TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00054-CV

A. B., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 433RD DISTRICT COURT OF COMAL COUNTY

NO. C2022-0467D, THE HONORABLE MELISSA MCCLENAHAN, JUDGE PRESIDING

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

A.B. (Mother) appeals the final judgment, rendered after a bench trial, terminating 

her parental rights to T.A.B. (Child).1 In a sole appellate issue, she challenges the legal and factual 

sufficiency of the evidence to support the finding that terminating her rights was in Child’s best 

interest. See Tex. Fam. Code § 161.001(b)(2). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Child was five years old at the time of trial in November and December 2022 and 

by then had been living continuously with Mother’s parents (Grandparents) for about eight months.

Grandparents’ home also included Child’s older sister (Older Sister), whom Grandparents adopted 

1

 The same judgment terminated Child’s father’s parental rights, but the father has not 

appealed.
2

about eight years before trial after Mother relinquished her parental rights to Older Sister. Child

was 11 years old at the time of trial and saw Grandparents as her mother and father.

Mother has a long history of drug abuse and has been in and out of rehabilitation 

programs several times. This suit began soon after Mother was arrested in March 2022 for 

possession of narcotics when she was stopped while driving with Child in the car with her. In the 

past, the Department had temporarily removed Child from Mother, including after Mother tested 

positive for methamphetamine while pregnant with Child. After this arrest for possession, the 

Department petitioned for termination of Mother’s parental rights to Child. The witnesses at the 

bench trial were law-enforcement officers, Older Sister, Mother’s mother (Grandmother), and a 

Department caseworker. The court admitted drug-test exhibits offered by the Department. Child’s 

guardian ad litem and attorney ad litem both aligned with the Department in recommending

termination of Mother’s parental rights.

After trial, the court found by clear and convincing evidence that terminating 

Mother’s parental rights was in Child’s best interest and that Mother had committed the two 

endangerment statutory predicates for terminating parental rights, reciting in its order that Mother 

had “knowingly placed or knowingly allowed the child to remain in conditions or surroundings

which endanger the physical or emotional well-being of the child” and had “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.” See Tex. Fam. Code § 161.001(b)(1)(D), (E), (2). Mother 

now appeals, challenging only the best-interest finding.
3

APPLICABLE LAW AND STANDARD OF REVIEW

To terminate parental rights, the Department must prove at least one of the statutory 

predicate grounds and, in addition, that termination is in the best interest of the child. See Tex. 

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

must prove both elements by clear and convincing evidence. See Tex. Fam. Code §§ 161.001(b),

.206(a); In re J.F.C., 96 S.W.3d 256, 263 (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 § 101.007; 

accord In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).

Legal-sufficiency review of the evidence regarding termination requires reviewing 

all the evidence in the light most favorable to the finding under attack and considering undisputed 

contrary evidence to decide whether a reasonable factfinder could have formed a firm belief 

or conviction that the finding was true. See In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018). 

“Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding 

against all the evidence favoring the finding.” Id. at 631. “Evidence is factually insufficient if, in 

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

in favor of a finding is so significant that the factfinder could not have formed a firm belief or 

conviction that the finding was true.” Id. When reviewing the evidence, we must “provide due

deference to the decisions of the factfinder, who, having full opportunity to observe witness 

testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses.” 

In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). We may not “effectively second-guess the trial 

court’s resolution of a factual dispute by relying on evidence that is either disputed, or that the court 

could easily have rejected as not credible.” See In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
4

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

C.H., 89 S.W.3d at 26; L.M. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00635-CV, 

2022 WL 1694474, at *11 (Tex. App.—Austin May 27, 2022, no pet.) (mem. op.). “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.” In re C.H., 89 S.W.3d at 26; L.M., 2022 WL 1694474, at *11. “The 

strong presumption that a child’s best interest is served by keeping the child with his or her 

biological parents disappears when confronted with evidence to the contrary.” Aguilar v. Foy, 

No. 03-10-00678-CV, 2012 WL 677497, at *8 (Tex. App.—Austin Mar. 1, 2012, no pet.)

(mem. op.); accord In re T.D.S., No. 13-15-00107-CV, 2015 WL 5110472, at *21 (Tex. App.—

Corpus Christi–Edinburg Aug. 28, 2015, no pet.) (mem. op.); B.B. v. Texas Dep’t of Fam. & 

Protective Servs., 445 S.W.3d 832, 838 (Tex. App.—El Paso 2014, no pet.); In re C.M.C., 

No. 14-12-00186-CV, 2012 WL 3871359, at *5 (Tex. App.—Houston [14th Dist.] Aug. 30, 2012, 

pet. denied) (mem. op.); In re A.I.G., 135 S.W.3d 687, 692 (Tex. App.—San Antonio 2003, 

no pet.).

When reviewing best-interest findings, factors that courts consider include (1) the 

child’s wishes, (2) the child’s emotional and physical needs now and in the future, (3) emotional 

or physical danger to the child now and in the future, (4) the parenting abilities of the parties 

seeking custody, (5) programs available to help those parties, (6) plans for the child by the parties 

seeking custody, (7) the stability of the proposed placement, (8) the parent’s conduct that may 

indicate that the existing parent-child relationship is improper, and (9) any excuses for the 

parent’s conduct. In re J.W., 645 S.W.3d 726, 746 (Tex. 2022). This list of factors is not 

exhaustive, not all of them need to be proven to determine a child’s best interest, and analysis of 
5

a single factor may be adequate in a particular factual context. See M.L. v. Texas Dep’t of Fam. & 

Protective Servs., No. 03-22-00541-CV, 2023 WL 2025710, at *5 (Tex. App.—Austin Feb. 16, 

2023, no pet.) (mem. op.); S.C. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00039-CV, 

2020 WL 3892796, at *16 (Tex. App.—Austin July 10, 2020, no pet.) (mem. op.).

DISCUSSION

Mother’s sole appellate issue attacks the legal and factual sufficiency of the 

evidence to support the trial court’s finding that terminating her parental rights to Child was in 

Child’s best interest. See Tex. Fam. Code § 161.001(b)(2).

Under the first of the best-interest factors—Child’s wishes—children’s love for 

their parents does not outweigh overwhelming evidence showing that the parent has engaged in 

conduct, or placed the child in surroundings, that endangered the child. R.M. v. Texas Dep’t of 

Fam. & Protective Servs., No. 03-21-00342-CV, 2021 WL 5456657, at *5 (Tex. App.—Austin 

Nov. 18, 2021, no pet.) (mem. op.) (citing In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—

Texarkana 2003, no pet.)). “The child’s love of his parents cannot compensate for the lack of an 

opportunity to grow up in a normal and safe way equipped to live a normal, productive, and 

satisfying life.” In re W.S.M., 107 S.W.3d at 773.

While some testimony showed that Child loved Mother, wanted to return to her,

and was bonded with her when the current placement with Grandparents began, other testimony 

showed that Child’s bond with Mother dwindled while Child’s bond with Grandparents grew into 

a close attachment. And still other testimony showed that Child was happy, healthy, and thriving 

in Grandparents’ home. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 

2014, no pet.) (“When children are too young to express their desires, the fact finder may consider 
6

that the children have bonded with the foster family, are well cared for by them, and have 

spent minimal time with a parent.”); accord J.C. v. Texas Dep’t of Fam. & Protective Servs., 

No. 03-22-00583-CV, 2023 WL 2169492, at *5 (Tex. App.—Austin Feb. 23, 2023, no pet.) (mem. 

op.). The evidence under this first factor is thus mixed but, even at best for Mother, is outweighed 

by the evidence of endangerment, see R.M., 2021 WL 5456657, at *5; W.S.M., 107 S.W.3d at 773, 

to which we turn next.

We next address the second, third, fourth, seventh, and eighth best-interest factors. 

The factfinder may infer from a parent’s past endangering conduct that much the same would 

happen again if the child were returned. See D.T. v. Texas Dep’t of Fam. & Protective Servs., 

No. 03-18-00770-CV, 2019 WL 1526429, at *6 (Tex. App.—Austin Apr. 9, 2019, no pet.) (mem. 

op.); In re J.D., 436 S.W.3d at 119. And the unchallenged findings here under the endangerment 

predicates are binding in this appeal and thus can support the best-interest finding. M.V. v. Texas 

Dep’t of Fam. & Protective Servs., No. 03-19-00066-CV, 2019 WL 2518733, at *2 (Tex. App.—

Austin June 19, 2019, pet. denied) (mem. op.); In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.—

Houston [14th Dist.] 2014, pet. denied). Child herself tested positive for methamphetamine when 

she was about four-and-a-half years old, indicating she had been exposed to drugs while in 

Mother’s care.

2

 When her placement with Grandparents began in 2022, Child rarely wanted to 

eat and was so small that Grandmother was concerned and gave her Pediasure for extra nutrition. 

Child lacked an established routine and so had trouble with bedtime.

This evidence of Child’s experiences when she was in Mother’s care, paired with 

extensive evidence of Mother’s long-term drug abuse, supports termination. See J.G. v. Texas 

2

 Father was then incarcerated.
7

Dep’t of Fam. & Protective Servs., No. 03-22-00790-CV, 2023 WL 3634364, at *8 (Tex. App.—

Austin May 25, 2023, no pet. h.) (mem. op.) (explaining that evidence of continued illegal drug 

use by parent, “knowing her parental rights were in jeopardy, supports the conclusion that she is 

not willing or able to provide the child with a safe environment—a primary consideration in 

determining best interest”); S.S. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00695-CV, 

2022 WL 2542007, at *8 (Tex. App.—Austin July 8, 2022, pet. denied) (mem. op.) (holding that

history of drug abuse is relevant in best-interest determination (citing In re C.A.J., 122 S.W.3d 

888, 893 (Tex. App.—Fort Worth 2003, no pet.))). She began abusing marijuana and ecstasy as a 

teenager. She overdosed twice while a teenager and from then into adulthood went through at 

least five behavioral or drug-rehabilitation programs, plus years of counseling from sixth grade 

onward. When Older Sister was one or two years old, Mother was abusing drugs again, resulting 

in the Department’s becoming involved, and she voluntarily relinquished her parental rights to 

Older Sister. Then when Mother was pregnant with Child, Grandmother learned from Mother’s 

doctor that Mother tested positive for methamphetamine during the pregnancy, so the doctor asked 

Grandmother to attend future medical appointments with Mother. Soon after Child was born, 

Mother and Child lived with Grandparents, and Grandmother warned Mother that she would 

report Mother to the Department if she caught her using drugs again. That is what happened—

Grandmother reported Mother after finding ten or more packages of methamphetamine in the home

and noticing contemporaneous changes in Mother’s behavior, including more anger, more secrecy, 

and coming and going at odd hours. In fact, Grandmother testified that Mother often would take 

Child out of the home late at night, when Child should have been sleeping. On another occasion,

Father appeared in front of Grandparents’ home at 2:00 a.m., Grandparents’ son called police, and 

Father was found to have “a lot of drugs on him.” This provided an example of Grandmother’s
8

testimony that the people Mother tends to spend time with abuse drugs, including those who would

be asked to babysit Child if she were returned to Mother’s care. As for Mother’s March 2022 

arrest for possession of narcotics, Comal County law enforcement conducted a traffic stop of 

Mother’s car while Child was a passenger. A search turned up a glass pipe in a backpack,

syringes, and a liquid substance in a sunglasses case. After the substance was field-tested, Mother

was arrested.

In response to her history of drug abuse, Mother was given a ‘family service plan” 

by the Department that required her to submit to frequent, random drug-testing. When the 

Department’s caseworker first met with Mother during the suit, the caseworker told her that missed 

drug tests would be presumed to be positive drug tests. See D.T., 2019 WL 1526429, at *4 (stating 

that missed drug tests can be presumed to be positive). The caseworker also told Mother not to 

dye her hair, suggesting that doing so could interfere with hair-follicle drug-testing. Yet Mother 

missed at least six drug tests in the three months just before trial and dyed her hair at least twice

while this suit was pending. In addition, Mother on at least five occasions during the suit tested 

positive for opiates, methamphetamine, or both. Otherwise, on at least three occasions during the 

suit, including in the weeks before trial, Mother produced negative drug tests.

Beyond the drug-abuse evidence, other evidence set up a contrast between 

Grandparents’ provision for Child’s needs in their home and Mother’s comparative difficulty in 

providing for Child’s needs. See Spurck v. Texas Dep’t of Fam. & Protective Servs., 396 S.W.3d 

205, 223 (Tex. App.—Austin 2013, no pet.) (explaining that factfinder may weigh “the relative 

parenting abilities of the parties seeking custody” when deciding best interest). The record 

contains evidence that Child was doing very well in the placement with Grandparents, including 

by bonding with them and with Older Sister, enjoying stability, and gaining confidence. She is 
9

growing healthier than when she first came into their care. Grandparents have both children in 

counseling and play therapy. Child has told Grandparents that she loves them. She enjoys school. 

She often sings and dances in their home, a home where she has her own room and a yard to 

play in. Grandparents have her in dance classes.

Mother, by contrast, is living in a “sober-living home” on recommendation from

her recent inpatient-treatment provider.3 See In re A.A.B., Nos. 14-16-00855-CV, 14-16-00918-

CV, 2017 WL 1334622, at *9 (Tex. App.—Houston [14th Dist.] Apr. 11, 2017, pet. denied) (mem. 

op.) (parent’s living in Transitional Living Center could be viewed as unstable for child and thus 

as evidence that termination of parental rights is in child’s best interest). Testimony suggested that 

there were no other children in that home but that there were several adults who, like Mother,

needed treatment for drug abuse. To determine what else Mother could provide for Child, the 

Department caseworker asked Mother to supply proof of employment via pay stubs and proof of 

child-support payments. Although she has work through a temp agency, Mother has never given 

the caseworker proof of pay stubs or child-support payments, and she is in fact behind on child 

support. Mother’s plan also required her to attend parenting classes that met a certain curriculum 

requirement, but Mother took online classes that did not meet the requirement. She was also put 

on a waiting list before completing plan-required classes on family-violence prevention because 

she had missed some sessions.

Older Sister’s experiences shed light on Mother’s parenting ability. In her own 

words, Older Sister feels safe with Grandparents and does not want Mother to take either her or 

Child back, even though she cries when Mother leaves. Older Sister worries that Mother might 

3

 Mother has lived in such a facility before, but after leaving began abusing drugs again.
10

not take good care of Child. While Older Sister lived with Mother, Mother would sneak out of the 

home, which hurt the child’s feelings. Mother “never took care of” her. Older Sister even knew 

that Mother took drugs out of sight, which upset the child. After being adopted by Grandparents, 

Older Sister has not seen Mother very much, and when she does, she feels “[h]appy, mad.” She is 

happy that Child now lives with them. Older Sister does not like Mother anymore.

Grandmother testified about Mother’s effects on Older Sister as well. Grandparents 

have let Mother call Older Sister on the phone for years, but the calls have caused harm

because Mother breaks many of her promises to call again or to visit. Grandmother sees the 

promise-breaking as emotionally abusive. Mother’s contact with Older Sister is only sporadic,

leaving the child with “a lot of anger issues” and “a lot of resentment.”

Other testimony favored Mother’s position under these best-interest factors. 

Grandmother admitted that Mother managed to teach Child good behavior, but that was all that 

Grandmother thought Mother had done well in parenting. Mother recently completed drug 

rehabilitation, and Older Sister recently called Mother to thank her for a birthday gift. Mother 

completed parts of her plan, including the “Outreach, Screening, Assessment and Referral”

evaluation, but the caseworker testified that Mother has not yet carried out all the evaluation’s 

recommendations. Mother believes she can achieve sobriety and has passed several drug tests, 

including some not long before trial. All that said, the state of the evidence—including the 

extensive history of drug abuse, its continuing during this suit while Mother’s rights were at stake, 

the unchallenged endangerment-predicate findings, and the deficiencies in Mother’s ability to 

parent Older Sister and Child—makes these best-interest factors point overwhelmingly in favor of 

terminating Mother’s parental rights.
11

Under the fifth, sixth, and ninth best-interest factors, Grandmother testified that she 

and her husband want to adopt Child, keeping her and her sibling in the same home together and 

Child out of the foster-care system. See In re B.H.R., 535 S.W.3d 114, 124 (Tex. App.—Texarkana 

2017, no pet.) (“A fact-finder may consider the consequences of its failure to terminate parental 

rights and that the best interest of the child may be served by termination so that adoption may 

occur rather than the impermanent foster care arrangement that would result if termination were 

to not occur.”); accord D.O. v. Texas Dep’t of Hum. Servs., 851 S.W.2d 351, 358 (Tex. App.—

Austin 1993, no writ), disapproved of on other grounds, J.F.C., 96 S.W.3d at 267 n.39.

Grandmother thinks that returning Child to Mother would be “devastating” and that Child would 

not be safe with her. Mother did not testify, and the record lacks any showing of Mother’s plans 

for Child, except that she will keep working on sobriety and live in the sober-living home. See 

In re K.C., No. 07-18-00282-CV, 2018 WL 6729944, at *5 (Tex. App.—Amarillo Dec. 21, 2018, 

pet. denied) (mem. op.) (because parent “chose not to provide the court any information through 

testimony,” court of appeals was “not informed of matters critical to the best-interest determination 

such as [parent]’s rehabilitation or his plans for family and employment”). Other testimony helped 

explain some of Mother’s personal difficulties—Grandmother testified that Mother was sexually 

assaulted as a 15-year-old. But at best for Mother, the evidence under these final factors either is 

mixed or weighs slightly in favor of termination.

Because of the overwhelming evidence of endangerment, including from the 

history of drug abuse and parenting deficiencies, and evidence of Child’s significant progress 

under Grandparents’ care, the evidence when viewed through the best-interest factors was legally 

and factually sufficient to support the trial court’s best-interest finding. We overrule Mother’s sole 

appellate issue.
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CONCLUSION

Having overruled Mother’s appellate issue, we affirm the trial court’s judgment.

__________________________________________

J. Woodfin Jones, Justice

Before Justices Baker, Smith, and Jones*

Affirmed

Filed: July 11, 2023

*Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment. 

See Tex. Gov’t Code § 74.003(b).