AFFIRMED and Opinion Filed May 14, 2024 

S 

In the 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-23-01255-CV 

IN THE INTEREST OF K.G.F., A CHILD 

On Appeal from the 304th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. JC-22-00269-W 

MEMORANDUM OPINION 

Before Justices Carlyle, Goldstein, and Breedlove 

Opinion by Justice Carlyle 

In this suit affecting the parent-child relationship, Mother and Father 

challenge the trial court’s order terminating their parental rights to their child, who 

we refer to using the pseudonym, Kate. See TEX. R. APP. P. 9.8. We affirm in this 

memorandum opinion. See TEX. R. APP. P. 47.4. 

Father raises three points on appeal: (1) termination of his parental rights 

under Texas Family Code section 161.001(b)(1)(O) was improper because he was 

unable to comply with specific provisions of the court’s order for reasons not within 

his control despite his good faith efforts; (2) the evidence is legally and factually 

insufficient to support termination under Texas Family Code section 
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161.001(b)(1)(E); and (3) the application of Texas Family Code section 263.401 

denied him his rights to due process and due course of law.1

Mother argues in a single issue that the trial court erred because termination 

was not in Kate’s best interests based on (1) Kate’s desires, (2) the present and future 

emotional and physical danger to Kate, and (3) the parental abilities of the persons 

seeking custody.2

Facts 

A. Posture 

The Department received its first intake concerning Kate when she was one 

year old on November 15, 2021, and filed its original petition seeking termination 

of Mother and Father’s parental rights on March 28, 2022. The court held its first 

hearing on April 7, 2022, and entered findings that it was contrary to Kate’s welfare 

to remain in the home with Mother and Father. The court ordered Mother and Father 

to comply with the Department’s family service plan on April 19, 2022. On July 12, 

2022, the trial court entered findings that (1) neither Mother nor Father had 

demonstrated adequate and appropriate compliance with the service plan and (2) “no 

1

 While Father’s brief states that one of the questions presented on appeal is whether trial 

courts may terminate parental rights when it is not in the child’s best interests, there is no analysis 

of this issue, no relevant citations to the record, and no citation to any relevant authorities. Under 

the circumstances, Father has waived his challenge to the best interest finding. See TEX. R. APP. P.

38.1 (g), (i); see also In re C.J.S., No. 05-22-01302-CV, 2024 WL 1596681, at *1 (Tex. App.—

Dallas Apr. 11, 2024, no pet. h.).

2

 Thus, the unchallenged predicate findings with respect to the termination of Mother’s 

parental rights are binding. In re J.W., No. 05-23-01049-CV, 2024 WL 1340367, at *3 (Tex. 

App.—Dallas Mar. 29, 2024, no pet. h.) (mem. op.). 
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visitation between [Kate] and [Mother] is permitted based on pending bond 

conditions in [Mother’s] criminal case.” 

Although the original dismissal date was April 3, 2023, Father moved for an 

extension of time so that he could complete court-ordered services. On March 30, 

2023, the court entered an order extending the dismissal date to October 2, 2023. See 

TEX. FAM. CODE § 263.401. The parties proceeded to trial on October 2, 2023. No 

party introduced any exhibits at trial. 

B. Affidavit in support of removal 

The Department filed an affidavit in support of removal signed by 

Investigations Supervisor Craven. That affidavit states: 

 “On 11/15/2021, the department received a Priority 2 intake alleging 

that there was a domestic violence incident that occurred between 

[Mother and Father]. The intake stated that [Mother] punched [Father] 

for throwing glass at her while the children were present. There was 

also a concern that the mother was using drugs because she was crying 

and emotionally unstable while she was being arrested.” 

 “On 2/3/2022, the department received a Priority 2 intake alleging that 

on 12/14/2021, [Mother and Father] engaged in a verbal argument and 

[Father] picked up [Kate] and attempted to go for a walk as a way to 

diffuse [sic] the situation. [Mother] would not allow [Father] to leave. 

[Father] was holding [Kate] and tried to get his phone to call 911. 

[Mother] snatched the phone out of his hand and hit [Kate] in the head 

by accident in the process. [Father] tried to walk away, and [Mother] 

tried to slap him but slapped [Kate] instead.” 

 “On 3/24/2022, the department received a Priority 2 intake alleging that 

on 3/24/2022, [Father] was admitted to Medical City Green Oaks due 

to pointing a gun to his head while on video with [Mother] and 

threatening to kill himself. Prior to [Father] doing this [Mother] sent 

texts to [Kate’s] aunt of her slitting her wrist. [Father] put a gun up to 
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his head and told the aunt to take a picture. [Father] stated he wanted to 

show [Mother] how terrible it feels to have photos like these.” 

 “Between the dates of 12/14/2021 and 3/24/2022, the police have been 

called to [Mother and Father’s] residence 7 times for domestic violence 

or mental health concerns.” 

 “Three of the seven incidents resulted in [Mother] being arrested due to 

being the aggressor. Two incidents resulted in [Mother] being 

transported to the hospital for mental health concerns due to her causing 

self-harm and one incident of [Father] being transported due to him 

causing self-harm.” 

 “On one of the incidents dated 1/6/2021, [Father] filled out an affidavit 

stating that [Mother] came home high on Methamphetamines [sic] and 

they argued about her using methamphetamines and him telling her that 

she needed to flush the drugs down to the toilet. He tried to leave with 

[Kate] and [Mother] and her friend grabbed [Kate] out of his arms and 

he left and called the police.” 

 “It was determined that [Kate] needed to be placed in foster care due to 

the on-going domestic violence, substance abuse concerns, mental 

health concerns, and there not being an appropriate caregiver to care for 

her at this time.” 

 Father told Craven that Mother had been arrested for violating “a 

protective order that stated that she was not to have contact with him or 

[Kate].” 

 When Investigator Craven removed Kate, Father “stated that he 

understood that he and his wife brought this on themselves and he was 

willing to do whatever it took to get his daughter back.” 

C. Family Service Plan 

The Department filed a family service plan that the trial court adopted. In 

relevant part, this plan required Father to complete parenting classes, a Battering 

Intervention Prevention Program [“BIPP”], a psychiatric or psychological 
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evaluation, marriage counseling, random alcohol and drug testing, and a drug and 

alcohol assessment. The trial court also ordered Father to “remain drug and alcohol 

free throughout the case,” to report to a drug and alcohol testing facility within 24 

hours after receiving notification of the need to do so, and to follow any 

recommendations from service providers. Finally, Father received notification via 

the family service plan that failure to comply with court-ordered drug tests would 

constitute a presumptively positive result. 

D. Trial 

1. Kristina Abbott 

Kristina Abbott testified that: 

 she was the Department’s current caseworker with respect to Mother, 

Father, and Kate; 

 the Department became involved due to multiple instances of domestic 

violence; 

 Kate was struck during those instances; 

 both parents were institutionalized for suicidal ideations; 

 Mother was in jail for sixteen months during the pendency of the 

Department’s case; 

 Father completed only seven drug tests despite receiving notifications 

he needed to complete tests on 35 different occasions; 

 the Department sought termination of Mother’s rights based on her 

failure to complete services, her mental health, domestic violence, and 

the instability of housing; and 
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 the Department sought termination of Father’s rights based on his 

failure to complete services, his drug tests, concerns about domestic 

violence, the lack of a support system, and the instability of housing. 

2. Lakisha Murphy, CPS supervisor 

The court also heard testimony from Lakisha Murphy, the initial CPS 

supervisor assigned to this case. Ms. Murphy testified that: 

 she was the CPS supervisor on this case from April of 2022 until 

October or November of 2022. 

 “[Kate] had speech issues. She was not able to stand and walk 

appropriately. She was not on target for her age[.]” 

 “[T]here were a lot of milestones that had not been met, and that was 

very concerning . . .” 

 Father refused to accept that Kate was not hitting developmental 

milestones. 

 She “set up [Early Childhood Intervention] evaluation, and so with that 

ECI evaluation she [Kate] was recommended therapy, physical therapy, 

occupational therapy, and we [e]nsured that – the foster parent did a 

wonderful job with [e]nsuring that she started those services 

immediately . . . at first she didn’t do well. She did a lot of crying and 

screaming as well as when – just taking a simple bath, she would do a 

lot of crying and screaming, but we eventually got her to the point 

where the therapist could actually work with her to get progress.” 

 The Department ensured that “services were provided, therapy services 

that helped her be on track, and now she’s doing well.” 

 “[Father] was living in an apartment that – and it was the same 

apartment that [Mother] was arrested at. He was not able to pay his rent. 

He had been asking for assistance with paying his rent. As we tried to 

look for that assistance or for – you know, for him to have that service, 

he ended up getting evicted from the apartment, and by that time I was 

off the case, but then it is documented that he moved in with his mom, 

and he would never let anyone come and visit him at that home.” 
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 “[I]n the beginning of the case there was a bond order where mom could 

not have contact with [Kate]. However, both parents still attempted to 

involve [Mother] in the visits against the order and against my advice, 

and they had to constantly be told not to put [Mother] on the visit 

virtually, just according to the court paperwork that we received, but 

they still continued to do so.” 

 “It was because it was the criminal case where the child had been 

injured, and that stipulation was put in place for a reason, and we were 

to follow that; however, they did not follow that as they were court 

ordered to.” 

 Father would not attend drug screenings and said it was due to his work. 

 She provided Father with the opportunity to conduct drug screenings 

“up the street” after his meetings with her and would have selected 

places near his employer, “but he would never provide [her] the 

employer” so she could not do so. 

 She requested Father’s proof of employment monthly but never 

received it. 

 She discussed the importance of Father’s drug testing with him and how 

it could affect the outcome of the Department’s case. 

 “I do know when I was on the case I worked diligently with him to try 

to get him – I sent plenty of referrals and authorizations over for him to 

start psychological evaluation; however, he would never – he would 

schedule, but then I would receive information that he didn’t show up.” 

 Father did not complete any services for eight months, despite some of 

them being offered virtually. 

 During that time, Father would initiate scheduling for services, “but 

would never actually start the service.” 

3. Mother 
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 Mother testified that she was convicted for felony assault on a public servant 

that occurred around April 20, 2021, and that, “it was at the police station while they 

were trying to release [her].” Mother admitted a criminal history of assaults, 

including another assault on a public servant in 2017, that she was diagnosed with 

borderline personality disorder in 2019, and that she abused methamphetamines for 

“a few days.” When asked why the police came to their home on multiple occasions, 

Mother responded, “We would call the police on each other because we would be 

arguing and fighting, and so we would call them on each other.” Mother also 

testified, “We were wrong. We were wrong in how we communicated with each other 

and how we talked to each other. It was unfair for our daughter to be in the middle 

of that[.]” 

Mother said that her main support system lives in California and that she 

communicates with them via FaceTime and phone calls. When asked if she had a 

specific concrete plan with respect to babysitting, Mother responded: 

I plan to work when my husband is not working, and if we were to hire 

a babysitter, I would definitely look at my friends that I have grown up 

with because I do trust them, and they would be able to watch her just 

fine. If not, there are websites where you can find a babysitter who’s 

been background checked, and that would be our third option. 

She further acknowledged that she had not factored daycare into her budget and that 

Kate was currently in a good home with foster parents. 

When asked to explain her long term goals for Kate and why the trial court 

should not terminate her rights, Mother responded: 
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She’s my biological child, I love her more than anybody in this world 

ever can. As far as my goals for her, I would like to see her succeed. I’d 

like to put her in gymnastics and have her be an active child, you know, 

be ready for school, catch her up to where she needs to be. I would like 

her to hit her development growth points, and I want to see her happy. 

I want to make her happy. I want to give her a wonderful life, and . . . I 

know that I’ve made mistakes, but I don’t feel like I deserve to lose my 

child over it. 

4. Father 

Father testified: 

 “At the beginning of this, I went to take my first urine and hair follicle. 

When I got there, the facility told me that they didn’t receive the 

paperwork on my hair follicle. When I got to my visit after that, I told 

. . . my caseworker, that if she hadn’t received the paperwork – and then 

followed by that, in court, she said I refused to take the hair follicle; 

and then after that dishonest answer was there, I kind of just shut off. 

And between that and working and trying to keep the jobs that I was 

doing, it was just hard.” 

 “I don’t have a sponsor because I wasn’t recommended to go do 

anything outside of my IOP [Intensive Outpatient Program].” 

 “There’s never been a guarantee of when I was going to get off that day 

so, I mean, that was part of the reason, too, that it took so long for my 

IOP. I kept missing classes and kept having to start over on all my steps, 

but frequently I make 1,400 a week.” 

 “Prior to that, I didn’t send in my employer information because it was 

hard for me to keep a job after this case started.” 

 “I did get an eviction because I got fired because I was making my 

visits. They wouldn’t just let me off. I went to every visit I could, even 

if it meant losing my job because I knew it was more important to be 

there for my daughter.” 

 “I was in, like, a five-car pileup, and I woke up over the steering wheel. 

I actually – I fell asleep because I had been working 24 hours that day, 

and I dozed off. When I lifted my head up, a car swerved out from in 
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front of me where it was a two-lane road, and I didn’t have time to strap 

my work truck, and so it gave something in my heart to where my legs 

swole up and my feet swole up where I couldn’t walk.” 

 “I was just a selfish husband, you know. Like, I wanted – I wanted just 

things that she couldn’t handle right then. That was my mistake on 

putting that stress on her.” 

5. Guardian ad litem 

Kate’s guardian ad litem testified that (1) Kate was in a good home, (2) he 

supported “some process that would allow [Mother and Father] to finish whatever 

services the Department deems necessary,” and (3) the trial court had grounds to 

support the Department’s position. 

6. The trial court’s findings and conclusion 

 The trial court found that neither Mother nor Father was credible and that their 

failures to complete court-ordered services were not reasonable. The trial court then 

entered an order terminating Mother and Father’s parental rights to Kate. 

Analysis 

A court may order termination of a parent–child relationship if the court finds 

by clear and convincing evidence that the parent committed one or more acts or 

omissions enumerated in section 161.001(b)(1) and that termination is in the child’s 

best interest. See TEX. FAM. CODE §§ 101.007 (definition of “clear and convincing 

evidence”), 161.001(b)(1), (2); In re N.G., 577 S.W.3d 230, 235 (Tex. 2019). 

We apply a standard of review that reflects the elevated, clear and convincing 

burden at trial, considering all the evidence to determine whether the factfinder could 
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reasonably form a firm belief or conviction that the Department of Family and 

Protective Services proved its grounds for termination. In re A.B., 437 S.W.3d 498, 

502 (Tex. 2014); In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002). 

In this legal sufficiency review, the reviewing court cannot ignore undisputed 

evidence contrary to the finding, but must assume the factfinder resolved disputed 

facts in favor of the finding. See In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018). 

Evidence is legally sufficient if, viewing all the evidence in the light most favorable 

to the fact finding and considering undisputed contrary evidence, a reasonable 

factfinder could form a firm belief or conviction that the finding was true. Id. at 631. 

The factual sufficiency review in these cases requires weighing disputed 

evidence contrary to the finding against all the evidence favoring the finding. Id. 

Appellate courts consider whether disputed evidence is such that a reasonable 

factfinder could not have resolved it in favor of the finding. Id. Thus, when reviewing 

findings pursuant to the clear and convincing burden, evidence is factually 

insufficient if, in light of the entire record, the disputed evidence a reasonable 

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

factfinder could not have formed a firm belief or conviction that the finding was true. 

Id. 

Because the fundamental liberty interest of parents in the care, custody, and 

control of their children is of constitutional dimension, we strictly scrutinize 
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involuntary parental termination. See Troxel v. Granville, 530 U.S. 57, 65–66 

(2000); In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). 

A. The evidence is legally and factually sufficient to support the trial court’s 

finding that Father failed to establish good faith by a preponderance of 

the evidence. 

 “A court may not order termination under Subsection (b)(1)(O) based on the 

failure by the parent to comply with a specific provision of a court order if a parent 

proves by a preponderance of evidence that: (1) the parent was unable to comply 

with specific provisions of the court order; and (2) the parent made a good faith 

effort to comply with the order and the failure to comply with the order is not 

attributable to any fault of the parent.” TEX. FAM. CODE § 161.001(d); In re P.H., 

No. 05-22-00617-CV, 2022 WL 17663648, at *9 (Tex. App.—Dallas Dec. 14, 2022, 

no pet.) (mem. op.). We review the record for legally and factually sufficient 

evidence to support the trial court’s finding that Father failed to prove by a 

preponderance of the evidence that he made a good faith effort to comply with the 

court order and his failure to comply with the court order is not attributable to his 

own fault. In re A.M., No. 01-22-00689-CV, 2023 WL 2483549, at *7 (Tex. App.—

Houston [1st Dist.] Mar. 14, 2023, no pet.) (mem. op.). 

Father first argues the trial court erroneously entered a May 20, 2023 order 

that required him to complete “a component of BIPP services” despite being the 

victim of Mother’s domestic violence and that the trial court’s rulings suggest “that 

the termination of his parental rights is partially predicated on his status as a victim 
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of family violence.” We reject Father’s contention that this order was confusing or 

erroneous, and note his failure to bring it to the trial court’s attention despite the 19 

months between the order and trial. Presenting this complaint to the trial court is a 

prerequisite to being able to present it to this court for appellate review, and thus we 

reject it. See TEX R. APP. P. 33.1(a)(1). 

Father also suggests the trial court’s order was confusing because it was at 

variance with a previous order. Father did not bring this alleged variance to the trial 

court’s attention and has failed to preserve the issue for our review. See id. Assuming 

preservation and some variance between the two orders, the latter order implicitly 

superseded the earlier order, and we would reject this issue on its merits had it been 

preserved. Ahmed v. Shimi Ventures, L.P., 99 S.W.3d 682, 687–88 (Tex. App.—

Houston [1st Dist.] 2003, no pet.). 

Father further argues that the family service plan’s lack of clarity with respect 

to his individual counseling caused him to complete individual therapy only to 

discover it did not count. Again, Father had approximately 19 months to complete 

services, he did not start them for at least eight months, and the trial court granted 

him an extension. Despite this, the record does not show that Father complained to 

the trial court that the family service plan lacked clarity and thus this issue presents 

nothing for our review. See TEX. R. APP. P. 31.1(a)(1).

Father’s arguments also ignore the trial court’s express finding that he was not 

credible and that his testimony was self-serving. See In re J.F.-G., 627 S.W.3d 304, 
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312 (Tex. 2021) (factfinder is sole arbiter of witness credibility and demeanor). The 

trial court had complete discretion to disbelieve Father’s testimony that he engaged 

in individual therapy that did not count, particularly given the absence of any 

supporting documentation or corroborating witnesses. See In re J.F.C., 96 S.W.3d 

at 266 (“[A] court should disregard all evidence that a reasonable factfinder could 

have disbelieved or found to have been incredible.”). 

Father also relies on a single, recent negative drug test to support his good 

faith efforts to comply with the family service plan, but that does not overcome the 

twenty-eight presumptively positive tests over the course of these proceedings. The 

trial court found he was not credible, he admitted relapsing during the case, and Ms. 

Murphy testified she told Father his drug testing was important and could affect the 

outcome of the Department’s case against him. 

Additionally, uncontroverted evidence established that Father did not begin 

any services for at least eight months, that he would schedule services but not show 

up, and that he repeatedly refused to identify his employer to the Department, further 

frustrating the Department’s efforts to facilitate accessible drug testing for him. This 

evidence supports the trial court’s implicit finding that Father did not establish his 

good faith efforts to comply with the family service plan by a preponderance of the 

evidence. 

Father points to injuries from a car accident that impacted his ability to comply 

with the family service plan. Again, there is no corroborating evidence in the record 
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and the trial court did not find him credible. The only evidence in the record that 

Father suffered any injury is (1) Father’s testimony and (2) an unauthenticated and 

undated picture of two legs attached to Father’s Amended Motion for Extension with 

the handwritten notation “immediate swelling of legs and feet due to car accident.” 

See TEX. R. EVID. 901(a), 1004. 

The record supports the trial court’s finding that Father did not provide proof 

of his defense to noncompliance with his services plan by a preponderance of the 

evidence and is both legally and factually sufficient. Because Father did not 

otherwise challenge the legal or factual sufficiency of the evidence supporting the 

trial court’s justification for terminating his parental rights under subsection O, we 

conclude the trial court’s final order is supported by at least one predicate 

termination ground. J.M. v. Dep’t of Fam. & Protective Servs., No. 14-23-00352-

CV, 2023 WL 7401417, at *8 (Tex. App.—Houston [14th Dist.] Nov. 9, 2023, no 

pet.) (mem. op.). 

B. The evidence is legally and factually sufficient to support the trial court’s 

(E) finding. 

If a trial court terminates a parent’s rights based on section 161.001(b)(1)(E) 

and the parent challenges that finding on appeal, due process requires the appellate 

court to review the finding and detail its analysis even if it affirms the termination 

order based on other section 161.001(b)(1) grounds. In re C.W., 586 S.W.3d 405, 

406 (Tex. 2019) (per curiam). The relevant inquiry under subsection (E) is whether 

evidence shows that the endangerment of the child’s well-being was the direct result 
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of the parent’s conduct, including acts, omissions, or failures to act. In re C.J.B., No. 

05-19-00165-CV, 2019 WL 3940987, at *6 (Tex. App.—Dallas Aug. 21, 2019, no 

pet.) (mem. op.). Termination under subsection (E) must be based on more than a 

single act or omission; there must be a voluntary, deliberate, and conscious course 

of conduct by the parent. In re K.S., No. 05-15-01294-CV, 2016 WL 1613126, at 

*14 (Tex. App.—Dallas Apr. 21, 2016, pet. denied) (mem. op.). The offending 

conduct does not need to be directed at the child, nor must the child suffer an injury. 

In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). But, under subsection (E), 

endangerment encompasses “more than a threat of metaphysical injury or the 

possible ill effects of a less-than-ideal family environment.” In re J.T., No. 05-23-

00826-CV, 2024 WL 339421, at *6 (Tex. App.—Dallas Jan. 30, 2024) (mem. op.). 

In determining whether a parent engaged in a course of “endangering” conduct, a 

trial court may consider conduct that occurred before and after the child’s birth, in 

the child’s presence and outside the child’s presence, and before and after removal 

by the Department. In re J.O.A., 283 S.W.3d at 345; In re K.B., No. 05-19-00700-

CV, 2019 WL 5485320, at *3 (Tex. App.—Dallas Oct. 25, 2019, no pet.) (mem. 

op.). 

“A parent’s conduct that subjects a child to a life of uncertainty and instability 

endangers the child’s physical and emotional well-being.” In re R.B., No. 05-21-

00043-CV, 2021 WL 2943927, at *10 (Tex. App.—Dallas July 9, 2021, no pet.) 

(mem. op.). Here, Father’s admission that he relapsed and used methamphetamines 
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during the pendency of these proceedings supports a finding that he engaged in 

multiple acts of illicit drug use, particularly given his 28 presumptively positive drug 

tests. The evidence also supports a finding that he engaged in conduct that 

endangered Kate’s physical or emotional well-being. In re E.S.S., No. 05-23-00031-

CV, 2023 WL 4782682, at *8 (Tex. App.—Dallas July 27, 2023, pet. denied). 

The record also reveals (1) a March 9, 2022 bond conditions order that 

prohibited Mother from directly or indirectly communicating with the alleged victim 

in her assault case and (2) uncontroverted testimony from Ms. Murphy that Kate and 

Father were the alleged victims. Despite this order and instructions to refrain from 

doing so, Father repeatedly involved Mother in his visits with Kate. Under the 

circumstances, this recurring violation of a court order constitutes evidence that 

Father endangered Kate’s emotional well-being. See In re T.N.R., No. 14-21-00473-

CV, 2022 WL 370035, at *4–5 (Tex. App.—Houston [14th Dist.] Feb. 8, 2022, no 

pet.) (mem. op.) (concluding evidence was legally and factually sufficient to support 

termination under subsection (E) where the court heard, among other things, that (1) 

mother knew father had a history of domestic violence, (2) father had been violent 

with mother in front of her children, (3) father was a sex offender who “was not 

supposed to be around” mother’s children, and (4) mother nonetheless continued to 

expose her child to father). 

Viewing all the evidence in the light most favorable to the trial court’s 

judgment and recognizing that the factfinder, not the appellate court, is the sole 
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arbiter of the witnesses’ credibility and demeanor, we conclude that there was some 

evidence of endangerment on which a reasonable factfinder could have formed a 

firm belief or conviction of endangerment and reject Father’s subsection (E) 

challenge. See In re J.O.A., 283 S.W.3d at 346. 

C. The evidence is legally and factually sufficient to support the trial court’s 

best-interest finding as to Mother. 

A trial court’s finding that termination is in a child’s best interest is “not 

dependent upon, or equivalent to, a finding that the child has been harmed by abuse 

or neglect or is in danger of such harm.” In re T.C., No. 05-19-00262-CV, 2019 WL 

3852657, at *6 (Tex. App.—Dallas Aug. 16, 2019, pet. denied) (mem. op.). Rather, 

a best-interest finding “encompass[es] a much broader, facts-and-circumstances 

based evaluation that is accorded significant discretion.” Id. 

The familiar Holley factors guide our analysis with a focus on the best interest 

of the child, not the best interest of the parent, and they are not exhaustive. See Holley 

v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re C.H., 89 S.W.3d 17, 27 (Tex. 

2002). A best-interest finding need not be supported by evidence of every Holley

factor. See In re C.H., 89 S.W.3d at 27. Further, the same evidence can be relevant 

to both section 161.001(b)(1) termination grounds and the child’s best interest. In re 

D.W., 445 S.W.3d 913, 925 (Tex. App.—Dallas 2014, pet. denied). Although there 

is a strong presumption that maintaining the parent–child relationship serves the 

child’s best interest, there is also a presumption that promptly and permanently 
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placing the child in a safe environment is in the child’s best interest. Id.; see also

TEX. FAM. CODE § 153.131(b). 

The second Holley factor, the child’s current and future emotional and 

physical needs, is neutral because the evidence shows Kate is on target and that she 

no longer requires occupational therapy or physical therapy despite evidence she 

was initially developmentally delayed. There is also some evidence that Kate’s 

previous needs were at least partially caused by Mother’s actions. The third Holley 

factor, emotional and physical danger to the child now and in the future, weighs 

somewhat against Mother. Though Mother’s actions were more in line with Kate’s 

interests after her release from jail, the trial court could have concluded there was a 

risk Mother would relapse and return to the child-endangering and assaultive 

behaviors she exhibited that led to this proceeding. 

The fourth Holley factor, the parental abilities of those seeking custody, 

weighs slightly against Mother. The evidence shows that Mother had positive 

interactions with the foster parent, that Mother had no concerns with the foster parent 

other than not trimming and cleaning Kate’s fingernails, and that the foster parent 

“did a wonderful job” of ensuring that Kate started her therapeutic services 

immediately. While Mother counters that she has worked to improve herself and her 

parenting skills since her release from jail, this improved conduct in the short term 

does not conclusively negate the remainder of the evidence demonstrating her 

substandard parental abilities. 
–20– 

The sixth and seventh Holley factors, plans for the child and the proposed 

placement’s stability, weigh slightly against Mother. The evidence at trial shows that 

the foster parents were “adoption motivated” and that Mother wanted to see Kate 

succeed and enroll her into gymnastics. Mother acknowledged that she had not yet 

factored daycare into her budget, but relayed plans to care for the child while she 

was not working. Mother was living in a hotel at the time of trial, and could only 

articulate a generalized plan to find a larger, more stable place for the family to live. 

Also, Mother conceded Kate was in a good home with the foster parents and the 

guardian ad litem corroborated this. 

The eighth Holley factor, the parent’s acts or omissions indicating that the 

existing parent–child relationship is not a proper one, weighs strongly against 

Mother. These acts include abusing methamphetamine after giving birth to Kate, 

assaulting Kate, and then repeatedly violating a protective order designed to protect 

Kate in the ensuing criminal case. See In re E.N.A., No. 11-14-00345-CV, 2015 WL 

3799511, at *3 (Tex. App.—Eastland June 9, 2015, no pet.) (mem. op.). The ninth 

Holley factor, any excuse for the parent’s acts or omissions, weighs against Mother 

as she offered no excuse for her criminal conduct against Father and Kate, but instead 

sought to minimize or deny the conduct. 

On this record, we conclude the evidence is legally and factually sufficient to 

support a finding that terminating Mother’s parental rights was in Kate’s best 

interest. 
–21– 

D. Father did not preserve his due process and due course of law argument. 

In his third issue, Father contends the trial court denied him due process and 

due course of law based on the deadlines set forth in Texas Family Code section 

263.401. Father did not present this issue to the trial court and the issue thus presents 

nothing for our review. See TEX R. APP. P. 33.1(a)(1). 

Conclusion 

 We conclude the evidence is legally and factually sufficient to support the trial 

court’s (1) termination of Father’s parental rights under Texas Family Code section 

161.001(b)(1)(E), (2) finding that Father did not prove his good faith inability to 

comply with the family service plan via a preponderance of the evidence, and (3) 

finding that termination of Mother’s rights was in Kate’s best interest. We also 

conclude Father did not preserve his due process and due course of law arguments. 

Accordingly, we affirm the trial court’s termination of Mother and Father’s parental 

rights to Kate. 

231255F.P05 

 

/Cory L. Carlyle/

CORY L. CARLYLE 

JUSTICE 
–22– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

IN THE INTEREST OF K.G.F., A 

CHILD, Appellant 

No. 05-23-01255-CV 

 On Appeal from the 304th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. JC-22-00269-

W. 

Opinion delivered by Justice Carlyle. 

Justices Goldstein and Breedlove 

participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED. 

Judgment entered May 14, 2024