Opinion issued March 14, 2023

In The

Court of Appeals 

For The

First District of Texas 

————————————

NO. 01-22-00689-CV

———————————

IN THE INTEREST OF A. M. a/k/a F. E. M., A CHILD

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Case No. 2021-01237J

MEMORANDUM OPINION

Appellant mother challenges the trial court’s order terminating her parental 

rights to her minor child, A.M. a/k/a/ F.E.M. (“Frank”), and awarding the 

Department of Family and Protective Services (the “Department”) sole managing

conservatorship of him. Mother contends that the evidence is legally and factually 

insufficient to support the trial court’s findings that she: (1) failed to comply with 
2

the provision of a court order that specifically established the actions necessary to 

obtain return of the child; and (2) used illegal drugs in a manner that endangered

the child and failed to complete a court ordered substance abuse program. See TEX.

FAM. CODE § 161.001(b)(1)(O) (service plan), (P) (substance abuse). She also

contends that there is legally and factually insufficient evidence to support the 

court’s finding that termination of her parental rights is in the best interest of the 

child. Id. § 161.001(b)(2). We affirm.

Background

In April 2021, law enforcement responded to a motel concerning a drug 

overdose. Mother and father were found unconscious in a parking lot. It was 

suspected that they had overdosed on PCP, and they were taken to the hospital. 

The Department was contacted when a child, O.H. (“Oscar”), was found strapped 

in a car seat in the motel. He was placed in the Department’s temporary managing 

conservatorship.

One month later, mother gave birth to Frank, who is the subject of this suit. 

Frank and Oscar have the same parents. At the time of Frank’s birth, his meconium 

tested positive for cocaine. Frank was placed with his paternal grandmother. The 

Department was appointed temporary managing conservator of Frank. 

The trial court entered an order establishing the actions necessary for mother 

to obtain the return of Frank. The Department’s plan required mother to: 
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(1) maintain employment for more than six months; (2) maintain stable housing for 

more than six months; (3) complete parenting classes; (4) refrain from engaging in 

any illegal activities; (5) attend all court hearings; (6) submit to random urinalysis

drug testing twice a month and hair follicle testing once every three months; 

(7) follow recommendations of a psychosocial evaluation; (8) follow

recommendations of a psychiatric evaluation; and (9) sign a release of information. 

The plan noted that mother was unwilling to work services at the time and that she 

had tested positive for illegal substances, continued to use them while pregnant, 

and suffered from mental health issues. 

A. Trial 

The case proceeded to trial in August 2022. Before testimony began, the 

father signed a voluntary relinquishment affidavit.1In reviewing it, the trial court 

took judicial notice of Oscar’s case and stated that mother’s rights to Oscar had 

been terminated pursuant to subsection (O), no child support had been ordered, and 

the case was on appeal. The trial court then proceeded to hear testimony in the trial

regarding mother’s rights to Frank. The court heard testimony from the

Department’s supervisor, the child advocate assigned to the case, and the paternal 

grandmother. 

1 Father’s parental rights were also terminated and are not the subject of this appeal. 
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1. Department Supervisor

The Department supervisor testified that the Department became involved 

with Frank’s parents when Frank’s older brother Oscar was found in a motel room,

strapped in a car seat. Oscar’s parents were found unconscious outside the motel 

room and taken to a hospital. At the time, mother was pregnant with Frank, and she 

gave birth to him one month later. Frank’s meconium tested positive for cocaine,

and he was removed from his parents’ care at birth. He was placed with his 

paternal grandmother. Oscar had also been placed with the paternal grandmother.

The supervisor testified that mother had prior involvement with the 

department for physical abuse of one of her other children and that her parental 

rights to Oscar were terminated in March 2022. The circumstances of that 

termination included that mother denied drug use, continually tested positive for 

drugs, and was discharged from services without completing them successfully. 

She did not have stable housing or employment. 

Regarding Frank, the supervisor confirmed that a family service plan had 

been made an order of the court, yet mother had not successfully completed her 

services. Specifically, mother had not provided proof of participating in an anger

management class or individual counseling, and she was in denial of her drug use, 

though she engaged in substance abuse treatment. The supervisor had spoken to 

mother’s drug abuse therapist a few days before trial, and she awaited paperwork 
5

regarding mother’s unsuccessful discharge from substance abuse treatment. The 

supervisor commented that mother had been offered substance abuse treatment in 

Oscar’s case. Therefore, she had been offered services since at least July 2021, 

though she never successfully completed a treatment program. When mother spoke 

with the supervisor on the phone a month before trial, mother told the supervisor 

that she had successfully completed substance abuse treatment. The supervisor 

informed mother that she had spoken with the drug counselor who stated that 

mother would be unsuccessfully discharged from the program due to her denial of

drug use. 

Regarding drug testing, the supervisor testified that although mother was 

ordered to refrain from drug use, mother consistently tested positive. Most 

recently, mother tested positive in May 2022 and did not appear for an ordered 

drug test on June 22, 2022. When the supervisor spoke with mother about the 

positive result, mother stated that she did not use drugs. 

The supervisor testified that mother gave her four weekly paycheck stubs

from James Coney Island, a fast-food restaurant. In the supervisor’s opinion, two 

of them may have been created because they did not print the same way. The 

paychecks covered one week in March, two nonconsecutive weeks in April, and 

one week in June 2022. They ranged from $45.59 to $142.90 each. The supervisor

believed that based on the amount mother was receiving in each check, she was 
6

working approximately 1.5 days a week. The supervisor did not know whether

mother had remained employed because she had not provided additional proof of 

employment, and mother never provided paychecks for the month of May.

Regarding housing, mother provided the supervisor with a handwritten note 

from her grandmother indicating that mother resided with her. The supervisor 

received the note the month before trial. The supervisor testified that she had 

visited the home several times, and mother was never there. The supervisor was 

concerned that mother did not reside with her grandmother.

Regarding visits with Frank, the supervisor stated that mother had not been 

visiting with Frank because there is a court order of no contact. She testified that at 

the last hearing prior to trial, the no contact order was extended to add Frank’s 

caregivers, including his paternal grandmother, after mother had threatened and 

harassed them. Notwithstanding the order, mother continued to contact Frank’s 

paternal grandmother and show up at her house unannounced. The supervisor

testified that mother contacted the paternal grandmother the week before trial

regarding mother’s behavior, and the supervisor had informed the grandmother to 

call the police if mother appeared at her home. Mother had not provided financial 

support for Frank since his birth, except for a few gift cards left in the caregiver’s

mailbox shortly before trial. 
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The Department supervisor mentioned that mother can be very aggressive.

She testified that on multiple occasions, mother called her nonstop, as frequently as 

45 times in 2 to 3 minutes. When the supervisor eventually temporarily blocked 

mother’s number so the calling would stop, mother immediately called from 

another number.

The supervisor stated that the Department made reasonable efforts to attempt

to reunify mother with Frank by offering services, speaking with her numerous 

times, and referring her to additional providers whenever she was discharged from 

a program. The supervisor did not believe that mother could provide a stable

environment for Frank. The supervisor stated that mother can be very aggressive,

and that her behavior was not safe for a child. 

The supervisor stated that when Frank was born, mother refused to complete 

any paperwork that would have allowed him to obtain a birth certificate. In the 

absence of a birth certificate, Frank was unable to obtain a social security card. 

According to the Department supervisor, Frank was thriving, meeting all his 

milestones, and there were no concerns with his placement with his paternal 

grandmother. Frank, Oscar, and two older siblings also lived with the paternal 

grandmother, whose husband and daughter both lived in the house and helped with 

childcare. Frank was bonded to his caregivers, and all four children enjoyed

playing together. The supervisor believed termination was in Frank’s best interest 
8

as he was in a stable, loving, drug-free home with his brothers, and all his needs 

were being met. 

On cross-examination, the supervisor acknowledged that mother completed

some of the assigned tasks from the family service plan. Mother signed a release of 

information, provided a few paychecks from James Coney Island, and provided a 

handwritten letter stating she lived with her grandmother. Mother completed 

parenting classes and psychosocial and psychiatric evaluations. Mother had 

participated in substance abuse treatment. She was referred to an agency for an 

assessment and was diagnosed in July 2021 with cannabis and amphetamine use.

She was discharged a month later for failure to attend. The Department then 

referred mother to a second agency who diagnosed mother with alcohol and 

cocaine dependence. Mother was discharged a few months later due to 

nonattendance. Finally, mother was referred to a third agency in April 2022, and

she was unsuccessfully discharged from that program due to her denial of drug use. 

2. Child Advocate 

The child advocate testified that she had been on the case for about eight 

months and that the agency agreed with the Department’s recommendations to 

terminate mother’s parental rights and for Frank to remain with his paternal 

grandmother. The child advocate stated that both a previous coordinator and a 

former volunteer attempted to contact mother and were unsuccessful. 
9

The child advocate said her termination recommendation was based on 

concerns of mother’s inability to complete services and her aggressive and hostile 

behavior. The child advocate stated that mother has called and made threats to the 

paternal grandmother on multiple occasions. Frank has been with his grandmother 

for his entire life and is well bonded, and it would not be in his best interest to 

remove him from the placement. 

The child advocate stated that when Frank came into care, he experienced 

residual effects of drugs in his system. He shook for about five or six weeks. At the 

time of trial, at 13 months old, he was developmentally on target and doing well. 

3. Paternal Grandmother 

The paternal grandmother testified that Frank is doing well in her home and 

that he attends daycare. She stated that she can meet his emotional and physical 

needs and that her long-range goal is to adopt Frank. She had not been able to get a 

social security card for Frank, and she intended to change his name. 

She stated that when Frank came to her home, he was four days old. Due to 

being born with drugs in his system, Frank often shook. The paternal grandmother 

took Frank to the doctor, who advised her to go to the emergency room if the 

shaking became violent. The shaking never became violent and after six weeks, it 

stopped. 
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The paternal grandmother testified regarding harassment by mother. She

stated that after a status hearing mother came to the grandmother’s house. The 

paternal grandmother was not there, so mother went to another family member’s 

house down the street and demanded the return of her children. The family 

member told the paternal grandmother that mother looked distraught and high. 

Mother left but said she would be back to get her children. The paternal 

grandmother testified that mother’s behavior is disturbing and counterproductive to 

Frank’s safety and wellbeing. 

The paternal grandmother testified that she lives with her husband and her

adult daughter, who moved in to help them raise the four grandchildren in their 

care. Frank is bonded to his siblings and relatives. 

4. Mother

Mother was initially in attendance at the Zoom trial. She began talking out 

of turn during the Department supervisor’s testimony. She stated that she could not 

hear, and she was going to leave. The court admonished mother not to interrupt 

and that she would get a chance to speak if she remained in the hearing. When 

mother interrupted a second time, stating that she was going to leave, the court 

instructed the reporter to remove mother from the hearing.
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Near the end of the Department’s witnesses, mother’s attorney texted mother 

to see if she would be rejoining the trial. Mother’s attorney informed the court that 

mother did not respond. Mother never rejoined the hearing. 

B. Trial Outcome

The trial court terminated mother’s parental rights pursuant to subsections

(O) and (P). See TEX. FAM. CODE § 161.001(b)(1)(O), (P). The court found that 

termination was in Frank’s best interest. The court entered a permanent injunction 

against mother, stating that she was to have no contact with Frank or his 

caregivers. Mother appealed.

Sufficiency of the Evidence 

On appeal, mother challenges the sufficiency of the evidence to support the 

trial court’s findings that her rights should be terminated pursuant to subsections 

(O) and (P). See TEX. FAM. CODE § 161.001(b)(1)(O), (P). She also challenges the 

sufficiency of the evidence to support the trial court’s finding that termination was 

in Frank’s best interest. Id. § 161.001(b)(2).

A. Standard of Review

A trial court may order termination of the parent-child relationship if the 

Department proves, by clear and convincing evidence, one of the statutorily 

enumerated predicate findings for termination and proves that termination of 

parental rights is in the best interest of the child. TEX. FAM. CODE § 161.001(b); see 
12

In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012) (recognizing that federal Due 

Process Clause and Texas Family Code both mandate “heightened” standard of 

review of clear and convincing evidence in parental-rights termination cases). The 

Department must prove by clear and convincing evidence both a statutorily 

prescribed predicate finding and that termination is in the child’s best interest. Id.

at 803. 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. 

To assess the legal sufficiency of the evidence in a termination proceeding, 

we consider all evidence in the light most favorable to the trial court’s finding and 

decide “whether a reasonable trier of fact could have formed a firm belief or 

conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); 

see City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005). We assume that 

any disputed facts were resolved in favor of the finding if a reasonable factfinder

could have done so. J.F.C., 96 S.W.3d at 266. When “no reasonable factfinder 

could form a firm belief or conviction” that the matter on which the Department

bears the burden of proof is true, we “must conclude that the evidence is legally 

insufficient.” Id. In reviewing the evidence’s factual sufficiency, we consider the 

entire record, including disputed evidence. Id. The evidence is factually 
13

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

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

factfinder could not reasonably have formed a firm belief or conviction. Id. 

We give due deference to the factfinder’s findings, and we cannot substitute 

our own judgment for that of the factfinder. See In re H.R.M., 209 S.W.3d 105, 108 

(Tex. 2006). The factfinder is the sole arbiter when assessing the credibility and 

demeanor of the witnesses. See id. at 109.

B. Predicate Finding Under Subsection 161.001(b)(1)(O)

In her first and second issues, mother contends that the evidence was legally 

and factually insufficient to support the trial court’s predicate findings that 

termination was warranted under Family Code subsections 161.001(b)(1)(O) and 

(P). 

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 for the parent to obtain the return of 

the child who has been in the permanent or temporary managing 

conservatorship of the Department of Family and Protective Services 

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

the parent under [Family Code] Chapter 262 for the abuse or neglect 

of the child. 
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TEX. FAM. CODE § 161.001(b)(1)(O). Thus, pursuant to subsection (O), the 

Department must prove that (1) it has been the child’s temporary or permanent 

managing conservator for at least nine months; (2) it took custody of the child as a 

result of a removal from the parent under Chapter 262 for abuse or neglect; (3) a 

court issued an order establishing the actions necessary for the parent to obtain the 

return of the child; and (4) the parent did not comply with the court order. See id. 

Mother does not dispute that (1) the Department has been Frank’s temporary 

managing conservator for at least nine months, (2) the Department had taken 

custody of Frank as a result of a removal from the parent under Chapter 262 for 

abuse or neglect, and (3) the court-ordered family service plan constituted an order 

of the trial court establishing the actions necessary for her to be reunited with 

Frank. 

Preliminarily, mother argues that the trial court erred by basing its 

subsection (O) finding on information contained in the case file from another case, 

namely the case terminating her rights to Frank’s older brother Oscar. Mother 

asserts that taking judicial notice of the truth of factual statements contained in 

pleadings and other documents in the case file for another case was erroneous. “It 

is well recognized that a trial court may take judicial notice of its own records in a 

cause involving the same subject matter between the same, or practically the same, 

parties.” Gardner v. Martin, 345 S.W.2d 274, 276 (1961); In re Shifflet, 462 
15

S.W.3d 528, 539 (Tex. App.—Houston [1st Dist.] 2015, no pet.). “A trial court 

may take judicial notice of its own records in matters that are generally known, 

easily proven, and not reasonably disputed.” Shifflet, 462 S.W.3d at 539 (quoting 

In re R.S.D., 446 S.W.3d 816, 820 n.4 (Tex. App.—San Antonio 2014, no pet.) 

(internal quotation marks and citation omitted)). “Therefore, a court may take 

judicial notice that a pleading has been filed in the case, that it has signed an order, 

or of the law of another jurisdiction,” but “[a] court may not take judicial notice of 

the truth of allegations in its records.” Id. (emphasis in original) (citation omitted). 

Mother argues that the trial court based its finding on facts from Oscar’s case, such 

as that mother was unsuccessfully discharged from several services, tested positive 

for drugs, and had her parental rights terminated to Oscar pursuant to subsection 

(O). She argues that without this information, there was insufficient evidence to 

terminate her rights to Frank based on subsection (O). We disagree. 

Prior to the beginning of testimony, the trial court, in reviewing father’s 

voluntary relinquishment affidavit, announced that it was taking judicial notice of 

Oscar’s case. The court orally stated that the judgment involving Oscar did not 

order child support and that mother’s rights to Oscar were terminated under 

subsection (O). These facts were not disputed and were generally known. See 

Shifflet, 462 S.W.3d at 539. The remaining facts that mother complains about came 

into evidence during mother’s trial regarding Frank. The Department supervisor 
16

testified that mother was discharged from three different substance abuse treatment 

programs without completing them successfully. She also testified that mother had 

tested positive for drugs. Additionally, mother’s drug test results were listed in the 

family service plan and permanency report, both of which were admitted into 

evidence without objection. 

Even without judicial notice of Oscar’s case, the record in this case contains 

sufficient evidence to support the trial court’s decision to terminate mother’s rights

to Frank under subsection (O). At trial, the Department supervisor testified that the 

agency created a family service plan for mother, which was filed with the court and 

made an order of the court. Mother was ordered to (1) complete parenting and 

anger management classes, (2) abstain from drugs and complete a substance abuse 

assessment and treatment, (3) refrain from criminal activity, (4) sign a release of 

information, (5) participate in court hearings, and (6) obtain and maintain stable 

housing and employment for six months. 

The evidence reflects that mother failed to complete all her court-ordered 

services. With respect to employment, mother provided paycheck stubs as proof of 

employment for one week in March, three weeks in April, and two weeks in June. 

The Department supervisor testified that those were the only paycheck stubs 

mother provided. The caseworker dd not believe the mother was employed based 
17

on the information she received. Mother did not offer any further evidence to show 

that she was indeed employed for six months. 

With respect to the requirement that mother test negative for drugs, the 

caseworker testified that mother tested positive for drugs continually throughout 

the case. She tested positive for cocaine and heroin in her hair in February 2022

and she tested positive for cocaine in May 2022. Mother did not show up for tests 

in June and July of 2022. The family service plan, which was admitted into 

evidence, listed additional times that mother tested positive for drugs or did not 

appear for drug testing.

Finally, with respect to psychosocial and psychiatric evaluations, the 

caseworker stated that mother did not follow the recommendations. Mother argues 

that this testimony was conclusory, but the testimony demonstrated that mother did 

not comply with the service plan. See In re S.N.P., No. 04-20-00372-CV, 2020 WL 

7365445 at *2 (Tex. App.—San Antonio Dec. 16, 2020, no pet.) (mem. op.) 

(caseworker’s testimony that mother did not complete any required services except 

for her psychosocial assessment was a statement of fact and not a conclusory 

statement.)

Texas courts generally take a strict approach to subsection (O)’s application, 

In re D.N., 405 S.W.3d 863, 877 (Tex. App.—Amarillo 2013, no pet.), and a

parent’s failure to complete one requirement of her family service plan supports 
18

termination under that subsection, In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied). Nonetheless, mother argues that termination 

under subsection (O) is not justified based on the affirmative defense found in 

Family Code subsection 161.001(d): 

(d) 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). Mother argues that she did complete some 

requirements, as evidence of substantial compliance with the family services plan. 

On appeal, mother does not argue that her failure to complete all the family service 

requirements was because she was unable to comply nor does she argue that she 

made a good faith effort and her failure to comply was not attributable to her. See 

id. On the contrary, the record reflects that mother failed to abstain from using

drugs and that she failed to appear for the last two drug tests before trial. The 

record reflects that though mother participated in psychosocial and psychiatric 

evaluations, she did not follow the recommendations from those evaluations. The 

caseworker testified that mother was discharged from substance abuse treatment
19

due to lack of attendance and denial of her drug use. She did not complete 

substance abuse treatment. Mother did not establish by a preponderance of the 

evidence that her failure to comply with the service plan was due to her inability to

complete it or not attributable to her. See id. 

Applying the applicable standards of review, we hold that the evidence is 

legally and factually sufficient to support the trial court’s predicate finding under 

subsection (O). See TEX. FAM. CODE § 161.001(b)(1)(O). We further hold that the 

evidence is legally and factually sufficient to support a finding by the trial court 

that mother failed to carry her burden to prove, by a preponderance of the 

evidence, that she made a good-faith effort to comply with the court order and that

her failure to comply with the court order is not attributable to her own fault. See 

id. § 161.001(d). 

We overrule the portion of mother’s issue challenging the legal and factual 

sufficiency of the evidence to support the trial court’s predicate finding under

subsection 161.001(b)(1)(O). Because only one predicate ground is needed to 

support a termination order, we need not address the remainder of mother’s issue 

challenging the legal and factual sufficiency of the evidence supporting the 

predicate finding under subsection 161.001(b)(1)(P). See In re A.V., 113 S.W.3d

355, 362 (Tex. 2003). 
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C. Best-Interest Finding

Mother challenges the legal and factual sufficiency of the trial court’s bestinterest finding. 

1. Legal Principles 

In Holley v. Adams, the Supreme Court of Texas identified several nonexclusive factors that we consider when determining whether the termination of a 

parent’s rights is in the child’s best interest. 544 S.W.2d 367, 371–72 (Tex. 1976). 

The factors include: (1) the child’s desires; (2) the child’s current and future 

physical and emotional needs; (3) the current and future physical danger to the

child; (4) the parental abilities of the person seeking custody; (5) whether programs 

are available to assist the person seeking custody in promoting the best interests of 

the child; (6) the plans for the child by the person seeking custody; (7) the stability 

of the home or proposed placement; (8) the acts or omissions of the parent that 

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

or omissions of the parent. Id. These factors are not exhaustive, and it is not 

necessary that the Department prove all these factors “as a condition precedent to 

parental termination.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The absence of 

evidence concerning some of the factors does not preclude a factfinder from 

forming a firm belief or conviction that termination is in the children’s best 
21

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

pet.). 

In addition, the Family Code sets out factors that courts should consider in 

determining whether a child’s parent is willing and able to provide the child with a 

safe environment, including: (1) the child’s age and physical and mental 

vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the

magnitude and frequency of harm to the child; (4) whether the child has been the 

victim of repeated harm after the initial intervention by the Department; 

(5) whether there is a history of abusive or assaultive conduct or substance abuse 

by the child’s family or others who have access to the child’s home; (6) the results 

of psychiatric, psychological, or developmental evaluations of the child, the child’s 

parents, other family members, or others who have access to the child’s home;

(7) the willingness of the child’s family to seek out, accept, and complete 

counseling services; (8) the willingness and ability of the child’s family to effect 

positive environmental and personal changes within a reasonable period of time; 

and (9) whether the child’s family demonstrates adequate parenting skills, 

including providing minimally adequate care for the child’s health and nutritional 

needs, care consistent with the child’s physical and psychological development, 

guidance and supervision consistent with the child’s safety, a safe physical home 
22

environment, and an understanding of the child’s needs and capabilities. TEX. FAM.

CODE § 263.307(b); In re A.C., 560 S.W.3d 624, 631 n.29 (Tex. 2018). 

The best-interest analysis may consider circumstantial evidence, subjective 

factors, and the totality of the evidence as well as the direct evidence. In re Y.G., 

No. 01-22-00181-CV, 2022 WL 3362953 at *13 (Tex. App.—Houston [1st Dist.]

Aug. 16, 2022, pet. denied) (mem. op.) (citing In re B.R., 456 S.W.3d 612, 616

(Tex. App.—San Antonio 2015, no pet.). “A trier of fact may measure a parent’s

future conduct by his past conduct and determine whether termination of parental 

rights is in the child’s best interest.” B.R., 456 S.W.3d at 616; see C.H., 89 S.W.3d

at 28 (stating that past performance as parent “could certainly have a bearing on 

[parent’s] fitness to provide for [the child]” and indicating courts should consider 

prior history of child neglect in best-interest analysis). 

2. Analysis 

Multiple factors support the trial court’s finding that termination of mother’s 

parental rights to Frank was in the child’s best interest. 

The evidence showing that mother failed to complete all the tasks and 

services required in her service plan not only supports the predicate finding, but it 

also supports the trial court’s best-interest finding. See In re E.C.R., 402 S.W.3d

239, 249 (Tex. 2013) (holding that evidence that parent failed to complete court 

ordered services can support best-interest finding). In short, “[a] fact finder may 
23

infer from a parent’s failure to take the initiative to complete the services required 

to regain possession of [her] child that [s]he does not have the ability to motivate 

[herself] to seek out available resources needed now or in the future.” J.M.T., 519 

S.W.3d at 270. 

Despite being required to participate in substance abuse treatment and 

refrain from illegal drug use to be reunited with Frank, mother did not refrain from 

using illegal drugs. She tested positive for drugs in May of 2022, three months 

before trial. She did not appear for drug testing in June or July of 2022. See In re 

W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (recognizing 

that factfinder could reasonably infer that parent’s failure to complete scheduled 

screenings indicated she was avoiding testing because she was using drugs). She 

also tested positive in June, July, August, and October of 2021. Additionally, the 

Department supervisor testified that mother was unsuccessfully discharged from 

substance abuse treatment. Mother’s termination from the program and her positive 

drug test three months before trial are particularly probative because Frank was 

removed from mother’s care due to mother’s drug use. See TEX. FAM. CODE

§ 263.307(b)(10), (11) (stating courts may consider willingness and ability of the 

child’s family to seek out, accept, and complete counseling services and 

willingness and ability of child’s family to effect positive environmental and 

personal changes within reasonable time); Holley, 544 S.W.2d at 372 (listing as 
24

best-interest factors, programs available to assist these individuals to promote best 

interest of child and acts or omission of parent that may indicate parent-child 

relationship is not proper); J.M.T., 519 S.W.3d at 270 (recognizing that father’s 

failure to refrain from illegal drug use and complete substance abuse counseling

and individual therapy supported best-interest finding).

As we have previously recognized, “[p]arental drug abuse reflects poor 

judgment and may be a factor to consider in determining a child’s best interest.”

Id.; see TEX. FAM. CODE § 263.307(b)(8) (stating courts may consider whether

there is history of substance abuse by child’s family or others who have access to 

the child’s home). Mother’s drug abuse is relevant to multiple Holley factors, 

including her parenting abilities and the stability of her home as well as Frank’s 

emotional and physical needs now and in the future and the physical danger in 

which Frank could be placed no and in the future. See Holley, 544 S.W.2d at 372 

(factors two, three, four, and seven); In re N.J.H., 575 S.W.3d 822, 834 (Tex. 

App.—Houston [1st Dist.] 2018, pet. denied) (recognizing pattern of drug abuse 

relevant to multiple Holley factors). 

The trial court could reasonably infer that mother’s drug use would continue 

in the future. Mother used drugs while pregnant with Frank, and he was born with

drugs in his system. Mother had positive drug tests throughout the pendency of the 

case. Mother denied using drugs to the caseworker after testing positive, and she 
25

was released from substance abuse treatment for being in denial of her drug use 

and lack of attendance. The Department referred mother to multiple service 

providers during the pendency of the case. Even though she knew her parental 

rights were in jeopardy, mother failed to complete the counseling provided to her. 

The evidence supports that mother’s history of illegal drug use, her positive drug 

tests, and her lack of completion of therapy supported an inference by the trial 

court that mother was at risk for continuing drug use. See J.M.T., 519 S.W.3d at 

269. 

The evidence regarding mother’s income was scant. Mother provided a few 

paychecks, covering five total weeks during the pendency of the case. The 

Department supervisor testified that she believed mother worked one or two days a 

week, based on the amounts listed on her paystubs. The supervisor also questioned 

the veracity of two of the paystubs provided by mother, stating that they did not 

print with the same marks as the other three. Mother’s lack of employment is 

probative of Frank’s best interest because, “[a] parent who lacks stability, income, 

and a home is unable to provide for a child’s emotional and physical needs.” In re 

J.R.W., No. 14-12-00850-CV, 2013 WL 507325, at *9 (Tex. App.—Houston [14th 

Dist.] Feb. 12, 2013, pet. denied) (mem. op.); see Holley, 544 S.W.2d at 372 (bestinterest factors include stability of home and child’s physical and emotional

needs); see also In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, 
26

no pet.) (“A parent’s drug use, inability to provide a stable home, and failure to 

comply with a family service plan support a finding that termination is in the best

interest of the child.”). 

In contrast, the uncontroverted evidence showed that, at the time of trial, the 

paternal grandmother, who had cared for Frank for all his life, had a safe and stable 

home. The paternal grandmother lived with her husband and together they cared 

for Frank and three of his siblings. Frank’s aunt also moved into the home to assist 

in caretaking. The witnesses testified that Frank was bonded with his grandparents 

and his siblings and that all his needs were met. The paternal grandmother hoped to 

adopt Frank. The evidence regarding the paternal grandparent supports the trial

court’s best-interest finding under the following factors: the emotional and 

physical needs of the child now and in the future and the stability of the home or 

proposed placement. See Holley, 544 S.W.2d at 372 (factors two and seven). We

note that a child’s need for a permanent home has been “recognized as the 

paramount consideration in a best interest determination.” In re B.J.C., 495 S.W.3d

at 29, 39 (Tex. App.—Houston [14th Dist.] 2016, no pet.). 

Frank was thirteen months old at the time of trial. The Holley factor 

regarding the desires of the child is neutral in this case. See Holley, 544 S.W.2d at 

372 (factor one). Frank’s age does weigh in favor of the best-interest 

determination. See TEX. FAM. CODE § 263.307(b)(1) (providing that court may 
27

consider child’s age and physical and mental vulnerabilities in best-interest 

determination); J.M.T., 519 S.W.3d at 270 (noting 14-month-old child’s age 

weighed in favor of trial court’s finding that termination was in best interest); see 

also In re A.L.B., No. 01-17-00547-CV, 2017 WL 6519969, at *5 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied) (mem. op.) (stating children’s young ages, 

five and six years old, rendered them “vulnerable if left in the custody of a parent 

unable or unwilling to protect them or to attend to their needs”). When a child is 

too young to express his desires, the factfinder may consider that the child has 

bonded with the foster family, is well cared for by them, and has spent minimal 

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

Dist.] 2014, no pet.). 

On balance, the evidence showed that the applicable statutory factors and 

Holley factors weigh in favor of the trial court’s best-interest finding. After 

viewing all the evidence in the light most favorable to the best-interest finding, we 

conclude that the evidence was sufficiently clear and convincing that a reasonable 

factfinder could have formed a firm belief or conviction that termination of the 

parent-child relationship between mother and Frank was in the child’s best interest. 

We overrule mother’s challenge to the best interest finding. 
28

Conclusion

We affirm the trial court’s decree of termination. 

Peter Kelly

Justice

Panel consists of Justices Kelly, Farris, and Radack.2

2 The Honorable Sherry Radack, Senior Justice, Court of Appeals, First District of 

Texas at Houston, sitting by assignment.