Affirmed and Memorandum Opinion filed October 14, 2014.

In The

Fourteenth Court of Appeals

NO. 14-14-00382-CV

IN THE INTEREST OF M.S.L. AND L.S.L., CHILDREN

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 2012-06370J

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

Appellant S.M.L. (the Father) appeals the decree terminating his parental 

rights to two daughters (the Children). He raises a single issue challenging the 

sufficiency of the evidence supporting the finding that termination is in the 

Children’s best interest. We affirm.

I. BACKGROUND

On November 12, 2012, the Texas Department of Family and Protective 

Services (the Department) filed suit for protection of the Children, M.S.L. 
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(Michelle), born in 2006, and L.S.L. (Lisa), born in 2009.

1

The Department had 

received a referral alleging negligent supervision and physical abuse of the 

Children. In addition to problems with the Mother’s mental health, it was alleged 

the Father had substance abuse issues and he used excessive discipline that left 

bruises on Michelle. The referral also alleged the Children had witnessed domestic 

violence in the home. After an emergency hearing on November 12, 2012, the 

court named the Department temporary sole managing conservator of the Children

and they were placed in foster care.

A full adversary hearing was held November 20, 2012. The court found 

sufficient evidence to support the removal. See Tex. Fam. Code § 262.201(b) 

(listing the required findings for removal and protection of the child). The Father 

was present at the adversary hearing, and he was ordered to undergo drug testing. 

The test results were positive for amphetamine, methamphetamine and 

hydrocodone.

At the status hearing on January 8, 2013, the court found that the Father had 

been provided a family service plan and he understood its requirements. He also 

understood his parental rights could be restricted or terminated if he did not show 

he could provide the Children with a safe environment. The tasks in the Father’s 

service plan included that he submit to random drug tests, obtain and maintain 

suitable housing, participate in individual counseling including a psychological 

evaluation and any recommendations therefrom, parenting education classes, 

domestic violence classes, and attend all court hearings and visitations with his 

children. An additional temporary order entered the same day added that the Father 

was required to participate in a substance abuse program, complete a drug and 

 

1

To protect the identities of the minors, we have not used the actual names of the 

Children or parents. See Tex. R. App. P. 9.8. The Mother relinquished her parental rights and has 

not appealed.
3

alcohol assessment and any recommendations made by the assessment, remain 

drug free, refrain from criminal activity, maintain stable employment, and 

complete all services outlined in his family service plan. The Father was ordered to 

take a drug test at the conclusion of the hearing, but he left before the test was 

performed.

The first permanency hearing was held April 9, 2013. Both the Department’s 

caseworker and the Father testified. The Department’s caseworker assigned to this 

case, Valencia Green, testified that the Children’s current placement met their 

physical and emotional needs and it was in their best interest to remain in that 

placement. The court ordered the Father to undergo urinalysis and hair follicle tests 

that day. The tests were positive for Vicodin and alcohol.

Trial to the court was held on multiple, non-consecutive days. Specifically, 

trial commenced on November 19, 2013, and was reset to March 18, 2014 for drug 

tests on the Father and the Mother and for the Child Advocates representative to 

obtain additional information for her home studies on potential placements. The 

trial was reset again before concluding on April 22, 2014. The Father testified on 

both November 19 and April 22. On April 22, Bruce Jefferies, of the National 

Screening Center, provided expert testimony about the Father’s positive drug tests. 

The Department’s caseworker also testified about the Children’s status and the 

Father’s interaction with the Department during the pendency of the case. Finally, 

the Child Advocates representative, who was appointed guardian ad litem for the 

Children, testified about her observations and recommendations. 

At the close of trial, the court granted the Department’s request to terminate 

the Father’s parental rights to the Children. The trial court signed a decree of 

termination on May 12, 2014, and the judgment recited that the Father’s parental 

rights were terminated based on findings that termination is in the Children’s best 
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interest and that the Father committed acts establishing the predicate termination 

grounds set out in subsections E, O, and P of Texas Family Code Section 

161.001(1). See Tex. Fam. Code §§ 161.001(1)(E), (O), & (P); 161.001(2). The 

Department was appointed sole managing conservator of the Children. The Father 

filed a timely notice of appeal. 

II. BURDEN OF PROOF AND STANDARDS OF REVIEW

Involuntary termination of parental rights is a serious matter implicating 

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

In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no 

pet.). Although parental rights are of constitutional magnitude, they are not 

absolute. In the Interest of C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is 

imperative for courts to recognize the constitutional underpinnings of the parentchild relationship, it is also essential that emotional and physical interests of the 

child not be sacrificed merely to preserve that right.”).

Due to the severity and permanency of the termination of parental rights, the

burden of proof is heightened to the clear and convincing evidence standard. See

Tex. Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002). 

“Clear and convincing evidence” means “the measure or degree of proof that will 

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” Tex. Fam. Code § 101.007; accord In re 

J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened 

standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th 

Dist.] 2008, no pet.).

Parental rights can be terminated upon proof by clear and convincing 

evidence that (1) the parent has committed an act prohibited by section 161.001(1) 

of the Family Code; and (2) termination is in the best interest of the child. Tex. 
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Fam. Code § 161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Only 

one predicate finding under section 161.001 is necessary to support a judgment of 

termination when there is also a finding that termination is in the child’s best 

interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

In reviewing the legal sufficiency of the evidence in a parental termination 

case, we must consider all the evidence in the light most favorable to the finding to 

determine whether a reasonable fact finder could have formed a firm belief or 

conviction that its finding was true. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 

96 S.W.3d at 266. We assume that the fact finder resolved disputed facts in favor 

of its finding if a reasonable fact finder could do so, and we disregard all evidence 

that a reasonable fact finder could have disbelieved. In re J.O.A., 283 S.W.3d at 

244; In re J.F.C., 96 S.W.3d at 266.

In reviewing termination findings for factual sufficiency of the evidence, we 

consider and weigh all of the evidence including disputed or conflicting evidence. 

In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed 

evidence that a reasonable fact finder could not have credited in favor of the 

finding is so significant that a fact finder could not reasonably have formed a firm 

belief or conviction, then the evidence is factually insufficient.” Id. We give due 

deference to the fact finder’s findings and we cannot substitute our own judgment 

for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The fact 

finder is the sole arbiter when assessing the credibility and demeanor of witnesses. 

Id. at 109. We are not to “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.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003) 

(explaining that in a termination case, an appellate court should not reweigh 

disputed evidence or evidence that depends on a witness’s credibility).
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III. UNCHALLENGED PREDICATE FINDINGS

The Father has not challenged the three predicate grounds for termination

found by the trial court. As relevant to these proceedings, section 161.001(1) 

provides termination is warranted if the trial court finds by clear and convincing 

evidence, in addition to the best interest finding, that the parent has:

(E) engaged in conduct or knowingly placed the child with persons 

who engaged in conduct which endangers the physical or emotional 

well-being of the child;

(O) failed to comply with the provisions of a court order that 

specifically established the actions necessary for the parent to obtain 

the return of the child who has been in the permanent or temporary 

managing conservatorship of the Department of Family and Protective 

Services for not less than nine months as a result of the child’s 

removal from the parent under Chapter 262 for the abuse or neglect of 

the child; 

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

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

the child, and:

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

program; or

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

treatment program, continued to abuse a controlled substance.

Tex. Fam. Code § 161.001(1)(E), (O), & (P). 

Unchallenged findings of fact are binding unless the contrary is established 

as a matter of law or there is no evidence to support the finding. See In re E.C.R., 

402 S.W.3d 239, 249 (Tex. 2013). There is evidence in the record to support each 

of the findings. As such, we treat them as conclusively established.

IV. BEST INTEREST OF THE CHILDREN

Notwithstanding three statutory bases for termination, the Father asserts 

termination of his parental rights is not in the Children’s best interest. There is a 
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strong presumption that the best interest of the child is served by keeping the child 

with the natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). 

The 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 § 263.307(a).

Courts may consider the following nonexclusive factors in reviewing the 

sufficiency of the evidence to support the best interest finding, including: the 

desires of the child; the present and future physical and emotional needs of the 

child; the present and future emotional and physical danger to the child; the 

parental abilities of the persons seeking custody; the programs available to assist 

those persons seeking custody in promoting the best interest of the child; the plans 

for the child by the individuals or agency seeking custody; the stability of the home 

or proposed placement; acts or omissions of the parent which may indicate the 

existing parent-child relationship is not appropriate; and any excuse for the 

parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). 

This list is not exhaustive, and evidence is not required on all of the factors to 

support a finding terminating a parent’s rights. Id.; In re D.R.A., 374 S.W.3d at 

533.

In addition, the Family Code sets out factors to consider in evaluating the 

parent’s willingness and ability to provide the child with a safe environment, 

including: the child’s age and physical and mental vulnerabilities; the magnitude, 

frequency, and circumstances of the harm to the child; whether there is a history of 

abusive or assaultive conduct by the child’s family; whether there is a history of 

substance abuse by the child’s family; the willingness and ability of the child’s 

family to seek out, accept, and complete counseling services and to cooperate with 

and facilitate an appropriate agency’s close supervision; the willingness and ability 

of the child’s family to effect positive environmental and personal changes within 
8

a reasonable period of time; and whether the child’s family demonstrates adequate 

parenting skills, including providing the child with minimally adequate health and 

nutritional care, a safe physical home environment, an understanding of the child’s 

needs and capabilities; and the adequacy of the available support system. Tex. 

Fam. Code § 263.307(b); In re R.R., 209 S.W.3d at 116.

We review the entire record to determine the child’s best interest. In re 

E.C.R., 402 S.W.3d at 250. The same evidence of acts or omissions under section 

161.001(1) may be probative of the best interest of the child. In re C.H., 89 S.W.3d 

at 28.

Endangering Conduct, Including Drug Use, Criminal History, and 

Domestic Abuse 

By failing to challenge the predicate finding on endangerment, the Father 

has acknowledged that he endangered the Children. See Tex. Fam. Code § 

161.001(1)(E). Evidence supporting an unchallenged endangerment finding can be 

probative of the best interest finding. See In re K.C., 219 S.W.3d 924, 928 (Tex. 

App.—Dallas 2007, no pet.). A parent’s past conduct is probative of his future 

conduct when evaluating the child’s best interest. See In re O.N.H., 401 S.W.3d 

681, 684 (Tex. App.—San Antonio 2013, no pet.). Endangering conduct may 

include the parent’s actions, including evidence of drug use, before the Children’s 

births. See In re J.O.A., 283 S.W.3d at 345.

Drug Use 

Our record contains evidence supporting the endangerment finding. First, the 

record contains ample evidence that the Father had not fully overcome a serious 

drug problem during the pendency of the case. The Father’s three drug test results 

from November 2012 to November 2013 were admitted in evidence. The Father 

admitted he had a drug problem when the Children were removed from the home. 
9

At that time, the Father’s drug test was positive for methamphetamines. At trial, 

Bruce Jefferies of the National Screening Center testified that the level of 

methamphetamines from the Father’s first test in 2012 indicated “somebody that 

definitely was doing meth quite often,” and “at this reading, this is somebody that 

would be doing it every day.”

In addition to the positive test at the beginning of the case, the Father was 

ordered to submit to another drug test at the status hearing in January of 2013, but 

he left before being tested. A letter from National Screening Center dated January

10, 2013, two days after the status hearing, was admitted at trial. The letter states 

that the Father was ordered to take a drug screen, “but walked out before we could 

collect a sample . . . . This is considered a REFUSAL/POSITIVE TEST.” 

Jefferies testified that on April 9, 2013, the Father tested positive for 

Vicodin at levels consistent with his taking a prescribed amount of the drug, but 

negative for illegal substances. The Father tested positive for alcohol, however, at 

levels indicating he drank “a significant amount of alcohol.” On the first day of 

trial, November 19, 2013, the Father’s drug test was positive for 

methamphetamines. Jefferies testified the methamphetamines in the Father’s 

system were at lower levels from the 2012 test. Jefferies testified that the 2013 

positive test could not be a result of the earlier positive test the year before. 

Jefferies confirmed that the results showed that the Father had used 

methamphetamines again. In comparing the two results, Jefferies stated, “Well, it 

was horrible when I first saw it. And now it’s come down to maybe a two-time use 

versus everyday use.” According to the Father, he had completed a court-ordered 

substance abuse program before trial. The Father then admitted he continued to 

abuse methamphetamine after completing the substance abuse program. 

The Father also acknowledged he used crack cocaine once or twice a month 
10

for a year while the family lived in Florida. He admitted at trial that the family 

violence he committed since the birth of his children occurred “during a period, 

where, admittedly, [he] had a drug problem.” The Father also acknowledged that 

the Children were in the Department’s care because of his drug use. A parent’s 

drug use supports a finding that termination is in the best interest of the child. See 

In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.). The 

factfinder can give “great weight” to the “significant factor” of drug-related 

conduct. In re K.C., 219 S.W.3d at 927; see also In re J.N.H., No. 02–11–00075–

CV, 2011 WL 5607614, at *8 (Tex. App.—Fort Worth Nov.17, 2011, no pet.) 

(mem. op.) (considering a parent’s criminal and drug histories in affirming a trial 

court’s decision that termination was in the best interest of a child); In re K.W., No. 

02–07–00458–CV, 2008 WL 2639037, at *4 (Tex. App.—Fort Worth July 3, 2008, 

no pet.) (mem. op.) (holding that clear and convincing evidence existed that 

termination of a father’s parental rights was in a child’s best interest when, among 

other factors, the father had a pattern of criminal conduct and drug abuse).

We acknowledge the Father’s April, 2014 testimony that he had been clean 

and sober for a year, and he did not drink or smoke. However, we must consider 

this evidence in the context of the other evidence admitted in this trial. The 

Father’s drug test from November of 2013, at the beginning of trial, was positive 

for methamphetamine. He also tested positive for a significant amount of alcohol 

in his system in April of 2013, seven months before trial. A photograph of the 

Father from a Facebook page was admitted in evidence. The post, dated June 18, 

2013, at 4:48 a.m., stated next to the photograph: “[The Father] Drunk as Cooter 

Brown Sancho.” In addition, the Father was incarcerated from approximately 

October 30, 2013 to mid-March, 2014. As the factfinder, the trial court was entitled 

to disbelieve the Father’s testimony that he had been “clean” for almost a year and 

he did not drink or smoke. See In re H.R.M., 209 S.W.3d 105, 108–09 (Tex. 2006) 
11

(stating the fact finder is the sole arbiter when assessing the credibility and 

demeanor of witnesses).

Criminal History

The Father’s criminal records were admitted at trial. These records show a 

series of crimes both before and after the Children’s births. In November of 2000, 

the Father pled guilty to committing the crime of delivering cocaine, and was 

sentenced to two years in prison on April 30, 2002, after failing to comply with the 

requirements of community supervision. In addition, the Department’s records 

reflect that the Father acknowledged he had been arrested and imprisoned for the 

offense of family violence in Florida on April 17, 2006. At trial, the Father 

acknowledged the Mother was pregnant with Michelle at the time of the assault. 

The Father also admitted at trial that he was charged with battery in 2004 and

driving while intoxicated in 2009. 

In March of 2013, during the pendency of these proceedings, the Father 

assaulted the Mother by dragging her from his truck, causing a concussion and cuts 

and bruises. An order signed March 18, 2013, for the Mother’s emergency 

protection was admitted at trial. The Father pled guilty on August 29, 2014, and 

was sentenced to four days in county jail, with credit for two days served. At first, 

the Father denied that he had been arrested during these proceedings before his 

incarceration at the beginning of trial, but he later recalled that he spent a night in 

jail after a fight with the Mother.

2

In an unrelated episode during the pendency of these proceedings, the Father

admitted he was arrested for aggravated assault following a fight during which he 

 

2

Based on this and other outlined inconsistencies in the Father’s testimony, the factfinder 

was entitled to discredit the Father’s self-serving statements about his complete reform. See In re 

H.R.M., 209 S.W.3d at 109. We may not disturb the fact finder’s credibility determinations. See 

In re L.M.I., 119 S.W.3d at 712.
12

stabbed a man in the chest or shoulder shortly before trial began. The Father had 

been released from jail on a PR bond by the end of the trial of this matter, but the 

criminal case remained pending.

This evidence of continued criminal conduct, including several periods of 

incarceration, supports the trial court’s best-interest determination. See In re D.M., 

58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.) (evidence of parent’s 

“inability to maintain a lifestyle free from arrests and incarcerations” is relevant to 

best interest determination); In re M.D.S., 1 S.W.3d 190, 199–200 (Tex. App.—

Amarillo 1999, no pet.) (incarceration standing alone does not amount to 

endangering conduct, but it is relevant to the child’s need for current and future 

stability and permanence).

Domestic violence 

In addition to the Father’s criminal behavior, evidence of the Father’s 

domestic violence supports a finding of endangerment to the physical or emotional 

well-being of the Child. See Tex. Fam. Code § 263.307(b)(7). A parent’s abusive 

or endangering conduct may be considered in a best interest analysis even when it 

occurred before the child’s birth. In re G.M.G., ___ S.W.3d ____, 2014 WL 

2826363, at *11 (Tex. App.—Houston [14th Dist.] Jun. 19, 2014, no pet.). The 

trial court reasonably could have considered that the Father’s repeated acts of 

violence would continue in the future. See Walker v. Tex. Dep’t Family & 

Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. 

denied); In re D.J.H., 381 S.W.3d 606, 613 (Tex. App.—San Antonio 2012, no

pet.) (recognizing that a fact finder may infer from past endangering conduct that 

similar conduct will recur if the child is returned to the parent).

There was evidence that the Children witnessed the fights between the 

parents. The Father acknowledged that his confrontations with the Mother “in front 
13

of the Children” was “a form of abuse.” Abusive or violent conduct can produce a 

home environment that endangers a child’s well-being. In re J.I.T.P., 99 S.W.3d 

841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). In addition to 

Michelle’s emotional problems, the caseworker testified Lisa had been troubled by 

nightmares about the domestic violence that she witnessed between her parents. 

This evidence of the Father’s drug use and criminal history, including 

domestic abuse, supports the court’s best interest finding that the Father poses a 

physical and emotional danger to the Children. 

Stability and Compliance with Services 

The failure to comply with a service plan can support the trial court’s bestinterest finding. In re E.C.R., 402 S.W.3d at 249. The Father had completed many 

of his court-ordered services, including individual counseling, parenting classes, 

and domestic violence counseling. The Father testified he went “above and 

beyond” the required counseling and undertook additional counseling. The 

Father’s partial, or even substantial, compliance with service requirements set out 

in a court order is not enough to avoid a termination finding. See In re M.C.G., 329 

S.W.3d 674, 675–76 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); In re 

T.T., 228 S.W.3d 312, 319 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

Moreover, the Father did not challenge the predicate finding that he failed to 

comply with the court order to participate in services, and we are bound by the 

unchallenged finding. See Tex. Fam. Code § 161.001(1)(O). 

Evidence of a parent’s unstable lifestyle can support a fact finder’s 

conclusion that termination is in the child’s best interest. In re S.B., 207 S.W.3d 

877, 887 (Tex. App.—Fort Worth 2006, no pet.). Lack of stability, including a 

stable home, supports a finding that the parent is unable to provide for a child’s 

emotional and physical needs. See In re G.M.G., ___ S.W.3d at ___, 2014 WL 
14

2826363 at *12; see also Doyle v. Tex. Dep’t of Protective & Regulatory Servs., 16 

S.W.3d 390, 398 (Tex. App.—El Paso 2000, pet. denied) (holding that a parent’s 

failure to provide a stable home and provide for a child’s needs contributes to a 

finding that termination is in the child’s best interest). 

The Department’s caseworker testified that the Father did not establish 

stable employment or housing, as required by the court. The Father told the 

caseworker he was living at a lodge near New Braunfels, where he was employed.

A letter from a representative of Gruene Outpost River Lodge was admitted in 

evidence. The letter, dated July 21, 2013, stated the Father worked six hours per 

week there and received “a room in trade.” When the caseworker visited, no one 

knew the Father. The guardian ad litem also described her attempted visit to the 

Father’s residence. She testified the Father told her she could not visit on a 

weekend because he could not afford to pay the rent required on the weekends. 

Near the conclusion of the trial, the Father testified he had obtained appropriate 

housing, but he had not notified the Department of the change in address until 

shortly before his testimony. There had been no opportunity for the Department to 

evaluate his residence. The factfinder may determine that a parent’s changes 

shortly before trial are too late to have an impact on the best interest determination. 

See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied)

(explaining that a father’s “efforts to improve his ability to effectively parent on 

the eve of trial [were] not enough to overcome a decade of poor parenting and 

neglect” in evaluating the best interest of the children).

The Father’s employment history was also not stable. When, in 2013, the 

caseworker contacted the Father’s employer, she was told the Father no longer 

worked there. In 2014, the Father testified he was employed as a carpenter making 

$22 per hour, which he felt was adequate to support the Children. He provided a 
15

reference letter sworn to on April 21, 2014, from the owner of Commercial Custom 

Services in San Antonio. The letter stated that at that time, the Father was 

employed by his company working on restoration projects with the San Antonio 

Housing Authority. The letter stated the Father is “an excellent carpenter and has 

proven to be an asset to our team.” The Father had been required to submit to drug 

testing to obtain the job and was subject to random drug testing at any time. The 

letter further stated that the Father was motivated “to be the best he can be” so he 

can regain custody of his girls. In the owner’s opinion, the Father’s interaction with 

the owner’s daughter showed he could be a “great” father. The trial court was not 

required to consider this evidence in a vacuum; the Father’s employment as a 

carpenter on restoration projects was for no more than 30 days, as he was 

incarcerated prior to that time, and the letter was dated the day before the final day 

of trial, April 22, 2014.

In considering the best interest of the child, “evidence of a recent turnaround in behavior by the parent does not totally offset evidence of a pattern of 

instability and harmful behavior in the past.” Smith v. Texas Dep’t of Protective & 

Regulatory Servs., 160 S.W.3d 673, 681 (Tex. App.—Austin 2005, no pet.). The 

factfinder could reasonably have concluded the Father’s lack of stability supported

the finding that termination is in the Children’s best interest. See L.Z. v. Texas 

Dep’t of Family & Protective Servs., No. 03–12–00113–CV, 2012 WL 3629435, at 

*10–11 (Tex. App.—Austin Aug. 23, 2012, no pet.) (mem. op.) (holding the best 

interest finding was supported where the father had a history of instability, 

domestic violence, and criminal activity, and Department planned to have child’s 

foster family adopt him).

Children’s Desires, Needs, and Proposed Placement 

A child’s love for her natural parent is an important consideration in the best 
16

interest determination. In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana 

2003, no pet.). Even where a child is attached to a parent, however, the child’s 

desire to be returned to the parent will not be dispositive of the best interest 

analysis if the parent has engaged in conduct dangerous to the child’s well-being. 

B.B. v. Tex. Dep’t of Family & Protective Servs., ___ S.W.3d ___, 2014 WL 

4737541 (Tex. App.—El Paso Sept. 23, 2014, no. pet. h.). In this case, both 

Children told the caseworker they wanted to remain with their foster family. The 

Father acknowledged the girls also told him they wanted to stay in their foster 

home.

A child’s need for permanence through the establishment of a “stable, 

permanent home” has sometimes been recognized the paramount consideration in a 

best interest determination. See In re K.C., 219 S.W.3d at 931. Therefore, evidence 

about placement plans, including a potential adoption, are relevant to the best 

interest determination. See C.H., 89 S.W.3d at 28.

The Children’s guardian ad litem provided testimony supporting the finding 

that termination is in the Children’s best interest based on over 150 hours she spent 

working on the case, including interviewing the Children, family members, and 

foster parents. See Tex. Fam. Code § 107.002(e) (setting out the guardian ad 

litem’s duty to testify regarding her recommendations relating to the best interests 

of the child and the reasons for the recommendations). In her opinion, termination 

is in the Children’s best interest. She stated that the Children were currently in a 

safe and stable environment where they were thriving and doing very well. They 

were also doing well in school. She said the children were bonded to the foster 

family, and expressed their desire to stay there. The foster parents want to adopt 

the girls. The foster parents are employed, have their own home, and the girls each 

have their own room. A photograph of the foster parents with the Children in 
17

which they appeared happy and affectionate was admitted at trial. 

The caseworker described the Children’s progress since they had been in 

foster care. When Michelle first came into care, her mental state was unstable and 

she had to be hospitalized. She was diagnosed with “intermittent explosive 

disorder.” She experienced rages and engaged in violent behaviors at times, some 

of which caused her to harm herself. She received treatment and therapy during the 

pendency of these proceedings. There was evidence the foster family worked hard 

to see that Michelle received appropriate treatment. Michelle learned to control her 

problems with anger and behave at school. At the time of trial, both girls were 

doing well. 

The Department also presented evidence that the foster parents plan to adopt 

the Children. A Child Advocates representative testified the foster parents had 

gone to “extraordinary” lengths helping Michelle with her therapy and medication. 

They had taken Michelle to several different psychiatrists to help her overcome her 

anger issues. Both girls told the caseworker, the guardian ad litem, and their Father 

that they wanted to remain with their foster family. 

The factfinder could reasonably have concluded that this evidence supports 

its best interest determination.

The Father’s Parenting, Support System, and Plans for the Children

The Father testified that the Children and he had bonded. He visited them 

regularly until he was incarcerated, even when he had to drive from the San 

Antonio area. He brought lunch and clothes or toys for the girls when he visited. 

He testified they all cried when he left his visits with the Children. He had cared 

for them before their removal. He testified he made approximately $4,000 per 

month, enough to buy a house and care for his Children. The Father testified he 

had investigated places for Michelle to continue her therapy if she was returned to 
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him. 

Over the course of the trial, the Father testified his parents live near him and 

would help him care for the Children. He testified his mother could care for the 

Children at her six-bedroom ranch house while he was incarcerated. The guardian 

ad litem testified, however, that when she contacted the grandmother in June or 

July, 2013, to consider a possible placement of the Children, the grandmother

stated she was no longer interested. During the final day of trial in April, 2014, the 

Father testified that his parents were both willing to help with family support and 

specifically babysitting or a $100 loan if needed. The Grandmother was available 

to confirm this April, 2014 testimony but the Court accepted Father’s testimony 

outlined above.

The Father provided a letter from a neighbor dated April 23, 2013. The letter 

stated, “From my observation, [the Father] is a loving and protective father. For 

quite some time, he has not been able to work full time so that he could be active in 

the child care — taking and picking up his girls from school. The girls are very 

fond of their dad and their relationship is a stellar one. It is my opinion that the 

girls should be placed with their father.”

Evidence about previous CPS investigations is relevant to the Father’s 

parenting abilities. See In re J.H., 2-09-367-CV, 2010 WL 3618712, at *8 (Tex. 

App.—Fort Worth Sept. 16, 2010, no pet.) (mem. op.). Records from Florida were 

admitted in evidence, and they showed that the family had a history with 

Children’s Protective Services (CPS). The Father also acknowledged the family’s 

CPS history at trial. The records showed that the Children were temporarily placed 

in foster care in Florida. The Children’s guardian ad litem testified at trial that the 

Mother admitted the family fled from Florida to avoid the CPS case there. During a

court-ordered evaluation of Michelle after she was removed from her parents in 
19

these proceedings, Michelle revealed she had been sexually assaulted when the 

family lived in Florida. The record reflects the Mother was aware of the assault but 

the parents never sought help for Michelle. 

Other records before the trial court show that the Mother frequently attacked 

the Father while the children were in close proximity, once with a fireplace poker.

As discussed more fully above, Michelle was treated for emotional and behavior 

problems during the pendency of these proceedings. The Father testified that he 

considered taking the children away but decided not to do so. 

The factfinder could reasonably have concluded that the limited evidence in 

the Father’s favor is not significant or is of such a short duration or recent 

occurrence that it does not outweigh the other evidence of a longstanding pattern 

supporting its best interest finding. 

V. CONCLUSION

In sum, the record contains sufficient evidence to support the best interest 

finding based on the Father’s pattern of drug use and criminal behavior, even while 

these proceedings were pending, despite the rehabilitative services the Department 

provided to him. Viewing all the evidence in the light most favorable to the 

judgment, we conclude that a fact finder could have formed a firm belief or 

conviction that termination of the Father’s parental rights is in the Children’s best 

interest. See J.F.C., 96 S.W.3d at 265–66. In light of the entire record, the disputed 

evidence that a reasonable fact finder could not have credited in favor of the bestinterest finding is not so significant that a fact finder could not reasonably have 

formed a firm belief or conviction that termination of the Father’s parental rights is 

in the Children’s best interest. See In re H.R.M., 209 S.W.3d at 108. After 

considering the relevant factors under the appropriate standards of review, we hold 

the evidence is legally and factually sufficient to support the trial court’s finding 
20

that termination of the parent-child relationship is in the Children’s best interest. 

Therefore, we overrule the Father’s sole issue.

Having overruled the Father’s issue, we order the trial court’s judgment 

affirmed.

/s/ Sharon McCally

Justice

Panel consists of Justices McCally, Brown, and Wise.