Opinion issued February 27, 2024

In The

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 Court Case No. 2021-004499J

MEMORANDUM OPINION

The Texas Department of Family and Protective Services (“DFPS” or “the

Department”) sought termination of the parental rights of appellants C.J.A. 

(“Mother”) and W.B. (“Father”) to their minor daughter, K.B. (“Kate”).1 After a 

bench trial, the trial court found that there was clear and convincing evidence to 

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

support two statutory predicate grounds for termination of each parent’s rights

under Texas Family Code subsections 161.001(b)(1)(E) and (O) (“subsection (E)”

and “subsection (O)”). See TEX. FAM. CODE § 161.001(b)(1)(E), (O). The court 

also found that there was clear and convincing evidence that terminating each 

parent’s rights was in Kate’s best interest.

On appeal, Mother asserts that the evidence was legally and factually 

insufficient to support the termination of her parental rights under both 

subsections. Father concedes the evidence was sufficient to support the trial court’s 

findings under subsection (O) but contends the evidence was legally and factually 

insufficient to support a finding of endangering conduct under subsection (E). Both 

parents argue that the evidence is legally and factually insufficient to support a

finding that termination of parental rights was in Kate’s best interest. Father 

challenges the trial court’s decision to appoint DFPS as Kate’s sole managing 

conservator. We affirm.

Background

When Kate was born on February 3, 2021, the Department received a 

referral regarding neglectful supervision by Mother. It was reported that Mother 

previously had ten children removed from her care and that Mother had a long 
3

history of substance abuse and prior terminations.2 A Department investigator 

visited newborn Kate in the NICU. Kate was in the NICU due to her 2.5-pound

birth weight, and she remained there until she weighed at least 4 pounds. The 

investigator interviewed both parents and learned that Kate was Father’s first child. 

Both parents denied having a criminal history or drug history. When Kate was 

ready to be discharged from the hospital two weeks later, both parents agreed to a 

safety plan. The terms provided that Father would be the primary caregiver and 

Mother would have supervised visitation. Kate left the hospital with her parents.

An investigator followed up three days later, visited Kate at home, and noted no 

issues. 

Both parents submitted to drug testing on March 4, 2021. By March 25, 

2021, the Department learned that both parents had tested positive for cocaine 

and/or benzoylecgonine, a major metabolite of cocaine. The Department filed its 

petition for conservatorship and for termination of the parent-child relationship. 

Before the adversary hearing, the Department received a subsequent referral due to 

Kate having a fracture of her right femur. Neither parent could explain how she

was injured. The Department determined that due to the parents’ positive drug tests 

and Kate’s unexplained injuries, she needed to be removed from her parents’ care. 

The Department was awarded temporary managing conservatorship in April. Kate 

2 At trial the caseworker testified that mother previously had ten children removed 

from her care. The record contains termination decrees as to nine children.
4

was placed with “fictive kin,” meaning that her foster parents were the adoptive 

parents of four of Mother’s children, who were Kate’s biological siblings. 

Eventually, the case proceeded to trial. 

Trial began in October 2022. At trial, the caseworker testified that Kate 

came into the Department’s care in April 2021. The Department created service 

plans for each parent. Mother’s service plan required her to complete parenting 

classes, participate in a psychosocial assessment, psychiatric assessment, and 

substance abuse assessment and follow all recommendations from each, complete 

random drug testing and abstain from drug use, and provide stable proof of income 

and housing. She completed the substance abuse assessment and psychosocial 

assessment, but she did not attend the individual counseling and parenting classes

recommended by the assessments. The caseworker testified that though she

referred Mother to providers for the counseling, Mother never engaged in it. When

the caseworker asked Mother about it, Mother would say that she was working on 

it. The caseworker visited Mother’s residence and found it to be “very cluttered 

and not child safe.”

The caseworker testified that although Mother attends visitation with Kate, 

she does not interact with Kate for most of the visit. Instead, she spends a lot of 

time on her phone. The caseworker told Mother that she needs to be more engaged

during the visits, but the caseworker did not see any improvement. 
5

The caseworker testified that despite reminding Mother of the importance of 

her sobriety during the case, Mother continued to test positive for illegal drugs. 

This was concerning 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 issue for over a year in the current case and during her prior 

cases with DFPS. The caseworker did not believe that Mother had demonstrated an 

ability to provide a safe and stable environment for Kate.

The evidence showed that Mother tested positive for cocaine and 

benzoylecgonine (a major metabolite of cocaine) in March, April, and May 2021, 

and March, July, and August 2022. She also tested positive for alcohol in April and 

May 2021 and March 2022. She did not appear for drug testing in August 2021. 

As to Father, the caseworker testified that he had no other children. His 

service plan required him to complete parenting classes, to participate in a 

psychosocial assessment and substance abuse assessment and follow all 

recommendations from each, to complete random drug testing and abstain from 

drug use, and to provide proof of stable housing and income. 

Father completed the psychosocial assessment and its recommendations, 

which included a psychiatric evaluation. There were no further recommendations 

from the psychiatric evaluation. He provided proof of stable housing, but his lease 

had expired in the months before trial, and he had not provided a current one. He 
6

also provided proof of his income. The caseworker testified that Father attends 

visitation but is not fully engaged with Kate for the entire visit. 

Father’s drug use remained a concern for the caseworker. Father had 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 began. The 

evidence showed that Father tested positive for cocaine and/or benzoylecgonine in 

March, April, May, August, September, October, November, and December 2021

and in January, March, June, July, and August 2022. He had invalid results in 

August 2021 and April and May 2022. He did not appear for drug testing in 

August 2021. The caseworker testified that, in her opinion, the issue that brought 

Kate to the attention of the Department has not been resolved by either parent, and 

neither parent has demonstrated an ability to be an appropriate caregiver.

Regarding Kate’s foster home, the caseworker testified that Kate is in the 

care of a foster family who has adopted four of Mother’s other children. Kate was 

placed with the family when she was six months old. At the time of trial, ten 

children lived in the home. When asked, the caseworker testified that she did not

have concerns about Kate’s ability to thrive in a home with ten children, as all her 

needs were met, and she had a happy relationship with each of her family 

members. The foster family also maintains close contact with another family that 

adopted some of Mother’s children. The two families ensure that all the siblings, 
7

including Kate, maintain a relationship. The caseworker explained that while 

mother’s rights to ten other children have been terminated, Kate has a relationship 

with all of them. 

The guardian ad litem testified that she had observed Kate in her current 

placement. The placement was appropriate, and Kate was bonded to both the foster 

mother and foster father. The guardian ad litem did not believe that the number of 

children in the home was detrimental to Kate. She testified that being in a home 

with biological siblings was a benefit to Kate’s well-being. The guardian ad litem 

testified that she had observed Mother during visitation. She described Mother as 

having a “detached type of relationship” with Kate. Mother would interact with 

Kate for basic needs but did not have a loving, playful relationship with her. The 

guardian ad litem was unable to visit Mother’s home because Mother refused to 

provide the address.

As to Father’s visitation, the guardian at litem observed that he did not know 

how to respond to Kate’s needs. She testified that if Kate was crying, Father would

ask what to do and was not aware of how to deal with a small child. The guardian 

ad litem’s main concern with Kate returning to Mother and Father was that both 

had repeatedly 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 been in her home since August 

2021. When Kate first arrived, she had some developmental delays, yet despite 

being born premature, she has been able to meet her milestones. The foster mother 

testified that she advocated for Kate to be placed in her home because it is 

important that Kate know her siblings and that they all remain in close contact. The 

foster mother stated that Kate receives extra attention from the other children in the 

home because she is the baby of the family. There is physically enough room for 

Kate, and the foster parents meet all Kate’s physical, emotional, educational, and 

financial needs. The foster mother testified that she maintains a relationship with 

the family that adopted Kate’s other siblings, and they do sibling visits regularly.

Even though maintaining a relationship between the siblings is not required, the 

two adoptive families believe that it is important to maintain the sibling bond. The 

foster mother described that Kate could name her siblings and that she is “very 

sassy in a good way.” The foster mother testified that it is her desire to adopt Kate. 

Trial recessed and resumed in June 2023.3 The caseworker testified that 

since the October 2022 trial setting, Mother had completed a substance abuse 

assessment. The guardian ad litem testified that she had been guardian ad litem for 

three of Mother’s children in prior cases with the Department, and, she had known 

3

In the months between trial dates, the foster parents and Father’s aunt and uncle 

reached a mediated settlement agreement that provided for Kate to have regular 

visits with the aunt and uncle. The aunt and uncle had previously intervened in the 

case. 
9

the family for over eight years. It was her recommendation that the court terminate 

parental rights to both parents because they had not been able to complete their 

service plans, despite having additional time between the trial settings. 

Mother testified briefly. She stated that she had missed appointments for 

counseling, but she wanted to complete them. She also testified that she was 

waiting for a call back from the provider about parenting classes. She denied using 

cocaine while pregnant with Kate or since Kate was born. Father testified that he 

had participated in his service plan and attended several visits with Kate. He 

testified that children are not allowed in his housing, and he had no issue with 

Kate’s placement with her siblings. After closing arguments, the trial court 

terminated both parents’ parental rights pursuant to subsections (E) and (O) and 

made a finding that termination was in the child’s best interest. The Department 

was awarded sole managing conservatorship of the child. 

Both parents appealed. On appeal, Mother challenges both predicate act 

findings and the best interest determination. Father concedes that there is sufficient 

evidence to terminate his rights under subsection (O). He challenges the court’s 

finding under subsection (E) and the best interest finding. He also argues that the 

trial court abused its discretion in awarding sole managing conservatorship to the 

Department.
10

Sufficiency of the Evidence

Mother challenges the sufficiency of the evidence to support the statutory 

predicate grounds for termination found by the trial court. She challenges the legal 

and factual sufficiency of the evidence supporting the trial court’s findings under 

subsections (E) and (O). Father challenges the sufficiency of the evidence to 

support the trial court’s finding under subsection (E). He concedes that the trial 

court had sufficient evidence for its subsection (O) finding. Both parents challenge 

the sufficiency of the evidence supporting the trial court’s finding that termination

of parental rights is in Kate’s best interest. 

A. Standard of Review

A parent’s right to the “companionship, care, custody, 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) (quotations omitted); see Troxel v. 

Granville, 530 U.S. 57, 65 (2000) (stating that this interest “is perhaps the oldest of 

the fundamental liberty interests recognized by” the United States Supreme Court). 

We strictly construe involuntary termination statutes in favor of the parent. In re 

E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). However, although parental rights are 

“of constitutional magnitude,” they are not absolute. In re C.H., 89 S.W.3d 17, 26

(Tex. 2002). It is “essential” that courts do not sacrifice the child’s emotional and 

physical interests merely to preserve the parent’s rights. Id.
11

Family 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 omissions satisfy at least 

one statutory predicate ground for termination; and (2) termination is in the child’s 

best interest. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018); see TEX. FAM. CODE

§ 161.001(b). Both the Family Code and the Due Process Clause of the United 

States Constitution require proof by clear and convincing evidence in termination 

of parental rights cases. E.N.C., 384 S.W.3d at 802; see TEX. FAM. CODE

§ 161.001(b); Santosky, 455 U.S. at 769 (stating that clear and convincing standard 

of proof “adequately conveys to the factfinder the level of subjective certainty 

about his factual conclusions necessary to satisfy due process”). The Family Code 

defines “clear and convincing evidence” as “the measure or degree of proof that 

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

truth of the allegations sought to be established.” TEX. FAM. CODE § 101.007; In re

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

Because the standard of proof at trial is clear and convincing evidence, on 

appeal we apply a heightened standard of review 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 

630. In reviewing a legal sufficiency challenge, we must determine whether a 

reasonable factfinder could have formed a firm belief or conviction that the finding 
12

under review was true. J.W., 645 S.W.3d at 741 (quotations omitted). Even under 

this heightened standard, we must grant deference to the factfinder, “who heard the 

witnesses and evaluated their credibility.” 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.3d at 741. We assume the factfinder resolved disputed facts in favor of its 

finding if a reasonable factfinder could do so, and we disregard all evidence that a 

reasonable factfinder could have disbelieved or found to have been incredible. Id.

We may not, however, disregard undisputed facts that do not support the finding. 

Id.; A.C., 560 S.W.3d at 630–31. The factfinder remains the “sole arbiter of the 

witnesses’ credibility and demeanor.” J.F.-G., 627 S.W.3d at 312 (quotation 

omitted). 

In reviewing a factual sufficiency challenge, we must consider the entire 

record—including evidence both supporting and contradicting the finding—and 

determine 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 sufficiency review “requires weighing disputed 

evidence contrary to the finding against all the evidence favoring the finding”). If 

the disputed evidence that a reasonable factfinder could not have credited in favor 

of the finding is so significant that the factfinder could not reasonably have formed 

a firm belief or conviction that the finding was true, the evidence is factually 
13

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 on appeal, we need uphold only one

predicate ground—in addition to upholding a challenged best interest finding—

even if the trial court based its termination ruling on more than one predicate 

ground. In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam); In re A.V., 113 

S.W.3d 355, 362 (Tex. 2003). However, termination of parental rights under 

subsection (E) can serve as the basis for termination of a parent’s rights to another 

child in the future. See TEX. FAM. CODE § 161.001(b)(1)(M); N.G., 577 S.W.3d at 

234. As a result, due process requires review of a trial court’s findings under 

subsection (E) “even when another ground is sufficient for termination, because of 

the potential consequences for parental rights to a different child.” N.G., 577 

S.W.3d at 235.

B. Statutory Predicate Grounds for Termination 

1. Termination under subsection (E)

The trial court may terminate the parent-child relationship if it finds by clear 

and convincing evidence that the parent engaged in conduct or knowingly placed 

the child with persons who engaged in conduct which endangers the physical or 

emotional well-being of the child. TEX. FAM. CODE § 161.001(b)(1)(E).
14

“Endanger” means to expose a child to loss or injury or to jeopardize the 

child’s emotional or physical well-being. J.W., 645 S.W.3d at 748. This means 

“more than a threat of metaphysical injury or the possible ill effects of a less-thanideal family environment.” Id. (quotations omitted).

Under subsection (E), the Department must show that “the endangerment 

was the result of the parent’s conduct, including acts, omissions, 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, the statute requires “a voluntary, deliberate, and conscious 

course of conduct by the parent.” Id.; In re J.T.G., 121 S.W.3d 117, 125 (Tex. 

App.—Fort Worth 2003, no pet.). In evaluating the sufficiency of the evidence 

under subsection (E), we may consider conduct both before and after the 

Department removed the child from the home. S.R., 452 S.W.3d at 360.

It is not necessary that the parent’s conduct be directed at the child or that 

the child actually suffer injury. J.W., 645 S.W.3d at 748. “The specific danger to 

the child’s well-being may be inferred from parental misconduct standing alone.” 

In re N.J.H., 575 S.W.3d 822, 831 (Tex. App.—Houston [1st Dist.] 2018, pet. 

denied); S.R., 452 S.W.3d at 360. A parent’s conduct that subjects a child to a life 

of uncertainty and instability endangers the child’s physical and emotional wellbeing. In re M.D.M., 579 S.W.3d 744, 765 (Tex. App.—Houston [1st Dist.] 2019, 
15

no pet.). A parent’s past endangering conduct may create an inference that the 

conduct may recur and further jeopardize the child’s present or future physical or 

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

[1st Dist.] 2018, pet. denied). The endangering conduct may occur before the 

child’s birth and either before or after the child’s removal by the Department. 

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

App.—Houston [1st Dist.] 2009, pet. denied). Drug use and its effects on the 

parent’s life and ability to parent may establish an endangering course of conduct. 

In re J.O.A., 283 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 pet.) (“Illegal drug use creates the 

possibility that the parent will be impaired or imprisoned and thus incapable of 

parenting.”). 

a) There is legally and factually sufficient evidence to support the 

trial court’s finding that Mother’s conduct endangered Kate.

Mother argues that the evidence is legally and factually insufficient to 

support the trial court’s finding that she endangered Kate because there is no 

medical documentation or evidence as to how Kate broke her femur. Mother also 

argues that there is no causal connection between her drug use and endangerment.

She argues that the only evidence of her drug use is drug tests that were 

administered before Kate’s birth. She argues that the evidence shows she was 
16

willing to effect positive personal changes because she had no positive drug tests

after August 2022.

Texas courts have repeatedly held that drug use and its effects on the 

parent’s life and ability to parent may establish an endangering course of conduct 

under subsection (E). See, e.g., J.O.A., 283 S.W.3d at 345; A.A.M., 464 S.W.3d at 

426. Illegal drug use “exposes the child to the possibility that the parent may be 

impaired 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.—

Houston [1st Dist.] 2016, pet. denied). Drug activity “significantly harms the 

parenting relationship” and can constitute endangerment even if it occurs outside 

of the child’s presence. A.M., 495 S.W.3d at 579. “In addition, a parent’s decision 

to engage in illegal drug use during the pendency of a termination suit, when the

parent is at risk of losing a child, may support a finding that the parent engaged in 

conduct that endangered the child’s physical or emotional well-being.” Id. at 580 

(quotation omitted). A factfinder can infer that a parent’s failure to submit to courtordered drug testing indicates that the parent was avoiding testing because they 

were using drugs. In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th 

Dist.] 2009, no pet.).

The record contains evidence that Mother has used drugs for many years.

She tested positive for cocaine and benzoylecgonine in 2017, 2019, and October 
17

2020. The October 2020 test was also positive for alcohol. Kate was born in 

February 2021. Mother tested positive for cocaine and benzoylecgonine after 

Kate’s birth and during the pendency of this case in March, April, and May 2021 

and in March, July, and August 2022. She also tested positive for alcohol on three 

occasions during this time. While there are no positive drug test results in the 

record after August 31, 2022, that is not the same as proof that Mother has tested 

negative for drugs for any period. There are no drug test results at all in the record 

after August 31, 2022. Even if the trial court considered the absence of positive 

tests in the record after August 2022 as evidence of improvement, evidence of 

improved conduct of a short duration “does not conclusively negate the probative 

value of a long history of drug use and irresponsible choices.” J.O.A., 283 S.W.3d

at 346. Mother tested positive at least twelve time both before and after Kate’s 

birth and while the case was pending. The evidence of Mother’s history of illegal

drug use, her positive drug tests, and her lack of follow through when referred to 

counseling supported an inference by the trial court that Mother was at risk for 

continuing drug use. See In re Y.G. No. 01-22-00181-CV, 2022 WL 3362953, at 

*14 (Tex. App.—Houston [1st Dist.] Aug. 16, 2022, pet. denied) (mem. op.)

(stating two negative drug tests among multiple positive drug tests did not negate 

history of drug abuse plus history of illegal drug use and prior termination to other 
18

children based on drug use that led to neglect supports inference that Mother at risk 

for future drug abuse). 

Mother cites the Fourteenth Court of Appeals’s decision in In re L.C.L., 599

S.W.3d 79, 84–86 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (en banc), 

for the proposition that a parent’s drug use standing alone, without evidence of

how that behavior endangers a child, cannot support termination under subsection 

(E). The Fourteenth Court stated that “[a] plain language reading of the statute 

requires a causal connection between [the mother’s] drug use and the alleged 

endangerment.” Id. at 84. In this case, Mother argues there is no evidence that her 

drug use negatively affected Kate. We first note that this Court expressly has 

declined to adopt the Fourteenth Court’s rationale in L.C.L. See In re D.D.D., No. 

01-23-00078-CV, 2023 WL 4872399, at *10 (Tex. App.—Houston [1st Dist.] Aug. 

1, 2023, no pet.) (mem. op.). Furthermore, this case is factually distinguishable

from L.C.L. because, here, there is evidence that Mother’s drug use did endanger 

Kate. There is evidence that Mother used drugs both before and after Kate was 

born. Kate was born prematurely at only 2.5 pounds. She required a NICU stay due 

to her low birth weight. Given hospital staff concerns, the Department entered into 

a safety plan with both parents when Kate left the hospital. The plan required 

Father to be the primary caregiver and allowed Mother to have supervised 
19

visitation. While under this plan, both parents tested positive for drugs in March 

2021, and Kate appeared at the hospital with a broken femur in April 2021.

The fact that the record does not contain details related to Kate’s femur 

injury does not preclude the trial court from finding that the injury is evidence of 

Mother’s endangering conduct. The Department originally created a safety plan 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 

terminated to nine other children. The most recent termination was only four 

months before Kate was born. In these cases, Mother was offered services and did 

not complete them. The Department became further involved when Kate’s femur 

was broken while in the care of Mother and Father. Mother argues that there is no 

proof of endangerment because the cause of the broken bone is not in the record. 

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 occurred.

Reviewing all the evidence in the light most favorable to the termination

findings under subsection (E), we conclude a reasonable factfinder could have

formed a firm belief or conviction as to the truth of the findings that Mother 

endangered Kate through 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 from forming a firm belief or conviction that 
20

termination of Mother’s parental rights to Kate was warranted under subsection 

(E). Id. at 345. Accordingly, we conclude the evidence is legally and factually 

sufficient to support the subsection (E) finding as to Mother.

b) There is legally and factually sufficient evidence to support the 

trial court’s finding that Father’s conduct endangered Kate.

On appeal, father does not challenge the trial court’s termination finding 

under subsection (O). See A.V., 113 S.W.3d at 362 (appellate court need only 

uphold one predicate finding and best interest termination). He only challenges the 

evidence to support that termination was in Kate’s best interest. Nevertheless, we 

review the trial court’s finding under subsection (E) because of its potential 

consequences for his parental rights to future children. N.G., 577 S.W.3d at 235.

On appeal, Father argues that the evidence does not support a finding under 

subsection (E) because the trial court did not establish a direct causal connection 

between his drug use and actual harm to the 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 visited regularly with Kate throughout the 

case. As discussed above, our court has not adopted the rationale that a finding 

under subsection (E) requires a causal link between drug use and endangerment.

D.D.D., 2023 WL 4872399, at *10. The evidence establishes that Father’s drug use 

was so pervasive and serious that the factfinder could reasonably infer that it was 

endangering. In re M.A.J., 612 S.W.3d 398, 407–408 (Tex. App.—Houston [1st 
21

Dist.] 2020, pet. denied) (op. on reh’g) (concluding that evidence of positive drugs 

tests after department received referral that parent used narcotics was sufficient to 

support finding of endangerment 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 with the Department. 

Under the plan, Father was to be the primary caregiver and allow Mother to have 

supervised visitation with Kate. When Kate was about two months old, she broke 

her femur. While both parents stated that they were the only people caring for 

Kate, neither of them could identify the cause of her injury. 

Both parents tested positive for drugs on March 4, 2021, about a week after 

leaving the hospital with Kate. Father tested positive for high levels of cocaine, 

benzoylecgonine, and norcocaine. After Kate was removed from the parents’ care, 

Father continued to use drugs throughout the pendency of the case. He tested 

positive for cocaine and/or benzoylecgonine in April, May, August, September, 

October, November, and December 2021 and in January, March, July, and August 

2022. He had invalid results in August 2021 and April and May 2022. This and 

numerous courts of appeals have recognized that a parent’s decision to use illegal 

drugs while the termination suit is pending, and the parent is at risk of losing his 

child, may support a finding of endangering conduct under subsection (E). D.H. v. 

Tex. Dep’t of Family & Protective Svcs., 652 S.W.3d 54, 62 (Tex. App.—Austin
22

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

“A parent’s engaging in illegal drug activity after agreeing not to do so in a service

plan for reunification with [his] children is sufficient to establish clear and

convincing proof of voluntary, deliberate, and conscious conduct that endangered 

the well-being of [his child].” In re M.T.W., 01-11-00162-CV, 2011 WL 6938542, 

at *13 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, no pet.) (mem. op.)

(quotation omitted). Illegal narcotics use creates the possibility that a parent will be 

impaired or imprisoned, and thus, incapable of parenting, supporting termination. 

Walker, 312 S.W.3d at 617. Father did not demonstrate sobriety during the

pendency of the case. 

Reviewing all the evidence in the light most favorable to the termination 

finding under subsection (E), we conclude that a reasonable factfinder could have 

formed a firm conviction or belief as to the truth of the finding that Father engaged 

in endangering conduct. See J.O.A., 283 S.W.3d at 344. The disputed evidence that 

a reasonable factfinder could not have credited in favor of this finding is not so 

significant that a factfinder could not reasonably have formed a firm belief or 

conviction as to the truth of these termination findings. Id. at 345. We hold that the 

evidence is legally and factually sufficient to support the predicate termination 

finding under subsection (E). 
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2. Termination under subsection (O)

Subsection (O) provides that the court may order termination of the parentchild relationship if the court finds by clear and convincing evidence that the 

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

established the actions necessary to obtain the return of the child who has been in 

the Department’s care for not less than nine months. TEX. FAM. CODE 

§ 161.001(b)(1)(O).

Father concedes that the evidence was sufficient to support the trial court’s 

predicate finding under subsection (O) as to his ability to follow a service plan. We 

have also held that the evidence is sufficient to support the trial court’s finding of 

endangerment under subsection (E) as to both parents. Having concluded that the 

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

endangerment under subsection (E) as to Mother, we need not discuss Mother’s 

challenge to the court’s findings under subsection (O). See A.V., 113 S.W.3d at 362

(requiring appellate court to uphold one predicate act finding and best interest

determination to affirm decree).

C. Best Interest Finding

In addition to a statutory predicate ground for termination, the trial court 

must also find by clear and convincing evidence that termination is in the child’s 

best interest. TEX. FAM. CODE § 161.001(b)(2). There is a strong presumption “that 
24

the best interest of a child is served by keeping 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 placement of the child in a safe environment” is in the 

child’s best interest. TEX. FAM. CODE § 263.307(a). The best-interest inquiry is 

“child-centered and focuses on the child’s well-being, safety, and development.” 

A.C., 560 S.W.3d at 631.

In reviewing the trial court’s best interest finding, we consider several nonexclusive factors including: (1) the child’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 future; (4) the parental abilities of the individuals seeking 

custody; (5) whether programs are available to assist those individuals; (6) the 

plans for the child by those individuals; (7) the stability of the proposed placement; 

(8) the parent’s acts or omissions that may indicate the existing parent-child 

relationship is improper; and (9) any excuse for the parent’s acts or omissions. 

E.N.C., 384 S.W.3d at 807 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 

1976)).

The court need not have evidence on every element to make a valid finding 

on best interest. In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—Houston [1st 

Dist.] 2017, pet. denied); In re J.G.S., 574 S.W.3d 101, 122 (Tex. App.—Houston 

[1st Dist.] 2019, pet. denied) (“The absence of evidence about some of the factors 
25

would not preclude a factfinder from reasonably forming a strong conviction or 

belief that termination is in the child’s best interest.”). But a lack of evidence “does 

not constitute clear and convincing evidence.” E.N.C., 384 S.W.3d at 808.

No one factor is controlling, but in a particular situation, analysis of a single 

factor may be adequate 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 sufficient to support a

finding that termination is in the child’s best interest; in other cases, there could be 

more complex facts in which paltry evidence relevant to each consideration 

mentioned in Holley would not suffice to support termination.”) (quotations

omitted). Proof of acts or omissions relevant to a predicate ground for termination 

does not relieve the Department of proving that termination is in the child’s best 

interest, but the same evidence may be probative of both elements A.C., 560 

S.W.3d at 631–32. We may consider 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 (quotations omitted).

Mother contends that Kate’s best interest cannot be fully addressed without

determining whether a home where ten children reside, like the foster parents’

home, can be in the best interest of a child. Father argues that there is insufficient 

evidence to support the trial court’s best interest finding as to him. The Department 
26

responds that the number of children in the home is irrelevant under the 

circumstances and that the evidence supports the trial court’s finding. 

With respect to the desires of the child, there is no direct evidence about 

Kate’s desires because she was less than two years old at the time of trial. See

Holley, 544 S.W.2d at 371–72 (factor one). “When children are too young to 

express their desires, the fact finder may consider that the children have bonded 

with the foster family, are well-cared for by them, and have spent minimal time 

with [their] parent.” In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th 

Dist.] 2014, no pet.). Kate was removed from her parents’ care when she was two 

months old and placed with the foster family when she was six months old. At the 

time of trial, she had been with the family for more than a year. The placement was 

considered a kinship placement because the foster parents had adopted several of 

Kate’s siblings. The foster mother advocated for Kate to be placed in their home 

because it was important to her that Kate and her siblings remain in close contact. 

The foster mother testified that Kate gets extra attention because she 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 Kate’s other siblings, and the two groups of siblings get together 

regularly. The foster mother desired to adopt Kate. This evidence weighs in favor 

of the best-interest finding. 
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Next, evidence of each parent’s drug use is relevant, not only to their 

parenting abilities and to the stability of the home they would provide, but also to 

the emotional and physical needs of the child, now in and in the future, and to the 

emotional and physical danger in which the child could be placed, now and in the 

future. See Holley, 544 S.W.2d at 371–72 (factors two, three, four, and seven); In

re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.) 

(pattern of illegal drug use suggested mother was not willing and able to provide 

child with safe environment—a primary consideration in determining child’s best 

interest). A factfinder may afford great weight to the significant factor of drugrelated conduct. N.J.H., 575 S.W.3d at 834 (considering parent’s history of drug 

use in affirming trial court’s determination that termination was in best interest of 

child). A parent’s drug use is a condition indicative of instability in the home 

environment because it exposes a child to the possibility that a parent may be 

impaired or imprisoned. See A.M., 495 S.W.3d at 579. 

As discussed above, the evidence shows that Mother previously had nine

children removed from her care, and she had a long history of substance abuse. She 

also continued to test positive for illegal drugs throughout the pendency of the 

case. She tested positive for cocaine and benzoylecgonine in 2017, 2019, and 

October 2020. The October 2020 test was also positive for alcohol. Kate was born 

in February 2021. Mother tested positive for cocaine and benzoylecgonine in 
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March, April, and May 2021 and in March, July, and August 2022. She also tested 

positive for alcohol on three occasions during this time. The caseworker described 

Mother’s continued drug use as concerning, given the many years she had used 

drugs and her drug use while under the threat of termination of her parental rights.

A parent’s exercise of poor judgment currently and in the past demonstrates an 

inability to provide adequate care for the child.” In re J.M. No. 01-14-00826-CV, 

2015 WL 1020316, at *7 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no pet.) 

(mem. op.).

Although Mother completed a psychosocial assessment early in the case, she 

did not complete the subsequent recommendations for counseling. She also did not 

complete a psychiatric assessment. Mother failed to complete parenting classes. 

She testified that she was waiting for a call to facilitate completing them, but she 

made no efforts to complete the required classes during the pendency of the case.

The caseworker described Mother’s home as very cluttered and not safe for a child, 

and Mother refused to provide the guardian ad litem with her address for a home 

visit. A parent’s inability to provide adequate care for her children, unstable 

lifestyle, lack of a home and income, lack of parenting skills, and poor judgment 

may be considered when looking at the child’s best interest. In re J.D., 436 S.W.3d

105, 119 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
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Father likewise tested positive for drugs throughout the case. He tested

positive for cocaine and/or benzoylecgonine in March, April, May, August, 

September, October, November, and December 2021 and in January, March, July,

and August 2022. He had invalid results in August 2021 and April and May 2022.

In re J.M., 2015 WL 1020316, at *7 (stating parent’s poor judgment demonstrates 

inability to provide adequate care for child). The trial court could reasonably infer 

that Father was at risk for future drug abuse.

Further, the trial court heard evidence that Kate sustained a femur fracture 

while in the care of her parents. Though they were her sole caregivers, neither 

parent could explain how Kate sustained the injury. This evidence is supportive of 

the trial court’s best-interest finding under the third Holley factor: the emotional

and physical danger to the child now and in the future. See Holley, 544 S.W.2d at 

371–72. 

With respect to programs available to assist the parents in promoting the 

child’s best interest, the trial court may properly consider whether each parent 

complied with the court-ordered service plan for reunification with the child. See 

E.C.R., 402 S.W.3d at 249. Father’s compliance with certain court-ordered tasks 

during the proceedings weighs in his favor and against the best-interest finding. He 

completed a psychosocial assessment and a psychiatric evaluation. He engaged in 

regular visitation with Kate. He provided proof of stable housing at the beginning
30

of the case, but his lease had expired, and the caseworker did not have an updated 

lease. He provided proof of his income, but he did not complete parenting classes.

Even though Father participated in several of the court ordered services, the 

evidence also shows that he was unable to refrain from illegal drug use. 

Conversely, with respect to the foster parents’ abilities to parent Kate and to 

provide a stable home, the evidence shows that Kate was thriving.

4 The trial court 

heard directly from the foster mother that Kate was thriving in the placement. The 

court heard of the family’s love for Kate and their desire to raise her through 

adulthood with 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 among all of Mother’s biological children, 

including Kate’s siblings in another adoptive home. Kate was thriving in the foster 

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

denied) (stating that stability and permanence are important to upbringing of child 

and affirming finding that termination was in child’s best interest when child was 

thriving in foster care). We defer to the trial court’s assessment of the foster 

mother’s credibility and demeanor in crediting this testimony as evidence in favor 

4 Father concedes this point in his brief, stating, “it was evident that [Kate]’s current

placement wanted to maintain a relationship with [her] biological family members. 

To that end, Father likewise was not opposed to [Kate] remaining with her current

placement—in fact, he agreed that she should stay with her siblings as his present 

housing situation did not permit children.” App. Br. at 48. 
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of the trial court’s best-interest finding. See In re A.B., 437 S.W.3d 498, 503 (Tex. 

2014); In re S.G.A.R., No. 01-18-00291-CV, 2018 WL 4705835, at *7 (Tex. 

App.—Houston [1st Dist.] Oct. 2, 2018, no pet.) (mem. op.).

Considering the evidence in a light favorable to the trial court’s judgment,

we conclude that a reasonable factfinder could have formed a firm belief or 

conviction that termination of Mother’s and Father’s parental rights was in Kate’s 

best interest. See J.F.C., 96 S.W.3d at 266. 

We overrule each parent’s challenge to the trial court’s best interest finding.

Conservatorship Determination

In a final issue, Father challenges the trial court’s decision not to appoint 

him as Kate’s sole managing conservator. When the parental rights of all living 

parents of a child are terminated, the trial court must appoint a “competent adult, 

the Department of Family and Protective Services, or a licensed child-playing 

agency as managing conservator of the child.” TEX. FAM. CODE § 161.207(a); 

J.D.G., 570 S.W.3d at 856. Conservatorship determinations are reviewed for an 

abuse of discretion and will be reversed only if the decision is arbitrary and 

unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); J.D.G., 570 S.W.3d

at 856. 

An order terminating the parent-child relationship divests a parent of legal 

rights and duties with respect to the child. See TEX. FAM. CODE § 161.206(b). Once 
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we overrule a parent’s challenge to an order terminating his parental rights, the 

trial court’s appointment of the Department as sole managing conservator may be 

considered a “consequence of the termination.” J.D.G., 570 S.W.3d at 856 

(quotation removed).

Because we have overruled Father’s challenge to the portion of the trial 

court’s order terminating his parental rights, the order has divested Father of his 

legal rights and duties related to Kate. See TEX. FAM. CODE § 161.206(b); In re 

D.K.W., Jr., No. 01-17-00622-CV, 2017 WL 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 the order appointing DFPS as Kate’s 

conservator. J.D.G., 570 S.W.3d at 856. We overrule Father’s issue related to 

managing conservatorship. 

Conclusion

We affirm the decree of the trial court.

Peter Kelly

Justice

Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.