## In the Court of Appeals S econd Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 22

- 00180

- CV

___________________________

On Appeal from the 322nd District Court Tarrant County, Texas Trial Court No. 322

- 701923

- 21
Before Sudderth, C.J.; Womack and Walker, J J. Memorandum O pinion by Justice Womack 

### I N THE 

### I NTEREST OF 

### A.P., B.P., D.P., AND 

### A.P., C HILDREN2 MEMOR ANDUM OPINIO N
I. I NTRODUCTION Appellant B

. P . (Mother) appeals the trial court ’ s order terminating her parental rights to her children A

. P . ( Andrew ), B

. P . ( Billy ), D

. P . ( David ) , and A

. P

. (

Amy ) (collectively the Children)

. 1 T he trial court found that the D epa rtm ent of Family and Protective Services had proved four conduct

- based g rounds for termination and that
termination was in the Children ’ s best interest. See Tex. Fam. Code Ann. § 161

. 001 (b)(1)(D), (E), (O), (P), (b) (2)

. The trial court awarded permanent managi ng

co nservatorship of the Children to the Department. In two issues , Mother contends
that the evidence is legally and factually insufficient to support termination of her parental rights and that the trial court abu sed its di scretion by admitt ing ce rtain
evidence. We will affirm.
II. B ACKGROUND
A. The Family ’ s Prior CPS History In 2017, Mother tested positive for amphetamine a nd metha mphetamine use. 2
This concerned Child Protective Services (CPS) because Mother w as one of the

1 T o p rotect t h e iden t

ities of the Children, we use aliases to refer to them, their parents, and others connected to this case. See Tex. Fam. Code Ann. § 109.002(d) ; Tex. R. App. P

. 9. 8(b) (2)

.

2 Amphetamine is a meta bolite of methamphetamine. See I n re C .W. , N o . 02

- 21

- 0 0252

- CV , 2022 WL 123221, at *7 n . 9 (Tex. App.

— Fort Worth Jan. 13, 2022, no pet.) (mem. op. ); In re R.A. , No. 02

- 18

- 00252

- CV, 2019 WL 490121, at *3 (Tex. App.

— Fort W o r th Feb. 7, 2 019, no pet.) (mem. op. )

.3

primary caretakers of her children. 3 Mother also allowed Father to fire a gun while
the children were in the home asleep. CPS investigated the family and ruled ou t physical abuse towards Billy , David , Andrew , and Alicia b y Fat h er but found “ reason

to believe ” neglectful supervision towards the children by both parents. 4 The children

were remo ved from Mother and Father ’ s home and placed with family ou t of state. However, the c hildre n were back l iving with Mother and Fathe r by Septe m ber of t hat
year, when CPS again investigated allegations of neglectful supervision and drug u se. Both par e nts were given mul tiple drug tests , which they passed , and CPS ruled out neglectful supervision. In January 2018, CPS investigated allegations that Moth e r was stil l using
metha m p hetamine. But sh e again tested negative for all subs tances, and CPS ruled out neglectful supervision. In March 2018, Mother gave birt h to Amy. The family relo ca t ed ofte n, and CPS investigated allegations of physical neglect
in January 2 020 after the family was evicted from their apartment

. Although CPS was concerned that the children did not look to be in good shape , the investigator ruled

3 Th e yo ungest child the sub j ect of this t e rminatio n ca s e, Amy , was not yet born in 2017. Mother and Father had another da u ghter, whose initials are also A.P. a nd who m we w

i ll refer to as Alicia, who ran awa y in Dece m ber of 2020 and is not a pa rty to thi s case.

4 After inve s tig a ting alleg ations o f child abuse or neglect, CPS will assign one of five possible dispositions: (1) reason to believe (based on a preponderance of the evidence); ( 2 ) ruled out ; (3) unable to co mplet e ; (4) unab le to determine; or (5) administr ative clos u re. C.W. , 202 2 WL 12 3 221, at *6 n . 7

.4

out p hysical neglect towards all five of the children by either parent

. In December o f that yea r, CPS invest

i gated allegations that David was being put into a box. There
were also concerns that Mother and Father had been inco nsist e nt with picking up the
children and that the children were being “ abandoned ” at the end of the day. CPS
rule d out t h e al legations of physical abuse but assigne d the dispos i t ion “ Unable to
Determine ” to the neglectful

- supervision allegations aga inst b oth parent s . That s ame month, the parents reported that Alicia had run away “ with some guys. ” 5
B
. Pos t - 2020 In

v e stigatio n and Removal Before running away, Alicia accused her father of physical abuse and claimed
that she was left at ho me al o ne for ext e nded periods of time without food

. She also
told Tarquetta Jones, a CPS investigator, about “ s ome domestic violen ce bet ween the
parents. ” Jones interviewed Alicia, Billy , and David at school and the other children
and Mother and Father a t th e hotel where they were living at the time. While they

were at the hotel, police arrived in response t o a complaint about chil d abuse. Mother

t old Jones that she was not going to d o anything the Department aske d of her

. Jone s returned to the hotel multiple times but was eventually told that the family was no
lo n ger the re. She then had a special investigator (SI) a ss ig ned to th e case . T he SI found that the family was still staying at t he h ot el, and he saw Father there. Father
told the SI that the family was in the process of getti n g “ a long

- term place to live. ”

5 According to the Department, Alicia had been on “ runaway status ” since December 20, 2020.5

Father also made an appoint ment to meet with the SI but did not k ee p it. T he SI
made continued at temp ts to talk to the family but had no further contact with them at
the hotel after that one brief encounter with Father.
In May 2021, Father was arrested and charged with possession of methamphetamine

— a felony. See Te x . Health & Safety Code Ann. §§ 481.102(6), 481.115(b)

. The SI visited Father in j ail and interviewed him

. Fath er admi tted that he

u s ed me tha m phetamine and told the SI that the methamphetamine he w as caught possessing had “ nothing to do with ” Mo ther

. On Ju n e 14, 2021 , the Department
closed the CPS case Jones had been working on since Decembe r with the disp osition

“ Unable to Complete ” assigned to the alleg ations against Mother and Father of neglectful supervision and physical abuse towa rd s all the children a nd e motional a buse
towards Alicia

. Allegations of refusal to accept parental responsi bility towards Alicia
were ruled out. Late on the night of June 16, 2021, No rth Richland Hills Police informed the Department t hat tw o officers had found the family “ sq uatt ing ” in a home that did not belong to them. N i ght Response Investigator Joel Juarez responded to the scene, where the officers expre ssed c oncern that Mother and Father ha d used their small er chi ldren to break into the home through a window in the back

. O ne of the officers
stated that this had been t he second time he k n e w the family ha d broken into a home.
He also told Juarez that he had concerns that M other was possibly u nder t he inf luence
of mind

- altering substances

— pills. Juarez was unable to gain acc ess to the home6

where the fam i ly h ad been squatting, but the police informed him that the only food
found in the home was ca ke. The children were very h ungry, and food from
McDonald ’ s had to be brought to them because they had not eaten all day. Both
off i cers expr essed concerns that Mother and Father w ere not truthful with the police
and h ad been providing them false information

. Mothe r was arrested that night for warrants on outstanding tic kets and was later charged with criminal trespass a nd

m aki n g fa l s e reports to peace officers

. Both Mother and Father were indicted with burglar y of a habit ation for squatting in the home where they were found. Juarez spoke to F a ther , who admitted to using marij u a na but denied using methamphetamine. Juarez confr onte d Father a bout his admission to using
metham phetamine the previous month

. Father denied making that admission and told Juarez that the “ pipe ” tha t w as found in his possession was his friend ’ s and not his. He told Juarez that he did not kn o w of a n ybod y that could come and assist with
th e chil dren. Juarez also ta l ked to Billy , who was five years old at t he time. Billy told Ju a r ez that Mother and Father f

ou ght. He pointed to a car window and said his family had “broken glass ” but did not give further detai l s. Juar ez discussed the case with his superiors and was advised to remove the children. At the CPS o f fi ce, Andrew , the oldest son, told Juarez that the family have moved from hotel to hotel and were looking for a house

. Juarez observed that A ndre w wa s c ons tantly che cking up on his
brothers and younger sister and wo u ld delegate orders to each of his si bling s , who in7

turn would listen to him

. He would answer for his siblings when questions were
asked. Andrew admitted that he personal ly potty

- train ed Amy and that he i s the o ne who cares for the kids.
The Children went into foster car e o n June 17, 2021

. Andrew and Amy were placed in a f

o ster home together, a n d Billy and David (the twins) were placed in a different foster home. Mother , Father , and the Dep artment agree d to a temporary
visitation schedule wh ereby M other and Father were allowed to visit the Children
once a week and communicate with them through phone calls, texts, and email. Jon es, Ju arez, and others met with Mother and Fathe r and de veloped a family plan of
service to assist t h e family and make sure the Children were safe

. On July 22, 2 0 21, the trial court held a full adversary hearing, see Tex. Fam

. C ode Ann. § 262.201(a), (e) , and ordered M other and Father “ to comply with each
req uirement se t o ut in t he Department ’ s original, or any amended, service plan during the pendency of this suit. ” The service plan included requiremen ts that Mother and
Father complete parenting classes and a drug and alcohol assessment, as w ell as random dr u g testi n g, a mental health a ss essment, and in d ivi d ual counseling. Mother was specifically require d to “ refrain from any crim inal act ivity. ” Mother refuse d to comply with these o r any other provi s ions of the court

- ordered ser v ic e plan , and on8

December 11 , 2021 , she was arres ted for possession of methamphetamine

. 6 Father
was arrested for burglar y of a habitation on J an u ary 14, 2022. The trial court held multiple permanency heari n gs ahe a d of the final trial , see Tex. Fam

. Code Ann. § 263.002 , and made fu rther or ders for bo t h pa r en t s to submit to drug tests by urina lysis and hair str and. Mother took only one drug test, a urinalysis on April 8, 2022, which c a me bac k negative for any drugs. Father tested positive for amphetamine and methamphetamine on Ma rc h 31, 20 22.
C
. Tri al This case proceeded to trial on May 17, 2022

. Neither Mother nor Fa the r w as present at the trial

. 7 All the investi gators testi f ied as witnesses for the Depa r tment
. Jones described Mother as “ very abrasiv e and no t coop e rative ” in their fi rst
intera cti on. Mother had told Jones that she felt harassed b y the D epartm ent , that none of the allegations were true , and that she was not going to cooperate or do anything that the Department asked her to do

. J o nes tes tified that she was conc erned
ab out Mother ’ s history of drug use and had asked he r m ultiple times to take a drug

test. M o ther claimed that she had taken several drug tests in the past outside of the Department, the y were ne gative, and sh e did n ot need t o test for the Department.

6 The record reflects tha t Father was arrested on the same date b ut do es not indicate the reason for h is a rres t.

7 Mother appea r ed only th rough h e r attorney
. Fat her was pro se, and th e tr ial court f ound that he was duly and properly notified and wholl y m ade def ault. Father has not appealed.9

Mother got “ very an gry ” and “ u p se t ” when Jo n e s contacted her about taking drug tests and asked Jones never to contact her again. According to Jones, Mother said the allegation s agains t her “ were all lies. ” Jones also testified about her interviews wit h Alicia , B il ly , a nd David

. Ov er an objection from Mother ’ s attorney , Jones testified th at Alicia made an o u t cry of physical abuse by Father , complained of being lef t at h o me alone for extended
amounts of time without food, and said that there had been d o me stic v iolence
be twe en the parents when the Children were prese nt
. A licia al s o showed Jones a
video of Mother and Father that Jones found “ con cerning. ” 8 Jones assigned the disposition “ reason to believe ” t o the pare n t s ’ latest C P S case. Juarez testifi ed ab o ut his work o n t h is cas e, including his interviews of Father, Andrew, and Billy

. He also explained that ther e were “ concerns about the child re n being self

- sufficient. ” He testified that A n dr ew ’ s acting as a caretaker was “ typically a sign of negle c tful sup ervision ”

— s ome thing the Department see s “ a lot of t imes where
children are

. . . left to their own devices [b ecause ] parents are out doing things, not necessarily good things

. ” He added that the Children “ really relied on [Andrew] . . .
for con tro l o f the situat ion ” an d “ for comfort. ” Juarez also recalled Father representing himself at a pri o r hearing in this case. According to Juarez, Father w as

8 When Jones began to test ify a bout the contents of the vid eo, Mother ’ s attorney objected, and the trial court sustained the objection. The video was not offered in ev

idence and is not in the appellate record.10

“ very up set ” with him, the Department, and everything that had happened and was

ta lking out loud whil e witnes ses wer e t esti fying

. Juarez also testified that he “ saw n o imme d iate signs of malnouris h ment ” when he saw the Chil dren on the night o f Ju n e 16, 2021

. H e could tell they had not bathed in a few day s , but t h e Child re n did

not have “ eminent hygiene issues. ” None of the Children asked him abou t their
pa rents. Alyssa Dougharty, a permanency specialist, testif i e d as the Depa r tm ent ’ s final
witness. She testified that from the beg inning, she had conce rns wi th t he family

“ instab ility and dru g usage and some mental hea lth co ncerns for [Mot h e r]. ” Dougharty testified to the parents ’ leng t hy CPS history and that she had been part of the development of the service plan in this case. She testified that Mother and Fat her were given a copy of the service plan and h ad an o ppo rt un ity t o have it explained to
them. They d id not agree to work their required services; they claimed that they were good parents a nd that t he Chi ldren were not removed for any legal reasons and
should never have been removed. Ev en after a con te s ted sho w
- c a use hearing, b o th
parents maintain e d t hat “ the investigators lied ” and that the Children were not removed legally. Dough arty testified that n e i ther parent m ade any progress on any of
her concern s . Mo ther n e ver s tart e d or completed a ny of he r requi red ser vices. F at her
si gned up for parenting classes in November 2021 but did not start them or any of his

o ther s ervices

.11

Dougharty also testified about Mother ’ s Decembe r 2021 arr est. S he testif i e d
that Mother admitted that she had me tha m p hetam i n e o n her but that, at the time, she
had been looking for her missing daughter and had to encounter some “ s ketchy ” people , one of whom had the m ethamp h etamine

. Dougharty explained that a parent is mentally unable to care for children if she is u nd e r the influ ence of s ubstanc e s a nd
that the Department does not wan t any children around that type of environment.
Sh e further test

ified t hat Father had tested positive for methamphetamine in March
2022 but stat e d that “ he did not know how the t e sts were p ositiv e[,] as he is rand o mly
dr ug tested through his j ob, and he was negative previously the prior month. ” Dougharty testified to thirt ee n occasions on which the parents were asked to take
d r u g tests, an d Mot h e r did not show u p to take any of th em. Fathe r test ed posit ive
fo r me thamphetamine and amphetamine the only time he took a requ e sted test. Dougharty testified that neither parent demons trate d an ability to provid e the ir
childre n with a safe and stable environ ment
. Mother had indicated to her that sh e

w a s s ell ing hous es a s a r e altor and was living at her boss ’ s ho u se in Tyler , Texas , but she never gave Dougharty an a dd ress for the h o use . In addition, there was no
evidence that Mother was a realto r. S imilarly , Fa ther t old Dougha rty that he li ved in a

s ma ll one

- bedroom apa rtment but never gave Dougharty the address, only a ZIP
code. He c laime d he made steady income a s a car mechanic, bu t Dougharty never
received verification of this

. In the winte rtime, both pa rents r epresented to Dougharty that the y had just f inished c ons truct

i on on a house, b ut they never12

provided an address for t h a t either

. Even after Doug harty had explained to the parents that she needed to know where th ey wer e living s o that she cou ld vie w the
residence and “ ensure that the hom e [ was ] safe and fre e of hazards for the children
and to see if there [ wer e ] any other members possibly residing in that home to run background checks to make sure that they [ were ] cleared and okay to be arou nd the
childre n , ” th e parents still did not give her a n y hom e addres ses . Dougharty further testified that, w hen the Children first came into fo ste r care, th ey were “ really shut off, hyperactive, [and] unable to pay attention [ or ] focus. ” She
also t e stified to some concerning behaviors that the three younge s t sib lings ha d; A my

was “ very defiant ” and “ very upset most of all [sic] the t i me ” and did not want to
l ist e n to the foster parents , and the twins were very chaotic and d estruc t i ve . At the
ti m e of trial, they had been doing better. Therapies were put in place for all t he
C hild r e n to address the Department ’ s concerns . Billy and David were both prescribed Adderall, and Billy was als o taki ng Guanfacine

. Doughart y test i f i e d that services were available for the foster parents or any future p lacements. She desc r i bed
Andrew a s stil l being “ shut off ” and “ really down and depressed recently

. ” He liked

to s t ay t o him s elf and spent most of his time in h is bed r oom, which he had stated he
did with his biological family as well. She testified that the C h ildr en req uired more

atten ti on and a kee ner eye than other children in her caseload, and she did not think
th at eit her Mother or Fathe r was able to pr ovide t hat necessary level of care. She13

testified that the Childre n ’ s current placement s wer e able to meet th eir ph ysical and
emoti on al nee ds

. Doughar t y also testified that both Mother and Fa ther m ade the vast major ity of
their sch eduled weekly visits with th e Children. She confirm ed that the Children were happy t o see t heir parents and interact ed w i th and hug

ged th em. However, sh e also

t estified that Mother and Fa ther woul d bring the Childr en coloring book s and t oy s, most of which did not work, “ so th e kids just really kind of looked at them. ” They would also bring the Children “ open containers of grapes, so me stu ff from 7

- Eleven , sodas, [ and

] some ene rgy dr inks

. ” Amy starte d get ting r e ally sick after th e visits , and
the trial court ordered that all fo ods the parents b ro u ght t o the visits had to be presealed and prepackaged. Dougharty also w

i tness ed Mother tr

y t o show the Chi ld re n p hot ographs of the

“ home ” that she cla i m e d Father and she had, but the “ home ” pi ct ured was just a construction center, not a co mplet e d house like she had represented to Dougharty.
Mother also told the Children that they would be go ing ho me soon and th at t hey
sho u ld not b e in f

o ster care. Doughart

y t estified that these false promises led to
behavior i ssues . She did not believe that any of the Children should be returned to the
parents : The children were rem oved d ue to instability , drug usage, men tal h e a lth
co ncerns. We put services in place to address those concerns, such as: The random drug t e sting, the mental health evaluation, drug and alcohol assessment, individual counseling

. . . .14

. . . . However, [ the parent s ] never comple ted or start ed any of th os e se rvic e s, and they never elevated any of those concerns that we had since the be ginn in g o f this case. Doughart y also testified that, despite ex tensive efforts to find a p lacement option for the Children with relatives, the Depar tme nt had not locat ed a s a fe, stable placement for the Children

— other than their current foster h om es. She testified that the foster parents were not adoption

- motiv at e d, but the Department would continue looking for adoption

- motivated placement s, as well as pl a cemen t s where th e Childr en could all be together. Ultimate ly , t h e Department planned to have all the Children adop t e d as a sibling group. Chargin g instruments from the pa ren t s ’ criminal cases , alleg ing four offenses
committ ed by M other and two by father

— all within the sp an of a couple months in
2021

— were a d mitted in evidence without objecti on . Mother had bee n charged w ith criminal tresp a ss , two counts of m aki n g a fa l s e re port to a peace office r , and burglary
of a habitation ; Father had bee n charge d w ith possession o f m e t h a mphe tami n e and burglary of a habitation. Dougharty testified that neither Mother nor Father had been
f ound guilty o f any of these allegations, and the cases were s till o n going. She explained why the c our t term inating Mother and Fa ther ’ s parental rig h ts was i n the
Children ’ s best interests : As stated previously,

. . . the concerns at the beginning were drug usage, instability, men tal he a lth concerns. Again,

. . . services were p ut in place to address those concerns for the parent s ; how ev e r , throughout th e15

enti rety of the case, the parents have never addressed any of those concerns that we ’ ve had. They ’ ve actuall y just

. . . stat e d that the children shouldn ’ t be removed [,] and t hey fo ught constantly against everything and made no prog re ss a n d shown no e vi dence of any behavorial [sic] changes or anything

. . . . The trial court found by clear and conv incing evidence that termination of each
pare n t s ’ relationship w

i t h the Children was in the Children ’ s best interest and th at bo t h pa rents ha d

. . . knowing

ly place d or knowingly allowed the [Children] to rem ain in conditions or surroundings which endanger the physic al or emotional well

- being of the [Children] , pursuant to § 161.00l(b)(l)(D), Texas Family Code;

. . . engaged in conduct o r kno w i ngly placed the [Children] wit h person s who engaged in conduct which endangers the p h ysical or emotional well

- being of the [Children] , p ursuan t to § 161.00l(b)(l)(E), Texas Family Code;

. . . failed to comply with the provisions of a court order th at spe cific ally e s tablished the actions nec es sary f or the [parents] to obtai n the return of the [Children] who has been in the permanent or temporary man aging conservatorship of the Department of Family and Protective Services for not less than nine months as a result o f the [Children] ’ s removal from the par en t unde r Chapter 262 for the abu se or neglect of the [Children] , pursuant to § 161.00l(b)(l)(O), Texas Family Code;

. . . used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a m anner that endangere d th e h ealth or safety of the [ C ] hil dren , and (1) failed to complete a court

- ordered s ubstan c e abuse treatment program; or (2) after completio n of a court

- ordered substance abuse treatment program continued to abuse a controlled s ubstan ce, pursuant to § 161.00l (b)(l

) ( P), Texas Family Code [.]
See Te x. F am. Code Ann. § 161.001(b ). The trial court ente red an order ter minati n g Mother ’ s and Father ’ s parental rights. Mother appeals from this order.16 I II. D ISCUSSION
In the first of he r two issu e s , Mother argue s that no evidence or insuf ficien t

e v idence s upport s the trial court ’ s findings and t ha t the trial co urt er r ed in permitting hearsay testimony of what a child told an investigator

. Because the evidence is legally
and fact u a lly su ffic i e nt to support the trial court ’s fin dings under Family Co d e Subsec tions 161.001(b)(1)(D) and (E) and to support the trial court ’s best

- interest
fin ding , and be cause a ny error in the admission of the hearsay test imony was harmless, we will over r u le Mot her ’ s issues a n d affirm the trial court’s termination
order

. A
. Suffic iency of the Eviden ce
Fo r a trial court to terminate a parent

– child relation ship, the party seekin g termination must prove two elements by clear and convincing evidence: ( 1) t h a t the
parent ’ s actions satisfy one ground listed in Family Code S ecti o n 161.00 1(b)(1); and ( 2) t hat te rmination is in the child ’ s best interest. Tex. Fam . Code Ann. § 16 1.001( b );
In re Z.N. , 602 S.W.3d 541, 545 (Tex. 2020). Evidence is clear and co nvinc i n g if i t

“ wil l produce in the mind of the trier of fact a firm belief o r convic tion as to the tru th
of the allegations sought to be established. ” Tex. Fam . Code Ann. § 10 1.007; Z.N. , 60 2 S.W.3d at 545

. Due process demands the heightened standard of clear a nd con vincin g evidence because “ [a] parental rig hts termination proce e ding enc umbers a value ‘ fa r

more precious than any property right. ’” In re E.R. , 38 5 S.W.3d 552, 55 5 (Tex

. 2012)17

(quoting Santosky v. Kramer , 455 U.S. 745, 747

– 48, 102 S. Ct. 138 8, 13 9 1

– 92 (1 982) ); J.F.C. , 96 S.W.3d 256, 263 (Tex. 2002) ; see also In re E

. N.C. , 38 4 S.W.3d 796, 802 (Tex. 2012)

. In a termination cas e, the State seeks not just to limit parental rights but t o erase them per manent

l y
— to divest the parent and child of al l leg a l right s, pri vileges, duties, and powers normally existing between the m , except the child ’ s right to inherit.
Tex. Fam. Code Ann. § 161. 206(b); Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 198 5). Consequentl y, “ [w

] hen the State seeks to sever permanent ly th e relati onship between a parent and a child, it must first observe fund a mentally fair procedures. ” E.R. , 385 S.W.3d at 554 (citing Santos ky , 455 U.S. at 747

- 48 , 102 S. Ct. at 1388 ). For th e
same reason, w e care f

ully scrutinize termination proceeding s and s t rictl y cons true involuntary

- termination statutes in the parent ’ s fav o r. E.N. C. , 384 S.W.3d at 802;
E.R. , 385 S.W.3d at 563; Holi ck , 68 5 S.W.2d at 20

– 21.
To determine whether the evidence is legally suff icient in parental

- termination cases, we look at a l l the e videnc e in the light most favorable to the challenged finding

t o determi ne whether a reasonable factfinder could form a firm belie f or conviction that the finding is true. Z.N. , 602 S.W.3d at 545. The f a ctfinder may draw inferences, but they must b e reas onable and logical. Id. We assume that the factfinder settled any evid entiary conflicts in favor of its finding if a reaso nable factfinder could have done

so. Id. We disregard al l evidence that a reas o nable factfinder could have disbelieve d,

an d we con sider undisputed evidence even if it is contrary to the finding

. Id. ; I n re J.F.C. , 96 S.W.3d at 266

. That i s, we consider evidence favorable to the finding if a18

reas onable factfinde r coul d , and we disregard contrary evidence unless a reason able
f a ctfind er cou ld not. In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005). T he factf inder is the sole judge of the witness es ’ cr edibility and demeanor. In re J.O.A. , 283 S.W.3d
33 6, 346 (Tex. 200 9).
W e must perform “ an exacting review of the entire rec ord ” i n deter mining the factual sufficiency of the evidence supporting the t e rminatio n of a parent

– child
relati onship. In re A.B

. , 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, w e give due
defer ence t o the factfinder ’ s finding s and do not supplant them with o u r own. In r e H. R.M. , 209 S.W.3d 105, 108 (Tex. 2006). We review the whole re cord to decide
whether a factfinder co uld re asonably form a firm conviction or belief that the
D epartment proved one o r more of the conduct

- specific ground s on which the

t ermin a t ion wa s base d and that the termination of the parent

– child relationsh i p would
be in the child ren ’s best interest

. T ex. Fa m. Code Ann. § 161.001(b); In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002). If t h e factfinder reasonably could form such a firm
convi ction o r beli ef, th en the evidence is factually sufficient. C.H. , 89 S.W.3d at 18

– 19

. 1. Analysis of the (D) and (E) gro und s fo r termination Because the evidence pertainin g to Subsections (D) and ( E ) is interrelated, we
conduct a consolidated review of thos e s ubsec tions. See In re S.H. , No. 02

- 17

- 00188

- CV, 2017 WL 4542859, at *10 (Tex . App.

— Fort Worth Oct. 12, 2017, no pet.) (mem.
op. ) ; In re T.N.S. , 230 S.W.3d 434, 439 (Tex. App.

— San Antonio 2007, no pet.)

.19

Subsections (D) and (E) provide that the tri al co u r t may order the termination of a parent’s rights if it finds by clear and conv incing evidence that the parent has (D) kn owingly placed or knowingly allo wed the child to rem ain in condition s or s u rroundings which endanger the physical or emotional
we ll

- be i n g of t he chi ld; [or] (E) engaged in conduct or knowingly placed the c h ild with persons who engaged in conduct whic h enda ngers the physical or emotional well

- being of the ch ild[.]
Tex. Fam. Code A nn. § 161.001(b)(1)(D), (E)

. “Endanger” means to expos e to l o ss or injury , to jeopardize. Tex. Dep’t of Human Servs. v. Boyd

, 727 S.W.2d 5 31, 533 (Tex. 1987) ; In re J.T.G. , 1 21 S.W .3d 117, 125 (Tex. App.

— Fort Worth 2003, no pet.)

. Under Subsection (D), i t is necessary to
examine the evidence related to the envir o n ment o f the child to determine i f the
environment was the source of t h e endang erment to the child’s physical or em otiona l
well

- being. J.T.G. , 121 S.W.3d at 125

. The condu ct of a parent i n the h ome can create an environment that endangers the physi cal a n d emoti onal w ell

- being of a
child. Id. Given the nature of environme n t

- based endangerment, it logically follows

t hat th e relevant timeframe for an environment

- based endang erment finding u nder
S u bsection (D) is prior to the child ’ s removal. In re A .O. , N o . 02

- 2 1

- 0037 6

- CV, 2022 WL 1257384, at *9 (Tex. App.

— Fort Worth Apr. 2 8 , 2022, pet. denied)

. Illegal drug use by t he parents and drug

- related criminal activity by the parent s “likewise
suppo rt[ ] t he conclusion that the child re n ’s surroundings endange r their phy sical or emotional well

- being.” J.T.G. , 121 S.W.3d at 125

.20

Und er Subsec ti on (E), the re levant inquiry is whether evidence exists t hat the endangerment of the child’s physical well

- being was the direct result of the parent’s conduct, including a cts, o m issi ons, o r failures to act. See id. ; s ee also Tex. Fam. Code
Ann. § 161.00 1(

b)(1)(E)

. Ter minati o n under Su bsection (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is requi r e d. J.T.G. , 121 S.W.3d at 125

. It is no t necessary, however, th at
the paren t’ s conduct be d irecte d at the child or that the child actually suffer injury. Id. ; Boyd , 727 S.W.2d at 533

. The specific danger t o a child’s well

- being may be inferred
fr om pa r e ntal misco nduct standing alone. I n re R .W. , 129 S.W.3d 732, 739 (T ex. App.

— Fo rt Worth 2004, pet. d enied)

. “As a general rule, conduct that subjects a
child to a life of uncertainty and instability endangers the physical and emotional well

being of a ch i l d.” Id. Illegal drug use and its effec t on the parent’ s life and her abili ty to parent may estab l ish an endangering course of conduct. Id. Criminal activity that exposes the parent to incarceration may also endanger a child. In re I.L. , No. 02

- 18

- 00 2 0 6

- CV , 2018 WL 5668813 , at *5 (Tex. App.

— Fort Worth Nov. 1, 2018, no pe t.) (m em . op.) ; In re A.N.D. , No. 02

- 12

- 00394

- CV, 2013 WL 362753, at *2 (Tex. App.

— Fort Worth Jan. 31, 2013, no pet.) (mem. op.)

. Endangering conduct is not limited to
actions di recte d towa rds th e child. Boyd , 727 S.W. 2d at 533

. It necessarily follow s

t hat th e endangering co nduct m ay include the parent ’ s actions before the child ’ s birth, while the parent had custody of older children, including evid ence of drug usage. J.O.A. , 283 S

. W .3d a t 345

. We may consider condu ct tha t occ urred outside the child ’s21

prese nce in our revie w. Wa l ker v. Tex. Dep’t of Fam

. & Protective Servs. , 312 S.W.3d 608, 617 (Tex. App.

— Houston [1st Dist.] 2009, pet. denied)

. Here, the evidence shows a hi story o f drug usag e and cr iminal activity on
Mother ’ s part, culminating in an u nstable living en v i ro n ment that endangered the physical or emotional well

- being of the Children. This was evident in the condi tions
in whi c h the Children were found when they w ere r e m oved an d th e behavi or issues they displayed when they first went int o f oster ca re. 9 In vestig a tor Juarez personally witnessed eight

- year

- old Andrew acting in a parental rol e to w ard his younger siblings, which J uarez testified is “ typically a sign of negl e c tful su perv i s i o n . . . where children
are left to their own device s . ” He li nke d t h e Children ’ s behavior to “ the family ’ s lack of cooperation and bouncing around from place to place , ” and he te s tified that the
Children “ really relied on A ndrew

. . . for c ontrol o f th e situation

. ”
Mother argues t hat the Departme nt “ pr e sen ted no evid ence that [ Mother ] ’s children were ever seen, found, or believed to be in any condition or surrounding which endangered their physical or emotio nal w e l lbeing. ” We cannot agree. The

e vide nce at trial paint ed a grim pictur e of t h e c ond i t io n s and su rroundin gs in which
Mother had placed the Children. In 2017, when she was the mother of four young

9 “ According to the investigator, ” Mother writes in her appellate brie f, “ t he children al l were happ y, heal t hy, clothed, fed , and cl ean. ” Mother does not specify which “ investigator ” she is refe r r ing to h er e, but Invest igator Juarez testified at trial that he “ could tell that [the Ch i ldren] hadn ’ t bathed

. . . in a few days , [ an d t ] hey were
v e ry hungry.

. . . M cDonald ’ s ha d to b e br ought in because they hadn ’ t eate n all day. ”22

children, Mother tested positive for amp hetam i n e a nd methamph etamin e use. About

a mo n t h lat er, police responded to an in ci d ent wherein Father brough t ou t a gun and shot it in their apartment. CPS removed t he children for neglectful supervision by the
paren ts. After regaining custody of their then

- four children , rather than im prove t heir
lifest yle, Mother and Father continued to shuffle their family arou nd from imp erman en t home to impermanent home , and they had another child in the process.
Their elde st da u g

h ter, Alicia, disappea r ed a fter making an outcry of ab use and showing Inve st

i gator Jones a “ con cerning ” video of Mother and F a ther.
In early 2021, whe n Mother and Father were again being investigat ed f or neglectful su pe r

v is ion and phy s ical abu s e, Father told Investigator Lee th at they were
still “ in the process of

. . . getting

. . . a long

- ter m place to live. ” Mother and Father
continued to elude i nve sti gator s until Father was arrested f or pos ses si on of

me th a m ph etamine in May, just over a month before th e Children were remove d

. Father admi tted to u si n g me t hamphetamine and marijuana, and b oth Mother and
Father acknowledged that t he pipe found during Fa ther ’ s a rrest wa s u s e d fo r s mok ing
metham p hetamine. By th e t ime of r emoval, Mother and Father had both been
arrested and had evidently used their C hildren to break into someone else ’ s home ,

w here the family was found liv ing a s s q u att ers . Additionally, Mot her and Fa t her had
failed to keep the Children well

- fed; Investigator Juarez testified that , when he first

met the Children late that night, they were “ very hungry ” and had not eaten all day.23

M other also argue s that “ [ n ] o evi dence w as presented that [ Mot her ] or [ F ] ather had used or were using any illegal drugs in the presence of the children ” and that

“ [ n ] o evidence was pres ented that the c h i ldren were ev er exp osed to any illegal drug
or dan gero us condition. ” T he f ollowi n g testimony by Investigator Jones be lies
Mot her ’s argument :

Q. And was there also discussion of [ Father ] ’ s arrest?
A. Yes. Q. And what was the discussion regar d i ng [ Father ] ?
A. We aske d abou t a pipe being found during t he a rrest

. And [ Mother and Father

] den ied that it was their p ipe , t hat it w as some guy they picked up on the street. Q. So they acknowledged there was a pipe?
A. Yes. Q. And what did they ac knowl e d ge regarding the pipe was used for?
A. Meth. Q. Okay

. [ F ather

] was charged crimin ally for that ; is th at correct?
A. Y es .

. . . . Q. (BY [

THE DEPARTMENT

] ) Is it concerning to you that they were even putting any weight towards that story that someone gave t h em a pipe or was responsible? Is it concern ing th at t hey were even around someone with a meth pipe?
A

. Yes.24 Q. O kay

. Why?
A

. Because the children we re with them. Q. Okay. Were the children residing in a home or a car, or where were they residing wit h the m ?
A. I think they were squatting at a home d u ring that time. [ E mphasis added

. ] In addition to the pre

- r em o va l c o nduct w e have discussed, t he trial co urt al so heard testimony and saw evi dence that Mother and Father cont i nued to ab use drugs
afte r the Children were re m o ved. Mother admitted that she h ad m e tha m p hetami n e on her in December 2021 , an d Father tested pos it i ve for m ethamphetamine and amphet amine less than two months before t he ter mination trial

. T his, combined with
the evidence of Mother ’ s amphetamine a nd methamphetami ne use in 2017 and her
repe ated failure to take drug tests when asked by the Depar tment

— o r ordered by the
trial cou rt

— supported an infere n ce that she was endangering th e Chi l d ren by using illegal drugs. See In re W.E.C. , 110 S.W.3d 231, 239 (Tex. App.

— For t Worth 2003, no pet.) (sta ting that factfinder “ could reasonably infer t hat ap pellant ’ s failure to complete the sc heduled screenin gs ind i cated she was avoiding testing beca u s e she was using drugs ” ); In re E.R.W. , 528 S.W.3d 251, 264

– 65 (Tex. App.

— Houston [14th Dist.] 2017, no p et.) ( “ A parent ’ s decision to engage in illegal dr ug use during t h e pendency of a terminatio n suit, when the paren t is at risk of losing a child, may

s u pport a finding that the parent engaged in conduct that endangered the child ’ s ph ysical or emotional wel l

- be ing. ” ); In re M.M. , No. 04

- 21

- 00463

- CV, 2022 W L25

1096 381, at * 4 (Tex. App

. — San Antonio Ap r. 13, 2022, no pet.) ( mem. op.) ( “ Mother ’ s failure t o dru g test is considered a positive test result under the law and supports an inference that she is still usin g dr ugs. ” ). Such an infer e nce is not rendered

unr easona ble by th e evidence that Mother inte rmittently teste d nega t ive , especially in light of he r err a t

ic behavior, transient living situation, and co nsistent refu s al to

co mp lete or ev en attempt to complete he r service plan or to cooperat e w i th the Depa r t me n t , al l of whic h are consi stent with dru g abuse.
F u rther, the trial court could reasonabl y hav e found that Mother knowingly placed the Children with Father, who was abusing illeg al drugs, and that sh e end ange re d the Children ’ s emotional well

- bein g b y making fal s e prom i s es to them

. Wh ether w e view the evidence in the light most favorable to the judgment or weigh
all of t he disputed evidence, see In re A.C. , 560 S.W.3d 624, 630

– 31 (Tex. 2018) , a reasonable fact fi nder c ould form a firm belief or convictio n that Mo the r ( 1 ) know i ngly place d or k n owingly allo wed the Children to remain in conditions or surroundings that endange red the physical or emotional well

- being of the Children
and ( 2 ) engaged in conduct or know in gly pl aced the Children with persons who
enga ged in conduct t hat en d an gered the p h ysical or emotional well

- being of the
Children

. Thus, the evidence is legally an d factually sufficient to support the trial

court ’ s two endangerment predicate findin gs und er Subsections (D) and (E)

. See Tex.
F am. Code Ann. § 161. 0 0 1(b)(1)(D ) an d (E)

. Because o nly on e finding alleged under
S ection 161.001 (b) (1) is necessary to sup p ort a termination order , we need not address26

the sufficiency of the evidence to support t he t rial court ’ s two other predicate
fin din gs . See Tex. Fam. C o d e Ann. § 161

. 0 01 ( b) ( 1 ) (O), (P) ; I

n re A

. V. , 113 S.W.3d 355, 362 (Tex. 2003) ; In re D.M. , 58 S.W.3d 801 , 813 (Tex. App.

— Fort Worth 2001, no pet.)

. 2
. Analysis of the best

- interest finding
Moth er also challenges the legal and factual sufficiency of the t rial cour t ’ s f indin g that termination was i n the Children ’ s best interest. See Tex. Fam. Code Ann. § 161.0 0 1(b)(2)

. Although we generally presume that keepin g a child with a parent is
in th e ch ild ’ s best interest, In re R.R. , 209 S.W.3d 112, 116 (Tex. 2 0 06), the best

inter e s t analysis is child

- ce ntered , focusing on the child ’ s well

- being , safety, and
de v elopm e nt, A.C. , 560 S.W.3d at 631

. In determining whether evidence is sufficient
to supp ort a best

- interest finding, we review the entire record. In r e E. C .R. , 4 02 S. W.3d 2 3 9, 250 (

Tex. 2013). Evidence probative of a child ’ s best in terest may be
the sam e evidence that is probative of a S ubsection (b) (1) ground. Id. at 249; C.H. , 89 S.W.3d at 2 8 ; see Tex. Fam. Code Ann. § 161.001(b)(1), (2) . We also c o n sider the
evid ence i n l ight o f n onexclusive factors that the fact finder may apply in de t ermining
the c hild ’ s best interest: (A) th e [ child’s ] desires

. . . ; (B) the [ child’s ] emotional and p hysi cal needs [,]

. . . now and in the future; (C) the emotional a nd physic al da nger t o t he chi ld now and in the future;27

(D) the pa rental abilities of th e individuals s eeking custody; (E) the programs available to assist these individuals to promote the [ ch ild’ s ] best interest

. . . ; (F) the plans for the child by the s e individu als o r [ , i f ap plicab le, ] by the agency seeking custody; (G) the stabilit y of t h e home or prop osed placement; (H) the [

parent’s ] acts or omissions

. . . indicat [ ing ] that the existing par ent

– child relationship is not a proper one; and (I) any exc u s e for the [ par ent’s ] ac ts or omissions

. Holley v. Adams , 544 S.W. 2d 367, 371

– 72 ( Tex. 1 9 76) (citations omitted) ; see E.C.R

. , 402 S.W.3d at 249 (stating that in reviewing a best

- interest findi ng, “ we consider, among other evidence, the Holley factors ” (fo o t note omit ted)) ; E .N

. C

. , 384 S.W.3d at
80 7

. T hese factors are not e x haustive, and some listed factors may not apply to some

cases. C.H

. , 89 S.W.3d at 27. Furthermore, undisputed evidence of jus t one factor may be sufficient to support a finding that te r m ina tion i s in the c h i ld ’ s best interest.
Id

. On the other h and, t h e presence of scant evidence relev ant to each factor will not support such a finding. Id. In this case, only one factor

— th e Ch ildren ’ s desires

— weighed neit her in favor of nor against te r m ina tion o f Mo t her ’ s p arental rights to the Children

. None of the
Children testified at trial, and all four of them were under ten at the time of t rial and
theref o re too young to express thei r de sires. See In re J.G. , No. 02

- 20

- 00038

- CV, 2020
WL 3410503 , at *7 (Te x. Ap p.

— Fo r t Worth May 28, 2020, no pet.) (mem. op.) (hold i ng trial court was entitled to fin d that this factor weighed neither in favor of nor28

against termination when none of the c hild ren testified at trial, none of their maturity
levels were s h own at tr ial, and s o m e of the children were too young t o expr ess th e ir
desires ); In re D.W. , 445 S.W.3 d 913, 926 (Tex. App

. — Dallas 2014, pet. denied) (holding desire

- of

- child factor as neutra l wh ere children did not testify at trial and
there was no evid e n ce showin g su f ficie n t maturity of children ages nine, e ight, six, a n d five years old being able to exp ress a living prefer ence)

. The other Holle y f a c tors all

w e igh in favor of the trial cour t ’ s finding that termination of Mother ’ s parental rights
was in t he Childr en ’ s best i n terest. Dougharty testif

ied t o the C h ildren ’ s emotional and physical needs and that they required more attention and a kee ner eye than other children in her caseload

. She also testified that n either Mother n or Father was a ble to p r ovid e the necessary level of car e , but the C h ildre n ’ s current placements were able to meet their physical
and emotional needs

. Further, the trial court could have likewise inferred that
Moth er ’ s drug problems were going to continue and t h at , b e c ause Mo t h er had a
contin uing patte rn of d rug abuse, she did not have the ability to meet the Children ’s physical and emotional needs now and in the future. See In re N.H. , No. 02

- 22

- 00157

- CV, 2022 WL 437 4638, at *13 (Tex. App.

— Fort Worth Sep t. 22, 2022, n o pet. h

. ) (mem. o p.)

. At the time of removal, the Children were found squatting in a home, they had not eaten all day or been bat h e d in a few days, and the only food for them to eat was

c a ke

. T he ev

ide nce also s how ed that Mother had u sed (or at le a s t pos sessed ) illegal29

d rugs when the Children were with her and that she continued to use drugs after the
removal. Dou gh a rt

y a lso t e stified about Mo the r ’s false promises to the Children and

t h e behav ior al iss ues that manifested afterward. The trial court cou ld re a s ona b ly ha ve inferred from this eviden ce that Mother ’ s bad parenting p osed an emo tional and physical danger to the Chi l dren a nd that she would p la ce the Children in emoti o n al or
p hysical danger if th ey were returned to her. Based on the same evidence, as well as Do ugharty ’ s testimony that a parent is “ mentally unable to care for children ” if she is
under the influence of drugs like what Mother had been using , the trial court a l s o could have reason abl y doubt e d Mother ’ s pare ntal a b ilities. By contra st, there is no

e v idenc e in the record that the Children were in an y emot ional or physical danger in
their fo ster ho mes. Dou gh a rt y actually testified to how much better the Children h a d
been doing since the y were removed and placed in foster ca re. Accord ing to Dough a rty , the C hildre n ’ s current placements are able to meet their physical and
emotional needs

. Dougharty also testified about the ther ap i es t h a t had b een p ut in place for the
Children and tha t t hose progr a ms would be available for t he foster parents or an y pla cement s in the future. Dougharty also explain ed the different means the Depa r tme nt was using to connect the Children with ado p t ion

- mo t ivate d fost er parents. When c onsider ing th i s factor

— th e programs avail able to assist th e individuals seeking custod y to promot e the Children ’ s best interest s
— the contrast
between Mother and the Department is even more mark ed . Mother c o n s i stent ly30

refused to cooperate with the Department or address any of i ts con cern s , even a mid
very serious alleg ations and even after t h e Ch ildren were re m oved a nd she was f aced
with l o sing her parental rights to them. Mo ther ’ s uncorroborated claims that she was working on her services and receiving co unseling through a prov ide r out side o f the Department do not s h i ft this f a c t or i n Moth e r ’ s f

avor, especially considering her
pattern of dr ug use . See Tex. Fam. Code A n n. § 26 3.307(b)(10) (considering willingness and ability of family to complete counseling services); In re A.C. , 3 94 S.W .3d 63 3, 642 (Tex. App.

— Houston [1st Dist. ] 2012, no pe t .) ( fifth Holley
factor weigh ed against mother who completed parts of Departme n t ’ s fami ly services plan but continued to use drugs and never completed entire program ) ; R obinson v. Tex

. Dep ’ t of Prote ctive & Regul

. Servs. , 89 S.W.3d 679, 688

– 89 (Tex. A pp.

— H oust on [1s t Dist.] 2002, no pet.) (

upholding termination in children ’ s best in t e rest wh en mother continued to use drugs and left ameliorative family support programs inc omplete). In fact, th e t rial court reason ably could have disbelieved tha t Mot her rec e i ved a n y

co unseling or other services at all; Mother never sig ned a release of i n formati on or gave Dougharty any contact information to confirm that Mother was actually d oing
these services. See In re M.S. , No. 02

- 21

- 00007

- CV, 2021 WL 2654143, at *17 (Te x . App

. — Fort Worth June 28, 2021, pet. denied) (mem. op.) ( “ On this record,
ques t i oning M other ’ s credibility was not unreasonable. ” ).
T he Children were not in adoption

- mot ivated foste r homes

. How ever, t he tri a l
court had no evidence before i t o f M other ’ s p l ans for th e Children. M o ther ’ s31

position, as relayed through Dou g h art y ’ s testimony, appear ed t o have been that the
Children should not have been removed. She told the Children that t he y woul d b e

“ going home soon ” and that they s h ould not be in foster care

. T h e tria l court may
have reasona b l y infer red from th is that Moth e r wanted the Children back in her
custod y , but she h a d no specific plans for them if she regained custo dy. The Department ’ s p lans , on the other hand, were to have the Ch i ldren adopted all
toge ther a s a sibling group. Gene r a lly, it is in a child ’ s best interest to keep siblings together whenever possible. A.O. , 2022 WL 1257384, at *14

. We can not speculate as to the stabili ty of som e prospective home into which
th e Ch il d ren might be plac e d so meday, but we can see from the r ecord t hat , in the years leading up to the termination, Mother did not provide a stable , permanent home
for the Children. We have stressed that “ children ne ed per manency and stability ,” In
re G. V., II I , 543 S.W.3d 342, 3 50 (Tex. App.

— Fort Worth 2017, pe t
. denied ) , and that stability and permanence are “ paramount ” in the upbringing of children

. In re M.E.

- M.N. , 342 S.W.3d 254, 263 (Tex. App.

— Fort Worth 201 1, p et. de nied)

. Dougharty
testifi ed tha t Mot h e r “ h ad a history o f

. . . st ating she lived somewher e and nev er providing proof of that. ” Mother and Father had state d that th e y were livi ng in a new
home and “ that they fini she d t h e construction sur prisin gl y f a st, ” but the photograph

o f the “ home ” that Mother showed the C hild ren di d not mat c h what s he had
described. Beca u se Mother was “ [ u ] nstable herself, ” she had no stab ility to offer the
Children

. M.S. , 2021 WL 2654143, at *19

. A r easona ble factfinder c oul d infer from32

the t e stimony a t trial that, while the Children ’ s curr ent fo st e r placem ents may not be permanent, they are safe and stable.
Mother ’s obstinate refusal to complete her court

- ordered services also indicates that her pa rent

– c hild relationshi p w

it h the Chil dren w a s not a proper one. Dougharty
testified th a t bo th par en t s were p rovided a copy of the service plan “ [m]ultiple times ” and had an opportunity to ha ve it explained to them. Even after Dougharty discusse d
with M other the importance of com plet ing t h e services, Mother still insisted that
there was “no reas o n ” fo r h er to work on her services. The only excuse Mother
offered was that the Children were not legally removed

. As Dougharty put it ,

se rvices wer e put in place to add ress t h ose con cer ns [ of drug usage, instability, and men t a l healt h ] for the par e nts; howev er, throughout the entirety of the case, the parents have never addressed any of those concerns that we ’ ve had. They ’ ve actually just

. . . stated that the children s hould n ’ t be r emo ved [ , ] an d they fought constantly agains t everyth ing and [

have ] mad e no p rogress and shown no evidence of any [ behavioral ] changes or anything

. . . that would [indicate they were able] to properly care for the child ren. The trial court , as fact f

i nder , c ould have reasonabl y infer r e d from these acts or
omissions tha t Mot h e r di d not want her children back, as she st eadfa stly refused to do
wh a t needed to be done to secure their return (and her paren tal ri ghts). A dditionally,
the Children ’ s behavioral iss ues and significant improveme n t in fos ter care , as well as
Mother ’ s dr ug use , false r eprese ntations to the Children, and fail ure t o bathe o r feed the Children or provide them with a safe, stable, permanent home all indicate that33

their parent

– child relation shi p was not a proper one. D a v id even told Doughar ty th a t he wou l d “ s till b e okay ” if he never got to see his parents a gain. In sum, not one of th e nine Holley f a c t ors w e i ghs agains t the trial court ’ s best

interest findin g . O n e factor is neutral, and t he rest weigh in f a v or of t he trial court ’ s finding, some strongl y so. Take n together, Mother ’ s “ inability t o provide a stable
home [ or] remain gainfully employed , and her failure to comp ly wit h the service plans
and successful ly co m p lete drug treatment a ll support the tri a l court ’ s finding that
termination was in the [ C ] hi ldren ’ s best interest. ” In re D.C. , 12 8 S.W.3d 707, 717 (Tex. A pp.

— Fort Worth 2004, no pet.)

. Viewing the evidence i n the light most
favorable to the trial court ’ s best

- interest findin g, we conclude tha t a reaso nable trier
of fact could have formed a fir m beli ef or conviction that termination of Mo ther ’ s parental rights is in the Children ’ s best in terest. See J.F .C. , 9 6 S.W.3d at 266

. Fu rther , based on our exacting review of the ent i r e r ecor d and giving due deference to th e fact f inder’s fi ndings, we lik ewise conclude that the evidence is factually sufficient to
support the trial court’s best

- interes t find ing

. See C.H. , 89 S.W.3d at 18

– 19

. Th u s , under the applicable standards of rev i e w, we c onclude that the evidence is legally a n d
factuall y sufficient t o support the trial court ’ s fin ding by clear and convincing evidence that termination of the paren t

– chil d relationship between Mo ther and the
C h i ldren is in the Children ’ s best interes t
. S ee J .G. , 2020 WL 3410503, at * 10

. Accordi n gly, we ov errule Mo ther ’ s first issue.34

B. H earsay
In her second issue , Mother argues tha t the trial court erred in allowing, over
Mother ’s objection, Investig ator J o nes to testify as to hearsay statements ma d e by
Ali cia about alleged abuse :

Q. Now, [Al i cia] is no t a part of t h is ca se; is that correct?
A. Correct. Q. And why is she not a part of this case?
A. She eventually ran away

. Q. Okay. And when d id that occur?
A. I think December of 2020

. Yup.

. . . . Q. Okay. And the first

-- at the beginnin g of this c ase, you inte r viewed, yo u said, the children

. A. Uh

- huh. Q. Let ’ s go back to that. Where did you meet [Alicia] ?
A. At school. Q. And did you discuss the concerns with [Alicia] ?
A. Yes. Q. A n d d i d sh e make any outcries of abuse or neglect ?
A

. She did

. Q. And wha t were those outcri es?
A. Physical abuse

--35 [ MOTHER’S ATT ORNEY ] : Objection. Hearsay.
THE COURT: Overruled. Q. (BY [ THE DEPARTMENT

] ) You can answer. A. P hysical abuse by the father an d t h en bein g left at home

-- home alone for ex t ended amou nts of time, n ot having food, and sh e also voiced some domestic violence b etween the parents.
The Department res p o nds that Mother’s argument regarding hearsay l acks
merit , that the hearsay a t issu e “ is clea rly not inadmissible hearsay , ” that Mo t her has
pr esented no ar g

ument to sh ow harm , and that the record establishes no harm

occurre d

. We agree with the Department that Mother has failed to show harm

. Ev en when clear and conv i n cin g ev id e nce justif

ies termination, we may r everse a judgment and r e mand the c ase to the tr i al court if it reversibly erred by admitting
evidence. See Tex. R. App. P. 44.1; Tex. Dep ’ t of Hum

. Servs. v. White , 817 S.W.2d 62, 63 (T ex. 1991) (applying pre d e ce ssor t o rule 44.1)

. “Hearsay” means a statement that (1) the decl a rant does not make w hil e testifying at the current trial or hearing and (2) a party offers in evidence to prove the truth of the matter asserted in the statemen t.
Tex

. R

. Evid

. 801

. H e a rsay i s not admissib le unless a statute or other rule prescribed

un d er statuto ry authori ty p rovide s otherwise

. Tex

. R

. Evid

. 802

. Once the opponent
of hearsay evidence makes the proper objection, it becomes the burden of th e proponent of the evidence t o es t abl ish that the testimony fits within an exception to the general rule prohibiting the admission of hearsay evi dence

. Volkswagen of Am., Inc.

v. Ramire z , 159 S.W.3d 897, 90 8 n.5 (Tex. 2004)

.36

A pplyin g thes e rules to Alicia ’ s “ outcrie s , ” we f i r s t address the Department ’ s

c o nt entio n that Alici a ’ s statement (as referenced by Jones) “ was not o f fered to p rove the t rut h of the matter asserted

. ” The Department asserts that “ the statement was offered by Investigat or Jon es to show there existed concerns that required investigati o n by the Department ” bu t does not explain why the Department had
“conc e rns ” if it did not b eli e ve A l icia ’s statement. Nor ha s t h e Department explained how or why Alicia ’s s tateme nt was relev an t if it was not offered to prove the truth of

t h e ma tter asserted

. If the only releva nc e of an out

- of

- court statement is to prove the
truth of the matter as s erted , then the statement is hearsay even though the proponent

a sserts that it is offered to prove only the fact that the statement was made

. See Tex.
R. Evid. 401 (defining “relevanc e” ), 402 (only relevant evidence admissible), 801 (defin ing “ hearsay ” ) ; Case Corp. v. Hi

- Class Bus. Sys. of Am., Inc. , 184 S.W.3d 760, 782

– 83 (Tex. App.

— Dallas 2005, pet. denied) ( rejecting argument that notes offered to
prove truth of matters asserted w er e not hearsay but admissible as “ operative facts ”
where notes ha d no relevance apa r t from truthfulness of assertions made there in ) ; Williams v. Ford Motor Co. , No. 04

- 01

- 00839

- CV, 2003 WL 21010601 , at * 1 ( Te x. App.

— San Antonio May 7, 2003, pet. deni ed ) ( me m . op. ) (

re a s on ing that either

exc l ud ed reports were offered for truth of matters asserted and thu s were perhaps
“rele vant” but were inadmissible hearsay “ or the reports were not offered for their
truth and were patently irrelevant ” )

. W e co ncl ude t hat Ali cia ’ s statement to Investigator Jones “ falls squarely within the defin ition of h e arsay and theref ore must37

meet one of the hearsay exceptions to be admissible. ” Volkswagen of Am., Inc , 159 S.W.3d at 907

. We re v i ew a tr ial c ourt ’ s decision to admit e vidence for an abuse of discretion

. Fleming v . Wils on , 610 S

. W.3d 18, 21 (Tex . 2020)

. A trial court abuses its discretion if it acts without reference to any guiding ru les or principles

— that is, if its act is arbitr a r y

or un reaso nable. Low v. Henry , 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cumming s , 134 S.W. 3d 83 5 , 838

– 39 (Tex. 2 004). An appellate court cannot conclude that a trial court abused its discretion merely be cause the appellate court would have ruled
diff e r entl y i n the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson , 923 S

. W.2d 5 49, 558 (

T ex. 1995); see a lso Low

, 221 S.W.3d at 620. An appellate court
also must uphold the trial court’s evidentiary ruling if the record shows any legitimate
ba s i s fo r t he ru ling. Owen s
- Co rn ing Fiber glas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex

. 1998)

. U n der t h is standard, we cannot uphold the trial court’s ruling admitting the hearsay testimony over Mother ’ s objection

. The proponent of hearsay has the burden
of s howi ng that the te stimo ny fit s within an exception 10 to the general rule prohibitin g

10 Mother pr i m arily a rgue s in her second issue that the trial court ’ s ruling was error notwithstanding S ection 104.006 of the Texas Family Co de : I n a s uit a ffecting the p a rent

- child relati o nsh ip, a stateme nt made by a child 12 years of age or younger that describes al l e ged abu se against the child, without regard to whether the statement is otherwise inadmi s sible as hearsay, is admissible as evidence if, in a hearing conduc t ed outside the pr e sen ce of the jur y, the court finds that the time, content, and38

the a dmis sion o f hearsay eviden ce , Volkswagen of Am., Inc , 159 S.W.3d at 90 8 n. 5 , and the Department has wholly f ailed to meet that burden here

. The Department has not
articulated an y exce pti on to the rul e a gainst hearsay that applies to the challenged testimony, an d we ar e aw are of n one. See Robinson v. Warner

- Lambert , 998 S.W.2 d 407, 411 (Tex. App

. ―

Waco 1999, no pet.) ( “ Ro binson has not cited any authority allowing such an exception to the hearsay rule [,] and we fin d none. ” ). We hold that t he trial
court abused its discretion in ove r r ulin g M other’ s hear sa y ob j ect ion.
Th is error, however, was harmless. To obtain reversa l o f a jud g ment based on

an error in the trial court, the appellant must show that the error occurred and that it probably caused rendition of an improper judgment o r prob abl y prev ented the appell ant from properly presenting the case to th is court. Tex. R . A pp. P. 4 4.1(a);
Romero v . KPH Consolidation , Inc. , 166 S.W.3d 212, 225 (Tex. 2005). We will not reverse a trial court’s judgment because of an erroneous evidenti a r y ru lin g unle ss the rul ing

circumstances of t he stat ement provide sufficient indications of the statement ’ s reliability and: ( 1) the c hild testifies or is available to testify at the proc eeding in
cour t or in any other m ann er provided f or by law; or ( 2) the court determines that the use of the stat e m ent in lieu of the child ’ s testimony is necessary to protect the welfare of the child.
Tex. Fam. Code Ann. § 104.006

. We agree that this exc e pti on to the r u le against hearsa y does not apply to Alicia ’ s statement to Jones

. The trial court d id not conduct the necessary hearing and make the findings required by the statute for t h e hearsay to be admissible under this provision

.39

pr obably, t hough not necessarily, caused the rendition of an i mpr oper ju d gment.
Gunn v. McCoy , 554 S.W.3d 645, 668 (Tex. 2018) ; U

- Haul Int’l, Inc. v. Waldrip , 380 S.W.3d 118, 136 (Tex. 2012) . The complaining party must usuall y show th at the
whole cas e turn ed on the evidence at issue. Interstate Northboroug h P’ship v. State , 66 S.W.3d 213, 2 20 (Tex. 2001) (op. on reh’g); City of Brownsville v. Alvarado , 897 S.W.2d 750, 753

– 54 (Tex. 1995). I f erroneously

- admitted or

- excluded e v iden ce

was cr ucial to a key i ssue, the n the error was likely harmful , but not con c lusivel y o r
per s e harmful

. Gunn , 5 5 4 S.W.3d at 668

. “Likely” does not mean “definitely,” and
“w e apply the same standard

— whether the erron eous exclusion of evidence prob a b ly

c aus ed the rendi tion of an improper judgment

— even when the excluded evidence

r e lated t o a key is s ue .” Id. at 668

– 69 , 671 ; JLG Trucking, LLC v. Garza , 466 S.W.3d 157, 165 (Tex. 2015)

. We examine the entire record in determining harm. 11 Gunn , 554 S.W.3 d at 67 1;
U

- Hau l Int’ l, In c. , 38 0 S.W.3d at 136

. Error in admitting ev idence is ge n erally har mless
i f the rest of the evidence was so one

- sided that the error likely made no difference.
Gun n , 554 S.W.3d at 668; JLG Trucking , 466 S.W.3d at 165. Here, the r ecord m akes

11 The Departmen t ar g

ues that “ the r ecord esta blishes no harm occurred because the same purpo rted hearsay matters were a dmitted at other places in the recor d without objection. ” The Department fo l lows this contention in its brief with citations to the record wher e we fin d tes t imony abou t previous CPS histor y of Father and M other

. B ecause we conclude th at the erron e o usly adm i tted hears ay w as harmless for o t her reasons, we ne ed not decide whether thi s other evidence in the reco rd proved the same facts.40

c lear t hat t he who le case did not turn on the evidence at issue , and a s we ha ve laid ou t in our foregoin g analysis, the other evidence admitted at trial was very one

- sided

. The

o the r evidence we have recited in our evidentiary

- suff i c iency re v

i ew al l c a m e i n with out objecti on or ov er ob j ections that Mother has not made into complai nts on
app e al. In light of the other evidence supporting the trial court ’ s termination findings , the hearsay testimony was “ not controlling on a material issue d isposit ive to the c ase ”
and was therefore harmless

. Interstate N orthbo rough P’sh i

p , 66 S .W. 3d at 2 2 0

. Because
the trial court ’ s e rr or is not reversible, we overrule Mother’s second issue.
IV. C O NCLUSION Having overruled both of Mother’s issues on appe a l , we af firm the tri al co urt ’ s judg ment. /s/ Dana Womack
Dana Womack Justice
Deli vered: Novem ber 3 , 202 2