1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-22-00330-CV

____________________

IN THE INTEREST OF E.G.P. 

_______________________________________________________ ______________ 

On Appeal from the County Court at Law No. 3

Montgomery County, Texas

Trial Cause No. 21-10-13621-CV 

________________________________________________________ _____________ 

MEMORANDUM OPINION 

The Court’s opinion and judgment of April 13, 2023, are withdrawn and the 

following are substituted in their place. The motion for rehearing is denied.

Mother and the alleged Father appeal an order terminating their parental rights 

to their child, Eric.1 The trial court found by clear and convincing evidence, statutory 

grounds exist for termination of their parental rights, and termination of Mother’s

and Father’s rights would be in the best interest of Eric. See Tex. Fam. Code. Ann. 

1 To preserve the privacy of the parties, we refer to the Appellants as “Mother” 

and “Father” and the child by a pseudonym to protect their identities. See Tex. Fam. 

Code Ann. § 109.002(d); Tex. R. App. P. 9.8. 
2

§§ 161.001(b)(1)(E), (M), (N), (O), (2), 161.002(b)(1). On appeal, Mother and 

Father raise several issues. We affirm in part and reverse and remand in part. 

I. Background

A. The Affidavit of Removal

The affidavit of removal stated that Mother and Father had other children who

had been removed by the Department in a prior proceeding.

2,3 According to the 

affidavit, Mother gave birth to Eric in September 2021, and Mother and Father were 

hiding the child from the Department. The affidavit stated that the Department had

concerns that Mother was on methamphetamines and that the parents did not have 

any baby supplies for Eric. The Department reported that Mother was observed

running after Father’s vehicle with Eric inside of the vehicle. The child’s maternal 

grandmother reported that she had spoken to both parents, and they insisted that they 

are “clean[.]” The Department contacted both parents and both denied using drugs 

despite testing positive for methamphetamine. Mother and Father stated they would 

comply with drug testing. The Department alleged that Father refused to let the 

Department enter his residence stating, “he wasn’t ready for a home visit.” The 

affidavit quotes the guardian ad litem, alleging the parents have not maintained 

2 The trial court took judicial notice of its file before commencing with the final 

trial.

3 The other children are subject to a separate legal proceeding and are not part of 

this appeal.
3

contact with the guardian ad litem and have not shown up for visitation with their 

other children. The affidavit concluded by stating the parents have not maintained 

contact with the Department or completed drug testing.

B. Trial 

The case was tried in a bench trial on September 7, 2022, and Mother and 

Father did not appear for trial. Before the commencement of trial, Mother’s attorney 

requested a continuance for Mother to complete her family service plan because 

Mother’s attorney represented that Mother had recently completed a 30-day inpatient 

rehabilitation treatment. The trial court stated the case was already continued from 

July 27th to September 7th. In discussing its decision, the trial court noted that

Mother did not appear at hearings in February, May, or at an initial setting for final 

trial in July, although the record shows that Mother did appear for a May 26, 2022,

hearing. Mother’s counsel argued that Mother’s absence was due to her working and 

being dependent on Father for transportation. The trial court denied the Motion for 

Continuance.

1. Alexis McQueen

Alexis McQueen testified she is the current Department caseworker on this 

case, but she explained she has only been the caseworker for two months. McQueen 

stated that the Department requested Eric be removed from his parents because 

“[t]he child was born during the course of the other case and there were concerns 
4

that the parents were using methamphetamines and they had no supplies to care for 

the child’s needs.” According to McQueen, Mother signed a family service plan that 

required her to “complete parenting classes, a psychological evaluation, a drug and 

alcohol assessment, random drug screenings, maintain contact with the Department, 

and stable income and housing.” Mother completed the parenting class, the drug and 

alcohol assessment, and attended a 30-day inpatient treatment recommended after 

her drug and alcohol assessment. McQueen testified that she has never received any 

information that Mother completed the inpatient program other than an unreadable 

intake form, and a discharge form provided by Mother’s attorney which is illegible. 

McQueen confirmed Mother also attended weekly follow-up therapy sessions and 

weekly drug testing as a result of her inpatient therapy. McQueen has not received 

evidence that Mother failed any of those weekly drug tests. Additionally, Mother 

has not provided McQueen any proof of her residence. 

McQueen testified regarding Mother’s and Father’s communication with the 

Department. McQueen believes that the parents are in a relationship and live 

together. During the time that McQueen has been on the case, Mother has 

communicated via email, only, she has not asked about the welfare of her child, and 

she has not visited Eric since May. Father has not maintained contact with the 

Department, and the only contact the Department has with Father is through Mother. 
5

McQueen testified she reached out to both parents three times for visitation and the 

parents did not attend visitation with Eric.

McQueen stated that Father was also ordered per his family service plan to 

complete “parenting classes, a drug and alcohol assessment, a psychological 

evaluation, random drug screenings, maintain contact with the Department, and 

[demonstrate] stable income and housing.” Father completed the parenting class, the 

drug and alcohol assessment, and the psychosocial assessment. Father has not

allowed the Department to assess his home. McQueen agreed that it is impossible 

for the Department to recommend returning Eric to a home that it has never visited.

McQueen testified that Eric has been in foster care since October 2021 and he 

is happy and “doing great.” According to McQueen, the foster parents are meeting 

all Eric’s needs and want to adopt him if the parents’ rights are terminated. McQueen 

stated that Eric has struggled during visitation with Mother, he has no bond with 

Mother, and he cries during the entire visitation until he is reunited with his foster 

parents. McQueen testified that for the parents to be able to get their child back, they 

needed to work toward coming to more visitations and have negative drug 

screenings. Since she has been the caseworker, Mother and Father have not formed 

a bond with Eric because they have not attended visitation consistently. She believes 

it is in Eric’s best interest to remain in foster care.
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2. Rosario Salinas

Rosario Salinas testified she is a supervisor for CASA and was employed by 

the Department for two years prior to working for CASA. During her employment 

with the Department, she was a caseworker on Mother’s and Father’s case. Salinas 

stopped working for the Department in July. She testified that the parents had a case 

with the Department when Eric was born, resulting in Eric’s removal. According to 

Salinas, the Department had concerns about the parents’ substance abuse, lack of 

stable housing, and employment.

She confirmed that Mother completed several requirements of her family 

service plan, but stated Mother failed to maintain contact with the Department, failed 

to maintain stable housing, failed to appear for drug testing, and failed to provide 

proof of employment. Salinas testified the last drug test Mother appeared for was a

urinalysis that was negative. She stated Mother’s and Father’s visitation was 

“sporadic[.]” Salinas would supervise the visits and described Eric as upset and 

crying “a lot.” Salinas also confirmed there were times she would intervene in the 

visitation to help Mother. Salinas stated that some months she could not 

communicate with the parents, or the parents were not available to visit Eric. Salinas’

last visits with the parents were in May of 2022, despite Salinas offering additional 

opportunities for the parents to visit with Eric.
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According to Salinas, Father completed several requirements of his family 

service plan, but he failed to complete other requirements. Father failed to provide 

proof of employment, failed to complete recommendations of his alcohol 

assessment, and he failed to provide proof of stable housing. She described visits 

between Father and Eric as “fine[,]” and noted Father was able to calm Eric down. 

But Salinas stated that Father only attended two visits with Eric. Salinas testified 

that Father would randomly reach out to her for additional visits, and when she 

would arrange the visitation, Father would not respond to any further 

communication. Both Mother and Father blamed employment responsibilities or 

lack of transportation for visits with Eric.

During the case, Salinas presented each parent with copies of their positive 

drug tests. According to Salinas, “[t]hey were surprised, and then [the parents] said, 

‘That was the last time we’ve used.’” She took that as an admission of drug use from 

the parents.

Salinas stated that Mother’s and Father’s rights to their other children were

terminated. She testified that Eric has been in only one foster home during this entire 

case, and his foster parents wish to adopt him. Eric meets with his biological siblings 

on a regular basis and keeps a connection with them. She believes it is in Eric’s best 

interest for the parents’ rights to be terminated. 
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3. Michael Quinn

Michael Quinn stated that he is the CASA supervisor and advocate for this 

case. He stated that Eric’s siblings were already in the Department’s care when Eric 

was removed from his parents. He has visited Eric at his foster home and believes 

Eric is doing “very, very well.” Quinn testified he has no concerns about Eric in 

foster care. According to Quinn, the foster parents are meeting the emotional needs 

of Eric and want to adopt him. Eric is “tightly bonded” with his foster parents and 

foster siblings, and their home is “his home.”

Quinn testified he has never visited the parents’ home although he made 

monthly requests to the parents to facilitate a visit. He was also not aware of the 

parents ever requesting visitation with Eric. According to Quinn, Mother attended 

about “10 percent” of the visitation made available to her. Quinn stated Eric was not 

bonded with the parents and described their visitations with Eric as follows:

[Eric] was inconsolable during the visits. Commonly I would pick him 

up -- excuse me -- I would collect him at the back door of the CPS 

office, and he cried throughout from the time he left his foster parents 

until he was returned to them. [] The father was able to console him 

once. The mother never.

Quinn testified that although both parents had completed several requirements 

of their service plan, they were missing psychological assessments, they had failed 

to demonstrate safe and stable housing, and they had some positive drug tests. Quinn

confirmed the parents’ most recent drug test in April was positive for 
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methamphetamine. According to Quinn, Mother did not provide CASA with any 

documentation regarding her inpatient drug treatment program. Quinn testified that 

Father has not maintained consistent contact with CASA, and Father failed to 

provide documentation of his employment. Quinn’s biggest concerns for the parents 

are their drug use and lack of stable housing. He believes the best interest of Eric is 

to terminate the parents’ rights and for Eric’s foster family to adopt him.

No other witnesses testified at trial. Drug tests were admitted at trial showing 

Mother and Father testing positive for drugs during the course of this case. At the 

conclusion of the trial, the trial court found that it had statutory grounds under §§ 

161.001(b)(1)(E), (M), (N), and (O) to terminate Mother’s rights, and it found it had 

grounds to summarily terminate Father’s rights under, 161.002(b)(1). The trial court 

also found that termination was in Eric’s best interest. Tex. Fam. Code. Ann. § 

161.001(b)(2). Mother and Father appealed. 

II. Ineffective Assistance of Counsel

In Mother’s first issue, she challenges the trial court’s decision to name the 

Department temporary managing conservator of Eric, and questions whether that 

decision was related to ineffective assistance of counsel by Mother’s trial attorney.

Specifically, Mother argues that her trial counsel was ineffective because the 

Department could not have met its burden under the Family Code to appoint the 

Department temporary managing conservator of Eric. According to Mother, “[she] 
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and her attorney simply agreed to the appointment of the Department as managing 

conservator instead of proceeding with the adversary hearing and requiring the 

Department to meet the burden required by Section 262.201—the only provision in 

the law at the time for the Department to be appointed as temporary managing 

conservator.” She argues that the evidence shows that the Department could not have 

met its burden under Section 262.201, because Section 262.201(g) requires that the 

Court return the child to the parent at the conclusion of the adversary hearing unless

the court finds sufficient evidence to satisfy a person of ordinary prudence and 

caution there was danger to the physical health and safety of the child, an urgent

need for protection of the child requiring immediate removal, and reasonable efforts 

had been made to return the child home, but the child faced substantial risk if 

returned home. 

A parent who cannot afford to retain counsel in Texas parental-termination 

cases has a right to an appointed attorney who provides effective assistance. In re 

D.T., 625 S.W.3d 62, 69-70 (Tex. 2021); In re M.S., 115 S.W.3d 534, 544 (Tex. 

2003); see also Tex. Fam. Code Ann. § 107.013(a). Ineffective-assistance-ofcounsel claims in parental-termination cases, as in criminal cases, are governed by 

the United States Supreme Court’s two-prong test articulated in Strickland v. 

Washington. In re M.S., 115 S.W.3d at 544-45 (citing Strickland v. Washington, 466 

U.S. 668, 687 (1984)). First, the parent must show that counsel’s performance was 
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deficient. Id. at 545. This requires showing that counsel made errors so serious that 

counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. 

Id. Second, the parent must show that the deficient performance prejudiced the case. 

Id. This requires showing that counsel’s errors were so serious as to deprive the party 

of a fair trial—a trial whose result is reliable. Id.

In examining counsel’s performance under the first prong, “we must take into 

account all of the circumstances surrounding the case, and must primarily focus on 

whether counsel performed in a ‘reasonably effective’ manner.” Id. (quoting 

Strickland, 466 U.S. at 687). Counsel’s performance falls below acceptable levels 

only when the “‘representation is so grossly deficient as to render proceedings 

fundamentally unfair[.]’” Id. (quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex. 

Crim. App. 1983)). We give great deference to counsel’s choices and indulge “‘a 

strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance,’ including the possibility that counsel’s actions are 

strategic.” Id. (quoting Strickland, 466 U.S. at 689). The challenged conduct will 

constitute ineffective assistance only when “‘the conduct was so outrageous that no 

competent attorney would have engaged in it[.]’” Id. (quoting Garcia v. State, 57 

S.W.3d 436, 440 (Tex. Crim. App. 2001)).

In conducting the harm analysis under the second prong of Strickland, 

reviewing courts must determine whether there is a reasonable probability that, but 
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for the deficient performance, the result of the proceeding would be different. Id. at 

549-50. In this context, “[a] reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Thus, a parent 

must also show that “counsel’s ‘deficient performance prejudiced the defense[.]’” In 

re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (quoting Strickland, 466 U.S. at 687).

An allegation of ineffective assistance of counsel in a termination proceeding 

must be firmly founded in the record, and the record must affirmatively demonstrate 

the alleged ineffectiveness and the resulting harm. In re L.G.R., 498 S.W.3d 195, 

209 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). We may not speculate and 

find trial counsel ineffective when the record is silent regarding counsel’s reasons 

for his actions. In re Z.M.R., 562 S.W.3d 783, 794 (Tex. App.—Houston [14th Dist.] 

2018, no pet.). Mother bears the burden of demonstrating a reasonable probability 

that her parental rights would not have been terminated if not for her trial counsel’s 

conduct. See In re V.V., 349 S.W.3d 548, 559-61 (Tex. App.—Houston [1st Dist.] 

2010, pet. denied).

Mother did not file a Motion for New Trial or other evidence showing the 

basis for counsel’s reasoning for not objecting to naming the Department temporary 

managing conservator of Eric. Additionally, Mother admits she agreed with counsel 

to allow the Department to become Eric’s temporary managing conservator. Because 

the record is silent as to the reasons for counsel’s conduct, we will not speculate to 
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find counsel’s performance deficient. See In re Z.M.R., 562 S.W.3d at 793-95; 

Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 623 (Tex. 

App.—Houston [1st Dist.] 2009, pet. denied). Without evidence about strategic 

reasons for counsel’s behavior, Mother fails to overcome the strong presumption that 

counsel’s conduct fell within the wide range of reasonable professional assistance. 

See In re M.S., 115 S.W.3d at 545; see also Strickland, 466 U.S. at 689.

Even if Mother had met Strickland’s first prong, we conclude she has also 

failed to show that, but for counsel’s alleged errors, the result of the proceeding 

would have been different. See Strickland, 466 U.S. at 694. As set forth in our 

analysis below, the trial court had sufficient evidence in the record to support its 

findings under section 161.001(b)(1)(E) and to support the trial court’s finding that 

termination of Mother’s parental rights was in the child’s best interest. We overrule 

Mother’s first issue.

III. Motion for Continuance

In her second issue, Mother complains that the trial court erred in denying her 

motion for continuance. This case was originally set for final trial on July 27, 2022.

Per the trial court judge, at the July 27, 2022 hearing, the case was reset to September 

7, 2022, to allow Mother to complete services from her family service plan. At the

September 7th trial, Mother sought a second continuance of her case. In an oral 

motion for continuance, Mother’s attorney told the trial court that Mother had 
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transportation issues that day, had a new caseworker on her case which had caused

trouble communicating with the Department, and that Mother had recently 

completed a 30-day inpatient program, and as a result, needs “a little more time to 

get her services done[.]” The trial court noted that Mother did not appear at the initial 

permanency hearing in February 2022, did not appear at the initial final trial setting 

in July 2022, and did not appear at the final trial set for September 2022. The trial 

court denied the motion, stating it did not have legal grounds to extend the case past 

“statutory deadlines.” 

We review a trial court’s denial of a motion for continuance in a termination 

of parental rights case for an abuse of discretion. In re E.L.T., 93 S.W.3d 372, 374 

(Tex. App.—Houston [14th Dist.] 2002, no pet.); In re H.R., 87 S.W.3d 691, 701 

(Tex. App.—San Antonio 2002, no pet.). A trial court shall not grant a motion for 

continuance “except for sufficient cause supported by affidavit, or by consent of the 

parties, or by operation of law.” Tex. R. Civ. P. 251; In re H.R., 87 S.W.3d at 701.

A. Additional Time to Complete Service Plan

In her brief, Mother brings our attention to her request for additional time to 

complete her service plan. Mother sought a continuance on the ground that she 

needed additional time to complete her service plan. It is not sufficient cause to 

simply assert that a parent needs more time to complete a family service plan when 

the parent has had sufficient opportunity to perform the service plan but failed to do 
15

so. In re J.D.L.R., No. 04–11–00774–CV, 2012 WL 1364988, at *1 (Tex. App.—

San Antonio Apr.18, 2012, no pet.) (mem. op.); see also Tex. R. Civ. P. 251; In re 

H.R., 87 S.W.3d at 701. Appellant cites her 30-day inpatient rehabilitation treatment,

arguing it necessitated allowing Mother more time to complete her service plan. 

Mother had almost a year to complete her service plan. The Department developed 

a family service plan for Mother in October 2021 and final trial commenced in 

September 2022. The evidence in the record shows that although Mother completed 

portions of her family service plan, she failed to complete all of the requirements of 

her plan. The evidence in the record establishes that even after the court granted her 

initial continuance, she failed to take any actions in furtherance of her service plan, 

and she failed to appear for numerous hearings and she failed to appear at trial.

We cannot say the trial court erred in denying Mother another continuance. 

Mother failed to demonstrate sufficient cause for the trial court to grant her motion. 

We overrule Mother’s second issue.

IV. Statutory Grounds for Termination

Next, Mother and Father challenge the statutory grounds for termination, 

arguing the evidence is legally and factually insufficient to support termination 

under section 161.002(b)(1) of the Texas Family Code and that termination is in 

Eric’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1); (2). 
16

A. Section E

Because the trial court terminated Mother’s parental rights under section 

161.001(b)(1)(E), as to Mother, we begin our review with section E. See Tex. Fam. 

Code Ann. § 161.001(b)(1)(E). Under a legal sufficiency review, we review all the 

evidence in the light most favorable to the finding to determine whether “a 

reasonable trier of fact could have formed a firm belief or conviction that its finding

was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the 

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder 

could, and we disregard all evidence that a reasonable factfinder could have 

disbelieved or found to have been incredible. Id. If no reasonable factfinder could 

form a firm belief or conviction that the matter that must be proven is true, the 

evidence is legally insufficient. Id.

Under a factual sufficiency review, we must determine whether the evidence 

is such that a factfinder could reasonably form a firm belief or conviction about the 

truth of the Department’s allegations. Id. We give due consideration to evidence that 

the factfinder could reasonably have found to be clear and convincing. Id. We 

consider whether disputed evidence is such that a reasonable factfinder could not 

have resolved that disputed evidence in favor of its ruling. Id. If, in light of the entire 

record, the disputed evidence that a reasonable factfinder could not have credited in 
17

favor of the finding is so significant that a factfinder could not reasonably have 

formed a firm belief or conviction, the evidence is factually insufficient. Id.

The decision to terminate parental rights must be supported by clear and 

convincing evidence, i.e., “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.L., 163 S.W.3d 

79, 84 (Tex. 2005) (citation omitted). The movant must show that the parent 

committed one or more predicate acts or omissions and that termination is in the 

child’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2); see also In re 

J.L., 163 S.W.3d at 84. We will affirm a judgment if any one of the grounds is 

supported by legally and factually sufficient evidence and the best interest finding is 

also supported by legally and factually sufficient evidence. In re C.A.C., Jr., No. 09-

10-00477-CV, 2011 WL 1744139, at *1 (Tex. App.—Beaumont May 5, 2011, no 

pet.) (mem. op.). However, when, as here, a parent challenges a trial court’s findings 

under section 161.001(b)(1)(D) or (E), we must review the sufficiency of those 

grounds as a matter of due process and due course of law. See In re N.G., 577 S.W.3d 

230, 235 (Tex. 2019).

For purposes of subsection (E), endangerment means to expose the child to 

loss or injury or to jeopardize a child’s emotional or physical health. Id. at 234; In 

re M.L.L., 573 S.W.3d 353, 363 (Tex. App.—El Paso 2019, no pet.). Termination 
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under subsection (E) must be based on more than a single act or omission and 

requires a voluntary, deliberate, and conscious course of conduct by the parent. In 

re M.L.L., 573 S.W.3d at 363-64. A parent’s conduct that subjects a child’s life to 

instability and uncertainty endangers the emotional or physical well-being of a child. 

Id. at 363. Endangerment is not limited to actions directed toward the child and 

includes the parent’s actions before the child’s birth and while the parent had custody 

of older children, including evidence of drug usage. In re J.O.A., 283 S.W.3d at 345.

Courts may consider whether a parent’s drug use continues after the child is 

removed from the parent’s care, as such conduct shows a voluntary, deliberate, and 

conscious course of conduct that endangers a child’s well-being. See In re J.S., 584 

S.W.3d 622, 635 (Tex. App.—Houston [1st Dist.] 2019, no pet.); see also In re M.E.-

M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied). The trial 

court may infer from a parent’s refusal to submit to drug testing that they are using 

drugs. See In re K.C.B., 280 S.W.3d 888, 895 (Tex. App.—Amarillo 2009, pet. 

denied). “A parent’s efforts to improve or enhance parenting skills are relevant in 

determining whether a parent’s conduct results in endangerment under subsection 

E.” In re S.R., 452 S.W.3d 351, 362 (Tex. App.—Houston [14th Dist.] 2014, pet. 

denied) (citation omitted).
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1. Mother

For Mother, the trial court heard evidence that when Eric was removed, 

Mother was already under investigation with the Department for her other children. 

The Department had concerns about Mother’s drug use, and throughout this case, 

Mother had positive drug tests for both methamphetamine and marijuana. Mother 

also did not regularly visit Eric, and it was noted that Mother was unable to console 

him during her limited visitations. In addition, her last visitation was four months 

before trial, resulting in witness testimony that she did not have a bond with Eric. 

There was also evidence that, although she completed portions of her family service 

plan, she did not follow up with her psychological evaluation, maintain regular 

contact with the Department, provide proof of consistent employment, and did not 

provide information that she had a safe and stable home.

We conclude Mother committed the predicate acts enumerated in section 

161.001(b)(1)(E). See Tex. Fam. Code Ann. § 161.001(b)(1)(E); In re C.A.C., Jr.,

2011 WL 1744139, at *1. Having concluded that the evidence was legally and 

factually sufficient to support the trial court’s findings as to subsection 

161.001(b)(1)(E), we need not address Mother’s challenges regarding the trial 

court’s findings under sections 161.001(b)(1)(M), (N), and (O). See In re N.G., 577 

S.W.3d at 235; In re C.A.C., Jr., 2011 WL 1744139, at *5; see also Tex. R. App. P. 

47.1 We overrule Mother’s third, fourth, and fifth issues on appeal.
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2. Father

In his first issue, Father challenges the trial court’s order terminating his 

parental rights to Eric based on section 161.002(b)(1). See Tex. Fam. Code Ann. § 

161.002(b)(1). Texas Family Code Section 161.002 is titled “Termination of the 

Rights of an Alleged Biological Father,” and subpart (b)(1) provides in relevant part:

(b) The rights of an alleged father may be terminated if:

 (1) after being served with citation, he does not respond by timely 

filing an admission of paternity or a counterclaim for paternity 

under Chapter 160[.]

Subsection 161.002(b)(1) allows a trial court to summarily terminate the rights of an 

alleged biological father who does not respond by timely filing an admission of 

paternity or a counterclaim for paternity under Chapter 160. In re A.D., No. 04-02-

00310- CV, 2002 WL 31829510, at *1 (Tex. App.—San Antonio Dec.18, 2002, no

pet.). However, if the alleged father does file an admission of paternity or a

counterclaim for paternity, then the State must “meet the high burden of proof found 

in section 161.001[]” and establish one of the grounds outlined therein to terminate 

the rights of the alleged father. Phillips v. Tex. Dep’t of Protective & Regulatory 

Servs., 25 S.W.3d 348, 357 (Tex. App.—Austin 2000, no pet.). If the alleged father

does not file such an admission or counterclaim, then subsection (b) permits the trial

court to summarily terminate his parental rights without TDPRS having to meet the

high burden of proof found in section 161.001. Id. If a trial court erroneously

terminates an alleged father’s parental rights after he sufficiently admits paternity,
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reversal and remand for a new trial to require TDFPS to meet its burden of proof

under Section 161.001 is the appropriate remedy. See In re E.O., 595 S.W.3d 858,

865 (Tex. App.—El Paso 2020, no pet.) (citing In re C.M.C., 273 S.W.3d 862, 883

(Tex. App.—Houston [14th Dist.] 2008, no pet.) on reh’g)); Phillips, 25 S.W.3d at

357.

Father admits that he did not file a formal acknowledgment of paternity or 

counter petition for paternity. If an alleged biological father does not file a document 

with the court, he may nevertheless be found to have admitted paternity by appearing 

at trial, asserting that he was the child’s father, and asking the trial court not to 

terminate his parental rights. See Toliver v. Tex. Dep’t of Family & Protective Servs., 

217 S.W.3d 85, 105 (Tex. App.—Houston [1st Dist.] 2006, no pet). In support of his 

argument, Father directs our attention to testimony by the caseworker and CASA 

that Father was the parent of Eric, that Father acknowledged at a family group 

conference that he had a son, worked services to get his son back, and that Father 

would visit Eric.

Although he appeared with his court-appointed attorney at the hearing on the 

temporary orders, Father did not appear at trial. His counsel argued at trial that 

Father’s parental rights should not be terminated on the grounds asserted and that 

termination of Father’s parental rights would not be in the child’s best interest. In its 

final, appealable order, the trial court found by clear and convincing evidence that
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Father, after being served with citation in the suit “did not respond [to citation in this 

suit] by timely filing an admission of paternity or by filing a counterclaim for 

paternity or for voluntary paternity to be adjudicated under chapter 160 of the Texas 

Family Code before the final hearing in this suit[.]” See Tex. Fam. Code Ann. § 

161.002(b)(2).

As stated above, Father acknowledged he did not file a written statement of 

paternity. However, Father’s attorney signed an Agreed Temporary Order on behalf 

of Father which contained the following: “The Court finds that [FATHER] is a 

parent who has responded in opposition to the suit affecting the parent-child 

relationship;...[.]” The temporary order states that Father was present with his 

attorney and the parties agreed to the temporary order, and constitutes an admission 

of paternity. The manner and means of admitting paternity is not restricted to the 

filing of an Acknowledgment of Paternity or a pleading claiming paternity, but may 

be established in various ways. See generally In re G.A.G., No. 04-07-00243-CV, 

2007 WL 3355463, at *1-2 (Tex. App.—San Antonio Nov. 14, 2007, no pet.) (mem.

op.) (Answer, which stated the respondent was the father, and which was signed by 

attorney, was an admission of paternity); In re K.W., 138 S.W.3d 420, 429-30 (Tex.

App.—Fort Worth 2004, pet. denied) (letters sent by alleged father to Department 

and court stating he is the father and did not want to relinquish his rights were

admissions under section 161.002(b)); Estes v. Dallas Cty. Child Welfare Unit of 
23

Tex. Dep’t of Human Servs., 773 S.W.2d 800, 801-02 (Tex. App.—Dallas 1989, writ 

denied) (answer filed by the presumed father was sufficient to constitute an 

admission of paternity). 

Father did not appear at trial, but Father appeared at the hearing on the 

temporary order with his court appointed attorney, and his attorney signed the 

temporary order on behalf of Father and agreed to the terms of the temporary order. 

We conclude that Father’s agreement to the temporary order sufficiently triggered 

his right to require the Department to prove one of the statutory grounds for 

termination. See In re J.L.A., No. 04-13-00857-CV, 2014 WL 1831097, *2 (Tex. 

App.—San Antonio May 7, 2014, no pet.) (mem. op.) (Noting that “by [Father] 

appearing at trial and admitting that he is the child’s father, an alleged father triggers 

his right to require the Department to prove one of the grounds for termination under 

section 161.001(1) and that termination is in the best interest of the child.”); In re 

R.B., No. 14-17-00238-CV, 2017 WL 3567905, *9-10 (Tex. App.—Houston [14th

Dist.] Aug. 17, 2017, no pet.) (mem. op.); In re K.R.L., No. 01-14-00213-CV, 2014 

WL 3843520, *10 (Tex. App.—Houston [1st Dist.] Aug. 5, 2014, no pet.) (mem. 

op.) (holding no representation of paternity when “Appellant did not file any 

document in the trial court, did not send a copy of [a] letter to the trial court, and did 

not testify at trial.”). As we have explained, in this case Father agreed to the Agreed

Temporary Order, which contained a finding that he was a parent of the child named 
24

in the suit (Eric), that he was opposed to the Department’s pleading of which he had 

been served (seeking, among other things, termination of his parental rights), and

which Agreed Temporary Order was signed by Father’s attorney. We sustain

Father’s first issue and remand the case to the trial court for a new trial as to Father.

B. Best Interest

In Mother’s seventh issue and Father’s second issue, they challenge the 

sufficiency of the evidence to support the trial court’s best interest finding. Mother 

argues the evidence is legally and factually insufficient to support the trial court’s 

determination that termination was in Eric’s best interest. Trial courts have wide 

latitude in determining the child’s best interest. See Gillespie v. Gillespie, 644 

S.W.2d 449, 451 (Tex. 1982). There is a strong presumption that the child’s best 

interest is served by keeping him with his parent. In re R.R., 209 S.W.3d 112, 116 

(Tex. 2006) (citation omitted); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—

Houston [14th Dist.] 2012, no pet.); see also Tex. Fam. Code Ann. § 153.131(b). 

Prompt and permanent placement of the child in a safe environment is also presumed 

to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a).

The Family Code outlines factors to be considered in determining whether a 

parent is willing and able to provide a safe environment for the child. See id. § 

263.307(b). Several other nonexclusive factors may be considered in a best interest 

analysis, including: (1) the desires of the child; (2) the emotional and physical needs 
25

of the child now and in the future; (3) the emotional and physical danger to the child 

now and in the future; (4) the parental abilities of the individuals seeking custody; 

(5) the programs available to assist these individuals to promote the best interest of 

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

custody; (7) the stability of the home or proposed placement; (8) the parent’s acts or 

omissions that may indicate that the existing parent-child relationship is not a proper 

one; 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 In re A.C., 560 S.W.3d 624, 631 (Tex. 

2018) (characterizing the Holley factors as “nonexclusive”). No particular Holley

factor is controlling, and evidence of one factor may be enough to support a finding 

that termination is in the child’s best interest. See M.C. v. Tex. Dep’t of Family & 

Protective Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso 2009, pet. denied) 

(“Undisputed evidence of just one factor may be sufficient to support a finding that 

termination is in the best interest of a child.”) (citations omitted); see also In re C.H., 

89 S.W.3d 17, 27 (Tex. 2002).

We may consider circumstantial evidence, subjective factors, and the totality 

of the evidence in our best interest analysis. See In re N.R.T., 338 S.W.3d 667, 677 

(Tex. App.—Amarillo 2011, no pet.). A parent’s past conduct is relevant to 

determining the parent’s present and future ability to care for a child. See In re C.H., 

89 S.W.3d at 28. Evidence supporting the statutory grounds for termination may 
26

also be used to support a finding that the best interest of the child warrants 

termination of the parent-child relationship. See id.

As we have explained, the evidence shows that Eric was removed from 

Mother’s custody due to an open investigation with her other children, concerns 

about drug use, and the stability of her home. Evidence admitted at trial showed 

Mother had multiple positive drug tests for marijuana and methamphetamines.

Witnesses testified that while Mother completed portions of her family service plan,

she failed to maintain contact with the Department, maintain stable housing, appear 

for drug testing, and provide proof of employment. Mother failed to attend consistent 

visitation with Eric; her last visitation was four months before trial, and testimony 

demonstrated that she did not have a bond with Eric during visitation. Both the 

caseworker and CASA testified that Eric would be crying during visitation and 

Mother would not be able to calm him. CASA described visitation with Eric and his 

parents as “tragic[.]” Both Department caseworkers and CASA believed it was in 

Eric’s best interest to terminate Mother’s parent-child relationship. 

Finally, testimony demonstrated that Eric was happy in his foster home, he 

was considered to be a part of the foster parent’s family, and his foster parents were 

meeting all his needs. The foster family wanted to adopt Eric if Mother’s and 

Father’s parental rights were terminated. 
27

Considering the evidence related to best interest, deferring to the trial court’s 

determinations on witness credibility, the resolution of conflicts in the evidence, and 

the weight given to the testimony, we conclude that the statutory and Holley factors 

weigh in favor of the trial court’s finding that termination of Mother’s parental rights 

is in Eric’s best interest. See Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307(a), 

(b); Holley, 544 S.W.2d at 371-72. The trial court could have reasonably formed a 

firm belief or conviction that termination of Mother’s parental rights was in Eric’s 

best interest. See In re C.H., 89 S.W.3d at 28. We overrule this issue. We do not 

reach Father’s second issue.

V. Permanent Managing Conservatorship

In Mother’s final issue, she challenges the trial court’s determination to 

appoint the Department as Eric’s permanent managing conservator.4 Mother argues 

that evidence at trial is insufficient to support termination of her parental rights and

therefore the trial court erred when it appointed the Department permanent managing 

conservator of Eric.

4 Father did not challenge the court’s order appointing the Department the 

permanent managing conservator of Eric. See In re N.T., 474 S.W.3d 465, 480 (Tex. 

App.—Dallas 2015, no pet.) (“In cases where a trial court’s termination of the 

parent-child relationship is reversed, a parent is required to independently challenge 

a trial court’s finding under section 153.131(a) to obtain reversal of the 

conservatorship appointment. See In re J.A.J., 243 S.W.3d 611, 616-17 (Tex. 2007); 

In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)).
28

Conservatorship determinations are subject to review for abuse of discretion. 

In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). We will reverse the trial court’s 

appointment of a managing conservator only if we determine it was arbitrary or 

unreasonable. Id.; In re N.T., 474 S.W.3d 465, 479 (Tex. App.—Dallas 2015, no 

pet.). The Family Code creates a rebuttable presumption that a parent will be named 

the child’s managing conservator unless that court finds that such appointment 

would not be in his best interest “because the appointment would significantly impair 

the child’s physical health or emotional development[.]” Tex. Fam. Code Ann. § 

153.131(a). This finding was made by the trial court in this case. As discussed above, 

we affirm the trial court’s order terminating Mother’s parental rights.

When the parents’ rights have been terminated, Family Code section 

161.207(a) governs the appointment of a managing conservator. See id. § 

161.207(a); In re N.T., 474 S.W.3d at 480-81. Section 161.207(a) 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). However, 

we have concluded that only Mother’s rights were terminated. We cannot conclude, 

as to Mother, that the trial court abused its discretion by appointing the Department 
29

as the child’s managing conservator. See In re J.A.J., 243 S.W.3d at 616; In re N.T., 

474 S.W.3d at 480-81. We overrule Mother’s last issue. 

VI. Conclusion

Having overruled all of Mother’s issues on appeal, the order terminating 

Mother’s parental rights to Eric is affirmed. Having found error in the trial court’s 

reliance upon section 161.002(b)(2), and no finding as to one of the statutory 

grounds for termination, the evidence is insufficient to support the order terminating 

Father’s rights. We reverse and remand the case for further proceedings consistent 

with this opinion.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

_________________________

 JAY WRIGHT 

 Justice

Submitted on February 1, 2023

Opinion Delivered June 15, 2023

Before Golemon, C.J., Johnson and Wright, JJ.