Opinion issued February 18, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00733-CV

———————————

IN THE INTEREST OF D.R.L., C.L.W., JR., AND A.E.L., CHILDREN

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Case No. 2014-03703J

MEMORANDUM OPINION

In this accelerated appeal,1appellants, Margarita Luna and Jason McDonald, 

challenge the trial court’s order, entered after a bench trial, terminating their parental 

rights to their respective minor children, D.R.L., C.L.W., Jr., and A.E.L.

2

 In her sole

 

1 See TEX. FAM. CODE ANN. § 263.405(a) (Vernon 2014); TEX. R. APP. P. 28.4.

2 Luna appeals the termination of her parental rights to D.R.L., C.L.W., Jr., and 

A.E.L. McDonald, the alleged father of D.R.L., appeals the termination of his 
2

issue, Luna contends that the evidence is factually insufficient to support the trial 

court’s finding that termination of her parental rights was in the children’s best 

interest.3 In his two issues, McDonald contends that the Texas Family Code 

provision authorizing the termination of the parental rights of “an alleged father”4is 

facially unconstitutional and the evidence is legally and factually insufficient to 

support the trial court’s finding that termination of his parental rights was in D.R.L.’s 

best interest.5

We affirm.

Background

On July 3, 2014, the Texas Department of Family and Protective Services 

(“DFPS”) filed a petition seeking managing conservatorship and termination of the

parental rights of Luna and McDonald to their respective minor children. By 

affidavit attached to the petition, DFPS Investigator Iris Foster testified that on 

March 27, 2014, DFPS received a referral alleging physical abuse, neglectful 

supervision, and physical neglect of D.R.L., C.L.W., Jr., and A.E.L. In the referral, 

it was specifically alleged that Luna “left home with all three of her 

 

parental rights to D.R.L. The father of C.L.W., Jr. and A.E.L does not appeal the 

termination of his parental rights.

3 See TEX. FAM. CODE ANN. § 161.001(b)(2) (Vernon Supp. 2015).

4 See id. § 161.002 (Vernon Supp. 2015).

5 See id. § 161.001(b)(2).
3

children . . . without letting her father, with whom she lives, know that she was 

leaving”; did not subsequently respond to calls or text messages to her cellular

telephone; would “disappear[] with her children on a regular basis only to return

back to her father’s apartment after a few days of bouncing from home to home and 

sleeping in [her] car with her children”; and “has a history of neglect/abuse from 

2007 to [the] present,” “has repeatedly placed [her children] in dangerous situations 

without regard [for] their safety,” has a “long history of drug abuse and theft,” 

“bounces [her] children from place to place,” and allows them “to be around” 

C.L.W., Jr. and A.E.L.’s father, who has a “history of violence and [an] untreated 

mental health disorder.”

At trial, DFPS caseworker Stephanie Samuel testified that the children6came 

into the care of DFPS due to allegations of “physical abuse, neglectful supervision 

and physical neglect by [Luna].” Samuel noted that “at the very beginning of the 

case,” and “[t]hroughout [its] duration,” Luna tested positive for narcotics use. 

“[P]rior to when [the case] started,” she tested positive for amphetamine, 

methamphetamine, and cocaine use. In June 2014, she tested positive for codeine

use. In July 2014, she tested positive for oxymorphone, oxycodone, and codeine

use. And in December 2014, she tested positive for amphetamine, 

 

6 At the time of trial, D.R.L. was eight years old, C.L.W., Jr. was five years old, and 

A.E.L. was four years old.
4

methamphetamine, and marijuana use. In December 2014, Luna also “walked out 

on [an] extended opiate zero tolerance test and [an] ETG test and [a] synthetic 

marijuana test.” Finally, in March 2015, she tested positive for marijuana use; 

however, she told Samuel that she tested positive because she had been “around 

people that did marijuana” and it “wasn’t her drug of choice.”7

In regard to Luna’s family service plan, Samuel explained that although Luna 

had received it, she “did not complete it successfully.”8 Specifically, Luna “was 

unsuccessfully discharged from individual therapy . . . and group substance abuse 

therapy.” In other words, she “did not complete [her] individual therapy and [her] 

group substance abuse therapy.” And Luna, during the pendency of this case,

continued to use narcotics, violating her family service plan.

Samuel noted that although Luna told Samuel that “she lived with her father,” 

she did not provide “proof of a lease” to establish that “she’s supposed to be in the 

home with her father.” And she did not find “independent[]” and “stable housing,” 

which her family service plan required. Further, Luna did not provide “a certificate 

 

7 At trial, Luna’s narcotics-test results were admitted into evidence, revealing that she 

tested positive for amphetamine, methamphetamine, and cocaine use in April 2014; 

opiate and codeine use in June 2014; oxymorphone, oxycodone, and codeine use in 

July 2014; amphetamine, methamphetamine, and marijuana use in December 2014; 

and marijuana use in March 2015.

8 Samuel noted that Luna, in compliance with her family service plan, is employed 

and did complete her parenting class, submit to narcotics testing, and participate in 

a psychosocial assessment and a narcotics assessment.
5

for her completion of [her] domestic violence [classes],” which the plan also 

required. However, Luna did provide child support for D.R.L., keep “in contact with 

[her] children,” and visit the children. Moreover, Luna did bring C.L.W., Jr. and 

A.E.L. “clothes and shoes” and “some food” at visits, but this did not occur “every

time.”

Samuel further testified that it was in “[t]he best interest of the children” to 

terminate Luna’s parental rights because she “was still using drugs in March” and 

the children “need permanency and a stable place to reside.” Samuel noted that 

Luna, who has a criminal history, was “recently” arrested for the offense of theft in 

February 2015.9 And Luna has a history with Child Protective Services (“CPS”), 

with “13 prior referrals” relating to “drug use,” “physical abuse,” and “sexual abuse 

of the children.” Samuel opined that “it’s now in the best interest of the[] children 

to terminate the parental rights” of Luna, the “alleged fathers,” and the unknown 

father, so the children “can get to permanent stable finality and placement.”

According to Samuel, A.E.L. is not “bonded” with Luna, “the children are not 

bonded” with Luna, and during visits with the children, Luna’s “main focus is not 

 

9 Samuel explained that Luna’s “theft charge” was “still pending” at the time of trial. 

Further, DFPS introduced into evidence Luna’s criminal record, which revealed that 

on October 11, 2012, after violating the terms of her community supervision and 

following the State’s motion to adjudicate guilt, Luna was convicted of the second 

degree felony offense of tampering with a government record and sentenced to 

confinement for two years. See TEX. PENAL CODE ANN. § 37.10 (Vernon Supp. 

2015).
6

with all three of the children.” Further, A.E.L. does not “speak about” her siblings 

and is not “excited to see anyone” at family visits. A.E.L. is defensive, especially 

with C.L.W., Jr., “because [he] has done things to her,” i.e., he has “physically 

abuse[d]” her and there was “sexual behavior going on between” the siblings. After 

family visits, A.E.L. has “[e]motional” “manifestations,” and there is concern about 

her continuing with family visits. She is currently in therapy and is “progressing in 

her current placement,” which is an “adoptive placement.” And A.E.L.’s placement 

is “providing for all of her needs,” therapeutic or otherwise.

Samuel explained that C.L.W., Jr. “has lots of issues.” He “fights,” “doesn’t 

listen,” “cries,” and has “emotional melt downs.” Although he is in individual and 

sexual abuse therapy and “doing better than he was,” especially in regard to 

“fighting,” his “melt downs seem[] to be getting worse.” And he is in need of speech 

therapy, which is in the process of being secured for him. He has also been 

diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). And C.L.W., 

Jr.’s current placement, which is meeting his physical and emotional needs, is with

a “prior daycare teacher,” who thinks she will “be able to provide a long term stable 

home for him, an adoptive placement for him.”

Samuel noted that D.R.L. is currently placed with her grandmother, with the 

potential for adoption, and is doing “okay.” She, however, “has made suicidal 

outcries and other statements at school and at home.” Although D.R.L. is in therapy, 
7

“struggle[s] in school,” and has “issues” with A.E.L, her current placement is 

meeting her physical and emotional needs.

In regard to McDonald, Samuel testified that she did not “hear[] from [him] 

at all during the pendency of this case” and, to her knowledge, her “predecessors 

with CPS” did not have any “contact with him during the course of this case” either. 

Further, although DFPS “exercised diligence in trying to locate” McDonald and 

mailed him a family service plan, “it was returned” and DFPS was unable to find 

him. And no “man [has] c[o]me forward claiming to be the father” of D.R.L.

Jennifer Cassidy, a child advocate and advocacy coordinator, testified that all 

of the children have had “a great deal of upheaval in their life”; “[t]hey’ve had 

periods of time where they were living with [Luna] and then with other people”; and 

Luna has “an extensive CPS history.” D.R.L. “was removed when[] she was very 

young . . . because [Luna] had drug issues.” And Luna has “demonstrated a pattern 

of getting clean and relapsing,” which has resulted in “instability for the children.” 

Thus, Cassidy recommended “termination of the rights of all parents.” And she 

opined that it would be in the best interest of the children for the parental rights of 

Luna and McDonald to be terminated because of “concerns about [Luna’s] stability 

and ability to maintain a safe and stable home for the[] children.” 

Cassidy explained that the home that Luna shares with her father is not 

appropriate for the children. “It is [a] two bedroom apartment,” which “mean[s] that 
8

the three children would [have to] share a room with . . . Luna, so [there] would be 

four individuals in one room.” And the home is “very cluttered,” “to the point of 

[being] a safety hazard,” and “unsettling.” Cassidy also expressed “concern[] that 

[Luna] may not be able to stay [in the apartment] long term as there is no obvious 

agreement or tangible agreement that she will be able to stay there.” In other words, 

“[h]er name is not on the lease” and “[i]t is not her own home and responsibility.” 

Further, “even while [Luna has been] staying there, she w[ould] not stay there all the 

time,” and she actually went to “other places and stay[ed] . . . for periods” of time.

In regard to the children, Cassidy noted that they “have multiple problems,” 

“psychological and psychiatric issues,” and “[a]ll are in need of intense therapeutic 

intervention.” Further, “[t]here has been some improvement,” since the children 

were removed by DFPS.

Luna testified that in 2008, DFPS “removed” D.R.L. from her care because 

she had been using heroin. Although she received treatment, she relapsed “two years 

later” and began using methamphetamine “sparingly”—“once every couple 

months.”

In regard to her children, Luna explained that she has had “a lot of 

involvement” with them, loves them, and has “a bond with each child.” Luna 

received from D.R.L. a letter in which she stated that “she misses [Luna]” and “wants 

to come home.” C.L.W., Jr. also “says [he] want[s] to go home.” And any opinion 
9

that A.E.L. is not “bonded” with her is “ridiculous.” Luna noted that there is a 

daycare facility near her home and she would be able to have her work hours 

coincide with the hours of the daycare facility. She is currently employed full time 

as a manager at a Sonic restaurant. Luna also has become “an occupant on [her] 

father’s lease” and “would get a bigger apartment.” She has plans for the children 

“to be stable and together,” and she does not want them to forget about her. And 

Luna could take care of the children’s emotional, physical, and financial needs.

In regard to her family service plan, Luna explained that she missed “two 

scheduled evaluations” because of a “permanency conference” and she “was in 

Longview in court.” Otherwise, she has “completed the rest of [her] family service 

plan.” And Luna continues to see her personal counselor for domestic violence,

psychological, and substance abuse counseling. She also attends Alcoholics 

Anonymous (“AA”) meetings. However, Luna did admit that she had not completed 

her domestic violence classes.

Luna explained that although she was arrested for the offense of theft in 

February 2015, her wrongful conduct occurred in 2013 “before [she] signed any 

family service plan.” She also explained that she failed her narcotics test for 

marijuana use possibly because she had been “around” C.L.W., Jr. and A.E.L.’s 

father while he was “smoking” in January, marijuana was “never” her “drug of 

choice,” and “[t]hat’s the only way [she] could have possibly failed.” Luna did admit 
10

to testing positive for narcotics use in February 2014, noting that she had sustained

“a fracture, compression fracture at L-1” in her back and was “taking opiate and 

Vicodin, Lorcet, Norco,” “Tylenol Three,” and “Tylenol Four” to “control the pain.”

Luna further explained that while she was previously incarcerated, the 

children were “physically abused” and “[s]exually abused.” She admitted that she 

did not have a prescription for methamphetamines and “taking drugs, other than 

prescription drugs,” “endanger[s] the physical and emotional well being of [her] 

children.” She also conceded that “having [the] children around” individuals with 

“extensive criminal history as well as drug history,” like C.L.W., Jr. and A.E.L.’s 

father, “endanger[s]” the children.

Sufficiency of the Evidence

In her sole issue, Luna argues that the evidence is factually insufficient to 

support the trial court’s finding that termination of her parental rights was in the 

children’s best interest because “most of the Holley factors weigh heavily in favor 

of maintaining her parental bond.” See Holley v. Adams, 544 S.W.2d 367, 371–72 

(Tex. 1976).

In order to terminate the parent-child relationship, DFPS must establish, by 

clear and convincing evidence, one or more of the acts or omissions enumerated 

under Texas Family Code section 161.001(b)(1) and that termination is in the best 

interest of the child. See TEX. FAM. CODE ANN. § 161.001(b) (Vernon Supp. 2015). 
11

Both elements must be established, and termination may not be based solely on the 

best interest of the child as determined by the trier of fact. Id.; Tex. Dep’t of Human 

Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

Luna “concedes” that the evidence is sufficient to support the trial court’s 

finding that she “failed to comply with the provisions of a court order that 

specifically established the actions necessary for [her] to obtain the return of the 

child[ren] who ha[d] been in the permanent or temporary managing conservatorship 

of [DFPS] for not less than nine months as a result of the child[ren’s] removal from 

[her] under Chapter 262 for the abuse or neglect of the child[ren].” See TEX. FAM.

CODE ANN. § 161.001(b)(1)(O). However, she challenges the factual sufficiency of 

the evidence to support the trial court’s finding that termination of her parental rights 

was in the children’s best interest.

A parent’s right to “the companionship, care, custody, and management” of 

her children is a constitutional interest “far more precious than any property right.”

Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982) (internal 

quotations omitted). The United States Supreme Court has emphasized that “the 

interest of parents in the care, custody, and control of their children . . . is perhaps 

the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. 

Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas 

Supreme Court has concluded that “[t]his natural parental right” is “essential,” “a 
12

basic civil right of man,” and “far more precious than property rights.” Holick v. 

Smith, 685 S.W.2d 18, 20 (Tex. 1985) (internal quotations omitted). Consequently, 

“[w]e strictly construe involuntary termination statutes in favor of the parent.” In re 

E.N.C., 384 S.W.3d 796, 802 (Tex. 2012).

Because termination of parental rights “is complete, final, irrevocable and 

divests for all time that natural right . . . , the evidence in support of termination must 

be clear and convincing before a court may involuntarily terminate a parent’s rights.” 

Holick, 685 S.W.2d at 20. Clear and convincing evidence is “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 (Vernon 2014); see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).

Because the standard of proof is “clear and convincing,” the Texas Supreme Court 

has held that the traditional legal and factual standards of review are inadequate. In 

re J.F.C., 96 S.W.3d at 264–68.

In conducting a factual-sufficiency review in a parental-rights termination 

case, we must determine whether, considering the entire record, including evidence 

both supporting and contradicting the finding, a fact finder reasonably could have 

formed a firm conviction or belief about the truth of the matter on which DFPS bore 

the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should consider 

whether the disputed evidence is such that a reasonable fact finder could not have 
13

resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 

266–67. “If, in light of the entire record, the disputed evidence that a reasonable 

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

factfinder could not reasonably have formed a firm belief or conviction, then the 

evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)

(internal quotations omitted).

In determining whether the termination of appellant’s parental rights is in the 

children’s best interest, we may consider several factors, including (1) the children’s 

desires, (2) the current and future physical and emotional needs of the children, 

(3) the current and future emotional and physical danger to the children, (4) the 

parental abilities of the parties seeking custody, (5) whether programs are available 

to assist those parties, (6) plans for the children by the parties seeking custody, 

(7) the stability of the proposed placement, (8) the parent’s acts or omissions that 

may indicate that the parent-child relationship is not proper, and (9) any excuse for 

the parent’s acts or omissions. See Holley, 544 S.W.2d at 371–72; In re L.M., 104 

S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The Holley factors 

are not exhaustive, and there is no requirement that DFPS prove all factors as a 

condition precedent to termination of parental rights. See In re C.H., 89 S.W.3d at 

27.
14

In regard to the children’s desires, Samuel testified that “the children are not 

bonded” with Luna, especially A.E.L. A.E.L. also does not “speak about” her 

siblings and is not “excited to see anyone” at family visits. After family visits, 

A.E.L. has “[e]motional” “manifestations,” and there is concern regarding 

continuing family visits for A.E.L.

In contrast, Luna testified that she has “a bond with each child” and both 

D.R.L. and C.L.W., Jr. “want[] to come home.” She also received from D.R.L. a 

letter in which she stated that “she misses [Luna].” Luna argues that because D.R.L.

and C.L.W., Jr. expressed the desire “to maintain the[ir] . . . bond with their mother,” 

it is not in the best interest of the children for her parental rights to be terminated. 

We note that although “[a] child’s love for her natural parent is an important 

consideration in the best interest determination,” “[e]ven where a child is attached 

to a parent, . . . [a] child’s desire to be returned to the parent [is] not . . . dispositive 

of the best interest analysis,” especially “if the parent has engaged in conduct 

dangerous to the child’s well-being.” In re M.S.L., No. 14-14-00382-CV, 2014 WL 

5148157, at *9 (Tex. App.—Houston [14th Dist.] Oct. 14, 2014, no pet.) (mem. op.); 

cf. In re N.T., 474 S.W.3d 465, 478–79 (Tex. App.—Dallas 2015, no pet.) (fact finder 

could reasonably form firm belief or conviction regarding termination in child’s best 

interest, despite child’s “expressed desire to live primarily with [m]other”).
15

In regard to the children’s current and future physical and emotional needs,

Samuel testified that the children “need permanency and a stable place to reside.” 

See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.) (child’s need 

for stable, permanent home paramount consideration in best interest determination). 

And Cassidy testified that the children “have multiple problems” and “psychological 

and psychiatric issues” and “are in need of intense therapeutic intervention.” See 

Adams v. Tex. Dep’t of Family & Protective Servs., 236 S.W.3d 271, 280 (Tex. 

App.—Houston [1st Dist.] 2007, no pet.) (relying on evidence “that it would be in 

the child’s best interest to be raised in a consistent, stable, and nurturing 

environment” and noting “[b]oth children have unique emotional issues”).

According to Samuel, the children, especially A.E.L., are not “bonded” with 

Luna. A.E.L. does not speak about her family, is not “excited to see anyone” at 

family visits, and has negative emotional reactions after family visits. There is 

“concern” regarding the “continuation of family visits” for A.E.L. and “what th[ey] 

do[] to her.” Further, A.E.L.’s brother, C.L.W., Jr., has “done things to her”

involving physical and sexual abuse, which has caused A.E.L. to become 

“defensive.” A.E.L. is in therapy, and her “adoptive placement” is providing for 

“all” of her needs, therapeutic or otherwise.

Samuel further explained that C.L.W., Jr. “has lots of issues.” He “fights,” 

“doesn’t listen,” “cries,” and has “emotional melt downs.” He has been diagnosed 
16

with ADHD and attends individual and sexual abuse therapy. And he is in need of 

speech therapy, which is in the process of being secured for him. Also, C.L.W., Jr.’s 

current placement is meeting his emotional and physical needs and may “be able to 

provide a long term stable home for him, an adoptive placement for him.”

In regard to D.R.L., Samuel noted that she is doing “okay.” However, she 

“has made suicidal outcries and other statements at school and at home.” D.R.L. is 

in therapy, “struggle[s] in school,” and has “issues” with A.E.L. And D.R.L.’s 

current placement is meeting her physical and emotional needs.

Samuel noted that Luna has a “CPS history,” a criminal history, and a history 

of narcotics use. And Cassidy testified that there have been concerns about Luna’s 

“stability and ability to maintain a safe and stable home for the[] children.” “The 

children have had a great deal of upheaval in their life”; “[t]hey’ve had periods of 

time where they were living with [Luna] and then with other people.” Cassidy

opined that the current home that Luna shares with her father is not appropriate for 

the children. The home is “very cluttered,” “to the point of [being] a safety hazard,” 

and all of the children would have to share a single bedroom with Luna. And Cassidy 

expressed her concern about Luna’s long-term ability to stay in her father’s home,

noting that “even while [Luna has been] staying there, she w[ould] not stay there all 

the time”; “[s]he will go [to] other places and stay . . . for periods” of time. Cf. 

Adams, 236 S.W.3d at 280 (parent’s history of failing to provide children with 
17

“stable and nurturing environment” “demonstrates” termination of parental rights in 

best interest of children).

Luna did testify that she is a full-time employee and a manager at a Sonic

restaurant. She explained that were the children returned to her, there is a daycare

facility near her home and she would be able to have her work hours coincide with 

the hours of the daycare facility. She also “would get a bigger apartment” and 

“plan[s] for” the children “to be stable and together.” However, Luna also admitted 

to using narcotics, that she stood accused of the offense of theft, and that while she 

was previously incarcerated, the children were physically and sexually abused.

Luna specifically argues that the evidence is factually insufficient to support 

the trial court’s best interest finding in regard to D.R.L. because she is only “doing 

‘okay’” in her current placement, has made “‘suicidal outcries and other 

statements,’” and “had a break down when [a] volunteer told her she would not be 

able to see her siblings anymore.” Luna specifically argues that the evidence is 

factually insufficient to support the trial court’s best interest finding in regard to 

C.L.W., Jr. because he is “faring worse in DFPS custody” and “[h]is emotional 

meltdowns are getting worse.” We note, however, that there is no evidence that the 

current struggles of D.R.L. or C.L.W., Jr. are being caused by their current respective 

placements.
18

In regard to current and future emotional and physical danger to the children,

Samuel testified that the children came into the care of DFPS due to allegations of 

“physical abuse, neglectful supervision and physical neglect by [Luna].” Further, at 

the beginning of the case, and “throughout [its] duration,” Luna has repeatedly tested 

positive for narcotics use. Samuel noted that Luna has tested positive for

amphetamine, methamphetamine, cocaine, codeine, oxymorphone, oxycodone, and 

marijuana use. And during the pendency of this case, Luna, in December 2014, 

“walked out on [an] extended opiate zero tolerance test and [an] ETG test and [a] 

synthetic marijuana test.” The results of Luna’s narcotics testing were admitted into 

evidence and show that she tested positive for amphetamine, methamphetamine, and 

cocaine use in April 2014; opiate and codeine use in June 2014; oxymorphone, 

oxycodone, and codeine use in July 2014; amphetamine, methamphetamine, and 

marijuana use in December 2014; and marijuana use in March 2015. Cf. In re T.L.S., 

No. 01-12-00434-CV, 2012 WL 6213515, at *6–7 (Tex. App.—Houston [1st Dist.] 

Dec. 13, 2012, no pet.) (mem. op.) (considering parent’s refusal to take court-ordered 

narcotics test in analyzing emotional and physical danger to children); In re S.B., 

207 S.W.3d 877, 886–87 (Tex. App.—Fort Worth 2006, no pet.) (parent’s narcotics

use considered in determining current and future emotional and physical danger to 

children).
19

Luna testified that D.R.L. had been “removed” from her care in 2008 because 

of her heroin use at the time, and, although she received treatment, she relapsed “two 

years later” and began using methamphetamine “once every couple months.” 

Regarding her failed narcotics tests, Luna did explain that she could have tested 

positive for marijuana use because she was “around” C.L.W., Jr. and A.E.L.’s father

while he was “smoking,” but she did admit to testing positive for narcotics use in 

February 2014. Luna also admitted that “taking drugs . . . endanger[s] the physical 

and emotional well being of [her] children” and “having [the] children around” 

individuals with “extensive criminal histor[ies] as well as drug histor[ies],” like the 

father of C.L.W., Jr. and A.E.L., also endangers the children. See In re U.P., 105 

S.W.3d 222, 231 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (parent’s use 

of narcotics considered when evaluating current and future emotional and physical 

danger to child).

Samuel also noted that Luna had previously been convicted of the second 

degree felony offense of tampering with a government record and sentenced to 

confinement for two years. See In re U.P., 105 S.W.3d at 231–32 (parent’s criminal 

history supports best interest finding in regard to termination of parental rights). And 

Luna, herself, admitted that while she was incarcerated, the children were physically 

and sexually abused.
20

Samuel further noted that Luna had a “CPS history,” consisting of “13 prior 

referrals” related to “drug use,” “physical abuse,” and “sexual abuse of the children.” 

And, as noted above, Luna admitted that D.R.L. had previously been “removed” 

from her care due to Luna’s prior heroin use. See In re E.C.R., No. 01-11-00791-

CV, 2013 WL 5498127, at *3 (Tex. App.—Houston [1st Dist.] Oct. 1, 2013, no pet.) 

(mem. op.) (“[E]vidence of past misconduct or neglect can be used to measure a 

parent’s future conduct.”).

In regard to the programs available to assist Luna, she explained that she 

continues to see her personal counselor for domestic violence, psychological, and 

substance abuse counseling. And she attends AA meetings. However, she did not 

complete her domestic violence classes. Samuel noted that Luna did not 

“successfully” complete her family service plan and “did not complete [her] 

individual therapy and [her] group substance abuse therapy.” And Luna did not 

provide “a certificate for completion of [her] domestic violence [classes].” See In 

re T.L.S., 2012 WL 6213515, at *7 (considering whether parent completed all 

required services under her family service plan). 

In regard to the stability of Luna’s home, Samuel noted that although Luna 

told her that “she lives with her father,” Luna did not provide “proof of a lease that 

she’s supposed to be in the home with her father” and she did not find 

“independent[]” and “stable housing.” Cassidy noted that Luna shares a home with 
21

her father that is not appropriate for the children. “It is [a] two bedroom apartment,” 

which “mean[s] that the three children would [have to] share a room with . . . Luna, 

so [there] would be four individuals in one room.” The home is “very cluttered,” 

“to the point of [being] a safety hazard,” and Cassidy has concerns that Luna “may 

not be able to stay [in the apartment] long term as there is no obvious agreement or 

tangible agreement that she will be able to stay there.” Cassidy further noted that 

“even while [Luna has been] staying [in the apartment], she w[ould] not stay there 

all the time”; “[s]he will go [to] other places and stay . . . for periods” of time.

Although Luna testified that she “would get a bigger apartment” and she, at 

the time of trial, was “an occupant on [her] father’s lease,” evidence of Luna’s 

criminal record showed that she had previously been sentenced to confinement for

two years for the second degree felony offense of tampering with a government 

record. Luna also admitted to narcotics use in the past, and DFPS presented evidence 

of Luna’s continued narcotics use throughout the pendency of this case.

Luna asserts that, contrary to the trial court’s best interest finding, D.R.L. and 

C.L.W., Jr., at the time of trial, were not in “stable placements.” According to Luna, 

“D.R.L.’s placement with her grandmother was described as ‘tentative,’” and 

C.L.W., Jr.’s placement was “non-adoptive” and it is “speculative” as to whether it 

would “‘be able to provide a long term stable home.’”
22

Samuel explained that the children are in three separate placements. In regard 

to the stability of the A.E.L.’s adoptive placement, she is “progressing,” the

placement is meeting “all” of her needs, therapeutic or otherwise, and the goal is for 

A.E.L. to be adopted by her current foster parents. In regard to C.L.W., Jr.’s 

placement, it is not an “adoptive placement,” but is in a “fictive kin placement” with 

“his prior daycare teacher.” However, this placement “might be able to provide a 

long term stable home for, him, an adoptive placement.” And his placement is 

“protective” and meeting his physical and emotional needs. D.R.L. is currently 

placed with her grandmother. Although there are some “concerns” with the 

placement and “it’s a tentative approval,” the goal is for D.R.L. “to stay in her current 

placement and potentially be adopted there.” And, according to Samuel, D.R.L.’s 

current placement is meeting her physical and emotional needs.

Evidence of placement plans and adoptions are, of course, relevant to a best 

interest determination. In re C.H., 89 S.W.3d at 28. “However, [a] lack of evidence 

about definitive plans for permanent placement and adoption cannot be the 

dispositive fact; otherwise determinations regarding best interest would regularly be 

subject to reversal on the sole ground that an adoptive family has yet to be located.” 

Id.; see also In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). Instead, we must 

determine, based on the entire record, whether a fact finder could reasonably form a 

firm conviction or belief that termination of parental rights is in the children’s best 
23

interest, even if DFPS has not yet “identif[ied] with precision the child’s future home 

environment.” In re C.H., 89 S.W.3d at 28; see also In re E.C.R., 402 S.W.3d at 

250.

In regard to acts or omissions that may indicate that the parent-child 

relationship is not proper, a parent’s use of narcotics, inability to provide a stable 

home, and failure to comply with her family service plan support a finding that 

termination of the parental rights is in the best interest of the children. In re S.B., 

207 S.W.3d at 887–88. As discussed above, there is ample evidence that Luna did 

use, and continued to use during the pendency of this case, narcotics, is unable to 

provide a stable and permanent home for the children, and has failed to comply with 

her family service plan.

However, Luna did present evidence that she has “accepted responsibility” 

regarding her narcotics use. And she has taken “positive steps to improve her

parenting abilities,” such as attending AA meetings and participating in therapy, 

being employed full time, making child support payments for D.R.L., and visiting

her children. Luna asserts that these “positive steps” and her acceptance of 

responsibility indicate that termination of her parental rights is not in the children’s 

best interest. However, such evidence of improved conduct, especially over a short 

duration, does not conclusively negate the probative value of a long history of

narcotics use and inappropriate choices. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 
24

2009); see also In re J.F.C., 96 S.W.3d at 272 (holding fact finder could reasonably 

form firm belief or conviction termination of parental rights in child’s best interest 

despite evidence “mother found work,” “parents’ landlord . . . testified that their 

home was a ‘safe environment,’” and “parents made attempts to comply with some 

parts of the trial court’s order”).

Here, despite Luna’s positive steps, there is evidence that she continued to test 

positive for narcotics use throughout the pendency of this case, including as recently 

as March 2015, failed to successfully complete her family service plan, and is unable 

to provide a stable and permanent home for the children. Cf. In re J.F.C., 96 S.W.3d 

at 268–72.

After considering the entire record, we conclude that the trial court could have 

reasonably formed a firm believe or conviction that termination of Luna’s parental 

rights was in the children’s best interest. We further conclude that the trial court 

could have reconciled any disputed evidence in favor of finding that termination of 

Luna’s parental rights was in the children’s best interest or was not so significant 

that the trial court could not have reasonably formed a firm belief or conviction that 

termination was in the children’s best interest. Accordingly, we hold that the 

evidence is factually sufficient to support the trial court’s finding that termination of 

Luna’s parental rights was in the children’s best interest.

We overrule Luna’s sole issue.
25

Constitutionality of Texas Family Code Section 161.002

In his first issue, McDonald argues that Texas Family Code section 161.002, 

which authorizes the termination of the parental rights of “an alleged father,” is 

unconstitutional “on its face,” necessarily resulting in a “denial of procedural due 

process, because the legislature’s purpose in enacting the statute was to “‘streamline 

the adoption process,’” rather than to “reestablish the natural connection between a 

father and his child.” See TEX. FAM. CODE ANN. § 161.002 (Vernon Supp. 2015). 

On this basis, McDonald requests that “this Court deem the evidence legally and 

factually insufficient to establish [section] 161.002(b)(1) termination grounds.”

When reviewing the constitutionality of a statute, we begin with a 

presumption that it is constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.

2003); see also TEX. GOV’T CODE ANN. § 311.021(1) (Vernon 2013) (“In enacting a 

statute, it is presumed that: (1) compliance with the constitutions of this state and 

the United States is intended.”). A party may challenge a statute as being 

unconstitutional on its face or as applied to that party. City of Corpus Christi v. Pub. 

Util. Comm’n of Tex., 51 S.W.3d 231, 240–41 (Tex. 2001); Tex. Workers’ Comp. 

Comm’n v. Garcia, 893 S.W.2d 504, 518 & n.16 (Tex. 1995). The party challenging 

a statute’s constitutionality has the burden of proving that the statute fails to meet 

constitutional requirements. Walker, 111 S.W.3d at 66.
26

We note that a facial challenge to a statute is “the most difficult challenge to 

mount successfully” because the challenger must establish that no set of 

circumstances exists under which the statute will be valid. United States v. Salerno, 

481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987). To sustain a facial challenge, the 

party must show that the statute, by its terms, always operates unconstitutionally. 

Garcia, 893 S.W.2d at 518. In reviewing a facial challenge to a statute’s 

constitutionality, we consider the statute as written, rather than as it operates in 

practice. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 

2000).

Section 161.002, in pertinent part, provides as follows:

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.

TEX. FAM. CODE ANN. § 161.002(b)(1).

McDonald asserts that the legislature, in enacting section 161.002, has “made 

it far too easy and convenient for . . . fathers across th[e] State to lose their natural 

and legal right to parent” and a father’s “right to parent” is not protected by section 

§ 161.002. In response, DFPS argues that because McDonald did not raise this issue 

in the trial court, he waived it.

The rules governing error preservation apply in civil cases involving the 

termination of parental rights. In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005); In re 
27

B.L.D., 113 S.W.3d 340, 354–55 (Tex. 2003). To preserve a complaint for our 

review, a party must have presented to the trial court a timely request, objection, or 

motion that states the specific grounds for the desired ruling, if they are not apparent 

from the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a). If a 

party fails to do this, error, including constitutional error, is not preserved, and a

complaint is waived. See In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003).

Here, McDonald has failed to provide this Court with any record citations

showing that he raised his constitutional complaint regarding section 161.002 in the 

trial court, and our examination of the record has revealed none. Accordingly, we 

hold that he has waived his complaint. See id.

In regard to McDonald’s assertion that the evidence is “legally and factually 

insufficient to support the termination of [his] parental rights” under section 

161.002(b)(1), we note that he has not provided this Court with any argument or 

analysis to support this assertion. See TEX. R. APP. P. 38.1(i) (appellate brief “must 

contain a clear and concise argument for the contentions made, with appropriate 

citations to authorities and to the record”); In re K.C.B., 280 S.W.3d 888, 893–96 

(Tex. App.—Amarillo 2009, pet. denied) (parent waived sufficiency complaint in 

termination-of-parental-rights case due to inadequate briefing).

Nevertheless, we note that in conducting a legal-sufficiency review in a

termination-of-parental-rights case, we must determine whether the evidence, 
28

viewed in the light most favorable to the finding, is such that the fact finder could 

reasonably have formed a firm belief or conviction about the truth of the matter on 

which DFPS bore the burden of proof. In re J.F.C., 96 S.W.3d at 266. In viewing 

the evidence in the light most favorable to the finding, we “must assume that the 

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

could do so,” and we “should disregard all evidence that a reasonable factfinder 

could have disbelieved or found to be incredible.” In re J.P.B., 180 S.W.3d 570, 

573 (Tex. 2005) (internal quotations omitted). However, this does not mean that we 

must disregard all evidence that does not support the finding. In re J.F.C., 96 S.W.3d 

at 266. Because of the heightened standard, we must also be mindful of any 

undisputed evidence contrary to the finding and consider that evidence in our 

analysis. Id. If we determine that no reasonable trier of fact could form a firm belief 

or conviction that the matter that must be proven is true, we must hold the evidence 

to be legally insufficient and render judgment in favor of the parent. Id. In regard 

to McDonald’s factual-sufficiency complaint, we follow the pertinent standard of 

review as discussed above.

Here, in regard to section 161.002(b)(1), the trial court found, in pertinent part, 

as follows:

The Court finds by clear and convincing evidence that, after having 

waived service of process or being served with citation in this 

suit, . . . McDonald did not respond by timely filing an admission of 

paternity or by filing a counterclaim for paternity or for voluntary 
29

paternity to be adjudicated under chapter 160 of the Texas Family Code 

before the final hearing in this suit.

Cf. TEX. FAM. CODE ANN. § 161.002(b)(1).

The record shows that McDonald was served with citation in this suit.

10

 

However, nothing in the record reflects that he filed an admission of paternity or 

otherwise claimed paternity by writing to the trial court about being D.R.L.’s father, 

appearing at trial to testify that he was D.R.L.’s father, or performing any other act 

that would have prevented the summary termination of his parental rights.11 See id.

§ 161.002(b)(1); Phillips v. Tex. Dep’t of Protective & Regulatory Servs., 25 S.W.3d 

348, 357 (Tex. App.—Austin 2000, no pet.) (section 161.002(b)(1) permits trial 

court to summarily terminate alleged father’s parental rights where he fails to assert 

his paternity); cf. In re K.R.L., No. 01-14-00213-CV, 2014 WL 3843520, at *9–11 

 

10 DFPS introduced into evidence a proper return of citation and a certificate of 

paternity registry search, which demonstrates that McDonald never registered. Cf. 

R.H. v. Tex. Dep’t of Family & Protective Servs., No. 08-12-00364-CV, 2013 WL 

1281775, at *6 (Tex. App.—El Paso Mar. 28, 2013, no pet.) (summary termination 

of alleged father’s rights authorized where record revealed he failed to file

admission of paternity or counterclaim for paternity under Chapter 160 and DFPS 

introduced evidence of proper return of citation and certificates of paternity registry 

searches demonstrating failure to register).

11 For instance, McDonald’s answer contains only a general denial. Cf. In re L.J., No. 

07-14-00319-CV, 2015 WL 222313, at *2 (Tex. App.—Amarillo Jan. 15, 2015, no 

pet.) (mem. op.) (although answer filed on behalf of alleged father, it “did not 

contain an admission of paternity or a counterclaim for paternity”); see also In re 

C.M.C., 273 S.W.3d 862, 879 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) 

(alleged father filed in trial court answer “in which he identified himself as the father 

of [the children]”).
30

(Tex. App.—Houston [1st Dist.] Aug. 5, 2014, no pet.) (mem. op.) (evidence

sufficient to support termination under section 161.002(b)(1) where alleged father 

“made no representations in the trial court that he was [child’s] father,” “did not 

testify at trial,” and “refus[ed] to participate in court-ordered DNA testing”). 

Further, there is no evidence that McDonald offered to take a paternity test or made 

an effort to establish his interest in any relationship with D.R.L. before the 

termination of his parental rights. Cf. In re D.T., No. 02-13-00331-CV, 2014 WL 

261408, at *2–3 (Tex. App.—Fort Worth Jan. 23, 2014, no pet.) (mem. op.) (no 

evidence alleged father offered to take paternity test “or made any effort outside of 

a single visit with [child]—during which [he] slept and tested positive for drugs—to 

establish his interest in any relationship with [child]”).

We overrule McDonald’s first issue.

Best Interest of D.R.L.

In his second issue, McDonald argues that the evidence is legally and factually 

insufficient to support the trial court’s finding that termination of his parental rights 

was in D.R.L.’s best interest because the trial court “was not confronted with any 

evidence” to support the finding. See TEX. FAM. CODE ANN. § 161.001(b)(2) 

(requiring termination to be “in the best interest of the child”). In response, DFPS 

asserts that it was not required to “prove that termination of [McDonald’s] potential 
31

parental rights was in the child’s best interest” in order to obtain “a judgment for 

parental termination under [s]ection 161.002.” See id. § 161.002(b)(1).

Here, section 161.002(b)(1) authorizes the summary termination of an alleged 

father’s parental rights where “after being served with citation, he does not respond 

by timely filing an admission of paternity or a counterclaim for paternity under 

Chapter 160.” Id. The trial court specifically terminated McDonald’s parental rights 

under section 161.002(b)(1), not section 161.001. And section 161.002(b)(1) does 

not require a best interest finding. Compare id. § 161.001(b)(2), with id.

§ 161.002(b)(1); see also R.H. v. Tex. Dep’t of Family & Protective Servs., No. 08-

12-00364-CV, 2013 WL 1281775, at *7 (Tex. App.—El Paso Mar. 28, 2013, no 

pet.) (overruling alleged father’s complaint “Department failed to prove by clear and 

convincing evidence that termination of his parental rights was in the best interest of 

the children,” where rights terminated under section 161.002(b)(1), because no best 

interest finding required).

Simply put, under section 161.002(b)(1), a trial court may summarily 

terminate an alleged father’s parental rights when he does not file an admission of 

paternity or counterclaim for paternity under Chapter 160 “without requiring [DFPS] 

to prove that the father engaged in one of the types of conduct listed in section 

161.001[(b)](1) of the [Family] Code or that termination is in the best interest of the 
32

child.” In re L.J., No. 07-14-00319-CV, 2015 WL 222313, at *2 (Tex. App.—

Amarillo Jan. 15, 2015, no pet.) (mem. op.).

We overrule McDonald’s second issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Keyes, and Bland.