Opinion issued December 18, 2018

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00393-CV

———————————

IN THE INTEREST OF S. A. S., A CHILD

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Case No. 2017-02192J

MEMORANDUM OPINION

In this accelerated appeal, see TEX. R. APP. P. 28.1, 28.4; TEX. FAM. CODE

ANN. § 109.002(a–1), appellant, P.S. (“Father”) challenges the trial court’s decree 

terminating his parental rights to his minor child, S.A.S. (“Sally”) and appointing 

the Department of Family and Protective Services as Sally’s sole managing 

conservator. In his first three issues, Father contends that the evidence is legally 
2

and factually insufficient to support the trial court’s findings under Section 

161.001 of the Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), 

(O), (b)(2). In his fourth issue, Father contends that the trial court abused its 

discretion in appointing the Department as Sally’s sole managing conservator. We 

affirm.

Background

A.P. (“Mother”) has three children: I.P. (“Ian”), Sally, and M.S. (“Mitzi”). 

Ian is not Father’s son, but Sally and Mitzi are Father’s daughters. Although Sally 

is the subject of this suit, to provide context, we begin by discussing Ian.

Ian was born in July 2007. Between 2010 and 2015, the Department 

received at least five referrals concerning Ian. In June 2010, the Department 

received a referral alleging that two-year-old Ian had been sexually abused by an 

unknown predator. The Department ruled out the allegation. In February 2013, 

when Ian was five years old, the Department received another referral alleging 

sexual abuse by an unknown alleged predator. The Department was unable to 

determine the allegation. In November 2013, the Department received a referral 

alleging that Mother had physically abused six-year-old Ian. The Department was 

unable to determine the allegation. In January 2015, the Department received a 

referral alleging that Mother had medically neglected Ian. The Department found 

that there was reason to believe the allegation. And, in November 2015, the 
3

Department received a referral alleging that Mother had physically abused Ian.1

The Department found that there was reason to believe this allegation as well.

The Department further investigated the referrals received in 2015 and 

eventually filed a petition to terminate Mother’s parental rights to Ian. The trial 

court appointed the Department as Ian’s temporary managing conservator, and Ian 

was placed in foster care. The trial court then signed an order approving and 

requiring Mother to follow a family service plan prepared for her by the 

Department. Mother did not comply with the terms of the plan. In the following 

months, Mother tested positive for methamphetamine and marijuana, and she 

failed to participate in court-ordered services. 

During the pendency of Ian’s case, in late November 2016, Mother gave 

birth to Sally. About six weeks later, in January 2017, the Department received a 

referral accusing Mother of neglectful supervision. After conducting a preliminary 

investigation, the Department filed a petition to terminate Mother’s and Father’s 

parental rights to Sally and requested that it be appointed Sally’s temporary 

managing conservator. In an affidavit, the Department’s investigator stated that a 

temporary conservatorship was necessary because Mother had endangered her first 

child, Ian. Mother had an extensive history of drug use, which included the use of 

 

1 Specifically, the referral alleged that Mother had appeared disoriented and under 

the influence of unknown substances while providing care for Ian and that Ian had 

been exposed to domestic violence involving weapons. 
4

methamphetamine and marijuana. Mother’s hair had tested positive for marijuana a 

month after Sally’s birth, which proved that Mother had used drugs while pregnant 

with Sally. And, Mother had failed to submit to drug testing or complete other 

services in her other case involving Ian. 

On April 20, 2017, the trial court signed an emergency order, which 

appointed the Department temporary managing conservator of Sally. At the time, 

Father was living in Florida. When Father learned what had happened, he returned 

to Texas and moved in with Mother. 

On June 8, 2017, the trial court signed an order that suspended visitation 

because Mother and Father had tested positive for marijuana. The order also 

approved and required Mother and Father to follow the family service plans

prepared for them by the Department.

Among other things, Father’s family service plan required him to undergo a 

psychological evaluation and follow all recommendations; undergo a substance 

abuse assessment and follow all recommendations; maintain contact with the 

caseworker; participate in parenting classes; and submit to random drug tests, with 

the understanding that failure to do so would be treated as an automatic positive 

result.

The plan included the statutorily-required admonishment that failure to 

comply could result in the termination of Father’s parental rights. See TEX. FAM.
5

CODE ANN. § 263.102(b). Father signed the plan, and the trial court found that 

Father had reviewed it and understood its terms.

On July 27, 2017, the trial court in Ian’s case signed a decree that terminated 

Mother’s parental rights. The trial court found that termination was in Ian’s best 

interest and justified on grounds of endangerment, abandonment, and violation of 

court orders.

In December 2017, when Sally’s case was still pending, Mother gave birth 

to another girl, Mitzi.

In April 2018, Sally’s case was tried to the bench. At the time of trial, Sally 

was 16 months old and living with foster parents who intended to adopt her. Mitzi 

was still living with Mother and Father.

The Department presented a number of exhibits, including the results of 

Mother’s and Father’s drug tests and Father’s psychological evaluation. The 

Department also presented testimony from a number of witnesses, including the 

caseworker, a court-appointed investigator, and a child advocates volunteer. 

The Department’s evidence established that, in the 10 months that followed 

the trial court’s order suspending visitation and approving the family service plans 

in Sally’s case, Mother and Father consistently failed (or failed to appear for) 

random drug tests, and, as a result, never regained visitation. The evidence further 

established that Father failed to comply with other provisions of his family service 
6

plan. Specifically, Father failed to take parenting classes, despite being afforded 

three opportunities to do so. Father did not complete a substance abuse assessment 

on time, and once he did undergo an assessment, he failed to attended NA 

meetings as recommended. He failed to maintain contact with his caseworker, who 

testified that Father often appeared to be deliberately ignoring her. Finally, the 

Department’s evidence established that Sally was thriving in her foster-to-adopt 

placement.

After the hearing, the trial court terminated Mother’s and Father’s parental 

rights to Sally. In its termination decree, the trial court found that termination of 

Mother’s parental rights was in Sally’s best interest and justified on grounds of 

endangerment. The trial court found that termination of Father’s parental rights 

was in Sally’s best interest and justified on grounds of endangerment and failure to 

comply with court orders. The trial court appointed the Department as Sally’s sole 

managing conservator. Father appeals.2

Sufficiency of Evidence

In his first three issues, Father contends that the evidence is legally and 

factually insufficient to support the trial court’s findings that (1) termination was 

justified on grounds of endangerment, (2) termination was justified on grounds of 

failure to comply with court orders, and (3) termination was in Sally’s best interest.

 

2 Mother has not filed an appeal.
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A. Applicable law and standard of review

Under Section 161.001 of the Family Code, the Department may petition a 

trial court to terminate a parent-child relationship. The trial court may grant the 

petition if the Department proves, by clear and convincing evidence, that (1) the 

parent committed one or more of the enumerated acts or omissions justifying 

termination and (2) termination is in the child’s best interest. TEX. FAM. CODE

ANN. § 161.001(b). 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.” Id. § 101.007; see also In 

re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).

Section 161.001 lists 21 acts and omissions justifying termination of the 

parent-child relationship. TEX. FAM. CODE ANN. § 161.001(b)(1). “Only one 

predicate finding under section 161.001(b)(1) is necessary to support a judgment of 

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

interest.” In re A.M., 495 S.W.3d 573, 579 (Tex. App.—Houston [1st Dist.] 2016, 

pet. denied) (internal quotations omitted) (quoting In re A.V., 113 S.W.3d 355, 362 

(Tex. 2003)).

In determining whether termination is in the child’s best interest, courts 

consider the nine nonexclusive factors listed by the Texas Supreme Court in Holley 

v. Adams: (1) the desires of the child, (2) the emotional and physical needs of the 
8

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

and in the future, (4) the parental abilities of the individuals seeking 

custody, (5) the programs available to assist these individuals to promote the best 

interest of the child, (6) the plans for the child by these individuals or by the 

agency seeking custody, (7) the stability of the home or proposed 

placement, (8) the parent’s acts or omissions that may indicate the existing parentchild relationship is not a proper one, and (9) any excuse for the parent’s acts or 

omissions. 544 S.W.2d 367, 372 (Tex. 1976).

Further, “the same evidence of acts or omissions used to establish grounds 

for termination under section 161.001(1) may be probative in determining the best 

interests of the child.” In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st 

Dist.] 2003, no pet.).

In a legal-sufficiency review in a parental-rights-termination case, we look at 

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

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

finding was true. In re J.F.C., 96 S.W.3d at 266. We assume that the factfinder 

resolved disputed facts in favor of its finding if a reasonable factfinder could do so, 

disregarding all evidence that a reasonable factfinder could have disbelieved or 

found incredible. Id.

In a factual-sufficiency review in a parental-rights-termination case, we 
9

determine whether the evidence is such that a factfinder could reasonably form a 

firm belief or conviction about the truth of the Department’s allegations. In re 

C.H., 89 S.W.3d 17, 25 (Tex. 2002). By focusing on whether a reasonable 

factfinder could form a firm conviction or belief, the appellate court maintains the 

required deference for the factfinder’s role. Id. at 26. “An appellate court’s review 

must not be so rigorous that the only factfindings that could withstand review are 

those established beyond a reasonable doubt.” Id. We should consider whether 

disputed evidence is such that a reasonable factfinder could not have resolved that 

disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “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.” Id.

B. Failure to comply with court order 

We begin by considering Father’s second issue, in which he contends that 

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

finding that termination was justified under Section 161.001(b)(1)(O). TEX. FAM.

CODE ANN. § 161.001(b)(1)(O). Termination is justified under subsection (O) if the 

trial court finds that the parent:

failed to comply with the provisions of a court order that specifically 

established the actions necessary for the parent to obtain the return of 
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the child who has been in the permanent or temporary managing 

conservatorship of the Department of Family and Protective Services 

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

the parent under Chapter 262 for the abuse or neglect of the child.

Id.

Father’s family service plan was “a court order that specifically established 

the actions necessary for [Father] to obtain [Sally’s] return.” See id. The evidence 

presented at the termination hearing shows that Father failed to comply with a 

number of the plan’s provisions.

Parenting classes. Father failed to complete parenting classes. Father’s 

family service plan required him to complete parenting classes, provide a 

certificate of completion to his caseworker, and then demonstrate the skills he 

learned at visitations with Sally. The plan required that Father begin parenting 

classes by August 1, 2017. The caseworker testified that Father did not complete or 

even register for parenting classes, even though he was afforded at least three 

opportunities to do so. The caseworker explained that, during the pendency of the 

suit, Father received notifications of the dates and times of three different parenting 

classes, but Father never signed up for any of the classes.

At the termination hearing, Father testified that he never registered for 

parenting classes because the classes would have caused him to miss too much 
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work and possibly lose his job.3 However, Father also testified that he only worked 

part-time. And he failed to present evidence that the schedules for any of the 

parenting classes conflicted with his schedule for work.

Psychological evaluation. Although Father completed a psychological 

evaluation, he did not “participate fully” in the evaluation, as required by his 

family service plan. In her report, the psychologist stated that Father “was 

extremely resistant to the evaluation process.” She described him as “combative,” 

“defensive,” and “noncompliant.” She therefore concluded that her diagnosis might 

not have been a “true reflection of [Father’s] emotional functioning” and explained 

that her diagnosis might have “changed had [Father] been more forthcoming.”

Further, Father failed to follow the psychologist’s recommendations. Among 

other things, the psychologist recommended that Father complete parenting 

classes, participate in individual therapy to address Father’s difficulty with 

interpersonal relationships, and submit to random drug testing. Father did not 

follow any of these recommendations. 

Substance abuse assessment. Father did not complete a substance abuse 

assessment on time and did not follow all of the provider’s recommendations. 

Father’s family service plan required that he attend, participate in, and successfully 

 

3

In his brief, Father contends that he completed parenting classes. But as evidence, 

Father cites to a certificate of completion for a substance abuse treatment program, 

not parenting classes. Thus, Father’s contention is unfounded. 
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complete a substance abuse assessment by July 1, 2017. The plan further required 

that he follow all the provider’s recommendations. The plan specifically referred 

him to Denise Bradley. Father did not complete a substance abuse assessment with 

Bradley. Bradley scheduled several appointments with Father, but Father never 

appeared for any of them and never actually met Bradley in person. On August 17, 

2017, Bradley terminated services due to Father’s lack of attendance.

After Bradley terminated services, the Department referred Father to another 

provider, the Wellness Center. Father completed a substance abuse assessment 

with the Wellness Center on November 15, 2017. The assessment diagnosed Father 

with marijuana use disorder. It recommended that Father complete individual and 

group outpatient substance abuse therapy. It also recommended that Father attend 

in NA meetings. Two weeks before the termination hearing, Father completed 

group outpatient therapy. However, he never began attending NA meetings.

Random drug testing. Father failed to submit to random drug testing and to 

remain drug free. Father’s family service plan required that he “maintain a drugfree lifestyle” and that he complete random drug tests within 24 hours of 

notification. 

Throughout the pendency of the suit, Father was notified that he had to 

complete random testing on 11 separate occasions. Father appeared for testing four 

times. And each time, he tested positive for marijuana, marijuana metabolites, or 
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synthetic marijuana. Specifically, on May 1, 2017, Father’s hair and urine tested 

positive for marijuana metabolites; on September 14, 2017, Father’s hair tested 

positive for marijuana and marijuana metabolites, and his urine tested positive for 

marijuana and synthetic cannabinoids; on December 7, 2017, Father’s hair tested 

positive for marijuana metabolites; and on January 9, 2018, Father’s hair tested 

positive for marijuana and marijuana metabolites. Father did not appear for testing 

and was thus presumed to have tested positive on April 20, 2017; May 27, 2017; 

May 31, 2017; June 8, 2017; June 30, 2017; July 28, 2017; and October 26, 2017. 

In his brief, Father admits that he “consistently test[ed] positive for 

marijuana during the case.” He further admits that “he no-showed for testing on 

more than one occasion.”

At the termination hearing, Father initially testified that he missed so many 

drug tests because he was out of town and the caseworker could not reach him. 

But, he later admitted that the caseworker had his contact information. And, the 

caseworker, in turn, testified that Father had “a pattern of not responding 

throughout this case.” As an example, the caseworker testified that, in October 

2017, she notified Father via text message that he had to submit to random drug 

testing, and Father responded that he could not make it because he was working in 

Austin. The caseworker then asked Father where he was specifically so she could 

find him a nearby Austin provider, but Father stopped responding to her texts.
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Maintain contact. Father failed to maintain contact with his caseworker.

Father’s family service plan required Father to maintain biweekly contact with the 

caseworker by leaving messages on her cell phone or office phone. The caseworker 

testified that he did not maintain biweekly contact throughout the entire case: 

“Some months he did, some months he didn’t.” 

Father argues that the evidence is insufficient because he completed some of 

his family service plan.4 We disagree. “The Family Code does not provide for 

substantial compliance with a family services plan.” In re M.C.G., 329 S.W.3d 

674, 675 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); see In re J.M.T., 

519 S.W.3d 258, 267 (Tex. App.—Houston [1st Dist.] 2017, pet. denied)

(“[S]ubstantial or partial compliance with a court-ordered family service plan is 

insufficient to avoid termination.”). And even if it did, Father did not substantially 

complete his family service plan; he failed to comply with significant and material 

provisions.

We hold that there is legally and factually sufficient evidence to support the 

trial court’s finding that termination was justified under subsection (O). Therefore, 

we overrule Father’s second issue. Father’s first issue challenges the sufficiency of 

the evidence for the alternative predicate findings—that termination was justified 

on grounds of endangerment under subsections (D) and (E). See TEX. FAM. CODE

 

4 Father does not contend that Section 161.001(d) applies. See TEX. FAM. CODE 

ANN. § 161.001(d).
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ANN. § 161.001(b)(1)(D), (E). However, because we have found that the evidence 

is both legally and factually sufficient to support the predicate finding of failure to 

comply with a court order, we need not address the father’s first issue. See In re

A.M., 495 S.W.3d at 580.

C. Sufficiency of best-interest finding

In his third issue, Father contends that the evidence is legally and factually 

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

rights was in Sally’s best interest. We consider the evidence supporting each of the 

nine non-exhaustive Holley factors.

First factor: Sally’s desires. Sally was 16 months old at the time of trial. 

Because of her age, she could not testify, and there is no direct evidence of her 

desires. There is, however, indirect evidence that Sally would have desired to stay 

with her foster parents. Sally never knew Father, and, by the time of trial, was no 

longer familiar with Mother. Due to the Parents’ positive drug tests, the trial court 

suspended their visits with Sally toward the beginning of termination suit, on June 

8, 2017. The Parents never tested negative and therefore never regained visitation. 

Thus, the last time Sally saw the Parents was when she was six months old. The 

child advocate testified that Sally had bonded with her foster parents. She further 

testified that Sally’s foster parents loved Sally and intended to adopt her. Father 

admits that he “missed the opportunity to bond” with Sally “during the pendency 
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of the case” and that Sally is “presumed bonded to her foster parents.” From this 

evidence, a reasonable factfinder could conclude that Sally desired to remain with 

her foster parents.

Second factor: Sally’s present and future emotional and physical needs. 

Father recognizes that Sally “is doing well in her foster-to-adopt placement.” But,

he contends that Sally would do “just as well” with the Parents, as evidenced by 

the adequate care they were providing their newborn, Mitzi, at the time of trial. In 

her report, the Department investigator wrote that Sally appeared healthy and clean 

during her initial visit with Mother (when Father was still in Florida). And, the 

caseworker testified that she had no concerns about Mitzi and that the Parents 

appeared to be providing her adequate care. 

However, other evidence shows that, while the Parents were capable of 

satisfying Sally’s present and future emotional and physical needs, it was unlikely 

that they actually would. The Parents continued to use marijuana and synthetic 

marijuana throughout the pendency of the termination suit, fully aware that doing 

so would result in the termination of their parental rights to Sally. Throughout the 

case, Father consistently failed (or failed to appear for) his drug tests, and the 

caseworker provided testimony suggesting that on at least one occasion Father 

deliberately ignored her when she notified him that he needed to submit to drug 

testing. After his substance abuse assessment, Father was diagnosed with 
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marijuana use disorder. As treatment, the provider recommended that he attend NA 

meetings, but Father failed to do so, even though it was a requirement of his family 

service plan. Mother, for her part, had a long history of drug abuse, including the 

abuse of not only marijuana, but methamphetamine. Like Father, she tested 

positive for marijuana and related substances throughout the entire case.

At the termination hearing, Father testified that he stopped smoking 

marijuana shortly after the Department was appointed Sally’s conservator, and he 

denied ever having tried synthetic marijuana. Father’s testimony contradicted the 

results of his drug tests, indicating that Father’s testimony was false. 

The Parents’ failure to remain drug free and complete their family service 

plans raises concerns about their ability to satisfy Sally’s present and future needs, 

as does Father’s avoidance of the caseworker and false testimony. From this 

evidence, a reasonable factfinder could conclude that the Parents lack the 

discipline and self-control necessary to provide Sally with adequate care on a 

sustained basis.

Third and eighth factors: the present and future emotional and physical 

danger to Sally and acts or omissions indicating improper parent-child 

relationship. As discussed, both Parents tested positive for drugs throughout the 

entire case. The trial court appointed the Department as Sally’s conservator in part 

because Mother had tested positive for drugs. Then, the trial court suspended 
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visitation because Mother and Father tested positive for drugs. And, Mother and 

Father never regained visitation because they continued to test positive for drugs. 

Father was not honest about his drug use, and he did not attend NA meetings, 

which was a requirement of his family service plan. From this evidence, a 

reasonable factfinder could conclude that Mother and Father are either unwilling or 

unable to stop using drugs, indicating that they would pose a danger to Sally’s 

emotional and physical well-being if Sally were returned to them.

Further, in determining the best interest of a child, a factfinder may consider 

evidence of a parent’s past behavior that endangered the well-being of the child 

and infer that the conduct may recur in the future if the child is returned to the 

parent. See, e.g., Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.—Houston 

[1st Dist.] 2010, pet. denied). The evidence shows that Mother has a long history 

of drug abuse and CPS referrals and that she lost custody of her oldest child, Ian, 

because she was unable to stop using drugs and failed to complete (or even attempt 

to complete) her court-ordered services. The evidence further shows that Mother 

used drugs while pregnant with Sally and Mitzi and that Father lived with Mother 

during the latter pregnancy. Father emphasizes that he has no criminal record and 

had not been involved with CPS before the instant suit. Even so, a reasonable 

factfinder could infer that Sally would be subjected to endangering conduct in the 
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future if she were returned to Father by virtue of his continuing relationship with 

Mother.

In contrast, Sally’s foster parents, as Father concedes, were providing her 

with a safe, stable, and nurturing environment. Sally had bonded with them. And, 

as of the termination hearing, Sally had lived with them longer than she had lived 

with Mother. From the record, it appears that Sally has only met Father once, 

during the Parents’ first (and only) visitation in this case. 

Fourth factor: the parental abilities of the individuals seeking custody.

Mother and Father appeared to be adequately caring for Mitzi, which is evidence 

that they could adequately care for Sally as well. However, Father did not complete 

(or even register for) parenting classes. And, even if he had completed the classes, 

he would not have been able to demonstrate what he learned, as the trial court 

suspended and never reinstated visitation due to his continued drug use.

In contrast, it was undisputed that Sally’s foster parents provided a loving, 

stable, and safe environment for her. They successfully completed the training, 

study, and other requirements necessary to become licensed foster parents. See, 

e.g., TEX. FAM. CODE ANN. § 101.017 (defining “licensed child placing agency”); 

TEX. HUM. RES. CODE ANN. §§ 42.001 et seq. (licensing scheme for facilities, 

homes and agencies that provide child-care services). The caseworker testified that 

the foster parents were meeting Sally’s need and that she had no concerns with the 
20

placement. The court-appointed investigator testified that Sally’s foster parents 

were loving, nurturing, and engaging. The child advocate recommended that Sally 

remain with her foster parents. 

Fifth factor: the programs available to assist these individuals to 

promote the best interest of the child. In his brief, Father states: “Presumably, 

the parents would be given a modified [family service plan] upon restoration of 

their parental rights.” He does not identify the programs that would be offered 

under such a plan. Nor does he claim that he would actually participate in such 

programs. From Father’s past behavior, a reasonable factfinder could infer that 

Father would not avail himself of the programs made available to him. 

In contrast, Sally’s foster parents were licensed, which meant they had 

completed various training and study requirements. If adopted, Sally will likely 

enjoy additional benefits provided by the State for the assistance of adopted 

children. See, e.g., TEX. FAM. CODE ANN. §§ 162.304 (adoption financial assistance 

program), .306 (permitting post-adoption services to adoptees and adoptive 

families), .603 (requiring child-placing agency to provide adoptive parents 

information about community resources and services).

Sixth and seventh factors: the plans for the child by these individuals or 

by the agency seeking custody and the stability of the home or proposed 

placement. The evidence shows that the Parents were raising Mitzi in a one-
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bedroom apartment. Father testified that if Sally were returned to him, he would be 

able to buy or lease a larger residence. Father testified that he wanted his children 

to go to college and “have everything.” 

The evidence shows that Sally’s foster parents were providing her excellent 

care and planned to adopt her. The caseworker, court-appointed investigator, and 

child advocate testified that the foster parents provided a safe, stable, and nurturing 

environment. In his brief, Father recognizes that Sally’s “foster-to-adopt placement 

reportedly is safe, stable, protective and meeting all of [Sally]’s needs.” With her 

foster parents, Sally was “happy and healthy.” Sally had visibly bonded with her 

foster parents; she became excited whenever she saw them. The foster parents sent 

Sally to a special daycare where she was learning English, Spanish, and sign 

language.5

From this evidence, a reasonable factfinder could conclude that, while Sally 

would receive love in either home, she would have more permanence and stability 

with her foster parents.

Considering the Holley factors and reviewing all of the evidence in the light 

most favorable to the trial court’s finding, we conclude that a reasonable trier of 

fact could have formed a firm belief or conviction that termination of Father’s 

parental rights was in the best interest of Sally. Moreover, none of the disputed 

 

5 The record does not indicate whether Sally is hearing impaired.
22

evidence was so significant that the factfinder could not have formed such a firm 

belief or conviction. We therefore conclude that the evidence was both legally and 

factually sufficient to support termination of Father’s parental rights to Sally. We 

overruled Father’s third issue.

Sole Managing Conservatorship

In his fourth issue, Father contends that the trial court abused its discretion 

in appointing the Department sole managing conservator of Sally.

A managing conservator is authorized to determine the child’s primary 

residence. See Phillips v. Beaber, 995 S.W.2d 655, 660 (Tex. 1999); In re 

C.A.M.M., 243 S.W.3d 211, 215 n.7 (Tex. App.—Houston [14th Dist.] 2007, pet. 

denied); see also TEX. FAM. CODE ANN. § 153.132 (listing “rights and duties” of 

parent appointed sole managing conservator), § 153.371 (listing “rights and duties” 

of non-parent appointed as sole managing conservator). The managing conservator 

has nearly sole authority to make decisions for the child. See TEX. FAM. CODE

ANN. §§ 153.132, 153.371; see also In re R.L., No. 01-16-00851-CV, 2017 WL 

1496955, at *13 (Tex. App.—Houston [1st Dist.] Apr. 21, 2017, no pet.) (mem. 

op.); In re N.L.D., 412 S.W.3d 810, 816 (Tex. App.—Texarkana 2013, no pet.) 

(“Conservatorship of a child includes the day-to-day management of the child.”).

The termination of parental rights and the appointment of a non-parent as 

sole managing conservator are two distinct issues, requiring different elements, 
23

different standards of proof, and different standards of review. Compare TEX. FAM.

CODE ANN. § 161.001 with id. § 153.131(a); see In re J.A.J., 243 S.W.3d 611, 615–

17 (Tex. 2007); Earvin v. Dep’t of Family & Protective Servs., 229 S.W.3d 345, 

351 (Tex. App.—Houston [1st Dist.] 2007, no pet.). The primary consideration in 

conservatorship determinations should always be the child’s “best interest.” TEX.

FAM. CODE ANN. § 153.002; In re A.C., 394 S.W.3d 633, 644 (Tex. App.—

Houston [1st Dist.] 2012, no pet.). Under Section 153.131, a trial court may 

appoint a non-parent, such as the Department, as sole managing conservator if it 

“finds that appointment of the parent or parents would not be in the best interest of 

the child because the appointment would significantly impair the child’s physical 

health or emotional development.” TEX. FAM. CODE ANN. § 153.131(a). In 

determining the child’s best interest for the appointment of a managing 

conservator, the court must consider both the Section 263.307 factors and the 

Holley factors described above. In re A.C., 394 S.W.3d at 644; see TEX. FAM.

CODE ANN. § 263.307(b) (listing 13 factors).

We have already held that legally and factually sufficient evidence supports 

the trial court’s findings that termination was in Sally’s best interest. It follows that 

the trial court’s finding that appointment of Mother and Father as conservator 

would not be in Sally’s best interest is also supported by legally and factually 

sufficient evidence. We hold that the trial court did not abuse its discretion in 
24

appointing the Department sole managing conservator of Sally. Therefore, we 

overrule Father’s fourth issue.

Conclusion

We affirm the trial court’s judgment.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Brown and Caughey.