Opinion issued August 10 , 2021

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 21 - 00081 - CV

——————————— IN THE INTEREST OF T. L. B., A. J. , AND L. J. , children
On Appeal fro m th e 313th District Court

Harris County, Texas Tria l Co urt Ca se No. 2019 - 02943J

MEMORANDUM OPINION L.W. appeals the termination of her parent al rights to three children: T.L.B., A.J., and L.J. S he challenges (1 ) the suff iciency of the evi denc e to support termination under three separate predic a te s , (2) the c onstitutionality of termination und er Subsection M , (3) the finding against her on whether her failure to comply with a court order was not her f ault to avoid termination under Subse ction O , (4) the2

suff iciency of the evidence to support the court ’ s best i nterest finding , and (5) the designation of the Department of Family and Protective Services as the chi ldren ’ s post

- termination conservator
. We affirm

. Background The mother

, the children who are th e subject of this suit, and the mother ’ s two older childre n The mother appealing the termination of her parental rights is L.W. We will refer to her by the pseudonym, L esia

. T hree of her ch ildren are th e subject s of this terminat ion suit

. We list them b el ow along with the ps eud onym we will use when referring to them : Child Date of Birth Age at Termination Pseudonym A.J. November 8, 2011 8 Ameer L.J. December 1 1, 2012 7 Lela T.L.B. March 26, 2014 6 T iana D u ring the August 2020 termination trial, the D ep artment entered into evidence a decree of termination date d December 8, 2010, through which Lesia ’ s parental rights to two older children were terminated. Those two children are listed below: Child Dat e of Birth Age at Termination Pseudonym A.L.D. Augus t 22, 2007 3 Aal iyah I.L.W. December 22, 2009 11 months I rv in3

T h e 2010 t ermination of parental rights was under Subsections E (endange r ing conduct ) and O ( noncompliance with court order )

. In Lesia ’s wo rds, the termination was for “neglectful supervision an d marijuana use. ” Lesia ’s date of birth is listed on

some documents in the record. She was born on April 2, 199 2

. Thus, on the date of the first termination

— December 8 , 2010

— she was 18 years and 8 m onths old. The record does not rev eal how old Lesia w as when the endangering conduct occurred. T he circumstances tha t led the Department to begin termination proceedin gs as to Am e er, Lela, and Tiana The Department fil ed its original p etition to see k termination of Lesia ’ s parental rights to Ameer, Le la, and Tiana in July 2019. Attached to its petition was

a n 8

- p age aff

idavit by Department Master Investigator , T. Ray. 1 The affidavit discusses the Depar tment ’ s his tory with Am e er, Lela, and Tiana. Th e affidavit state s that the Department becam e involve d in 2013 on allegati o n s of neglectful supervision and drug use by Lesia , which prompted transfer of the matter to the Depar t ment ’ s Family B a sed Safety S ervices d ivision and on go ing services for the fa mily. The Departme nt became involved agai n in Novem be r 2018 due to allegations of negl ectful supervision and drug use as well a s concerns that the children were not enrolled in school.

1 The Department later filed a proposed temporary order with an amend ed affidavit attached.4

Ray ’ s af f idavit d etails the Depar tment ’ s pre - 2019 contact s with L esia and the children and discusses allegations o f ab us e and neg lect a s well as the Department ’ s investigation of these allegations

. But Ray did not testify at the A ugust 2020 termination t rial. A nd the Department cas eworker who did testify, D. Johnson, provided no evidence about the Department ’ s investiga tions into the allegations or general case

- h istory and family in formation

. So th e details of the allegations and t he
trut h of the asser tions are not part of this record in co nducting our sufficiency review. See In re E.F. , 591 S.W.3d 138 , 142 n.4 (Tex. A pp.

— San Antonio 2019, no pet.). L esia was asked at trial whether the ch ildren were removed from her in 2013 and 2014, even before the final removal in 2019. She disputed that t he children were removed f

rom her two times before 201 9

. She testified t hat they were removed only

on ce , in 2013

. Any contact with the Department in 2014 , accordi ng to Les ia , was limited to allegations without a r emoval

. J ohnson testified that the three children w ere removed again in 2014 , meaning that Tia na was removed at birth or short ly after

. Johnson testified that Lesia was provided services when the childre n were removed in 2019 but had not shown that she had learned from the services she comp leted . Nor had she completed all the services requ ired by court order. Lesia had
not establishe d sta bility in her housing or employment either

. And she was not involved in the children ’ s educ a tion.5

Joh nson acknowl edged that, toward the end of t he case, Lesia provided several paystubs to prove she had a job and a copy of an apartment lease to prove she had housing . According to Johnson , thou gh, these recent improvements did not alleviate the Department ’s concer ns about income and housing in stability. The Department sought termin ation of Lesia ’ s parental ri ghts b ecause Lesia ha d not establi sh ed , within the year that the ter mination case was pending, th at she

was able to p a rent her children or providing them stab ility. By compari son, the children ’ s placement with a relative ha d been successful . Th e children were doing

“ extremely well ” i n that place ment, the y had stabili ty, and the placeme nt wanted to adopt all three child re n to provide them a permanent home

. 2 Lesia test ified about her efforts. She testified that she had been em ploye d for
t hree m onths. At some point , though the record i s not clear when, Lesia lease d a o ne bedroom apartment, and later , the mo nth before tri al , she upgraded to a two

- bedroom to pre p are for the return of her children. L esia testified that she began a parenting class ei ght weeks be fore trial

. She h ad three weeks of classes le ft to compl ete . She failed to explain waiting more than nine months to b egin the r e quired cla sses, other than a positive CO VID rapid test in June 2020 that w as followed by a lab

- confirmed negative test. She testified:

2 The Department elected not to disc lose the ident ity of the placement, infor ming the court only t hat it wa s a relative of Lesia ’ s. Lesia stated that s he did not believe that her children were with any of her relative s.6

I have been doing the best that I can for my children. I take responsibility for me not co mpleting my services , but I fe el that I have come a long way, and I will stop at nothing to try to ge t my children. I have provided stability as long as I ’ve been hav in g this job. I ha ve not been able to see my c hildren in person to bring them anything lat ely [ because of COVI D restrict ions]. But as soon [as] I was able to see them again, I hav e not missed a visit withou t bringing them anything. J ohnson agreed that Lesia ’ s visits with th e children had gone well, but she testified that it was more than just t he parenting classe s that Lesia had not completed. Lesia also had not complete d her court

- order ed individual counseling, su b sta nce abuse individual counselin g, a nd domesti c - violence ed ucation by the tria l deadline , even though she had a year to comple te the services

. T h at co urt order incorporated a September 25, 2019 parenting plan , which required Lesia to perform various, enumerated services to help her establish a stable and appropriate ho me environmen t for her children. U nder the court order, L e sia had
to attend parenting classes, submit to a ps y chological evalua tion a nd follow any recommendations that result ed from t he evaluation, provide evidence of stable housing and income , maintain a drug

- f ree envi ronment, a nd engage in various other servi ce s. 3 The deadline to complete these services was August 31 , 2020. The Department ’ s p ermanency p lan for the children , as of Octobe r 2019 , was family reunification

. T he plan chan ged to relative ad option in February 2020 “due

3 The copy of the parenting plan i n the record does not have L esia ’ s signature on it. The signa ture line is blan k.7

to lack of progr ess on s ervices in family plan of service. ” Th at w as the same month that Lesia test ed positive for coc aine on a hair

- follicle drug test

. Lesia later tested

ne gative , in June 2020, on another ha ir

- follicle drug t est, but the permanency pl an was not revised. That sa me month, the trial co urt issue d a per manency - hearing order
t hat include d a finding that, as of that date, Lesia ha d shown “adequate and appropriate complianc e with the service p lan. ” Th e June 2 02 0 order set the date for the termination trial on Aug ust 12, 2020 , and kept rel ative ado ption as t he Departm ent ’ s permanency goal

. At the August trial, Lesia was asked about a positive drug test in July 2020. She denied having a pos itive result tha t month. The De partment did not seek to admit a drug

- te st result fro m July 20 20, and any discussion of tha t test result occurred outside the trial it self and is thus not trial evidence. The Department sough t ter mination under Subsec tio n ( D ) (endangering conditi ons), (E) (en dangering conduct), (N) (constructive a bandonment), and (O) (failure to comply with cou rt order). See T EX . F AM . C ODE § § 161.001 ( b)(1)(D), (E), (N), (O). The only witnesses were L esia, Johnso n , and the guardian ad l item, L. Richardson. Both Joh nso n and Rich ardson testified that it was i n the children ’ s best interest to terminate L esia ’ s paren tal rights , given her repeated drug use and instabi lity

.8

Of the fo ur predicate gr ounds offered by the D epartment, the t rial cou rt ter minated under Su bsectio n ( O ) only, rejecting termination under (D), (E), and (N). But the trial court, sua sponte, also ter minated Lesia ’ s parental rights under Subsection (M) (prior termination under ( D) or (E)) and (J)(i) ( not enrolled in school )

. Sufficiency of Ev i dence to Support the Pr edicate Finding s Lesia challenges the sufficiency of the evidence to support terminatio n under any of the predicates listed in the t erminat ion decree

. A single pred icate finding under Section 161.001(b)( 1) of the F amily Code can support a judg ment of terminat ion when there is also a finding that termination is in the child ’ s best interest. I n re A.V. , 113 S.W.3d 355, 362 (Tex. 2003). Thus, if multiple pr edicate grounds are found by the trial court, we w ill affirm on any one ground because only one is necessary for termination of parental rights. In re T.G.R.

- M. , 404 S.W.3d 7, 13 (Tex. App.

— Ho uston [1st Dist.] 2 013, no pet.)

. 4 We begin with Subsection (O) , the only ba sis for termination in the decree of t ermination tha t the Depa rtment sought

.

4 When term inatio n is based on Subsection ( D) or ( E), we als o analyze the sufficiency of the evidence to supp ort those grounds, if ra ised on a ppeal, because of the future imp lications for termination as to later children unde r Subsection (M). In re N.G

. , 577 S.W.3d 230, 23 7 (Tex. 2019 ) (holding that allow ing (D) and (E) find ings to go unreviewed on appeal when the parent has presented the issue t o the appellate court viol ates t he parent ’ s due

- process and due

- course - of

- law righ ts )

. Lesia ’ s parent al right s to Ameer, Lela , and Tiana were not terminated under ( D) or (E); therefor e, th e holding in In re N. G. does not apply

.9

A. Standard of r eview A parent ’ s rights to the “companionship, care, custody , and management” of his or he r children are constitutional interests “far more pre cious than any property right.” Santosk

y v. Kramer , 45 5 U.S. 745, 75 8

– 59 (1982); see In re M .S. , 115 S.W.3d 534, 547 (Tex. 2003). A termination decree is final, irrevocable, and permanently divests the p arent of all legal rights, privileges, duties, and po wers related to the parent

- child r elationship, ex cept for the c hild ’ s right to inherit. Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize terminati o n proceedings and strictly constru e the involuntary termination statutes in favor of the parent. Id. But the “rights of natural par ents are not a bsolute” and the “rights of parenthood a re accorded only to those fit to accept the accompanying responsi bi lities.” In re A.V. , 113 S.W.3d at 3 61

. Recognizing that parents may forfeit thei r parental rights by their acts or omis sions, the prim ary focus of a ny termination suit is p rotection of the child ’ s best i nterest. See id. Because of the severity and permanen cy of the termination of parental ri ghts, the evidence supporting termination must meet the threshold of clear and convinc ing evidence. T EX . F AM . C ODE § 161.001(b); In re J.F. C. , 96 S.W.3d 25 6, 263 ( Tex. 2002). “ ‘Clear and convincing evidence’ means the me asure or degree of proof that will p roduce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation s sought to be established.” T EX . F AM . C ODE § 101.007. This is an10

intermediate standard that falls between the preponderan ce standard used in ordinary civi l proceedings and the reasonable doubt standard used in criminal proceedings. State v. Addin gton , 588 S.W.2d 569, 570 (Te x. 1979). This heightene d burden of proo f results in a heightened st andard of review

. In re J.G.S. , 574 S.W.3d 101, 114 (Tex. App.

— Hous ton [1st Dist.] 2019, pet. denied); In re S.R. , 452 S.W .3d 351, 358 (Tex. App.

— Houston [14th Dist.] 2 014, pet. denied). When a parent challe nges the legal suf ficiency of the evidence supporting
ter mination , the court reviews all evidence in the light most favorable to the termination finding to determ ine whether a reasonable trier of fact could h ave formed a firm belief or convictio n that the finding was true. In re J.O. A. , 283 S.W.3d 336, 344 (Tex. 2009); In re J.F.C. , 96 S.W.3d at 266

. The court must assu me that the factfinder resolved disputed facts in favor of its finding if a reasonable factf inder

cou ld do so. In re J.O.A. , 283 S.W.3d at 344; In re J.F.C. , 96 S.W.3d at 266. It should disregard a ll evidence that a reaso nable factfinder could have disbeli eved or found to be incre dible. In re J.O.A. , 283 S.W.3d at 344; In re J.F.C. , 96 S.W.3d at 266. If, after conducting a legal suf ficiency review of the record evidence, the court determines that no reasona ble factfinder c ould have formed a firm belief or

c onviction that the matter to be proved was tru e, the court must conclude that the evidence o n that matter is legally insufficient

. In re J.O.A. , 283 S.W.3d at 344

– 45 ; I n re J.F.C. , 96 S.W.3d at 266

.11

Only when the factual sufficiency of t he evidence is chal lenged does the reviewing court review dispute d or conflicting evidence. In re J.O.A. , 283 S .W.3d at 34 5 ; In re J.F.C. , 96 S.W.3d at 266. “If, in light of the entire re cord, the disputed evidence t hat a reasonable factfin der could not ha ve credited in favo r of the finding is so significant that a fact fin der could not reasonably have formed a firm belief or conviction, then the evide nce is factually insufficient.” In re J .F.C. , 96 S.W.3d at 266. We g ive due deference to the factfinder ’ s fi ndings, and we cann ot substitute our own judgment for that of the factfinder. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). The factfi nder is the sole arbiter of the credibility and demeanor of witnesses. Id. at 10 9. 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 cou ld easily have rejected as not credible.” In re L.M. I

. , 119 S.W.3d 707, 7 12 (Tex. 2003). Our opinion should explain why we ha ve concluded that a reasonab le factfinder could not hav e credited disputed evidence in favor of the finding. In re J.O.A. , 283 S.W.3d at 34 5. B. The evidence supports the trial c ourt ’ s finding under Subsecti on (O) L e sia ’s family

- se rvices plan was incorporated in to the trial court ’s orde r in August 2019 , meaning that failure to comply with the services plan would be grounds for termination und er Subsection (O). Her services pla n li sted the Department ’s concerns over Lesia ’ s parenting , in cluding that she could not provide12

her chi ldren with a s afe e n vironment or meet their educational needs. The Department also had concerns that L esia “may be under the in fluences of mind alter ing drugs that may be the cause of the parent ’s decis ions [ and p arental c hoices ]. ” The services plan listed tas ks Le sia need ed to complete, which included attending p arenting classes and m aint ain ing stable income , stable housing , and “ a drug free li ving enviro nment, ” a mong other thing s. The plan liste d as its purpose to help Lesia provide her children with “a saf e envir onment within the reasonable period specified in the plan, ” and it warned th at failure to provi de a safe environment could lead to te rmination o f her parental rights. Les ia was given one year to complete the services. By her own testimony, Lesia used cocai ne three months after the family services plan was created. She th en tested positive for cocaine on a hair

- follicl e drug
test
. Her te st imon y about her December 2019 drug use and February 2020 failed dr ug test was evidence of her failure to comply with the terms of the trial court ’ s order. Lesia testified that s he tried to comply with the trial court ’ s order . She completed most of the as sessments, but she did not complete the counseling and classe s. S he did not complete the individual counseling or substance

- abuse individual counseling. She began t he parenti ng classes, but she did not start them until two months before tria l and, as a result, had not completed them by the tri al13

date. She began a jo b and signed an apartment lease , but those developments came l ate in her case, just two

- to

- three months before th e t ermination trial. These co urt

- ord e r ed requirements were placed on Le sia bec ause the Departm ent and, in turn, the trial co urt determined t hat the y were necessary for Lesia to establish that she is capabl e of providing a s a fe, stable, and secure env ironment f or her children. Just before the t ermination trial began, the tria l cour t conducted a permanency hearing at which Johns on testified about Lesia ’ s status in complying with the court

mandated services e numerated in the family services plan. Johnso n did not repeat her testim ony during the subsequent trial. At trial, Le s ia d id not dispute that she had not completed the court

- o rdered requireme nts. In her brief , though, she argue s there is ins ufficient evide nce of a failure to complete her service s bec ause the c a seworker ’ s testimony ab out the

u ncompleted services occurred durin g the preliminary po rtion of the hearing that dealt with permanency , not after the h earing transitioned into the termina tion trial. Sh e argues t hat, during the trial port ion of the hearing, the caseworker never testified about which services were left incomplete. But Les ia , herself, testifie d that she did
not complete the serv ices. Lesia admitted that she began the parenting classes jus t two m onths before the trial date and still had three classes left. S h e did not explain why she waited more14

than nine months to begin th is requirement. She a lso testified that she had not

c omp l eted the required evaluations and had just scheduled one of th em for the d ay after tria l , asserting that there had be en a mi sunderstanding whether an earlier phone conversation had counted as her eva luation. Th us, Lesi a ’ s own testimony establishe d her failure to complete t he family service plan requirements. Lesia al so argues that the trial court could not rule that she fai led to comply with the plan because the plan was erroneously admitted into evid ence. She b as es this argument on the Department ’ s fai lure to comply with a sta nding court order that required the parti es to e - file the ir intended evidence at least 48 hours before trial. T h e Departmen t filed the services plan after 6:00 pm, the night befo re trial . L esia argues that the trial court abu sed it s discretion in ad mitting th is evidence over her objection

. But the plan did not have to be admitted for the trial cour t to determine that Lesia failed to comply with its provisions. A tr i al court may take judicial notice of its file in a paren t al

- termin ation suit , including the pleadings , the existence of a family ser vices plan, and orders adopting family service s plans. In re R.W., No. 01

– 11

– 00023

– CV, 2011 WL 2436541, at *7 (Tex. App.

— Houston [1st Dis t.] J une 16, 2011, no pet.) (mem. op. ). A nd we may pr esume tha t a trial court presiding over a termination bench tr ial took judicial notice of the existence of a family servi ces plan in its record without a request being made and without an announcement that it has15

done so. D. M. v. Tex. Dep ’ t of Fam

. & Protective S erv s . , No. 03

- 20

- 00 557

- CV, 2021 WL 1418986, at *10 (Tex. Ap p.

— Austin Apr. 14, 2021, no pet. ) (mem. op.) ; In r e K.F. , 402 S.W.3d 497, 504 (Tex. A pp.

— Houston [14th D ist.] 2013, pet. denied) ; In re S.J.S. , No. 04

- 12

- 00067

- CV, 2012 WL 2450817, at *6 (Tex. App.

— San Antonio Jun e 27, 2012, pet. denied) (mem. op .); In re A.W.B. , No. 14

– 11

– 00926

– CV, 2012 WL 1048640, at *3 (Tex. App.

— Houston [14th Dist .] Mar. 27, 2012, no pet.) (mem. op.) (presuming trial court took judicial not ice of order adopting fa mily service plan ). Lesia admi tted she did not complete her services. A nd she admitte d to using cocaine while under the fam ily services plan , even though the plan required that she maintain a drug

- free environment

. Lesia is not rel ieved of the plan ’s requ irements sim ply because the pla n may not have been properly admitted into evidence

. In re A. X.A. , No. 04

- 09

- 00519

- C V , 2 009 W L 5150068, at *5 & n.3 (Tex. App.

— San Antonio Dec. 30, 2009, no pet.) ( upholding term ination of paren tal rights un der Subsection (O) on ev idence that parent failed to comply with court order, even without p arenting plan in e vidence because trial court coul d take judicial notice of its own files ). We will presume th at this trial court took judicial notice of the family services plan in its record. And we conclude that there w as legally and f a ctually sufficie nt evidence that Lesi a failed to adhere to the mat erial req uirements of the plan

. T he16

evidence suppor ts the trial court ’ s determination that, b y failing t o complete her service plan, Lesia failed to finish the st eps necessary to d emonstrate her ability to provide a sa fe environment for her children

. See I n re A.J.E.M.

- B. , No. 14

- 14

- 00424

- CV, 2014 WL 57954 84, at *12 (Tex. App.

— Houston [14th Dist.] Nov. 6, 20 14, no pet.) (analyzing termination under Subsection (O) for failure to comp ly w ith tr ial
court ’ s orde r)

. Next, L esia argues that , even if she did not complete her services , she has demons trated recent e fforts to engage in he r services and a strong desire to have her children returned to her care. She argues t hat terminat ion under Subsection (O) is not ju st ified because she met her bu rden under S e ction 161.001 ( d ) to establis h by a preponder ance of the evidence that , while she could not complete services , she made

a “ good faith effort to comply with the orde r ” and her “ failure to comply with the order is no t attributable t o any fault ” of her own. T EX . F AM . C ODE § 161.001(d )

. W e cannot agree. Lesia provided no explanation why she waited over n ine months to begin pa renting classes. Nor did she expla in what prevented he r from completing the required co uns eling

. She testified that she th ough t a phone call to the counseling office counted a s her court

- ordered evaluation, but h er plan required more than an evaluation. It required her to complete the related coun seling, whi c h she did not do.17

Lesia admitted to usin g c ocaine while under the family services plan , whi ch violated mate rial aspects of the plan directly rel ated to the reasons the childre n cam e under the D epartme nt ’ s care to begin with

— a hist ory of drug use and child neglect

. Lesia testified that the cocai n e use was an isolated , bad d ecision. Even if the trial court credi ted her testimo ny

— which it did not have to do

— voluntary drug use while

one ’ s children have been r emoved based on a history of drug use and child neglect goes against Lesia ’ s argume nt that he r failure to compl y with the famil y service s plan was due to no fault o f her own. See In re D.K.J.J. , No. 01

- 18

- 01081

- CV, 2019 WL 2455623, at *16 (Tex. App.

— Houston [1st Dist.] June 13, 2019, pet. denied) (mem. op.) (rejecting mother ’ s affirmative defense ar gument under Sec tion 161.001(d) ). Reviewing the evidence under the ap plicable standards, we conclude the evidence is legally and factually sufficient to support the t rial court ’ s finding that Lesia fail ed to comply with court

- order ed services to obtain t he return of her ch ildren and that she failed to prove by a preponderance of evidence that she could not comply with specific provisions but that she made a good

- faith e ffort to comply and any failure was not her fault. See T EX . F AM . C ODE § § 1 61.001(b)(1)( O); 161.001(d)

. Having concluded the evide nce support s the trial cou rt ’ s finding under S ubsection18

(O), w e need not review the suff iciency of the ev idence to support terminati on under any other subsection or the constitutionalit y of termination under Sub sec tion (M)

. 5 Best Interest I n her fifth issue, Lesia co ntends there is insufficient evidence to support a finding that termination i s in the three ch ildren ’ s best inte rest. A. App licable law Alon g with a predicate violation, the Department must establish by cle ar and convincing evid ence that termination is in the children ’ s best interest. T EX . F AM . C ODE § 161.001(b)(2). There is a str ong presumption t hat the child ’ s be st intere st

5 We recognize that the trial court and the parties in this proceeding had other hearings be fore the trial date , including a p ermanency hearing imme diately b ef ore trial at which the casework er provi ded factual information about the reason s for remo val and Lesia ’ s compliance and noncompliance with the family services plan. Those proc eedings allowe d the court a level of familiarity with the case and pot entia lly caused the witnesses and attorney s to hav e facts in m ind that were not actually in troduced as evidence at the ter mination trial. The re is only on e volume of the reporter ’ s record for th is te r mination trial that contains testimony. It is volume t wo , and i t is only 69 pages long. Trial te stimony does not beg in until page 25. It ends on page 61. That is just 36 pages of testimony to establish, by clear and convincing evidence, not only the grou n ds for termination but also that it is in t he best inte rests of these children to permanently sev er their relationshi p with their mother. We , of course, are mindful of the extraordinary burdens placed on all participants in this system. Yet, we must reiter ate what our colleagues at the San Antonio Court of A ppeal s ea rlier urged: “ Given the constituti onal ri ght s of the parents in these proceedings, the futu re placement of the children involved, and the effect such placement will have on their lives,

. . . we urge the trial court and the parties to m ore complet ely devel op the evidence at trial, so the a ppellat e record is commensurate with the finality of pare ntal termination. ” Interest of E.F. , 591 S.W.3d 138, 142 (Tex. App.

— San Antonio 2019, no pet.)

.19

will be served by preserving the parent

- child rela tionship. In re G.M. , 596 S.W.2d 846, 847 (Tex. 1980) ; see T EX . F AM . C ODE § 153.131(b). Because of the strong presumption that maintaining the parent

- child rel ationship is in each child ’ s b est interest and t he due pr oces s implications of terminating a parent ’ s rights w ithout clear and con vincing evidence that termination i s in the child ’ s best interest, “the best interest standard does not permit termination mer ely because a child might be b etter off living e lsewhere. Ter mination should not be used to merely reallocate children to better a nd more prosperous parents.” In re W.C. , 98 S.W.3d 753, 758 (Tex. App.

— Fort W orth 2003, no pet.) (internal citat ion omitted) ; see In re E.N.C. , 384 S.W.3d 796, 809 (Tex. 2012). A factf inder may consider several factors to determine the child ’ s best interes t, i ncluding the child ’ s desires, the child ’ s present and f uture physical and emotional needs, the pr esent and future emot ional and physical danger to the child, the parental abili ties of the people seeking c ustody, programs available to assist those peopl e in promoting the child ’ s best interest, plans for the chi ld by those people or by the agency seekin g custody, the acts o r omissions of the parent that may suggest that the exist ing parent

- child r elationsh i p is not appropriate, and any excuse for the acts or omissions of the parent. Holley v. Adams , 544 S.W.2d 3 67, 371

– 72 (Tex. 1976). The l ack of evi dence on some factors does not preclude a factfinder from reasonably forming a strong conviction or b elief that termination is in the child ’ s20

best interest. In re C.H. , 89 S.W.3d 17, 27 (Tex. 2002). But t he lack of evidence cannot be used as if it were clea r and convincing evid ence supporting a termination finding. In re E.N.C. , 384 S .W.3d at 808. In s ome cases , undisputed evidence of only one factor may be enou gh to support a finding that termination is in the c hild ’ s best interest; in other cases, ther e could be “more comp lex facts in which paltry evidence relevant to each consid eration mentioned in H olley would not suffice” to support termination. Id. Our “ bes t interest” analysis is not limited to these Holley factors; other factors may be considered. Holley , 544 S.W.2d at 372. “A best

- interest analysis may consider circumstantia l evidence, subjec tive fact ors, and the totality of the evidence as well as the dir ect evidence.” In re E.D. , 419 S.W.3d 615, 620 (Tex. App.

— San Antonio 2013, pet. denied). “A t rier of fact may meas ure a parent ’ s future conduct by his past conduct and dete rmine wheth er term ination o f parental rights is in the child ’ s best interest.” I d. B. The evidence supports a determination that terminati on is in the chi ldren ’ s best interest We w ill review the eviden ce in the framework of the Holley factors. 1. The c hildren ’ s desires The De partment pres ented no evidence of the ch ildren ’ s desires. Lesia
te sti fied that Ameer asked her, at a visit the day before trial, how long it would take before they could go home. She a ssured him that she loves him but said that she did not know what would happen at tri al.21

This factor does not support termination. 2. The c h ild ren ’ s present and future physica l and emotional needs and danger L esia tes tified that her two older children , Aaliy ah and Irvin, were removed due to drug use and negl ect. The caseworker testified that Am eer, L ela , and Tiana were removed twice before the 20 19 removal that led to terminati on . Lesia admitted that she used drugs after the child ren ’ s last removal and tested positive for cocaine in early 2020

. Lesia did not complete drug treatm ent counseling

. It was disputed whether she tested positive again j ust o ne month before trial , in July 2020

. Lesia ’ s inab ility to comp ly with the requirement to maintain a drug

- free

en v ironment as a prerequisite to regaining conservatorship of her children

reas onably su pport s a determination that she cannot prioritize th e ch i ldren ’ s needs

. Cf. In re N.J.H. , 575 S. W.3d 822, 841 (Tex. App.

— Houston [1st Dist.] 2018, pet. den ied ) (J. Brown, c oncur ring) ( stating that “ family services plans approved and ordered by the trial courts frequently require a pare nt to abstain from drug us e as a condition of visitation or reunifi cation , ” and that factfind ers could conclud e that p arental rights should be terminated where a parent does not abstain long enou gh to satisfy the plan , despite knowing that a fa ilure to comply could support terminat ion. ) That evidence , cou pled with the repeated Department involvement based on

concer n s of drug use and chi ld neglect and Lesia ’ s admitted history of drug use affect ing her parental abilities , supports a conclusion that Lesia ’ s home env iro nment22

may be a ph ysical and emotional danger to the young children

. See In re M.M.M

. , No. 01

- 16

- 00998

- CV , 2 017 WL 2645435 , at *15 (Tex. App.

— Houston [1st Dist.] June 16, 2017, no pet.) (mem. op.) (concluding that inability to stop drug use sup port ed finding that terminatio n was in child ’ s best i nte rest). T h e De partment argues that the pas t instabi lity in the children ’ s li ves and Lesia ’ s documented inability to care for h er childr en indicate that returning them to Lesia would be inappropria te. While th ere is considerable doc umentation in the case file relate d to the ch ildren ’ s re siding outside Lesia ’ s home in the past , as Lesia points out in her briefing, that evidence was not i ntroduced at the ter mination trial

. 6 Even witho ut that evidence, though, there is ad equate evidence of repeated drug use and instability to conclud e that this fa ctor supports terminati on. 3. The p arenting abilities of people seeking custody The Dep artment ’ s case worker , D. Johnson, testified that th e children are doing “extremely well ” with the adoptive pla cement . T he adoptive foster parents are giving the child ren th e stability they nee ded and meeting all thei r emotional and educational needs

. The Child A dvocates ad litem, L. Richardson, testif ied that the children are in a good pl acement where they “ are d oing very well ” and being “ w ell taken care of. ” They have stru cture and stability. They go to school . And they have a “ very good

6 See note 5 above.23

life. ” From th ese statements, the trial court reasonab ly could have conclude d that the adoptive placem ent is providing app ropri ate and supporti ve par enting to the children. Johnson testi fi e d about Lesia ’s parenting history , including the earlier termination of parenta l right s, in 2010 , under Subsection (E) for end anger ing conduct involving the two older childre n . Richardson testif ied that plac ing Ameer, L ela , and Tiana with Lesia would be di sruptive an d destabilizing for the chil dren, particularly given Lesia ’ s lack of stable employment and housing as well as her positive drug te sts. While this Court would prefer to have a more de tail ed discussion of the pare nting a bilit ies of those being co ns idered for cons ervatorship, we conclude that this record evidence relevant to this factor , tho ugh brief, weigh s in favor of terminatio n. 4. The a vailable programs for conservators to promote the children ’ s best interest There was no t estimony on the topic of available future services, but Lesi a ’ s history of services was discussed briefly . Lesia had serv ices offered to her in the 2010 termination, aga in in 2013 after having Ameer and Lela , and pos sibly agai n in 2014 when Tiana was born

. Only one of those time s did she complete the services req uired. That was in 2013. Even after fully completing services, the circumstances24

of the children ’ s care led to su bsequent Department involvement and another

r emoval in 2019. Drug use remained a n obstacle despite services being offered. Even if future s ervices are availa ble to Lesia, the evidence does not support a conclusion that she would full y avail herself of t hose services or incorporate them into her pare nting practices. 5. Lesia ’ s and t he D epartment ’ s plans for t he children Lesia ’ s testimony was brief on this topic. She testified that she moved into a bigger, two

- bedroom apartment so that her children would ha v e their own room. And she testified that she lo ves he r children and wants them with her. She d id not discus s the assertion t hat the chil dren had breaks in their schooling or any educat ional plans fo r the children. Nor did she address the h istory of the children living with oth er people and how she migh t be able to support and care for the k ids in h er own home i n the future. The other witnesses were nearly as brie f on this top ic. Johnson testified that the current placement wanted to adopt the chi ldren and would give the children t he stability and perman ency that the y needed. Furthe r, they would prov ide for their ed ucation needs moving forward. The placement would be permanent, and the children would remain together. The ev idence on thi s factor , though limited, weigh s in favor of termination

.25

6. Lesia ’ s acts or omissions that may suggest that the exist ing parent - child relationship is not a proper one and any excuse for those acts or omi ssi ons Lesia admitted to a history of drug use and ha ving her p arental rights
ter minated in the past due to drug use and neg l ect
. Even after the Department became involve d in the care of these three ch ildren, Lesia used drugs, which le d to a p ositive drug test and jeopardized her ability to h ave her ch ildren returned to her. Lesia did not complete the parenting classes or substa nce abuse classes to demonstr ate a change of course or earnest effort to address the recurrin g drug use. While he r e fforts to obtain stable income and housing during the last c ouple months of the case are to be commended, on balance, her acts and omissio ns , in the aggregate, suggest that the parent

- child relatio nship is not one that would be stable and healthy fo r t he children without significa nt community and government assistance . While there are some indications that Lesia ’ s family and friends have bee n willing to help house and raise the children in th e past, their substitute ca re is not the focus of this fact or: it is Lesia ’ s. See In re C.G. , No. 13

- 15

- 00360

- CV , 2 016 WL 873 7455 (Tex. App.

— Corpus Christi Jan. 7, 2016, no pet.) (mem. o p.) (considering p arent ’ s relia nce on others to provide care for children in evaluating whether termination of parental rights is in best interest of child; affirming termination). On b alance, th e evidence supports a determination that Lesia ’ s acts or26

omis sions suggest that the parent

- chi ld relationship is not a proper one and that efforts to sta bili ze and support the relationship have been un availing

. 7. Best - interest conclusion As stated , the trial evidence is not well

- d eveloped. The re is much more material in the case file t han in the record. Yet we must limit our review to th e trial evi dence

. See In re B.R. , 456 S.W.3d 612, 617 n.4 (Tex. App.

— San Antonio 2015, no pet.). Even l imiting our review to th e trial ev idence, we conclude that the evidence favors the tr ial cou rt ’ s bes t

- interest determination. See In re G.M. , 2019 WL 3432088, at * 4

– 5 (J. Watkins, concurring ) ( sta ting that appellate court must be limited to trial re cord, expr essi ng frustration at the “ scant record ” provide d by the part ies with general re ferences to mater ial not in the appellate record, but concurring that, even with such a limited record, there was legally and factually suffi cient evidence to support the predi cate finding, the best interest finding, and, ultimately, termination). Stabili ty is a p aramount consideration in a termination suit. In re J.S.B. , N o. 01

- 17

- 00480

- CV , 2017 WL 6520437, at *2 1 (Tex. App.

— Houston [1st Dist.] Dec. 21, 2017, pet. de nied) (mem. op.) ; In re J.D. , 436 S.W.3d 105, 119

– 20 (Tex. App.

— Houston [14th Dist.] 2014, no pet.) ( “ Stabi lity and permanence are paramount in the upbringing of children. ”); In re K.C. , 219 S.W.3d 924, 931 (Tex. App.

— Dallas 2007, no pet.) (child ’ s need fo r stable, permanent h ome paramount27

consideration in best interest determination). Lesia has a histo ry of in stability. There have been re curring issues that have led to the Department removing the childre n and of fering se rvices to Lesia. Even so , Lesia did not complete the services by the deadline to establish her ability to provide a s afe and appropria te home e nvironment for h er children. Nor did she explain why she could not complete all her s ervices

. And Lesia admitted to using drugs while her termination suit was pending , in violation of her par ent services plan and court ord er , even though her drug use was

a material aspect of the Department ’ s concerns over her ability t o adequately care for her children

. In contrast , the evidence shows that t he ado ptive placement is providing stability a nd educational supp ort
. The ch i ldren are doing “ extremely well ” and bei ng

“ well taken care o f

” in what is expected to be a perma nent home together

. The evidence is factually and legally suf ficient t o support th e trial cour t ’ s best

interest finding. Post - Terminat ion Conservatorship C hallenge In her final issue, Lesia argues t hat there was legally and factually insufficient evidence to suppo rt the trial court ’ s order appointing the Department as managing
conservat or of the children. When the parental rights of all living parents of a c hild are te rminated, the trial court must a ppoint a “competent adult, the Department of Family and Protective28

Services, or a licensed child

- placing agency as mana ging conservator of t he child.” T EX . F AM . C ODE § 161.207(a); see In re D. K.W., Jr. , No. 01

- 17

- 00622

- CV, 2 017 WL 6520439, at *5 (Tex. App.

— Houston [1st Dist.] Dec. 21, 2017, pet. denied) (mem. op.). Conse rvatorship determinations are reviewed for an abuse o f discretion and will be reversed only if the decision is arbitrary and u nreasonable. In re J. A.J. , 243 S .W.3d 611, 616 (Tex. 2007); In r e A.C. , 394 S.W.3d 633, 644 (Tex. App.

— Houston [1st Dist.] 2012, n o pet.). An order terminating the parent

- child relati onship divests a pare nt of legal rights and duties to the ch ild. See T EX . F AM . C O DE § 161.20 6(b). Once we overrule a parent ’ s challenge t o an order terminating her parental rights, the trial court ’ s appointment of the Department as sole managi ng conserv ator may be considered a “consequence of the termination.” In r e D.K.W., Jr. , 2017 W L 6520439, at *5 (q uoting In re A.S. , 261 S.W.3d 76, 92 (Tex. App.

— Houst on [14th Dist.] 2008, pet. denie d) ). Because we have overruled Lesia ’ s challenge to the portion of the trial court ’ s order terminating her parental rights, the order has divested Lesia of her legal right s and duties related to Ameer, Le l a, and Tiana

. See T EX . F AM . C ODE § 161.206(b); In

r e D.K.W., Jr. , 2017 WL 6520439, at *5. Les ia therefore does not have standing to cha llenge the portion of the order appointing the Department as the ch ildren ’ s29

conservato r. In r e D.K.W., Jr. , 2017 WL 6520439, at *5

. We overrule Lesia ’ s final issue. Conc lusion We affirm the termination of Lesia ’s pare ntal rights as to Ameer, Lela, and Tiana under Subsection (O), having concluded that t here is sufficient e vidence

from which the trial cour t could have formed a firm belie f or conviction that Lesia failed to comply with the court

- ordered service plan and that termination is in the children ’ s best interest

.

Sarah B eth Landau Ju stice Pan el c onsi sts of Chief J ustice Radack and J ustices Landau a nd C ountiss

.