Opinion issued February 27, 2024

In T he 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 23
- 00658
- CV

——————

————— IN THE INTEREST OF K.B., A CHILD

On Appeal from the 314th District Court

Harris County, Texas Trial Cou rt Ca se No. 202 1
- 004499J

MEMORANDUM OPINION The T e xas Department of Family and Protective Servi ces ( “ DFPS ” or “ th e Department ” ) sought termination of the parental rights of appellant s C.J.A. ( “ M o ther ” ) and W.B. ( “ Father ” ) to their minor daughter, K.B. ( “ Kate ” ). 1 After a bench trial, the trial cou r t fou nd that there was cle ar and convincing evidence to

1 We us e a pseudonym for the minor child to protect her privacy.2

support two stat u tory predicate grounds for termination of each paren t ’ s rights under Texas Family Code subsections 161.001(b)(1)(E) and (O) ( “ subsection (E) ” and “ subsect i on ( O ) ” )

. See T EX
. F AM
. C ODE § 16 1.001(b)(1)(E), (O) . The court also found that there was clear and convi ncing evidence that terminating each parent ’ s rights was in K ate ’ s best interest. O n appea l , Mother asserts that the evidence was le gally and factuall y insufficient to support the term ination of her parental rights u nder both subsecti ons . Father conced es the evidence was sufficient to support the tr ial court ’ s findings under su bsection ( O ) but co n tends the evidence was legally and fact ually insufficient t o support a finding of endangeri ng conduct under subsection (E)

. B oth parents ar gue that the evidence is legally and factually insufficient to support a finding that termination of parental rights w a s in Kate ’ s best intere st. Father cha llenges the trial co urt ’ s decision to appoint DFPS a s Kate ’ s sole managing conservator. We affirm. Background W h en Kate was born on February 3, 202 1, t he Department received a referral regarding neglectful supervision by Mother

. It was reported that Mothe r previously had t en c hildren removed from her care an d that Mother had a long3

history of substance abuse and prior terminations. 2 A Department investigator visited newborn Kat e in the NIC U. Kate was in the NICU due to her 2.5

- pound birth weight , a nd she remain ed there unti l she weighed at least 4 pounds. The investigator interviewed both parents and learned that Kate was F ather ’ s firs t child.
B o th parents denied having a criminal h istory or drug his tory

. When Kate was ready to be discharg ed f

rom the hospital two weeks later , both parents agreed to a safety pla n. The terms provided that Father would be the primary caregiver and
Mot her would have supervised vis itation. Kate left the hospital with her parents. An investigator fo llow ed up three days later , visit ed Kate at hom e, and noted no issues. Both parents submitted to drug testing on March 4, 2 021. By March 25, 2021, the Department learned that b oth parents had test ed positive for cocaine and/or benzoylecgonine , a major meta bolite of cocaine

. The Department fi led its petit i on for conservatorship and for termination of the parent

- child relationship. Before the adversary hearing, the Departme nt re ceived a subsequent referral due to Kate having a fracture of he r right femur. N either parent could explain how she

was injured

. Th e Department determined t hat due to the parents ’ positive drug tests and Ka te ’ s unexplained injuries, she needed to be rem ov ed from her parents ’ care . The Department was awarded tempor ary managing conservatorshi p in April. Kate

2 At trial the caseworker testifie d that mother previous ly had ten children removed from her care. The record contains terminati on decrees as to nine children.4

was p laced with “ fictive k in , ” meaning that h er foster parents were the adoptive parents of four of Mothe r ’ s children, who were Kate ’ s biologic al siblings. Eventually, the case proceeded to trial. Trial began in Oc tober 2022. At trial, the caseworker testified that Kate came into th e Department ’ s care in April 2021. The Department created service plans for each parent. Mother ’ s service plan requ ired her to complete parenting cl asses, partici pate in a ps ychosocial assessment , psychiatric assess ment, and substance abuse assessment and follow all reco mmendations from each, complete random drug testing and abstain from drug use , and provide stable pr oof of income and housing. She completed the su bstance abuse assessmen t and psychosocial
assessment , but she did not attend th e individual co unseling and pa renting classes recommended by the assessments. The caseworker te stified that though she referred M o ther to providers for the counselin g, Mother never engaged in it. W h en the caseworker asked Mother about it, M other would say that she was wo rking on it. Th e caseworker visited Mother ’ s residence and found it to be “ v ery cluttered and not chil d safe. ” The casewo rker testified th at al though Mother attends visitatio n with Kate , she does not interac t with Kate for most of the visit . Instead, she spen ds a lot of ti me on her phone. The caseworker told Mother that she needs to be more engaged during th e visits, but the caseworker did not s ee any improvement.5

The casewor ker testified that despite reminding Mother of the importance of her sobriety dur ing the case , Moth er continued to test positive for illegal drugs

. This was concernin g to the caseworker because it showed that Mother had not addressed the major concern that the Department had with her as a parent . Her drug use had been an iss ue for over a year in the current case and during he r prior cases with D FPS . The caseworker did not believe that Mother had d emonstrated an ability to provide a safe an d stable en vironment for Kate. The evidence showed that Mother tested positive for cocaine and ben zoylec gonine ( a major m etab olite of cocaine ) in March, April , and May 2021 , and March, J ul y, and A u gust 2022. She also tested positive for alcohol in April and
M ay 2021 and March 2022

. S he did not appear for drug testing in August 2021.
As to F ather, the caseworker test ified that he had no other chil dren. His service plan required him to compl ete parenting classes, to participate in a
ps ychosocial assessment and substa nce abuse assessment and follow all recommendations from each, to complete r andom drug te sting and absta in from drug use , and to provide proof of stable housing a nd income. Fathe r completed the ps ychosocial assessment and its recommendations, which i nclud ed a psychiatric evaluation. There were no further recommendations from the psychiatric e valuation. H e p rovided p roof of stable housing, but his lease had expired in the months be fore trial , and he had not provided a current one. He6

also provided pro of of his income. The caseworker testified that Father att ends visitation but is not ful ly enga ge d with Kate fo r the entire visit. Father ’ s drug use remained a concern for the caseworke r. Father ha d not demonstrated sobriety during the pendency of the case . He had positive drug tests from one month after Kate ’ s birth until two months before trial b egan . The eviden ce showed that Father tested positive for cocaine an d/or benzoylecgonine in March, April, May, August, September, O c tober, November, and December 2 021 and in January, March, June, July , and A u gust 2022. He had invalid results in August 2021 and A p ril and M ay 2022. He did not appear for dr ug testing in August 2021. The caseworker t estified that , in her opinion, the issue that brought Kate to the atten tion of the Department has not been resolved by either parent , and neither par ent ha s demonst rated an ability to be an appropriate caregiver. Regarding Kate ’ s foster ho me, the caseworker testified that Kate is in t he care of a foster family who has adopted fo ur of Mother ’ s other child ren . Kate was placed with the family when she was six months ol d. At the time o f trial, ten children live d in the home

. When asked, the caseworker testified that she did not have concern s about Kate ’ s ability to th rive in a home w ith ten children, as all her needs w ere met, and she had a happy relationship with each o f her family memb ers. Th e foster family also maintains close contact with another family that

a dopted some of Mother ’ s chil dren. The two families ensure that all the s iblings,7

including Kate, maintain a relationship. T he caseworker explained that while
mot her ’ s rights to t en other children have been terminated, Kate has a relationship with all of them

. Th e guardian ad litem t estified t h at she had observed Kate in her c urrent
p laceme nt. The placement was appropriate, and Kate was bonded to both the foster

m other and f

oster father. The guardian ad litem did not believe that the number of children i n the home was det riment al to K ate. S h e testified that being in a home wi th biological sibl ings was a benefit t o Kate ’ s well

- being. The guar dian ad litem testified that she ha d obse rved Mother during visitation . She described M o ther as having a “ detached type of relationship ” with Kate. Mother would interact with
Kate f or basic needs but did not have a loving, playf ul relationship with her. The guardian ad litem was unable to visit Mo ther ’ s home because Mother refused to provide the address. As to Father ’ s visitation, the g uardian a t li tem observed that he did not know
h ow to respond to Kate ’ s needs. S he testified that if Kate was crying, Fat her would ask what to do a nd was not aware o f how to de al with a small child. The guardian

a d litem ’ s main concern with Kate returning to Mother and Father was that both had repeatedl y stated that they were the only ones caring for Kate when she broke her femur, yet neither of them could say how it happened. The guardian ad litem thus had no assurance that Kate would be safe in the future

.8

The foster mother testified that Kate had be en in her home since A u gust 2021. When Kate first arrived, she had some de velopmental delays , yet d espite being born premature, she has been able to meet her milestones. T he foster mother testified that she advocated for Kate to be placed in her home becau se it is import ant that Kate know her siblings and that they all remain in close contact. The foste r mother stated th at Kate rec eives extra attention from the other children in the home because she is th e baby of the family. There is physically enough room for
Kate , and the fost er parents meet all Kate ’ s physical, emotional, educational , and financial n eeds. T h e f

oster m o ther testified that she maintains a relationship with the family that adopted K ate ’ s other siblings , and they do sibling visits regularly. Even though ma intaining a relationship between the siblings is not required , the two adoptive fami lies believe that it is im portant to maintain the sibling bond. The
f oster mother described that K ate could name her siblings and that she is “ very
sassy in a good way

. ” The f oster mother testified that it is her desire to adopt Kate. Trial recessed and r esumed in June 202 3. 3 The caseworker testified that since the October 2022 trial sett ing, Mother had completed a substance abuse assessment. The guardian ad l i tem testified that sh e had been guardian ad litem for three of Mother’s children in prior cases w ith t he Department , and , she had known

3 In the months between trial dates, the foster parents an d Father ’ s aunt and un cle reached a mediated settlement agr eemen t that provided for Kate to have regular visits with the aunt and uncle. The aunt and uncle had previ ously intervened in the case.9

the family for over eight years

. It was her re commendation that the court terminate parental rights to both parent s b ecause they had not be en able to complete their service plans, despite having additional time betwee n th e trial sett ings. Mother testified briefly. She stated that she had missed app ointments for counseling, but she wanted to complete them . She also tes tified that she was waiting for a call back from the provider about parenti ng classes. She denied usin g cocaine while pregnant with Kate or since Kate was born

. Father testified that he had participated in his service plan and attended sev eral visits with Kate. He testified that children are not allowed in his housing, and he had no issue with
Kate ’ s place ment with her siblings

. After closing arguments, the trial court terminated both parents ’ parental rights pursuant to subsectio ns ( E) and (O) and made a finding that termination was in the child ’ s best interest. The D epartment was awarded sole managing con serv atorship of the child. Both parents appeal ed. On appeal, Mother challenges both pre dicate act findings and the best interest determi natio n. Father conce d es that there is sufficient evidence to terminat e his rights under subsection (O) . He challenges t he c ourt ’ s finding under subsection (E) and the best interest finding. He also argues th at th e tria l court abused its discretion in award ing s ole managing conservatorship to the Department.10 Sufficiency of the Evidence M o ther challenges the sufficiency of the evidence to support the statutory predicate grounds for termination found by the tr i a l court. She challenges the legal and fa ctual su ffici ency of the evidence supporting the trial court ’ s findings under subsections (E) and (O). Father challenges th e su ffic iency of the evidence to support the trial court ’ s finding under subsection (E). H e concedes that the trial

cour t had sufficient evid ence for its subsection (O) finding. Both parents challen ge the sufficiency of the evidence supporting the trial court’ s fi nding that termination of parental rights is in Kate ’ s best interest. A. Standard of R eview A parent’s right to th e “companionship, car e, cu stody, and management” of

a child is an interest “far more precious than any property right.” Santosky v.
Kramer , 455 U.S. 745, 758

– 59 (1982) (qu otations omitted) ; see Troxel v. Granville , 530 U.S. 57, 65 (2000) (stati ng that this interest “is perhaps the oldest of the fundamental liberty interests recognized by” the United States Supreme Court).
W e strictly construe invo lun t ary termination statutes in favor of the parent. In re E.N.C. , 384 S.W.3d 796, 8 02 (Tex. 2012). Howe ver, althoug h parental rights are “of constitutional magnitude,” they are not absolute. In re C.H. , 89 S.W.3d 17 , 26 (Tex. 20 02 ). It is “essential” that co u rts do not sacrifice the child’s emotional and physical interests merely to pres erve the parent’s ri ghts. Id.11

Fa mily Code section 161. 001 balances the competing interests of the parent and the child by permitting termination of parental rights only if the party seeking termination establishes both that (1) the parent’s acts or omissio ns satisfy at least
one statutor y predicate groun d for termination; and (2) termination is in the child’s best interest. I

n re A.C. , 560 S.W.3d 624 , 630 (Tex. 2018) ; se e T E X
. F AM
. C ODE § 161.001 (b)

. Both the Family Code and the Due Process Clause of the Un ited States Constitu tion require proof by clear a nd co nvincing evidence in termination of parental rights cases. E.N.C. , 384 S.W.3d at 8 02 ; s ee T EX
. F AM
. C ODE § 161.0 01 ( b ); Santosky , 455 U.S. at 7 69 (stating that clear and convincing standard of proo f “adequately convey s to the fac tfinder the level of s ubjective certainty about his factual conclusions necessary to satisfy due process ” ). The Fam ily Code defines “clear a nd c onvincing evidence” as “ the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or convic tion as to the truth of the allegations sought to be established. ” T EX
. F AM
. C ODE § 101.007; In re J.F.C. , 96 S.W.3d 256, 2 64 ( Tex. 2002). Because the standard of proof at trial is clear and convincing evide nce, on appeal we ap ply a height ened standard of revie w when examining the sufficiency of the evidence. In re J.W. , 645 S.W.3d 726, 741 (Tex. 2022) ; A.C. , 560 S.W.3d at 6 30

. In revie wing a legal sufficiency challenge, we must determine whether a

reas onable factfinder co uld have for med a firm belief or c onviction that the finding12

under review was true. J.W. , 645 S.W.3d at 741 (quotations omitted). Even under this hei g htened sta nd ard, we must grant deference to the factfinder, “who heard the witne sses and evaluated t heir credibi lity.” In re J.F.

- G. , 627 S.W.3d 304, 311

– 12 (Tex. 2021). We view the evidence in the light most favorable to the finding. J.W. , 645 S .W. 3 d at 741. We ass ume the factfinder resolved disputed facts in favor of its findi ng if a reasonable f

actfinder co uld do so, and we disr egard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. We may no t, h owever, disr egar d undisputed facts that do not support the finding. Id. ; A .C. , 560 S.W.3d at 6 30

– 31. The f actfinder remains the “sole arbiter of the witnesses’ credibility and demeanor.” J.F.

- G. , 627 S.W.3d at 312 (quotation omitted)

. In r eviewing a factual suffi c iency c hallenge, we must consider the entire record

— including evidence both supp orting and contradic ting t he fin d ing

— and determin e whether the factfinder could have reasonably formed a firm belief or conviction that the finding was true. C.H. , 89 S. W .3d at 25

– 26 ; see A.C. , 560 S.W.3d at 631 (stating that factual sufficienc y review “ requires w eighin g disp u ted evidence con trary to the finding against all the evidence favoring the finding ”) . If the disputed evidence that a reasonable factfinder co u ld not have credite d in favor of the finding is so significant that the factfind er could not reasona bly ha ve for m ed a firm belief or conviction that the finding was true , the evidence is factually13

insufficient. A.C. , 560 S.W. 3d at 631; In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006) (per curiam)

. To affirm a termination judgment o n appeal, we need up hold o nly on e predicate groun d

— in addition to upholding a challenged best interest finding

— even if the trial court base d its terminatio n ruling on more than one predi c ate ground. In re N.G. , 577 S.W.3d 230, 23 2 (Tex. 2019) (per curiam); In re A.V. , 113 S.W.3d 355, 36 2 (Tex . 2003 ). However, termi nation of parental rights under subsection (E) can serve as the basis for termination of a parent’s ri ghts to another child in the future. Se e T EX
. F AM
. C ODE § 161.001(b)(1)(M); N.G. , 577 S.W.3d at 234 . As a result, du e p ro cess requi res review of a t rial court’s findings under subsection (E) “ even when another ground is sufficient for termination, be cause of the potential c o nsequences for paren tal rights to a different child. ” N.G. , 577 S.W.3d at 235. B. Statutory Predica te G rou n ds for Termi nation 1. Termination under su bsection (E) The trial court may terminate the parent

- child relationship i f it fi nds by clear and convincing eviden c e that the paren t engaged in conduct or knowingly placed the child wit h persons who engaged in condu ct which end angers the physical or emotional well

- being of the child

. T EX
. F AM
. C ODE § 161.001(b)(1)(E).14

“Endanger” means to expose a child to loss or inju r y or to jeopardi ze the child’s emotional or physical well

- being

. J.W. , 645 S.W.3d at 7 48. This means “more than a threat of metaphysical injury or the possible ill effects of a less

- than

ideal family environment

. ” I d. (quotations omitted). Under sub s ection (E), the Depart ment must show that “the endangerment was the re sult of the par ent’s c onduct, including ac ts, omi ssions, or failure to act.”
In re S.R. , 452 S.W.3d 351, 360 (Tex. App.

— Houston [14th Dist.] 2014, pet. denied). This subsection requires more than a single act or omission to support termination; instead, th e statute requires “a voluntar y, deliberat e, and conscious course of conduct by the parent.” Id. ; In re J.T.G. , 121 S.W.3d 117, 125 (Tex. App.

— Fort Wor th 2003, no p et.)

. In evaluating the sufficiency of the e vidence under subsection (E), we may consider co n duct both be fore and after the Department remove d the child from the home. S.R. , 452 S.W.3d at 360. It is not necessary that the parent’s conduc t be d irected at the child or that the child actually suffer in jury. J.W. , 645 S.W.3d at 748. “The s pecific dang er to the child’s well

- being may be inferred from parent al miscon duct standing alone.”
In re N.J.H. , 575 S.W.3d 822, 831 (Tex. App.

— Housto n [1s t Dist.] 2018, pet. denied); S.R. , 452 S.W.3d at 360. A parent’s conduct that subjects a child to a life of uncertai nty and instability endange rs the child’s physical and e motional well

being. In re M.D.M. , 579 S.W.3d 744, 76 5 (Tex. App.

— Houston [1st Dist.] 2019,15

no pet.)

. A parent’s past endangering conduct may create an inference that the conduct may recur an d further jeopardize the child’s pre sent or future physical or emotional well

- being. In re J.D.G. , 570 S.W.3d 839 , 851 (Tex. App.

— Houston [1st D ist.] 2018, pet. denied). The endangering conduct may occur before th e child ’ s birth and either bef ore or after the child ’ s removal by the Departmen t. Walker v. T

ex. Dep ’ t of Fam. & Protective Servs. , 312 S.W.3d 608, 617 (Tex. App.

— Houston [1st Dist. ] 20 0 9, pet. denied). Drug use and its effects on the parent’s life and abi lity to parent may establish a n endangerin g course o f conduct.
In re J.O.A. , 28 3 S.W.3d 336, 345 (Tex. 2009); In re A.A.M. , 464 S.W.3d 421, 426 (Tex. App.

— Houston [1st Dist.] 2015, no p e t.) (“ Illegal drug use creates the possibility that the parent will be impaired or imprisoned and th us incapable of parent ing. ”). a) There is legally and factually sufficient evidence to support the trial co urt ’ s finding t hat Mother ’ s cond uct endangere d Kate. Mother argues that the evidence is legally and factually insuf ficie nt to

s upport the tr ial court’ s finding that she end angered Kate because there is no medical documentation or evidence as to how Kate broke her femur. Mother a lso argues that there is no causal connection between her drug use and endangerment

. She arg ues t hat the only evidence of her d rug use is drug tests that were administered befo re Kate ’ s birth . S h e argues that the evidence shows she was16

willing to effect p ositive personal change s because she had no pos itive drug tests after August 2022.
Texas courts ha ve repeatedly held that drug use and its effects on the parent’s li fe and ability to parent may establish an endangering course of conduct under s ubsection (E). Se e, e.g. , J.O .A. , 283 S.W.3d at 345; A.A.M. , 464 S.W.3d at 426. Illegal drug use “ex poses the child to the possibility that the parent may be impaire d or imprisoned.” In re S.C.F. , 522 S.W.3d 693, 700 (Tex. App.

— Houston [1st Dist.] 2017, pet. denied) ; In re A.M. , 495 S.W.3d 573, 579 (Tex. App.

— Ho uston [1st Dist.] 2016, pet. denied)

. Drug activity “ significa ntly harms t he parenting rel ati onship” and can constitute endangerment even i f it occurs outside of the child’s presence. A.M. , 495 S.W.3d at 579. “I n add ition, a pare nt’s decision to engage in illegal drug use during the pendency of a termination su it, when the parent is at ri sk of losing a child, may support a finding that the parent engaged in conduct that endangered the child’s physical or emotiona l wel l

- being.” Id. at 580 (quotation omitted)

. A factfinder can infer that a parent’s failure to s ub mit to court

ordered drug te stin g indicates that the parent wa s avoiding test ing because they

we re using drugs. In re C.A.B. , 289 S.W.3d 874, 885 (Tex. App

. — Hous ton [14th
Di st.] 2009, no pet.). The record contains evidence that Mother has used drugs for many years. She tested posi tive fo r cocaine and benzoylecgonine in 2017, 201 9, and October17

2020. The October 2020 test was also positive f or alcohol. Kate was born in February 2021. Mother tested positive for cocaine and benz oylecgonine after
Kate ’ s birth and during the pendency of th is ca se in March , April, and May 2021 and in Ma rch , July, and August 2022. She also tested positive for alcohol on three occasi o ns dur ing this time. While there are no positive drug test results in the record after August 31, 2 022, that is not the same a s proof t hat Mother has tested negative for drugs for any period

. There are no drug test results at all in the record after August 31, 2 022. Even if the trial court considered the absence of positive tests in th e record after A u g ust 2022 as evidence of imp rovemen t, evidence of improved conduct of a short duration “ does not concl usively negate the probative value of a long history of drug u se and irresponsible choices. ” J.O.A. , 283 S.W.3d at 346. Mother tested positive at least twe lve time both before and af t er Kate ’ s birth and while the case was pen ding. The evidence of M o ther ’ s history of illegal drug use, her positive drug tests, an d her lack of follow through when referred to counselin g support ed an inference by the trial co ur t that Mother was at risk for continuing drug use. See In re Y. G. No. 01

- 22

- 001 81

- CV, 2022 WL 3362953, at
*14 (Tex. App.

— Houston [1st Dist.] A u g. 16, 2022, pet . denied) (m em. op.) ( stating two negative drug tests among multiple positive drug tests d id n ot ne gate history of drug abuse p lus history of illegal drug use a nd prior termination to other18

children based on drug use that le d to neglect supports inference that Mother at risk for future drug abuse). Mother cites the Fourt eenth Court of Appeals ’ s decisio n in In re L .C .L. , 599 S.W.3 d 79, 84

– 86 (Tex. App.

— Houston [14 th Dist

. ] 2020, pet. denied) ( en banc), for the proposition that a parent ’ s drug use standing a lone, w ithout evidence of how that behavior endange rs a child, cannot support termination under sub section (E). The Fourteenth Court state d that “ [a] plain langu age read i ng of the statute requires a causal connection between [the mother ’ s ] drug use and the alleged endan germent. ” Id

. at 84. In this case, Mother argues there is no evidence that her drug u se negatively affected Kate. We first note that this C ourt e x pressly has declined to adopt the Fourteenth Court ’ s rationale in L.C .L. See In re D.D.D. , No. 01

- 2 3

- 0 0 078

- CV , 2 02 3 WL 48 72399, at *10 (Tex. App.

— Houston [1st Dist.] Aug. 1, 2023, no pet.) (mem. op. )

. Fu rthermore, this case is factually distinguish able fro m L. C. L. because , here , there is evidence that Mother ’ s drug us e did enda n ger Kate. T h ere is evide n ce that Moth er used drugs both before and after K ate was born. Kate was born prematurely at only 2.5 p ounds. S he required a NICU sta y due to her low birth weight

. Given hospital staff concerns , the Department entered into

a safety plan with both parents whe n K ate left the hospital . The plan required Father to be the primary caregiver and allowed M o th er to have supervis e d19

visitation. While under this plan, bot h parents tested posit ive for drugs in March 2021 , and Kate appeared at t he hospital with a broken femur in April 2021. The fact that the record does not contain details related to Kate ’ s femur
in ju ry does no t preclude the trial court from finding that the injury is evidence of Mother ’ s endanger ing conduct. The Department originally created a safety p l an for Kate that required Father to supervise Mother ’ s interactions with her. The record contains documentation from five prior DFPS cases in which Mother had her rights termi nated to nine other children. T h e most recent termination was only four months before Kate was born. In these cases, Moth e r was o ffered services and did not complete them. The Dep artment became further involve d when Kat e ’ s femur

was b roken while in the care of Mother and Father. M other argues that there is no proof of endangerment because the cause of the broken bone is not in the r ecord. The record shows that Kate was in the care of her parents at the time of the injury and yet neither of them could explain how the injury occu rred

. Reviewin g all th e eviden ce in t he light mos t favorable to the termination findings under subsection ( E), we conclude a reasonable fact finder could have formed a firm belief or conviction as t o the tru th of the finding s that Mother endangered Kate th roug h her acts or omissions. See J.O.A. , 283 S.W.3d at 344

. Further, in view of the entire record, we conclude the disputed evidence is not so significant as to prevent the trial court f rom fo rming a f

irm belief or conviction that20

termination of M o th er ’ s parental rights to Kate was warrant ed under sub section (E). Id. at 345. Accordingly, we conclude the ev idence is legally and factually sufficient to support th e subsection ( E ) finding as to Mot her. b) The re is legally and factually sufficient evidence t o support the trial co urt ’ s find ing that Fat h er ’ s cond uct endangered Kate. On appeal, father does not challe nge the trial court ’ s termi nation finding under subsecti on ( O). See A.V. , 113 S.W.3d at 36 2 ( ap pellate court need only uphold one predicate fi nding and best interest termination). He on ly challenges the evidence to support that termination was in Kat e ’ s best interest. Nevertheless, we review the trial c ourt ’ s f indin g under subsection (E) because o f its pot ential consequences for his parental rig ht s to future children

. N.G. , 577 S.W.3d at 235. On appeal, Father argues that the evidence does not s upport a finding under subsection (E) because the trial court did no t estab lish a direct c ausal con nection betwee n his drug u se and actual harm to t he child. He argues that there is no evidence he impaired the child or physically harmed her. He states that he was cooperative with the Department and v isited regul arly with K ate throughout the

cas e. As dis cussed above, our court ha s not adopted the ratio nale that a finding under subsection (E) requires a causal link between drug use and endangerment

. D.D .D. , 2 02 3 WL 48 72399, at *10

. The evidence establishes that Father ’ s drug us e
was so per va sive and serious that the fact finder could reaso nably infer t hat it was

e ndangering. I

n re M.A.J. , 612 S.W.3d 398, 407

– 408 (Tex. App.

— Houston [1st21

Dist.] 2020, pet. d enied) (op. on reh ’ g) (concluding that evidence of positive drug s
tests a fter department r eceived referral that parent used narcotics was sufficient to

s upport findin g of endange rment under subsection ( E)). Kate left the hospital after a stay in the NICU when she was about three weeks old. At that time, both parents agreed to a safety plan wit h the Department. Under the plan, Father was to be the primary caregiver and allow Mothe r to have supervised vis itation with Kate. W h en Kate wa s about two months old, she broke her femur

. W h ile both parents stated that they were the only p eople caring for Kate, neither of them could identify the cause of her injury. Both paren ts tested po sitive for drugs on March 4 , 2021, about a week after leaving the hospital with K ate. Father tested positiv e for high levels of cocaine, benzoylecgonine, and norcocaine. A fter Kate was removed from the parents ’ care, Father continued to use dru gs throughou t the pendency of the case. He tested positive for cocaine and/or benzoylecgonine in April, May, August, September, O c tober, N o vember, and December 2021 a nd in January, Ma rch, July, and August 2022. He had invalid results in August 20 21 and A p ri l and May 20 22. This and

n umerous cour ts of appeals have recognized that a parent ’ s decision to use illegal drugs while the termination suit is pending, a nd the pare nt is at risk of losing his child, may support a finding of enda ngering conduct under subse ction (E). D .H. v.
Tex . Dep ’ t of Famil

y & Protective Svcs

. , 652 S.W.3d 54, 62 (Tex. App.

— Au s tin22

2021, no pet.) ( citing cases from First, Second, Third, and Fifth cou rts of appeals ).

“ A parent ’ s engaging in illegal drug activity after agreeing no t to do so in a service plan for reunification wi th [his] childre n is sufficient to establish clear and convincing proof of voluntary, deliberate, and conscious conduct that en dangered the well

- being of [ his child ]. ” In re M.T.W. , 01

- 11

- 00162

- CV, 2011 WL 6 938542,
at *13 (Tex. Ap p.

— Houston [1st Dist. ] Dec . 29, 2011, n o pet.) (mem. op.) (quotation omitted)

. I llegal narcotics use creates the possibility that a parent will be impair ed or imprisoned, and thus, incapable of parenting, supporting termination. Walker , 312 S. W.3d at 61 7

. Father did not demonstrate sobriety during the pendency of the cas e. Reviewing all the evidenc e in the li ght most favorable to the termination finding under subsection ( E), we conclude that a reasonable factfinder could have formed a firm conviction o r belief as to the truth of the finding that Fath er engaged
in endang ering conduct

. See J.O.A. , 283 S.W.3d at 344. The disputed evidence that a reasonable f

actfinder c ould not have credited in f avor of th is finding is not so significant that a factfi nder could not reasonably have f ormed a firm beli ef or conviction as to the truth o f these termination findings. Id. at 345. We hold that th e evidence is legally and factual ly sufficien t to support the predicate termination finding under subsection (E).23

2. Termination u nder subsection (O) Subsection (O) provides that the court may order te rmination of the parent

child relationship if the court finds by clear and conv incing evid ence that the parent has failed to comply with the provisions of a court order that specificall y established the actions necessary to obtain the return of the child w ho has been in the Department ’ s care for not less than nine months

. T EX
. F AM
. C ODE § 161.0 01(b)(1)(O)

. Father concedes that the evidence was sufficient to support the trial court ’ s predi cate finding under subsection (O ) as to his abili ty to follow a servic e p lan. We have also held that the evidence is sufficient to support the trial court ’ s fin ding of endangerment under subsection (E) as to both parents. Having conclude d that the evidence is legally and factually sufficient to support t he trial court’s find ing of endangerment under subsection (E) as to Mother , w e need not discuss Moth er ’ s challe nge to the court’s findings under subsection ( O ). S e e A.V

. , 113 S.W.3d at 362 (r equiring a ppellate court to uphold one predicate act findin g and best interest d etermination to affirm decree). C. B est Interest Finding In addition to a statut ory pred icat e ground for termination, the trial court must also find by clear and convincing evidence that te rmination is in the child’s best interest. T EX
. F AM
. C ODE § 161.001(b) (2). There is a strong presumption “that24

the best interest of a child is ser ved by ke epi ng the child with a parent,” see R.R. , 209 S.W.3d 112, 116 (Tex. 2006) (per curiam), but there is also a presumption that “the prompt and permanent plac ement of t he child in a safe environment” is in the child’s best interest. T EX
. F AM
. C ODE § 263.30 7( a ). Th e be st

- interest inquiry is “child

- centered and focuses on the child’s well

- being, safety, and develop ment.”
A.C. , 560 S.W.3d at 631

. In reviewin g the tria l court’s best interest finding, we consider several non

exclusive factors i ncluding: (1 ) the chi ld’ s desires; (2) the child’s emotional and physical needs now and in the future ; ( 3 ) the emotional and physical danger to the child now and in the f

uture; ( 4 ) the parental abilities of the individuals seeking custody; ( 5 ) whether prog rams are ava il able to as sist those individuals ; (6) the plans for the child by those individuals; ( 7 ) the stability of th e proposed placement; ( 8 ) the parent’s acts or om issions th at may indicate the existing parent

- child relationship is improper; and ( 9 ) any excuse f or the pa ren t’s acts or omissions.
E.N.C. , 384 S.W.3d at 807 (citing Holley v. Adams , 544 S.W.2d 367, 3 71

– 72 (Tex. 1976)). The court need not have evide nce on eve ry element to make a valid finding on best interest. In re J.M.T. , 519 S.W .3d 258, 268 ( Te x. App.

— Ho ust on [1st Dist.] 2017, pet. denied) ; In re J.G.S. , 574 S.W.3d 101, 122 (Tex. App.

— Houston [1st D ist.] 2019, pet. denied) (“ The absence of evidenc e about so me of the factors25

would not preclude a factfinder from reasonably forming a strong convi ct ion or bel ief that termination is in the child ’ s best interest. ”). But a lack of evidence “does
not constit ute clear and convincing evidence.” E.N.C. , 384 S.W.3 d at 808. No one factor is controlling, but in a particular situation, ana lysis of a sin gl e factor m ay be ade quate to support a finding that termination is in the best interest of the child. J.M.T. , 519 S.W.3d at 268 ; see J.D.G. , 570 S.W.3d at 853 (“ In some cases, undisputed evidence of only one factor may be suffici ent to support a finding t hat termination is in the child ’ s best interest; in other cases, there could be more complex fact s in which paltry evidence relevant to each consi deration

m entioned in Holley would not suffice to support termination. ”) (quotations omitted)

. Pro of of acts o r omissions relevant to a predicate ground for termination does not relieve the Department of pro ving that termination is in the child’s best
inte rest, but the same evidence may be probative of both elements A.C. , 560 S.W.3 d at 631

– 32. W e may consid er circumstantial evidence, subjective factors, “and the totality of the evidence as well as the direct evidence.” J.D.G. , 570 S.W.3d at 854 (quotatio ns omitted)

. Mothe r contends th at Kate ’ s best interest cannot be fully addressed without d etermining whether a home where ten children reside , like the foster parents ’ home, can be in the best inte rest of a child. Father a rgues that there is insu fficient

e vidence to support the trial court ’ s best interest finding as to him . The Department26

respo nds that the number of children in the ho me is irrele vant under the circumstances an d that the evidence sup ports the trial court ’ s finding. With respect to the desir es of the child, there is no direct evidence about
Kate ’ s desires because she was less tha n two years old at the time of trial. See
H o lley , 544 S.W.2d at 371

– 72 ( factor one )

. “ When children are too young to
exp ress their desires, the fact finder may consid er that t he children have bonded with the foster family, are wel l

- cared for by them, and h ave spent minimal time with [ their ] pare nt. ” In re J.D

. , 436 S.W.3 d 105, 118 (Tex. App.

— Houston [14th Dist.] 2014, no pe t. ). K ate was removed from her parents’ care w hen she was two months old and placed with the foster family when she was six month s old

. At the time of trial, she had been with the family for more than a year. The placement was considered a kinship placemen t because the foster p arents had adopted sever al of
Kate ’ s siblings. T h e foster mother advocated for Kate to be placed in their home bec ause it was important to her that Kate and h er siblings remain in close contact. The foster mother te sti fied that Kate gets extra attentio n because sh e is the baby in the family and that there is enough space for Kate and her siblings in the house. Additionally, the foster mother testified that she is in contact with the adoptive parents of K ate ’ s other siblings , and the two groups of siblings ge t together regul arly. The f

oster mot her desired to adopt Kate. Th is evidence weighs in favor of the best

- interest finding.27

Next, evidence of each parent ’ s d rug use is relevant, not only to their parenting a bilities and to the stability of the home they wo uld provide , but also to the emotional an d physical needs of the child , now in and in the future, a n d to the emotional and physical danger in which the child could be placed, now and in the future. S e e Holle y , 544 S.W.2 d at 371

– 72 (factors tw o, three, four , and seven); I n re A.C. , 394 S.W.3d 633, 642 (Tex. App.

— Houston [1st Dist.] 2012, no pet.) ( patter n of illegal dr ug use suggested mother was not willing and able to pr ovide child with safe environme nt

— a pr imary consi deration in determining child ’ s best interest). A factf

inder may afford great weigh t to the significant factor of drug

related conduct. N.J.H. , 575 S.W.3d at 834 (consid ering parent ’ s history o f d rug use in affirming trial court’s de termination that termination was in best interest of child). A parent ’ s drug use is a condition in dicative of instability in the home environment because i t exposes a child to the possibility that a paren t may be imp air ed or imprisoned. See A.M. , 495 S.W.3d at 579

. As discussed above, the evidenc e shows that Mother previously h ad nine children removed from her care , and she had a long histor y of substance abuse

. She also c ontinued to test positive for illegal drugs th r oughout the pendency of the

case . She teste d positive for cocaine and benzoylecgonine in 201 7, 2019, and October 20 20. The October 2020 test was also positive f or alcohol. Kate was born in February 2021. Mothe r tested positive for cocaine and benz oylecgoni ne in28

March , April, and May 2021 and in Mar ch , July , and August 2022. She also tested positi ve for alcohol on three occasi o ns during this time. The caseworker described Mother’s continue d d rug use as concerning, given t he many yea rs she had used drugs and her drug use while under the threat of t erm ination of her parental rights

. A parent ’ s exe rcise of poor judgment cur rently and in the past demonstrate s an inability to provide ad equate care for the c hild. ” In re J. M

. No. 01

- 14

- 00826

- C V, 2015 WL 1020316, at * 7 (Tex. App.

— Houston [1st Dist.] Mar. 5, 2015 , no pet.) (mem. op.). Alt hough Mother c omple ted a psychosocial asse ssment early in the case, she did not complete the subsequent recommend ations for counseling . S h e also did no t complet e a psychiatric assessme nt

. Mother failed to complete parenti ng classes

. She testified that she was waiting fo r a call to facilitate compl eting them, but she made no efforts to complete the required c lasses during the pendency of the cas e. The case worker described Mother’s home a s very cluttered and not safe for a child, and M o ther refused to provide t he guardian ad litem with her address fo r a home visit. A parent ’ s in ability to provide adequate care for her children , un sta ble lifestyle , lack of a home a nd income, lack of parenti ng skills, an d poor judgment may be considered when looking at the child ’ s best inter est. In re J.D. , 436 S.W.3d
1 05, 119 (Tex. App.

— Houston [14th Dist.] 2014, no pet.)

.29

Father likewise test ed positive for drugs throughout t he case. He tested positive for cocaine and/or benzoylecgonine in Ma rch, April, May, August, September, O c tober, N o ve mber, and December 2021 and i n January, March, July, and August 2022. He had invalid result s in August 2021 and A p ril and May 2022.
In re J. M

. , 2015 WL 1020316, at * 7 ( sta ting parent ’ s poor judgment demonstrates ina bility to provide adequate care for child)

. The trial court could reas onably infer that F ather was at risk for future drug a buse.
F u rther , the trial court heard e vidence tha t Kate sustained a femur fracture while in the care of her parents. Though they were her sol e caregivers, n either parent could explain how Kate sustained the injury. This evidence is supportive of the trial court ’ s best

- interest finding under the third Hol ley factor: the emotional

a nd physical danger to the child now and in the future. See Hol ley , 544 S.W .2d at 371

– 72. With respect to programs available t o assist the parents in promoting the child ’ s best int erest, t he trial court may properly consider whet her each parent complied with the court

- ordered service plan for reunification with the ch ild. See
E.C.R. , 402 S.W.3d at 249. Father ’ s compliance w ith certain court

- ordered tasks during the proceedings weighs in his favor and against the best

- interes t finding. He completed a ps ycho social assess ment and a psychiatric evaluation. He engaged in regular visitation with Kate. He provided proof of stable h ousing at the beginning30

of th e case, but his lease had expired , and the caseworker did not have an upda ted lease. He provided proof of his income, b ut he did not complete parenting classes.
E v e n though Fat her participated in several of the court ordered se rvices, the evidence also shows that he was unable to refrain from illegal drug use. C o nversely, with respect to the foster parents ’ abilit ies to p arent Kate and to provide a stable home, the evide nce shows th at Kate was th riving

. 4 The trial court heard d irectly from the foster mother that Kate was thriving in the p lacement

. The court heard of the family’s love for Kate and their desire to raise her through adultho od wi th her siblings, including both Kate ’ s biological siblings and their other children

. The court heard testimony that , though not required to do so, the family tries to maintain a bond a mong all of Mother ’ s biological children , includ ing Kate ’ s s iblings in another adoptive home. Kate was thrivi ng in the foster family. See In re Z.C. , 280 S.W.3d 470, 476 (Tex. App.

— Fort Worth 2009, pet. denied) (sta ting th at stability and permanence are important to u pbringing of child and affirming finding th a t termination was in child’s best interest when c hild was thriving in foster care). We defer to the trial court’s assessment of the foster mother ’ s credibility and de meanor in crediting this testimony as evid ence in favor

4 Father concedes this point in his brief, stating, “ it was eviden t that [Kate] ’ s current placeme nt wanted to maintain a re lations hip with [ her ] biological family members. To t hat end, Father lik ewise was not opposed to [Kat e] remaining with her current p lacement

— in fa ct, he agreed that she should stay with her siblings as his present housing situation did not permit children. ” App. Br. at 48.31

of the trial court’s best

- inte res t finding. S ee In re A.B

. , 437 S.W.3d 498, 503 (Tex. 2014) ; In re S. G.A.R. , N o . 01

- 18

- 00291

- CV , 2018 W L 47 05835, at *7 (Tex. App.

— Houston [1st Dist.] Oct. 2, 20 18, no pet .) (mem. op.). Considering the evidence in a ligh t favorable to the trial court’s judgment,

we conclude th at a reasonable factfinder could have formed a firm belief or conviction that termina tion of Mother ’ s and Father ’ s parental rights was in Kate ’ s b est interest. See J.F.C

. , 96 S.W.3d at 266.
We over rule each parent ’ s challenge to t he trial court ’ s best interest finding.

Conservatorship Determin ation I n a f inal issue, Father challeng es the trial court’s decision not to appoint
him as Kate ’ s s o le managing conservator. When the parental righ ts of a l l living parents of a child are term i nate d, the trial court m ust appoint a “ competent adult, the Department of Family and Protective Service s, or a licensed child

- playing
agency as managing conservat or of the child. ” T EX
. F AM
. C ODE § 161.207(a) ; J.D.G. , 570 S.W.3d at 856

. Conservatorship dete rminations are reviewed for an abuse of discr etion and will be reversed only if the decision is arbitrar y and

un reasonable. In re J.A.J. , 243 S.W.3d 611, 616 ( T ex. 2007); J.D.G. , 570 S.W .3d at 856. An order terminating the parent

- child relationship div est s a parent of legal rights and duties w ith respect to the child. Se e T EX
. F AM
. C ODE § 16 1. 206 (b). Once32

we ov errule a parent’s challenge to an order terminating his parental rights, t he trial cou rt ’ s appointment of the Department as sole managing conservato r may be considered a “ consequence of t he termination. ” J.D.G. , 570 S.W.3d at 856 ( quotation remove d). Because we have o verruled Father’s challenge to the portion of the trial
court ’ s order t erminating his parental rights, the order has div ested Father of his legal rights and dut ies rela ted to Kate. See T EX
. F AM
. C ODE § 161.206(b); In re D.K.W., J r. , No. 01

- 17

- 00622

- C V , 2017 W L 6520439, at *5 (Tex. App.

— Houston [1st Dist.] Dec. 21, 2017, pet. denied) (mem. op.)

. Therefore, Father does not have standing to challenge the portion of th e orde r appointing DFPS as Kate ’ s
conservator. J.D.G

. , 570 S.W.3d at 856. We ov errule Fathe r ’ s issue related to
manag ing conservatorship

. C onclusion We affirm the decree of the trial court.

Peter Kelly Justice
P anel consists of Just ices K elly, Countiss, and Rivas

- Molloy.