil ity ” and re ceived SSI payments , and Fathe r tol d her tha t he had been in special ed uc ation c l asses through out hi s schooli ng
. Archibal d testi fied that Maria had b een taken to th e h osp ital for emergency medi cal atte ntion after Father called 9

- 1

- 1. A fter being admitt ed , Maria t ested positive for coca i n e a nd m et ham pheta mine at one

- month old. When Arc h ibald discu ssed M ar i a ’s positi ve te s t with Fathe r and Mother, they denied using ill ega l drugs

. Before her initial meetin g with t he family , Archibald received allegations of drug use by Father

. D u ring her initia l meeting , Archibald gave Father and M other i n sta nt oral sw abs, which were neg a tive for tested s ubstances. Father also tested neg ati ve for illegal drugs on a later ur inalysis but ref used to take a hair

- follicle test

. Fa ther, how ever, admi t t ed to Archibald that he h ad used methamphetamine and

7 Ea ch of these order s was admitted into evidence.8

marijuan a
. Mother also admitted to usi ng illegal drugs an d tested positive for methamphetami ne and amp hetamine

. 2
. CPS C aseworker
CPS conservatorship worker A

. S tewart testified that s he took ov e r the case at the end of J uly 2019. Before Stewart ’ s assignmen t to the case, N

. Foster had bee n assigned . Fo ster, in turn, took o ver the case fr om D

. Simmons in ap pro x imat ely April 2019. 8 Stewart testified that, at t i m e of trial, Fat her had f ailed to complete a drug and alcohol assessment required by the fami l y
- ser vice plan . Father also missed two consecutive ap pointments for a psychological e v aluation mandat ed by t he service p lan , failed to parti cipate in individual ther a p y as request ed, “ a nd other than that, he co mplete d n o other servi ce or made an attempt t o sche dule any other services , ”

acc ording to the Department ’ s re cords. St e wa rt admit ted , however , that the ca se had been reassigned from Simmons because S immons was “ n o t doing what sh e was supposed to do as far as visiti ng child re n, documenta ti on
. ” She adm i tted i t was

“ ve ry possible ” th at there wer e “ things said and done by the parents or th e caseworker that are not document ed because [Simmons] had a problem with docum e n tation

. ” Rega rd ing family visits, Stewart t estified there w as one visit with Father and M aria r e corded on May 7, 2019 , though s he stated she would not be surpr ised if there we re additional family v isits that w ere not document ed. Father had not contacted h e r to set up any visits with M a ria during he r assign m ent to the case , and there were no r e cord s indicating that Father had contacted other case worker s to do

so
. The one docu men ted visit “ was describ ed as a real ly good vi si t and both

8 Y e t another caseworke r, C

. Fran klin , was li s ted as Fat her ’ s contact on the fa mily

- se rvice plan filed in Au gust 2018

.9

p arents engaged with t h e child

. ”
Stewar t stated that she was aware that Fath er had a disability , a lthough she

wa s no t aware of the specifics . S he wa s info rmed that Fa ther can not read at all , altho ugh she d id not learn thi s until thre e month s after she was assigned the case ; to t h at po i nt, she t hought “ he could read som e ” and “ just needed help reading. ” Stewart testi f

ied that a Brya n case wo rker assigned to Father was aware Father could not read and had “ some idea ” of Father ’ s intellect ual disability. 9 She noted that Father w as allowed t o bring any one he liked to a ny servic es that required reading , though she was unaw are this was by court order . However, she also testi fied that when she was contacted by Father ’ s g randfather ( Grandfather) , “ wh o wanted to assist [Fat he r] , ” she w as instructe d by her supervisor to in for m Grandfa ther that she could not tell him any t hi ng ab o ut the case , and did so

. Stewart also testified that, after her call with Grandfather , s he s ent Father a text messag e expl aining wh y she could not give informati o n to Grandfa ther. In response, Father

ca lled her back , and she explained th e situatio n to him over the phone

. Regarding ot her cont act s with Fat her, Stewart testified that she atte mpt ed to call him on the phone on Aug ust 6, Septembe r 17, and O c tober 7 , 201 9 , but Father did not answer o r return he r call s. St ewart also testified t hat the Bryan case worke r inst ructed Father to go for drug t esting on August 1 and September 16, 2019, but tha t Father did not get t est ed

. Th e case worker also tried to c o ntact Fathe r on Octobe r 7 and N ovember 6 , 2019 , but received no ans w er. Stewart did not know if the case worker attempted to contact Father by phone or te xt but believed she made

one in

- per so n c ontact w ith Father. Accor ding to S t ewart, t her e w as no co n tact

9 Stewart testi fied tha t , according to case notes, Fa th er and Mot her mov ed from Galve ston County , where this case originated, to Bry an in July 2019, inform ing the ir c ase worker after the fact th at they ha d m oved.10

betwee n Fathe r and the Department after November 6, 2019 , u p to an d including trial on January 14 , 2020

. Re garding placeme nt, Stewart testified that Aunt and her husband (Uncl e) initially sa id they would take Maria, th en declin ed , and M ari a was p lace d in unrelat ed fost er care
. Since December 31, 2019, Mari a had b e en p la ced with Aunt

an d Uncle

. S he sta ted that a home study had been conducted and ap proved for Aunt and Uncle and that they would lik e to adopt M a ria

. 3
. Plac ement
Aun t test ified th at M a ria h ad been pla ced wit h her and since December 31 , 20 1 9 , two weeks b efore trial. She said Maria was do in g “ g reat. ” M a ria was

w alking, running, and saying nine or ten words . Maria referred to Aunt and Un cle

as “ Mama ” and “ Dada ” and refer red to their son a s “ B rothe r
. ” She was sleep in g and eat ing well and ha d a “ great ” nighttime routine. She did not h a ve an y m edica l

ne eds req u ir ing imme diate treatment

. M a ria attended the same daycare as Aunt ’ s

son , and A unt ’ s plan was for M a ria to eventuall y go t o the same s choo l a s h er son
. Aun t and U ncle we re bot h employed and had money left ov e r each month after paying their expen ses. Aunt stated that she and Un cle w o uld “ love ” to ad opt Maria and planned to do so

. Aunt te sti fied that, before M ari a ’ s remov al, the home where F ather and Mother lived wit h Maria w as “ unlivable, ” as Father and Mother did not d o dishe s or laundry . She also stated that Father and Mother did not feed Maria in a timely fashion

. Despite these cond iti ons, Aunt did not conside r M a ria t o be in any danger

a t th e time.
Au nt testified that, at some poi nt after Maria ’ s remo val, F a ther was “ on meth ” and entered a 3 0

- day rehabilitation program , but left af ter one day because11

he did not want to be there anym ore . She testified that Fath er appear ed unconcerned abo u t complet ing his s ervices a nd expr es sed a desire to relinquish his right s to Maria. She testified that Fath er to ld 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. ”
Au nt estimated Fathe r had the intell ig e nce of a 15

- or 16

- year ol d, and not ed h e wa s able to f

inish high s chool. She said she h ad seen him reading on his p hone and that he had n ever told her she could n o t read. She also t est ified that she had

never received anything in writin g from Fat her, and that , acc ording to her b ro ther

- in

- law, Father said tha t he does not understand a lot of what he reads. Regarding Father ’ s service plan, Aunt testified that Father was “ refusing to ta ke certain drug tests at cer tain time s ” and “ refusing t o do his plans that he needs to do , ” and that h e appea red unconcerned abo u t complying with the plan.
4
. CAS A Court Appointed Special Advocate ( CASA ) supervisor R

. Rodriquez testified th a t M a

ria was doi ng “ really well ” w ith Aunt a nd Unc l e , and compare d t o her previous placemen ts, s he was th riving and seem ed like a “ c om pletely differen t child. ” Rodriquez fu r ther testified that three family vis its occurred, on No vember 28, 2018, May 7, 2019, and May 23, 20 19. A ccording to CASA report s, Fat her was affect i ona te tow ards M a ria and appear e d to be a loving, caring f ather. During one

v i sit , he r eminded Mother to hold Maria correct ly, as he had been tau ght by the Department

. II. A NALYSIS
In Father ’ s first i ssue, he chal len ge s the legal and factua l su fficie ncy of the

e vi d enc e to support t he trial cou rt ’s f indi n g on th e predicat e ground s of12

endang e rment under subsections D and E , failure to co mp ly w ith the court orde red family

- service pla n under subsection O , and use of a c on trolle d s ubst ance in a

m anner that endanger ed th e h ealth or safety of Maria und er subsec t ion P , and also challe n ges the leg a l and factual su fficiency of the e vide nce to s upport the trial court’s finding that termina tion is i n M a ria ’ s best interest

. See Tex . Fam. Code Ann. § 1 61.0 01(b)(1)(D ), (E), (O ), (P), (b) (2). In Father ’ s sec on d issu e , he challenge s the trial c ourt ’ s app o i ntment of the Department as Mari a ’ s permanent

m anag ing conser va tor

. See Tex . Fam. Code Ann. § 15 3 .131.
A. St and ards of rev i ew I nvo lun tary t er mination of pare nta l right s is a serious mat ter that implicat es f u nda mental c onstitutional rig hts. H olick v. Sm i th , 685 S. W. 2d 18, 20 (T ex. 1985)

. Although pare ntal rights ar e of con stitutional magnitude, t hey are not abs olute. In re C.H. , 89 S. W.3 d 1 7, 26 (Tex. 2002) (“J u st as it is imperative fo r courts to recognize the const itutional underpinnin gs of th e p arent

- child relationship, it is al so es se ntial tha t emo tional and p hy sical in terests of the child not be sacrifi ced merely to preserve tha t rig ht. ”). Given the fundame n tal liber ty inter e st s at sta ke,

“ t ermination proceedings should be strictly scr utinized, and involuntary termination s tatu tes are strictly cons trued in favor of the parent. ” Holick , 685 S.W.2d at 20

. Due to the severity an d perm ane ncy of ter mi nating the p a rental re la t ionshi p, the law in Texas r equires cle ar and convincing evidence to supp or t s uch an orde r
. See Tex. Fam. Co de Ann. § 161.001 (b ) ; In re J.F. C. , 96 S.W.3d 2 56, 265

– 66 (Tex. 2 002) . “Clear and convincing evidence” means “th e measure or degree of p r oof that wi l l prod uce in the mind of th e trier of fact a firm belief or convict ion a s to the truth o f the allegations s ought to be establi shed. ” Tex. F am. Code Ann. § 101.007; In re J. F.C. , 96 S.W .3d at 264.13

The heightened burde n o f proof in t ermination c a ses resul ts in a h eightened standard of review. See In re J.F.C. , 96 S.W.3d at 266

. We rev iew the legal

s ufficiency of the ev id ence by cons idering all evidence in the lig h t most fa vo rable to th e finding to dete rmi ne whether a re aso nab le fact f ind er could h ave formed a firm b elief o r c onviction t h at its finding w as true. In re J.O.A. , 283 S.W.3d 336, 34 4 (Tex

. 2009). We must ass um e that th e fac t finder resolved disputed facts in favor of i ts findin g if a reasonable fa ct finder could do so, and we dis regard all evidence that a re asona

bl e f act finder c o uld have disbeli ev ed or found incredi ble

. Id

. How e ver , this d oes not compel us to disregard all evidence t ha t does not

s upport the finding. In re J.F.C. , 96 S.W.3d at 266. Because of the h eig htened

s tanda rd , w e also must be m indful of an y undisputed e vidence cont rary to th e finding an d consider that evi denc e in our a n a lysis. Id. In reviewing the factual suffi ci ency of t h e evidence under the clear and convincing burden, we consider and weigh al l of the evid en ce, inclu ding d ispu ted or confl ic ting evid ence. In r e J.O .A. , 28 3 S.W.3d at 345

. “If, in light of the entire

r ecor d, the disputed evidence that a reasonabl e factfind e r c ould not have credi ted in favor of the f

inding i s s o significant that a factfind er co ul d n ot rea sonab l y ha ve formed a fi rm belief or convic tion, then t h e eviden ce is f actually insuffici ent. ” Id. ( i nter nal quotation marks omitted). We give due d eference to the factfinder’s fi ndings , and we cannot substit ute our own judgment for that of the fa ctf inder. In

r e H.R .M. , 209 S.W .3 d 105, 10 8 (Tex. 20 06) ( per cur i am)

. B. Predic ate termination ground s The tr i a l court mad e predicate term i na tion findings that Father had

co mmitted acts es tablishing the grounds set out in subs ections D, E , O , and P of section 161.0 0 1( b)(1), which provide s for te rm ination of pare ntal ri ghts if t he fac t finder finds by clear and con v i ncing evide nc e that the par ent ha s:14

(D) knowingly pl ac e d or knowi ngly allowed the child to remain in conditions or surround ings wh ich enda nger the physica l o r emoti onal well

- being of th e child; (E) enga ged in condu ct o r know ingly placed the child wit h pe r s ons who eng ag ed in conduct whic h endangers the physi ca l or emotio nal well

- bei ng of the child;

. . . ( O ) failed to comply w ith t he provisio ns of a cou rt or der that s pecifically estab lis hed the actions n eces sary for th e paren t to obtain the return of the c h ild who ha s b een in the pe r m anent or temporary managing cons ervatorship of th e Department of Family a nd Protect ive Services for not less th an nine mon th s a s a result of the child’ s r emo val from the pare nt u nder Cha pte r 262 f or the abuse or neglect of the c hild ; [ or ] (P ) used a contr olled substance, as defined b y Chapter 481, Health and Sa fety Code, in a manner that end angered the h eal th or sa fety of the chil d, and: (i ) failed to compl ete a court

- ordered subs tanc e ab use t reatm ent program; or (ii) after comp l etion of a co urt

- ordered su bstance abuse treatment prog r am, continued to abus e a con trolled substance [.] Te x. F am. Code Ann

. § 1 61. 001(b)(1 )(D), (E), ( O ) , (P)

. Only one pr edicate fin di ng u nder secti on 161.001(b )(1) is n eces sary to support a judgmen t of te r mination when there also i s a finding t ha t termination i s in the child’s best interest. See Tex. Fam. Co de Ann. § 161.001 (b ) (1); In re A. V. , 113 S.W.3d 355 , 3 62 (Tex

. 20 03).
1
. F ailu re to comply with court ord er under subse c tion O We first address Father ’ s challenge to the tri a l court ’ s finding by clear and convincing evi dence that he:
failed to comply w ith the provisions of a cou rt order that specifically estab lis he d the actions neces sary for th e pa r ent to obtain the return of15

the ch ild wh o ha s b een in the pe r m anent or temporary managing co n s ervatorship of th e Department of Family a nd Protect ive Services for not less than nine mon th s as a result of the chi l d’ s r emo va l from the parent u nder Cha pte r 26 2 for the abuse or neglect of the c hild [. ] Tex. Fam. Co de Ann. § 161.001(b)(1)( O )

. Father doe s not dispute that: ( 1) his family

- service plan was a “ court order ” for pur poses of subsecti on O ; (2) M a ria

was in the temporar y managing co nservatorship of the De p artment for not less than nine months; a nd (3) M a ria w as remov ed under Family Code chapter 2 6 2 for abuse or neg le ct. See id. In additi on, Father do es not co ntend that he complied with t h e service pla n
. Ind ee d, w e note tha t there is substant ial evidence that he did not, as he failed to complete , at mini mum, drug a nd psychologi cal evaluati ons and r a ndom drug testing

. While there is some do ubt whe ther Fath er completed services while S i mmon s w as the case w or ker, Stewa rt , who wa s assigned the case from July 31, 2019 until trial in January 2020, testifie d that Fa ther had not completed any services a t all during th at time period or maintain ed any contac t with th e Departmen t for at least the la st tw o months of th e case
. Cf

. In re M. C.G. , 329 S.W.3d 674, 676 (Tex. App.

— Houston [14th Dist.] 2010, pet. denied) ( “ The Fa mily Code does not provide for subst a ntial compliance with a family services p lan. ” ).
Inste ad, F a the r argues that the ser vi ce pla n was no t sufficien tly “ spe cific ” under su bsection O because , as a general matter, it did not co ntain deadlines for

co mpletion of tasks. This argument has been rej e cted by at lea st one o f our s ister

cou rt s on the g roun d that, e ven when th e deadlin e f o r completi on of a task is not specifi cally deli neated , a parent could reasonably infer from the proceedings that , at the ve ry least, “ the deadline for complia nce for ea c h requirement would have been prior to t ermination. ” I n re O.R .F. , 417 S.W.3d 24, 4 3 ( T ex. App.

— T exa rkana 2013, pet. denied) (concludi ng a rguments that se rvice plan was16

in sufficient ly specific due to lack of de adlines w as “ wholly without me rit ” ). Moreover , Father ’ s plan included some tasks for whic h deadlines we re either
stat ed or i na p p licable . For ex amp le, the plan instructed Father to cont act his

casew orker monthly , yet the evidence showed th at the Department had not h ad any contact with h im at least sin c e November 7, 2019, more than two m onths be for e trial

. Li kewise, the service p la n required Father to submit to “ random ” drug testing. See id. (expl aining there could be “ no date certain ” for random drug testing ). Stewar t tes ti fi ed that the Bryan c ase wor ker instructed Father to attend d rug testing
at least t wice, but he did not go
. We reject Father ’ s a rgu ment that the evidence w as legally and factually insufficient to support the trial court ’ s subsection O findin g due to a l ack of deadlines in the service pl an
. 10 Father next argues the subsection O finding should be reversed because he prov ed his affirma tiv e defense that he was un ab le to co m plete the plan : (d) A court may not o rder termination under Subsectio n (b)(1)( O ) based on the fail ure by the parent to comply with a specific provision of a court order if a parent proves by a preponderance of evidence th at: (1) the parent was u na ble t o c o m ply with specific provisio n s of the court order; and (2) the parent made a good faith effort to c omply with the order and the failure to comply with the order is not attributable to

10 Throughout his treatment of s ubsection O , Fa ther also argues that the se rvice plan was not pr ese n ted to h im in a language he co uld understa nd, or made otherwise available , as required by Family Code section 2 63.10 2. See Tex . F a m . Code Ann. § 263.102 . We construe this as an argument su pporting his su bsection (d) defense, and not a s a separate due

- proce ss chall en ge, as Fa ther has not argue d in the t rial cour t or in this cour t that the Department vi olated his due

- p rocess rights by failing to c omply with section 263.102. See Tex. R. App. P . 33.1(a). Likewise, wh ile Father argues in his brie f th at the Depar tment fa iled to com p ly with the Ame ricans with Disa bilities Act by failing to accomm odate his “ intellect ual disab il itie s ” in c on j u nct ion with his se r vice plan, he clari fies in his r e p ly th at th is argument is for illustrative purposes only, and th at he does not see k relief un d er the A D A. See g enerally 4 2 U .S. C

. § § 12101

– 12213 ( 2018).17 any f ault of the parent.
Tex . Fam. Cod e Ann. § 161.001( d). The t rial cou r t fo und that Father failed t o prov e t his def

ense by a p reponderance of the evi dence. Regarding the first pro ng of his subsect ion (d) defense, Father argues that he was unable to understand the service plan, and accordi ngl y was unabl e t o c ompl y

w it h it, be c aus e he cannot read due to h is intel l ectual disabilities. 11 While t he statute requires the parent to prove that he could not compl y with “ specific provisions ” of the court order in question , evi dence that a parent canno t r ead a t all

ma y support a b lanke t d e term ination that the parent was unab l e to comply with any part of the court order due to a l ack of compreh ension. See id.
H e re, however, the evidence is no t so cl ear
- cut. Father did not atte nd tri al, leaving us to dep e nd on the testi mon y o f o t he rs

— and som etimes the s econd

- or th i rd

- hand testimony of others

. Stewart testified that she f i rst thought that Father could read to some exten t before later learn in g t hat Father could not read “ at all. ” This, c ombined with the tri al court ’ s pre
- trial fin din g , entered into eviden ce, that Fat h er could not comply with the service plan due to “ intellectual disabilities ” and was to be provided an acc ommodation for services that that “ require any so r t of reading, ” c onstitutes signi ficant ev idence that Father ’ s ina bility to read prevent ed him from c omplying wi th the service plan. By failing to identify specific por tions of the serv ice plan he was unable to comply with, however, Father assume s the b urden to prov e that he could not comply wi th the service plan a t a ll because of his lack of compre hensi o n 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 pro v e

11 W hile Father asserts that he cannot re ad due to his inte llect ual disabilities, the record does not contain evidence cl a r ifyin g the precise natu re o f his disabilities

.18

subs ection (d) defense as to a ll po ssible groun ds sup por tin g trial co ur t ’ s j u d g m en t). We note some evi dence in the record conflicting with such a conclusion, including Aunt ’ s testimony that she had seen Father “ maybe reading things on his p hone ” as well as the trial court ’ s pre
- trial f in din g that Fathe r “ has re vie wed and un d erstands the service pl a n
. ” Moreover , Fathe r does not ex plain h ow h is inability to read prevented hi m from complet ing tasks such as maintaining contact with the Depart ment ( the evidence show s he contacted Stewart by ph one at least on ce, so he

wa s aware of h ow to d o so ), attendin g family visits ( which he did at least once ), or submitting to random drug screening, particularly in light o f Aunt ’ s testimony that Father was “ refusing to take certain drug tests at certain tim es ” and “ refus ing to do his pl a ns that h e needs to do. ” See i d.
In addition , to prov e his defense Father must also show that he made a goo d

- faith effort to comply wit h the servi ce plan

. Tex . Fam. Code Ann. § 161.001( d ). Father ’ s only evidence th at he a ttem pted to comply wi th the ser vi c e plan i s Stewart ’ s test i mony that Father ’ s grandfather called Stewart in an at te mpt to “ assist ” Father. The evidence is not clear, however, that G randfather did so at Father ’ s behest , so eve n this testimony does not nec e s sari ly refle ct Fat her ’ s good

fa ith eff o rts to c omply

. In a d dition , t here is evidence that Father took action inco ns istent with making any effort to compl y w ith the serv ice plan , including repeatedly failing to return calls fr om his cas eworker s for the fina l si x months of th e c ase
. When Aun t wa s asked whether Fat h e r wanted to work the services requ ired by the family

- se rv ice plan, she testified that Father “ never really seemed to worry about the plan about what he was supposed t o do , ” in addition to her testi mony that Fa ther w as “ refusing ” to tak e drug tests or othe r wise att empt ing to complete required services

. This evidence supports a finding that Father did no t make a good

- faith effort to comp ly with the service pl an as required by subsection19

(b). See i d.
O ur r ev iew of th e record indicat es that the Departmen t succeeded in proving by clear and con v in cing evidence that F ather failed to comp ly with the court

ordered service plan under su bsection O and that Father failed to prov e his subsection (d) affirmative d efen se by a p re ponderance of th e e vidence. We accord i ngly overrule Father ’ s challenge to the trial court ’ s sub section O finding. Having d etermined that one predicate ground fo r termination supports the trial court ’ s termination ord er, we need not a d dress Fath er ’ s argume nts concerning p red icate gro und P

. Se e In re A.V. , 113 S.W.3d at 362

. Due process re qui re s, h owev er, tha t when a pa re nt has raised the issue of insufficiency of the evidence to supp ort the jury’s findings un d er Fami ly C ode sect i on 161.001(b) (1)( D) o r (E), an appellate cou rt must addres s those endangerm ent find ing s to ensure a meani ngf ul app eal due to the col lateral consequences of a fin ding un der th o se subsections

. In

re N.G. , 577 S .W .3d at 23 7

. D ue
- p ro cess and due

- course
- of

- law requirement s also mandat e tha t a n appellate co urt det ail its ana lysis for an appeal of t ermi nation of p arental rig ht s under Family Cod e section 161.001(b)(1)(D) or (E). I d

. Acco rdingly, we proceed to the trial cour t ’ s endangerment finding s under sectio n 161.00 1(b)(1) ( D ) an d ( E)

. See Tex. Fam. Co de A nn. § 161.001 (b ) (1)

. 2
. En dan g ermen t u nder sub sect ion D “To endanger” means to expose a child to l os s or injury or to j eopar di z e a ch ild’s emotional or phys ica l health. S e e In re M.C. , 917 S.W.2d 26 8 , 26 9 (Tex. 19 96 ) (per curiam) ; In re S .R. , 452 S.W .3d 35 1, 3 60 (Tex. App

. — H oust on [14th Dis t.] 2014, pet. denied). Endangerment under subsection D is establis hed by evidence relate d t o the child ’ s “ conditions or surroundings

. ” Tex. Fam

. C o de Ann. § 161. 00 1( b)(1)( D) . Ana lysis of the ch ild ’ s conditions or surroun d in g s may in cl ude evidence of the ac ceptability of living conditions, parental conduct in the home ,20

and other issues c oncer n ing the c hild ’ s enviro nment

. See In re S .R. , 4 5 2 S.W .3d at 3 60

. A child i s en danger ed when th e environmen t cre ates a potential for d ang er that the parent is aware of bu t consciously disregards. See i d

. Inappropriate, abusive, or unl awful conduct by a pare n t or othe r persons who live in the child ’ s hom e can create an environment t ha t enda ngers the physical and emotional well

- being of a chi ld as requi red for termination un der subsection D. See i d

. I n evaluating endangerment under subsection D, we consid er th e child's environment before the Department obt a ined custody of the child. I d.
The D epartme nt first addres ses parental drug use as gr oun ds for enda ngerment . The evidence of drug use before removal sho w s that the Dep ar tmen t received a referral stati n g that F ather was “ on drugs. ” Father test ed negative f

o r tested substances on an oral swa b given by inv estigator Archibald during her initia l h ome visit . Father also tested n egative o n a urine

- dr u g screen he took after Maria wa s a dmi tted to the h ospital b u t before the Depa rtment removed M a ri a. How ever, Father refused a hair

- follicle test at th at time , admitting t o th e CPS worker wh o drove him to the test and to A rchibald that, had he taken the test, h e would have test ed positi v e for methamphetamine and mar i ju ana. T he eviden ce also shows that Mother, who lived w ith Father and Ma ri a, admitted to using methamphetamine be fore M aria ’ s birth and test ed positiv e for methamphetamine and amphet amine on a hair

- follic l e test . Finally, M ar ia herself tested posi t ive for

co caine and metha mphetamine at the h ospital.
Our court recently clarified that a showin g that a parent used illeg al drugs is not, on its o wn , s uffici ent evidence of en dang erment, and that ther e m ust be a show ing of a caus al connection between the p arent ’ s dr ug use and enda ngerment of the chi ld. In re L.C.L. , 5 99 S.W.3d at 84

– 86

. Wh ile Fat her admit ted that he use d
met hamphetamine, which Ma ria l ater tested positive for, as well as m ariju an a,21

there is no evid ence as t o when , ho w often , or where Father us e d these su bstances

. I t is entir ely possible that F ather used these substances out side of the h ome (or otherwise awa y f

rom M aria), or before M a ria ’ s birth, under which c i rcumstances i t is d if ficult to determin e how Fath er ’ s drug use caused an en dangering e n viron ment for Maria. See id.
Th e Department also points to evidence that Mother used drug s, t esting posi tive for me tha mphe tamine and admitt ing to using the d rug before Maria was born

. However, th ere is no evid ence in t he r e cord showing that Father kn ew th a t Mother u sed methamphetamine o r any o ther d rug until a fter Maria was al ready in the hosp ital , and accordingly this ev idence does not support a f inding of endangerment under subsecti o n D

. See Tex . Fam. Code An n. § 16 1. 001(b)(1 )(D) (requiring that parent “ k nowi ngly ” allowed child to rema in in endange ring condi tions).
We tu rn to the Depar t m ent ’ s oth er arguments concernin g e ndangerment under sub sectio n D

. The Depar tment point s to evidenc e that Aunt described the h ome wheth er Father and Mother lived with M a ria as “ unliva b le , ” testifying that Father and M other did not wash dis hes, do laun dry, or fee d M a ria in a timel y
manne r. A unt, however, also tes tifie d th at, despite her description of th e s e

con di tions, she “ didn ’ t know tha t [M a ria] was in any danger or anythi n g like tha t

. ” Mo reover, Archiba l d did not no te any such concerns during her investigatory vi sit to the family home , de s p ite detailing that she wa s concerned abou t the presence of pil l ows a nd blankets in M a ria ’ s play y a rd.
Aunt also tes tified that she was c oncern ed t h at F ather and Mother lacked

a dequ ate parenting skills, though she al so te stifi ed she “ thought that was norm al because they were new pa rents

. ” Archibal d noted in her affida v it that Father did22

not hol d M a ria p roperly. 12 Reviewing this evidence in t he light m ost f avorable to the trial co urt ’ s ruling, there is legally

- s ufficient evide nce t o support the finding of en dangerment under subsection ( D ) , and accordingly we overrule Father ’ s issue in th at regard

. Viewed in a neutral l ight, how e ver, t he evid e nce is fact ually in sufficient

. With regard to Father ’ s drug use, while th er e is evidence th at Father used methamphetami ne and that M a ria tested po sitiv e for methamphetamine, there is no evidence linking Father ’ s drug use to M a ria ’ s p os i tive test or o therwise su ggesti ng that Father ’ s drug use created en dangering co nditions or surr oundings for M a ria , particularly as there is no evi dence in the record concerning where or in what

ma nner Father used ille gal dr u gs
. Se e In re L.C. L

. , 599 S.W.3d at 84

– 86

. Likewise, there is n o e vidence that Father was aware of M other ’ s methamph etamine use before Maria ’ s b i rth

. See Tex . Fam. Code An n. § 16 1.001(b)(1 )(D)

. Inde ed, t he evidence that Mother use d drugs n ot only fails to s upport the inferenc e that Father know ingly allowed Maria to remai n in endang er ing conditions, it also pr ovides an al ter nate basis for inferring how i llegal d rugs entered Mar ia ’ s system. Cf

. City of Keller v. Wilson , 168 S.W.3d 802, 81 4 ( Tex. 2 005) ( “ [W] hen the circumstantial evid e nce of a vital fact is meager, a reviewi ng co urt must consider not just favorab le but all the circumstantial evidence, and c ompeting inferences as wel l. ” ). The evidence con cerning M a ria ’ s living envi ronment an d Father ’ s parenting skills is conflicting and scant, and likewise fails to p ro vide a f actua lly

- sufficient ba sis to

con clude b y clear and con vincing evidence that Father knowingly pl aced or knowi ng ly allowed Maria to re main in conditions or surround ings th at endang er ed her physical o r emotional well

- b e ing

. See Tex . Fam. Code Ann.

12 The De partment al so notes in its argument on enda ngerment that M a r i a was admitted to the hospit al with b lee ding in her brain, but co ncedes that there is no evidence that Father ca used M ari a ’ s inj ury
.23

§ 161.001( b)(1)( D ). We sustain F ather ’ s chal le nge to the factual sufficiency of the evidence s upporting the trial court ’ s fin ding of endangerme nt under subsection D

. 3
. En dan g erme n t under subsection E A find ing of endangermen t under subsect io n E requires evidence t hat the endangerment w as the result of th e p arent’s cond uct, including acts, omissio n s, or f ailures to act. In r e S.R. , 452 S.W.3d at 3 60

. Termination under subsection E must be b ased on more than a single act or omi s sion; the stat ut e requires a voluntary, delibe rate, and consc ious course of cond u ct by the pare nt. Id. A trial court proper l y may c onsider actions and inactions occurring bo th before and after a child’s birth and befor e and after r emoval to establish a co u rse of conduct

. I d. at 360

– 61.

“ While e ndanger ment often invo lves physical endan g er ment, the st atute does not require that c onduc t be directed at a chi ld or that the child a ctually suffer s injury ; rather, the specific danger to the child ’s well

- being may b e inferred fro m parent s ’ misconduct alo ne. ” Id

. at 360 (citin g T ex. Dep’t of Hum a n Servs. v. Bo yd , 727 S.W.2d 531, 533 (Tex

. 1987 ) )

. A parent’s conduct that subjects a child to a life of uncertainty and in stab ility end angers the ch ild ’s physical and emoti o nal well

- being

. I

d

. In addition to pre
- removal evidence discu ssed regarding subs e ct ion D, we

co nsider the following post

- re m oval evidence . There is som e evidence that F ather used i llegal drugs after M a ria was remov ed

. Aunt testified that Father was “ on

me t h ” and that he attended a rehabilitatio n facil i ty for drug us e, but that he left th e facili ty a fter on e day

. However, Aunt d id not testify regarding th e frequency or severit y of Father ’ s drug use or the details o f his rehabilitatio n program
. The Dep a rtment also points to evidence that Fa ther failed to complet e his
court

- ordered se rvic e plan an d failed to visit M a ria for m ore than seven months b efore tria l. Re ga rding the servi ce plan, Stewart testified tha t Fat her had failed to24

com plete dru g
- and

- alcoh o l assessment , a psychological evalua tion, or individ ual th era py, f

ailed to submit to d ru g testi ng as directed, an d “ complete d no other servi ce or made an att empt to schedule any o ther services

. ” Stewart also t esti fied, howev er, tha t Si mmons, the ca seworke r until approximately April 2019, was “ not doing wha t she w as supposed to do as far as visiting childre n, document a ti on , ” such t hat it was “ ve ry possible ” th a t there wer e “ things s aid and done by the parents or the case worker that are n ot documented becaus e [Simmons] had a problem with docume ntation

. ”
Moreov er, as discussed above , t here was evi dence i n the record that F ather cannot read, incl u ding Stewart ’ s tes timony of her understa nding that Father cannot read “ at all , ” Aunt ’ s t es timony of her understandin g that Father “ does n ot understand a l o t of what he r ead s , ” and the trial cour t ’ s pre
- t rial finding that Father

was unable to complete the se r vice plan due to “ intellectua l disabil ities ” and was to be allo wed to b ring a second per son with him to any servi c e th at required “ any sort of reading. ” T he substantia l e vidence that Father wa s unable to read, and that this

a ffect ed his ability to c omply with the service plan at least to some extent , u ndermines the Department ’ s argument that Father en dangered Maria by failin g to

co mply with the plan.
Likew i s e, r e garding family visits, Stewart te stified that th e last recorded visit was in May 2019, and the re had been no vis i ts since she took ove r the case on July 31 , 2019 , but also testified she would not be surp r ised if there were additi onal family v isits t h at were not document ed

. Indeed, C A SA super visor Rodrique z testified that CAS A records showed th ree family visit s, on e i n November 2018, and t wo in May 2019

. Nonetheless, the evidence shows that Father did not visit Mar ia, or req uest a visit w i th Maria, fr o m the ti me that Stewart took o ver the case on July 31, 2 019 though the t rial on December 14, 20 20 , although the D e partment25

cannot say for su re ho w many visits occurre d before tha t time

. Regarding parenting ski lls, Stew art te stified t hat the one post

- remov a l family visit in the Department ’ s record s was “ really good, ” that Father “ en gaged ” with M a ria

. Rodriquez testifi ed that the CASA report sho wed reflected that Father

was “ affectionate ” and “ caring ” when visiti ng Maria, and t hat he sh owed Mo ther h ow to pro p erly hol d M a ria based on the ins truct ions he had recei ved.
Th e D epartment also points to evide n ce that F a ther di d not att end trial du e to a warrant for his arres t as evidence of F ather ’ s en dangering conduct

. While cri minal violation s and incarceration ar e not eno ugh to show endangermen t by themse lves, they can be evidence of endangerment if shown t o be part o f a cou rse of conduct that is enda ngering to the child. See Boyd , 727 S.W.2d at 533

– 34 . H e re, h owever, the recor d does not refl ect that Father was ever co n vic ted or incar cer ated for this alleg ed transgression , nor does it show an y o ther criminal hist ory for Fa t he r. Viewed in the light most f av orable to t he trial court ’ s finding, we conclude there is le gal ly

- suffic ient evi dence that Father en dangere d M a ria under subsection E and overrule Father ’ s issue in that re gard

. Viewing the evidence in a neut ra l light, howev er, we again reach a differe nt conc l usion

. Consi dering both pre

- and post

- removal evi dence, th e record shows that Father used methamphet amine bot h be fo re and after M a ria ’ s remova l . H owe ver, as discussed above in subsection D, there is no evid ence concernin g the when , where , or to wha t exten t Father used illegal drugs , a n d n o evidence of a c a u s a l c o n n e c t i o n between Father ’ s drug use

an d endangerment to M a ria

. See In re L.C.L. , 59 9 S.W.3d at 84

– 86

. Regarding service

- plan complia nce , w hile there is evidence th at Father took li ttl e actio n to complete the plan, there is the looming question of to what exten t his dif ficult y reading prevented his compliance

. F urthe r, the evidence shows tha t the Dep artment26

d oe s not know what services Father completed, giv en casew ork er Si mmons ’ s issues with do c umentation. While the evidence shows that Father did no t contact Stew art durin g the la st several months of the case, eit h er to request a family visit o r otherwi se, the record also s hows that Father atten ded at least t hree fam ily visits during the li fe of t he case and that Father was caring and attentive during those visits

. Fi nally, while there is some evidence that Father d id no t attend trial due to fea r o f inca rceration, there is no evidence in the record that Father was convic ted

o f any crime

. B a s ed on t he gaps and conflicts in this evi dence, the t rial court could not have reasonably concluded under a clear and convincing stan dard that Father engaged in condu c t or knowingly placed M a ria wit h pers ons who eng aged in conduct that e ndanger e d Maria ’ s ph ysi cal or emotio na l well

- bei ng
. Tex. Fam. Code Ann. § 161.001(b)(1)( E). We s ustain Father ’ s factual

- sufficiency challenge to the tri al cou rt ’ s finding of en dangerment unde r su b section E. As we have determined that at least one pred ica te gro und for terminat ion is

su ppo rted by lega lly

- and factuall y
- sufficien t evi dence, we proceed to Father ’ s challenge to th e trial court ’ s finding that te rmination of his parenta l rights w as in M a ria ’ s best interest

. See Tex. Fam. Co de Ann. § 161.001 (b ) (1)

. C
. B e s t i n t e r e s t o f t h e c h i l d
1
. L e gal standard Father cha lleng e s t he leg al and fac tual s ufficiency of the evidenc e to suppor t the trial co u rt ’s f

inding t hat termination of his pa r enta l rights is in the best interest of M a ria

. See Tex. Fam. Code Ann. § 1 61.001(b)(2)

. The r e i s a s tr on g presumption that the best in teres t o f the chil dren i s served by k eepi n g the children wit h their

n atu ra l paren t s
. In r e R .R

. , 209 S.W.3d 112, 116 (Tex

. 200 6) (p er curiam) (citing27

Tex. Fam . Code Ann. § 1 53.131(b)) ; In re D.R.A

. , 374 S.W.3 d at 5 33. Howe ve r, p rompt and permanent placem en t of the child ren in a s afe environ ment i s a lso presumed to be in the ch il dren’ s b es t int ere st

. In re S.R. , 452 S.W.3d at 366 (c iti ng Tex. Fam. Code Ann. § 26 3.307(a) )

. Proo f of acts or omissions under sectio n 161

. 001(b)(1 ) is probat ive of the issue of t he chil dre n ’s best i nteres t. See id. The

co n siderations th at t he factfi nde r may use to dete rmi ne the best interest of the

c h ild r en , k nown as the Holley factors, include: (1) t he desires of the child ; (2) the p r ese nt and futu r e physical and emotional nee ds of the chi l d ; (3) th e present a nd fut ure phy sical and em ot ional danger to the child ; ( 4) the p ar ental abilities of the pers o n se ek ing custody; (5) the programs a vailable to as s ist th e person seeking cu st ody in promo ting t he be st interest of the ch ild ren ; (6 ) the pla n s for the child by t he individual s or a gency se eking custody ; ( 7) th e s ta bi lity of th e home or proposed placem en t ; (8 ) acts or omissions of the paren t that may in di cate the existing paren t

- chil d rela tions h ip is no t appropriate; and ( 9) any exc use for t h e p are nt ’ s acts o r omis sions. See H o lley v . Adams , 544 S .W.2d 3 67, 371

– 72 (T ex . 1976); s ee also Tex. Fam. Code An n. § 26 3. 307(b) (listing factors to be consider e d in e valuating “whether
t h e c hild’ s pare nts a re willi n g and able to p rovide t h e c hild wi th a s af e environment ” ) . A be st

- interest f inding does no t require pro of of an y u ni qu e set of f actors or limit p r oof to any specific factors. See Hol ley , 544 S.W. 2d at 371

– 72

. In re viewin g the lega l and f actual su fficiency of the evidence to suppo rt th e t r ial court’s fi nding on best inter est, w e are mi ndful that th e f ocus in a be st

- interes t analysis is not only on t h e pa re nt’s acts or omissions, but also on the nature o f the28

rel ation ship the ch ild ren hav e with the paren t. See In re E.N.C. , 384 S.W.3d 796, 8 08 (T e x. 2012).
2
. S ufficiency of the evi dence We begin by addressing collectively the desires of the child, her present a nd fut ure physical and emotional ne ed s, the stabili ty o f the home or p roposed placement , an d the pla ns for the ch ild by the individuals or a ge n cy seeking
custo dy. Regarding the desire s of th e child, M a ri a was removed when she wa s appro ximately four

- weeks o ld and was one
- year old a t time of trial

. When children are too young t o express their desi res, the fac tfin d er may cons ider t hat the children h ave bo nded wi th the fo ster paren ts, are wel l ca red fo r by th e foster paren ts, and hav e spent minimal time with a par ent

. In re L.G.R. , 498 S.W.3 d 19 5, 205 (Tex. App.

— Houston [14th Dis t .] 2016, pet. denied ). H e re, the evi dence r eflec ts that Maria wa s place d w ith Aunt and Uncle and was doing well, with n o special med i c al needs. Al though Mari a was placed with Aunt an d U n cl e o nly two weeks befor e trial, A unt testified that she was calling Aunt and Uncle “ Mama ” and

“ Dad a ” and their son “ Brother, ” was saying nin e or ten wor ds, and was ea ting and sleeping well . Aunt testif ied that Maria was attend ing the same day care as her so n

a nd was doing “ great ” with the transition , and that she planned t o s end Maria to the

s ame schoo l h er s on atte nded for kinderg arten

. Aunt t estified that both she and Un cle worked a nd tha t they h ad ad ditional incom e left o ver each month after their

e xpe nse s w ere pai d. Aunt test ified that she and Uncle would “ love ” to adop t M a ria.
CASA supervi sor Rodri que z t estified that she was concer ned abou t how Maria would handle the tran sition from fo s ter care to A unt and Uncle ’ s home, but that Maria was doing “ re all y w ell

. ” She related that , although Maria had been a

“ difficult ” child in pr io r placements, the CAS A ad vocate who visited M a ria after her plac e ment with Aunt and Un cle stated that M a ri a was a “ completely differen t29

chi ld. She ’ s h appy. She ’ s thriving, wal kin g, tal king mo re, friendli er, just

c ompletely different. It ’ s real l y in teresting and wonderf ul. ”
Fath er did not testify at trial, and there was no evidence as to his plans for Mari a, his empl oyment status , or his habit ation

. Aunt testified that , after M a ria ’ s

rem oval , Father indica ted to her his desire to surrender his parent al rights to Maria

so that Aun t a nd Un cle could take care of her

. Rodriq u ez testif ied that the CASA advocate assigned to the case had described Fat her as “ aff ectionate ” and a “ loving,

ca rin g f ather

. ” While Archi bald had c once rns that Father d id not hold M a ria properly durin g h er invest iga tion , Rodriquez testified that Father l a ter learned how to pro p erly hold M a ria and was instruct ing M other as to how to do so. Although Father particip ate d i n a t least three family visits, the last recorded visit was in May 2019, when M a ria was less than a year ol d.
We next co nsider evidence of p resent and future physical and emotional danger to M a ria a nd acts or omissions of the parent that may i ndicate the exis tin g paren t

- child relationship is n ot appropriate . Alth o ugh we d etermined above that

e vi dence con cerning Father ’ s conduct was factually insufficient to support a finding o f en dangerment under subsections D or E, we reconsider that e vidence for best

- inter est purpos es. See In re S.R. , 452 S.W.3d at 366

. The evidence sh ows that Father used methamp het amin e both be fore and after M a ria ’ s removal , tho ugh there is no evidence of how often or how much. Father also lied about his drug use on

m ultiple o ccasions and asked Aun t to take c usto dy of M a ria only to ret urn h e r to Father ’ s ca re. There is also evid ence tha t Fath er did not complete the court

- ordered services assigned to him

. Father argues , under the fa c tor concerning any exc use for the parent ’ s acts or omissions, that h e could not complete his se r vice pl an becau s e he cannot read . We agree th at the ev iden ce t h at F a the r cannot read weigh s against a conclusion that not30

compl e ting his service plan s hould be held against him in the best

- interest analysis. The vast ma

jority of the remaining evidence , however, s upports t he trial court ’ s finding that terminat ion o f F ather ’ s p arental rights is in Maria ’ s best interest, including the evidence of the st abil ity of M a ria ’ s placement, M a ria ’ s prog ress in that p lacement, Aunt a nd Uncle ’ s intention to adopt M a ria, and the compara t ive dearth of evidence regard ing Fathe r ’ s reso urces and plans for taking care of M a ri a. S ee In re L.M. , 572 S.W.3d 823, 838 (Tex. App.

— Houston [14th Dist.] 2019, no pet.) ( “ [T ] he trial court reas on ably could have formed a firm be lief or convict i on that terminating Father’s parental rights was in the c hild’s be st interest so that she could promptly achieve permanency through adoption

. ” )

. M oreover, Father ’ s la ck of reading ability doe s not excuse hi s continued drug u se or his not taking basic
st e p s , such as return ing calls to his ca se w orker and making a good

- fait h effort to complete assigne d services , consistent with returning M a r ia to his c are. See id. at 83 7

– 3 8 (hol ding that court “ may conside r whether a parent demo n strated wi llingness to effect p os itive environmental and per sonal cha nges within a

reaso nable amo unt of time. ” ).
Our review of the Holley factors indicates that the t rial court ’ s fi nding by clear and convincing evidence that termina ti on of Father ’ s parent al rig hts i s in Maria ’ s best in t er est is support ed by legally

- and fact ually

- sufficient e vidence , a nd accordingly we overrule Father ’ s i ssue in this regard

. S ee Te x . Fam. Code Ann

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

– 72

. We sustain Father ’ s first is sue with regard to his challenge t o the factual sufficiency of the trial court ’ s finding s c oncerni ng pr edi cate grounds D and E. W e
overr ule the remain ing challenges in Father ’ s first issue.31

D
. Conser vatorship
In his second issue, Father challenges th e tri al court ’s a pp oin tment of th e Depa rtment as Maria ’s p ermanent managing conservator. We r ev i ew a tr ial court ’ s appointmen t of a no n
- parent as sole managing conservator for abuse of discr etion and rever se only if we determine the appointment is arbitrar y or unreasonable. In re J.A.J. , 243 S. W.3d 611, 616 (Tex. 2007). When, as here, an appellant c h allenge s the legal and factua l suffici e ncy of the evidence in a case where the proper
st andard is abuse of di scretion, we engage in a two

- pronged analysis: (1) w heth er the trial court had suffi cient information upon which to exercise its discretion and (2 ) whethe r the trial court erre d in its application of discretion. In re J.J.G. , 540 S.W. 3d 44, 55 (Tex. App.

— H ouston [1st Dist.] 2017, no pet.). Family Co d e section 1 61.207, entitled “App ointment of M anaging Conservator on Termination,” provides: “ If the c o urt ter minates the parent

- chi ld relati onship with respect to both parents or to t he only living parent, the c ourt shall appoint a suitable, competent adult, the Depa rtment of Family and Protective Se rvices, or a licensed child

- placing agency as ma naging c o nservat or of the child. ” Tex. Fam. Cod e Ann. § 161.207(a)

. The trial court ’ s appointment of the Department as sole managing c o nservator may be considered a “c onseque nce of the termination pursuant to Family Code section 161.207.” In re A.S. , 2 61 S.W.3d 76 , 92 (Te x. App.

— Hous ton [14th Dist.] 20 08, pet. denied) . Hav ing concluded the evidence is sufficient to support t he termination of Fa t her ’ s parental rights , we conclu de the trial court had sufficient inf ormation on which to exercise its discretion, and d id no t abuse its discretion in appo inting th e Department as sole

ma nag ing conservator of Maria

. See In re L.G.R. , 4 98 S.W.3d at 207 ( f inding no abuse of discretion in cons ervatorship finding in which evide nce was sufficient to support termination of parent al ri g hts). W e overrule Father ’ s se cond issu e.32 III. R ESPONSE TO D ISSENT The dissent begins with a strawman parade

- of

- hor r ible s argument that the
court is trying to enable bad p arenting. This form of argument is often used to deflect attention from the work of d eci ding cases with troubling facts

. On the merits, the dissent acknowledg es that N.G. instructs appellate courts to “review the legal and factual sufficiency of the eviden ce” of D and E predicate termination grounds to satisfy due process

. See In re N.G. , 577 S.W.3d at 239 (emphasis added)

. N onetheless , the dissent suggests that a factual

- sufficiency review is unnecessary in this case

. This c ourt and other s , however, r outi nely 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 eve n wh en there is legal ly

- sufficient evidence. See, e.g. , In re A.J.A.R. , No. 14

- 20

- 00084

- CV, 2020 WL 426034 3, at *7

– 9 (T ex. App.

— Houston [14th Dist.] July 24, 2020, no pet. h.) (mem. op.) (Wise, J., majority) (reversing best

- interest finding on factual, but not legal, sufficien cy and remanding case for further proceedings ). The dissent states that A.J.A.R. is d istinguishabl e 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 ulti mate result of an appeal should dictate the standard o f review applied by this court

. I nstead , the dissent appeals to the Supreme Court of Texas to follow the C ourt of Crimi nal Appeals and further nullify the factual

- conclusivit y clause in Texas Constituti on article V, section 6

. While there is no question that such a nullification would m ake our work easier, that is not a legitimate legal rationale for33

limiting our review

. The dissent also disagrees with our remand for a new tri al becau se “[t]he result of such a new trial will have no impact on Father’s parental rights to [Maria].” That is an unquestio nably true statement. It is also irrelevant.
The essential h olding of N.G. is that affirmative finding s 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. , 57 7 S.W.3d at 23 7 ; see Tex. Fam. Code Ann. § 161.001(b)(1)( M). While following the holding of N.G. does not affect Fathe r’s p arental rights to Maria , it does protect Father’s due

- pro cess rights

. IV. C ONCLUSION
We concl ude that the evidenc e is factuall y i n su ffi ci ent t o suppo rt t he t ri a l
court ’ s findings , by clear and convincing evidence , that Father : 7.2.1

. knowingly pl aced or knowi ngly allowed the child to re m ain in conditions or surroun d ings whic h endanger the physica l o r emotional well

- bein g of th e chi ld , purs uant to § 1 61.001(b) (1 ) (D), Texas Family Code ; [and] 7. 2.2. engaged in condu ct or knowingly pl aced the child wit h per s ons who eng aged in conduct whic h endangers the physi cal or em o tio nal we ll

- bei ng of the child , pursuant to § 1 61.001(b)(1)( E ), Tex as Famil y Cod e [.]
T he remed y for a successful factual

- su f fic iency chall enge is a new t rial

. See Pool v . Ford Motor Co. , 715 S .W.2d 629, 634 (Tex. 1986) . Accordingly, we
reverse the portio n of t he trial court ’ s final order in paragra phs 7.2.1 and 7.2.2 and remand the case to the tria l court for the limited p urpose of a ne w final hearing on predicate gro u nds D and E

. Tex

. Fam

. Cod e Ann

. § 161.001(b)( 1 ) (D) , ( E)

. We34

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

so doing affirm t he termination of Fa ther ’ s parental rights r egarding M a ria

.

/s/ Cha r les A. Spai n J ustice
Pa nel consis ts of Justices Wis e , Bourliot , and Spain (Wise, J. , dissenting)

.