## In the Court of Appeals Second Appellate D istrict of Texas

at Fort Worth

___________________________ No. 02

- 21

- 00007

- CV

___________________________

On Appeal from the 233rd District Court Tarran t County, Texas Trial Court No. 233

- 585880

- 15

Before Sudderth, C.J., Womack and Walker, JJ. Memorandum Opin ion on Rehearing by Jus tice Womack 

### I N THE 

### I NTEREST OF 

### M.S., A 

### C HILD2 MEMORANDUM OPINION ON REHEARING

I
. INTRODUCTION After considering Mother ’s motion for rehearing, we deny the motion,
withdraw our May 6 , 2021 opinion, and substitute the following opinion in its place. The Department of Family and Protectiv e Services brought suit against Mother

to term i n ate her parental rights to her daughter Mary. 1 Finding t hat Mother had

const ructively abandoned Mary and that termination was in Mary’s best interest, the
trial court terminated Mother ’s parental rights. Se e Tex. Fam. Code Ann. § 161.001(b)(1)(N), (b)( 2 )

. Mother appealed, and in three issues, she asserts: (1 ) the trial court erred by terminating Mother’s parental rights because the evidence was legally and factual ly insufficient to s upport a finding that s he had constructively abandoned Mary; see id. § 161.001(b)(1)(N); (2) the evidence was legally and fact ually insufficient to support the trial court’s finding that termination of the parent

- child relationship bet ween Mother and Mar y was in Mary’s best in terest; see id. § 161.001(b)(2); and (3) the t rial court erred in finding that appointing Mother as per manent managing conservator of Mary was not in Mary’s best interest because the appointment would significantl y impair Mary’s ph ysical health or emotio nal development. See id. § 153.131.
We hold t hat the evidence is both legally and factually sufficient and overrule
Mother’s first two issues. Because the trial court did not abuse its discretion by

1 We use an alias to identify the child, an d we iden tify f amily memb ers by t heir rela tio n t o t h e child. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. Ap p. P. 9.8(b)(2).3

appointing the Department as M ary’s managing conserva tor, we overrule Mother’s
third issue. We aff

i r m the trial court’s judgment.

II. B ACKGROUND
A. Procedura l
1. Mother becomes pregnant with Mary, and the Department investigates. In October 2014, then fifteen

- year

- old Mother wa s reported as a runaway

. When found in December 2014, Mother asserte d tha t she had been kidnapped, drugged, and raped. Mother tested positive for marijuana and was pregnant with Mary. In 2015, Mother (by then sixteen years old) gave birth to Mary premat urely, and Mary’s mecon ium tested positive for opiates. The Departme n t op ened an investigation but ruled out any neglect or abuse due t o Mother’s circumstances.
2. Mother absconds with Mary, and the Department files its first termination petiti on.
In October 2015, after a D epartment worker lost contact with Mother, the

w orke r went to Grandmother’s home (where Mother was living) and lea rned that Mother had been missing for five days. Law enforcement found both Mother and Mary residing with a wom an who had both a history with Child Protective Services
and a current CPS c a s e. Mother admitted to law enforcement that she had not fed Mary for two days because Mother had no formula. The Department filed its first petition to terminate Mother’s parental righ ts to Mary in October 2 015, and the trial4

court appointed the Departm e n t as Mary’s temporary managing conservator that
same month.
At some point, Grandmother’s parental rights to Mother were terminated. Thus, in addition to Mary, Mother herself be came a minor under the Departm ent’s conservatorship.

a. The D epartment pre p a r es a service plan for Mother. Because Mother complains in her motion for rehearing that the “ pan el failed to
address whether [she] was given a reasonable opportunity to comply with the ser vice plans, ” we wil l provide details not only of the multiple ser v i ce plan s but also of
M other ’ s rea sona ble opportunit ies to comply with them. To address Mother’s nee ds,

t he record shows that the Department prepared a “ Family Service Plan ” 2 for h er . T he
first service plan in the record is the December 2015 “ F amily S er v i ce P lan. ” See Tex.
Fam. Code Ann. § 263.101 (requiring Department to file service plan n ot later than forty

- five days after the temporary order appointing it as the child’s tempor ary

mana ging conservator). The caseworker signed it, but Mother did not. The trial court
made this “ F amily S ervice P lan ” the order of the court on January 6, 2016. The

r ecord also contains a February 2016 “ F amily S ervice P lan ” signed by Mother but not sign e d by the caseworker

. Ex cep t for the date printed, the December 2015 and the

2 “ Family Servic e Pla ns ” f

ocus on the parents , while “ Child Serv ice Plans ” focus
on t he child

.5

February 2016 servic e plans are identical. Between the two, the service plan is sign ed by both a Depa rtment representative and Mother. See id. § 263.103(d).
T hereaf ter, i n April 20 16, i n its permanency

- he aring order, the trial court ordered the service plan filed on March 1 1, 2016, to become the order of the court.
W hile the record does not contain a “ Fam ily Ser vice Plan ” filed on that date , there is a March 11, 2 0 16 “Family Service Plan Evaluation ” wi thi n which Mother ’ s services

were set out in the same mann er a s in the “ Family Service Plan. ” The s ervice s set out
in the “ Family Service P l an Evaluation ” remained the same as those in the “ Family
Service P l an . ” In August 2016, in another permanency

- hea rin g order, the trial court ordered
the s ervice plan filed on July 1, 2016, to beco me the order of the c ourt. Here, the court was referring to th e July 1, 2016 “Family Serv i c e Plan Evaluation.” The service plan itself again remained unchanged

. Next, in th e December 2016 permanency

- hearin g order, the tr ial co urt ordered the service plan filed on November 15, 2016, to become the ord er of the court. In this instance, the court was referring to the November 15, 2016 “Family Service Plan
Evaluation.” As be for e , t he service plan i tself remained the same. 3

3 The next eight permanency

- hearing orders (t hose f or May 17, 2017; N ovember 1 5, 2 01 7 ; April 25, 2018; October 10, 2018; A pril 24, 2019; October 9, 2019; May 6, 2020; and October 7, 2020) do not order any subsequent service pl an to become the or der of the court. They all provide, “It is ord ered that all p rev ious or ders i ss ued by th is C ou r t shall continue without modification .”6 b. The first termination proceeding ends with the Depa r t ment and Mot her being appointed Mary ’ s joint managing conservators. Meanwhile, in September 2016 , t he trial cour t ext ended the dismissal date of

t he D epa rtment’s first termination cas e . Se e id. § 263.401. And in February 2017, the
tria l court signed a f

inal order in which the Department and s eventeen

- year

- old
Mother were made Mar y’s joint managin g con servators.

c. The Dep artment prepar es service pl a n s for Mother while she is a joint managing conservator. When a parent is a joint mana ging conservator , the Depar tment’s standard
proce dure is to have th e parent work a service plan. The purpose of continuing
services is to address the con cerns that bro u ght the child into care and to help pare nts

m ake the changes needed to return the child to the parents. The first appearance of a service plan after the February 2017 final order
ap pears in the April 12, 2017 “Family Service Plan Evaluation , ” whic h l ist s the s ame “tasks and services” as were listed in the original “ F amily S ervice P lan, ” but two o f

t he “tasks and services” are identified as “No Longer Needed.” The April 12, 2017 “Family Service Plan Evaluati on” lists two new “ta sks an d services” t hat did not appear in the original “ F amily S ervice P lan ” : [Mother ] will work on complet i n g her GED so that she can begin the cosmetology program while living in extend ed foster care with her daughter, [Mary]. Completing the se goals will help [M other] to becom e f i nancially stab le and able to provide for the needs and car e of [Mary]. [Mother ] has signed a n agreement to remain in extended foster care since she has been r eunited with her daughter in a foster home for7

unwed moth ers. [Mother] will co ntinue to allo w h e r foster mom to mentor her in caring for [Mary] so that she can learn how to ca r e for her inde pendently eventually.
It is not clear if the “Family Service Plan Evaluati on” itself wa s att empting to mo dify
Mother ’ s service pl an or whether i t wa s simpl y r e flecting a modification that appear ed
in a “ Fam ily Ser

vice Plan ” that i s not in the record. Unlike the trial court’s previous
permanency

- heari ng order s, in its May 17, 2017 order, t he trial court did no t make the April 12, 20 17 “Family Ser vice Plan Ev alu a tion” the order of the court but ordered,
instead , “ th at a ll previous o r ders issued by this Court shall continue without
modification. ”
A la ter “ Family Service Plan ” appears in what l ooks like an attachment to t he
D epa rtment’s September 17 , 2018 “Pla cem e nt Review Report to th e Court

. ” The
repor t mentions that M o ther has a family service plan. Behind th e report are

numerous documents, none of which is independently file

- ma rked but whic h were, in
all likelihood, attachments to t he report. One of the att a chments is a “Family Service
Pl an” with the not a t

ion that it was printed on September 13, 2 018. T his service plan

va ries from the previous service plans. It required Mother

• to participa te in a support group for young women who have been sex traffi cke d ;

• to provide the names and ph one n u mbers of any fa mily members who may be app ropriate placemen ts for Mary;

• to s ubmit to random drug testing;8

• to demonstrate the ability to meet the f inancial needs of Mary and to show her ability to maintain fin anc ial stabili ty ;

• t o participat e in a psychological assessment/evaluation;

• t o submit to a dru g assessment;

• to maintain safe, stable, and appropriate housing, and in the event that Mot her changed her address, to notify her caseworker within seventy

- t w o hours;

• to refr ain from involve m e nt in criminal activ ities and illegal acts;

• to complete a psychiatric consul tation to accurately diagnose any mental health illnesses that may be pre sent; and

• to maintain consistent contact, at least weekly, wi th the caseworker in p erson, by phone, o r by email.
The casew orker identified in th i s service plan as Mo ther ’ s contact was Cassandra Fox.
Mother testified that Fox h ad gone over the service plan with her : “ Ms. Cassandra went over my service plan with m e, but some of m y caseworkers did not go over my service plan with me. Like I told you, s ome th ings were added. ” Although unclear,
Mother ’ s comment sugges ts that she was aware of th e September 2018 “ F a mily
S ervice P lan. ”
This Septem ber 2018 “ Family S ervi ce P lan ” is n o t signed by the ca seworker or by Mother

. See id

. § 263.104(b)(1). It nevertheless arguably became effective because the Departmen t filed it with the court. See i d. § 263.104(b)(2) ( “ The amended service plan supersedes the previously filed se r vice plan and takes effect when .

. . the9

department determines that the child ’ s parents are unable or unwilling to sign the amended plan and files it w ithout the parents ’ signatures. ” )

. T he trial court’s next permanency

- review order , signed on O ctobe r 1 0, 2018 , recites, “It is ordered that all previous order s issued by this Court shall continue
without modificatio n.” It did not conta in the language seen in previous perman ency

review orders adopt ing a s ervice plan file d on a particular date as the ord er of the

court. 3. The jo int ma naging conserv atorship continues for over two years. After the February 2017 final or der, the trial court conducted perma nency hearings about every si x months

— May 2017, Nove m ber 20 17, April 2 018,
October 2018, and April 20 19

. The April 2019 permane ncy or der stated tha t Mary’s permanency goal was family reunification, permanent managing co nservatorship to fictive kin, or ado ption.
4. Citing Mother’s lac k of p rogress, the De p artment files i t s second “original” termination pe t ition.
Before the next per manency hearing, in July 2019, the Department filed another “original” petition for ter mination. 4 By this time, Mother was twenty years

4 Technically, the Department filed a motion to modify seeking terminat ion

. Se e Tex. Fam. Code Ann. § 15 6.0 01; In re F.M.E.A.F. , 57 2 S .W.3d 716, 723

– 24 (Tex. App.

— Ho usto n [14 th Dis t.] 2019, pet. d enied); In re E .K.C. , 486 S.W.3d 614 , 615 (Tex. App.

— San Antonio 2016, no pet .).10

old, and Mary was fo ur y ears old. The a ffidavi t suppor t i ng the petition explained why

t he Department was seeking te rmi nation: [Mother ] was placed in foster care with the opportunity to be placed with her daughter. The Department was hopefu l that [Mother] would be able to be pr epared for inde p endence by the t i me she aged out so that she cou ld be a protective parent out si de of CPS care[, ] but [Mother] left care in May 2018. [Mother] was given a new service plan to work on. Since leaving car e, [Mother] has n ot completed any task s given to her o n her s ervice p l a n. [Mother] has not given proo f o f residence or proof of empl o yment. [Mother

] has not consistently visited with [Mary]. [Mother] has not addressed concerns about her ability to paren t [Mary]. a. The Department prepares anot her serv i ce plan for Moth e r . A conservatorship caseworker as s igned t o Mary’s case f rom Ju ly 2019 th rough February 2020 tes tified that she had prepared a service plan that she s ent to Mother i n January 2020

. T he record , howe ver, contains no corres po n ding “Family Ser v i ce Plan

. ”
b. The second termination case proc ee d s to trial.
More t han a year after the Department had filed this second termination proceeding , in December 2020, the cas e proceeded to trial. 5 By December 2020, the Department had been Ma ry’s temporary o r jo int managing conservator and Mary had
been i n t he Departme nt’s care for over five years.

5 When filing th e motion to modify seeking termina tio n, th e Department was already a jo int manag

ing conservator

. Thus, the dismissal dead line as soci ated with S ection 26 3 .401 o f the Texas Fa m ily Cod e did not appl y because the tr i ggering mechanism

— an ord er appointing the D epartment as temporary managing
co nse rvato r

— never occurred. See Tex . Fam . Code Ann. § 263.401( a )

.11

B. Trial
1. M other testifies.
Mother testified th at she and Mary were initial ly removed from Grandmother’s
home. At first, Mother and Mary w ere in dif ferent p l acements, but the Department
told Mother that i t wanted to place them together. The Department succeeded. Mother and Mary were placed in a grou p home
with othe r teenage mo thers who were the victims of sex trafficking. Mother stated
th at she loved tha t p l acement, but the home’s license expired, so th e Department had to find a new placement. From there, Mothe r and Mary moved into a foster home. By this time, Mo ther was eig hteen years old. According to Mother, this placement did not go so well;
Mo ther e x pla ined that she “met the wrong guy,” “snuck ou t of the hou se,” and “did a couple of things that [she] shou ldn’t have.” Mother said that she wan te d to live
inde pendently wi th Mary and that the Department said that it would help her, but
when the in depe n d e nt living did not happen, Mother left the fos te r home. Mar y, however, remained in the foster home.
Afte r leaving t he foster home, Mother stayed w ith Gre at

- grandmother , but
stay ing with Great

- g randmother did not work out either. Mother explained t hat she
had to s l e e p o n the floor and that she, Grea t

- g randmother, and her “pa paw” had conflicts, so Mother decided to try liv ing on her own.12

Meanwhile, Mary was m oved to a foster home in Tyl er. Because Tyler was so far away, visiting Mary became complic ated. Mother wo u l d have to travel to the Department ’s Fort Worth office and m eet with a caseworker, and that caseworker
would drive Mother to Tyler. 6 At the time of trial, Mary wa s in a diffe rent foster placement. Mother admitted missing at least half h er visits with M a r y in the last year and
that visits w e re part of her service plan. She acknowledged not completing counselin g and that counseling was pa rt of her service plan. Mo ther concede d not having completed her drug classes, although she asserted that she was in t h e process of completing them. By Mo t her’s account, she was in her last week of ten weeks of drug
classes. Mother admitted having used marijuana three weeks befor e trial and having used marijuana while taking her drug classes, but she as serted that she h a d used marij uana just that one tim e. According to Mother, s he had completed her parenting classes and psych ological evaluation. Regard ing gettin g her GED, Mother stated that she had taken the test four times and failed it each time, but her intention w a s t o contin ue trying to get her GED

. Mother had a boyfriend. Init ially, Mother said that her boyfriend was born in
1996. Later she said that her boy friend was f orty years old. Eventually she agreed
that her bo yf

riend was born i n 1969, wh ich made him fifty

- one years old. He had

6 Mother clarified , “ It wasn ’ t actu ally a case worker. I think [the drive r] w orked
w ith [O u r Commu nity O ur Kids.] ”13

children , b ut his children did not live with him. Mother said, “I’m trying to get myself
toget her[,] and h e’s trying to get himself together.” Mother thought that one o f her
earlier ca s e wo rk ers (one of those who did not testify a t her trial) had ru n a background ch eck on her bo yfriend. When asked if M other would be su rprised to
l earn that her boyfriend had been arrested in August 2020, she r esponded, “Yes.”
An d when asked if she would be surprised to learn that her b oyfriend had a reason

- to

believ e finding in h is CPS history, she answer ed, “ No

-- Yes. ”
Mo ther stat ed that she had rented her own apartment in June 2020. Her boyfri end lived with h e r , and she and her boyfriend went half and half on the
expens es. She claimed to have a full

- time job w orking at Walm art Logistics. She explained, “Basically, I cu rrently j ust got ba ck on my feet. [Before getting my own apartment,] I was going from plac e to place, from sleeping . . . at my friend’s house
and not h aving a place to stay and getting up on my feet. ”
2. S usa n Jensen (a casew orker and supervisor) test ifies.
Sus an Jensen was initially th e conservatorship caseworker and was l ater the

conserv a t o rship supervisor for Mary’s case from July 2015 until Febru ary 2020. Jensen asserted that the Depart ment d eveloped se rvice plans for M other that covered
such th ings as pare nting clas ses, individual c ounseling, family counseling, drug

as sessment, drug t e s t

ing, drug education, a support group for sex

- trafficked vic tims, appropriate housing, stable employme nt, an d approp ria te childcare. By Jensen’s account, Mother had agreed t o work ser vices and had oppo rtunities to have the14

service plans explained to her

. Despite Mother’s expressed willingness to work services, Je nsen said that Mother failed to make any p rogres s: “Mom has done some
indivi dual couns eling, but then she missed a nd did not go. She did go for a couple of drug tests, but she m issed the majori t y of them. She did not consistently come to
visits. She did not have stable housing or stable employm ent.” Jensen des cribed Mother and Mary’s mo ve from the grou p home for s ex

traffic k ed victims to a f

oster home in a manner that differed slightly from M o t h er’s
version: [Mother] had been at a group home for sex[

- ] traffick[ed] victims with [Mary] where she was l earning par enting skills. S he was fin ishing her GED. She was wor king to co m plete that. That gr oup home was looking to get relic ensed, and at th a t time it was decided between the case manager, [Mother], [an d] the group home, that she was ready, kin d of, for a st ep

- down where she co uld go int o a foster home, develop mor e normal s k

ills, have more prac tice at her own parenting, still within a foster h o m e setting, though, so she had guidance and support to meet those basic needs because she was not fina nciall y stable an d did not have he r own plac e to live and so she could c ontinue wi t h her schooling.
Af ter Mother and Mary’s move into the foster home, J e nsen related the problems that
followed: Approximately May 2018, [Mother] had left extended foster c are an d moved out of the foster ho me. There w[ere] concerns that she wa s using ma r ijuana; leaving the ho me and drinking alcohol; that s he would leave [ M a r y] unattended overnight without letting [the] foster parent know, without having a babysitter or tell ing fo ster mom , a nd [Mother] would be gone f

or [eighteen] or more hours without co m ing back, wouldn’t let [the foster mother] know; woul d go out of stat e ; wasn’t making her visits; concerns that she would come back with money and wouldn’t be able to explai n wher e she go t i t from; that she was gettin g in15

fights with her sister and with o t her people; [and] that she . . . test[ed] positive a couple times for m a rijuana use. Mother’s leaving the foster home for extended periods, Mother’s leaving Mary behind
whe n Moth er left, an d Mother’s failur e to tell anyone that she was leaving Mary

unatt e nded was a problem : Could be anywhere from [eighteen] hours to [thirt y ] hours. Leave in the middle of the night, so it was unknown that [Mary] was in the room unsupervised, by he rself. Tha t [Mary] would fo llow her d ownstairs[,] and the foster mom would find her crying beca use [Mother] would leave and she

- - the foster mom w a s not aware that she was leaving at these times. Jensen s tated that Mother was not required to stay in th e foster ho me, but if Mother left, she was not allowed to take Mar y with her

. Mother admitted us ing marijuana and refus ing multip le times to take a drug

test. She was supposed to get drug tested once a mont h, but she did not go for over a year betw een Ju ne 2018 and July 2019. The Department explained to Mo ther that if
she did n o t go to the drug tests, the Department would presume that she would h a v e tested positive; despite that, Mother continued not taking drug tests.
After Mother left the foster care residenc e, the Department se t up visit s: Initially, they were se t up weekl y so [Mother] could have that weekly communication, an d then after [Mo t h e r] wasn’t able to make those visits weekly, it was discusse d between her and the caseworker to attemp t to d o them e ver

y two weeks, so

- - and havi ng lo nger period s of time so she would n ’t necessarily miss them. Jensen elaborated:16

Afte r [Mother] left i n May of 2018, she came for one visit in June, and then two v

isits in July and August, and then one vis it in Septembe r, a visit in Octobe r, a visit in Dec ember of 2018. And t hen it was not until February 2019, and then April 2019, and the n two visits in J u n e of 2019. And then not again until January 2020 and Febru ary 2020. In short, Jensen stated that Mother had mis sed over half of her visits.
Meanwhi le, Mary was moved y et again. The Department placed Mary into a
new foster home in August 2020. 7 J e n s en asserted that Mother was never able to show stability of any kind for her
household. Employment a nd a s table in com e were part of Mo ther’s ser vice plan, but
M other never provided a n y documentation to show either. Jensen explained tha t to account for m o ney, Mother would say that she would do hair or sell clothe s and that she worked at the airport. Jen sen co ncluded tha t Mother had not shown the ability to provi de Mary with a safe an d stable environment.
3. Lindsey Miller (another cas eworker) testifi e s . Lindsey Miller was Mary’s caseworker from July 2019 unti l February 2020.
Miller stated that she s ent Mo ther a s erv ice plan by email in Januar y 2020, Mother

r esponded that sh e had rece ive d it, and she and Mother went over the service plan by
email an d p hone calls. Miller said that maintaining contact with Moth er was difficult

7 The “Place ment Review Report to the Court” for Septe mber 2020 (it was prepared in August but file d in Septemb er f or the Octo b e r hearing) provides simply: “[Previo us care giver] co uld no long er m e et c hi ld’s needs. ”17

and that she and Mother m et fac e

- to

- fac e o nly once in Novem ber 2019. Miller stated,
“We could never get
. . . an e xact address . . . .” Elaborating, Miller sai d:
I would hear t h at she was

-- I mean, be living with a friend. I think she often used

-- I believe it was her grandm other’ s addres s, but I don’t

-- I could neve r really confirm if she was actu ally livin g the re. She would tell me that she’s living in t he Hulen area. S h e would be living with a friend, but she would be moving out soon to get her own place. I could never reall y pin do wn exactly where.
Mother’s i nstability in ho using concerned Mill er. M other a lso failed to show
that she could maintain a steady income o r employment

. According to Miller, Mother
had identified a b oyfr iend (the one with wh om she was currently living ) bu t h ad not
pro vide d the Depart m ent with much i nformation about him. The only thing that
Mille r knew about him w as that “ he was trying to

. . . g et on his feet and be stabl e as well. ”
Miller did not think tha t Mary should be retu rned to Mother: “ [Mother] did not show that she could even maintain a steady relationship with her child, let alone be
able t o provide f

or a chil d full

- time.” M iller added, “[F ]rom my po rtion of the case, [Mother] did not make any pro gress towards he r ser vice go als of get ting stab le, making that bond with her child, and really showing the Department that she cou ld safely care f

o r her youn g child.”
4. Foster Mot her testifies.
The Depar tmen t placed Mary with Foster Mother in August 2 020, so Foster
M other had ha d Mary abo ut four m ont hs at the time of trial, and during that time18

Foster Mother said that Mary had b onded to Foster M o ther, Foster Fathe r, and the

two o ther children in the ir hom e. Foster Mother described Mary as “a very happ y child, but a l ittle emotio nally unst able.” F ost er Mother added, “She called everybody mom, everybody dad. She wasn’t sure who her parents were

. ”
F oster Mothe r sa id that Mother w ould cancel schedule d visi ts o n the day of the visit or would just not sho w up. Foster Mo ther describ ed the eff ect that Mot her’s missing scheduled visits had on Mary: [Mary is]

-- before we leave, she’s trying to take h e r stuff becaus e sh e thought she wa sn’t coming back. T hat’s what

-- anytime I explain to her about something [the Department has] going on, she

-- she’s no t u nderstanding. She’s thinking, [“]Well

-- Okay, well, I need to take my bike, I need to take thi s , a nd so on.[”] I’ ll try my best t o explain to her and prepa re h er for what’s going to take place. So then I

-- once I star ted p reparin g her, she was good un til we got there and the visit didn’t happen. So then she was, you know, crying , all emotional. But th en once

- - I just said, [“]W e’re not doing this anymor e.[” ] I called and talked to [the caseworker]. I said, [“]We’r e not doing this anymo re. We’r e n ot

-- I’m not going to prepare her. We’re going to just show up at the buildin g and then see w h a t happens t hen. [”] But my five[

- ] year old, she knows everyt hing , she’s real smart, and she was like, [“]Oh, this is the pla ce wh ere [Ma ry’s] mom is.[”] S o s he ruined everything for me. So we get there, and then [Mary is]

-- [“]Oh, oh, I’m going to go s e e [Mother].[”] Sh e says, [“]I’m g oing to go see [Moth er,] a nd s he’s going to buy me cupcakes.[”] So [my fi ve

- year old] rui ned i t all. So then w e get the re[ ,] and we go upstairs[,] and we wait, and [Mother] said, [“]I’m five minutes out , I’m 10 minutes o ut,[”] and we s at there[,] and we waited, and then we [were] lik e, [“]We’re leaving.[”] I just

-- half the time, I either l eft t he visi t or I eit her

- - to ld [Mother], [“]Well, hey, you can just go ahead and visit this 30 minutes. But ei ther way, at 5:0 0 o’clock[,] we’re l e aving.[”]
Fos ter Mother said that initi ally Mary had trouble sleeping but that was no l onger a problem.19

Bo th Fo st er Mother and Foste r F ather worked. But to take care of Mary,
Foster Mother had taken ti me off from work

. 5. J ermonica Glover (the current caseworker) t estifies
. Jermonica Glover was Mary’s current caseworker; Glover re ceived the case i n November 2020

— a bo ut three and a ha lf weeks before trial. 8 Glover went to Mother’s

two

- bed room apartment t h e day before trial and learned that Mother was living with

so meone el se. Mother said that one of the bedroom s was reserved for Ma ry, but that
bedr oo m was empty; it had no bed, no toy s, and no clothes. Mother told Glover that she was empl oyed and was wor k i ng at a warehouse, but wh en Glover asked for check
stubs o r proof of employment, Mother could not provide an y. Mother explained that
sh e was still waiting for the company to prov ide proof on its website. Other th an not having much furni ture, Glover agr e e d that the apartment i tself provided a clean and
safe en viro nment ; desp ite that, Glover denied t hat Mother ha d sho wn the abi lity to provide Mary wit h a safe and stable environment

. Glover did not recommend retur ning Mary to Mot h e r: Just because of the cons istency and

-- just

-- [Mary’s] been in t he system for five years, for her whol e life, and right now i t’s t ime for her to get st ability and

-- s tability with a home and a fore ver home, and different

8 T hree other casewo rkers (Cassandra Fox, Alej andra Be rdoza, and Jamila P ankey

- Lawson) were assigned to Mother ’ s case at various times but did not testif y . The Department ca lled Mother ’ s caseworker from the fir st te rminat ion pr o ceeding ( Tammie Gos s), but th e tr ial court sustained Mother ’ s objection to that caseworker b e cause her participation in the case predated the February 2017 final order, so she
w as not allowed to testify

.20

people are coming in and o u t of her life, and it’s just t ime for her to just have stabil ity and a forever home.
Glover testified that Mary was bonded with bo th fo ster parents and the other ch ildren
i n the home. Mary lived in a “n ice home” in a “nice neighborhood, ” shared a
bedro o m with a sister, and had her o wn toys
. The foster family pro vided a sa fe, stable, and loving home and was ab le to meet Mary’s physi cal, emotional, and
financ ial needs both n ow and in the future. The Depa rtm ent’s plan for Mary was adoptio n, and the foste r family was adoption motivated

. Gl ov er asked the court to

te rminate Mo ther’s parental rights because termina tion was in Mary’s best inte rest. Glover explain ed, “[Mar y’s] st ill little[,] and she’s been in th e system for her entire life[,] and it’s time f

o r her to have stability and ge t out o f the system. I mean, i t’s just

t ime for her to have a forever home and live a normal

-- norma l lif e.”
III. D ISCUSSION A. Standar d of Review Generally
In a termina tio n case, the State seeks not jus t to limit paren t a l rights but to erase them pe rmanent ly and

— except for the ch il d’s right to inherit

— to divest the parent and child of all legal righ ts, p rivileges, duties, an d powers no rmall y existing
between them. Tex. Fam . Code Ann. § 161.206(b); Holic k v. Smith , 685 S

. W.2d 18, 20 (Tex. 1985). Thu s, “[w] hen the State seeks to s ev er permane ntly the relationship between a pare nt and a child, it must firs t observe fundamental ly fair pro cedur es.”21

In re E.R. , 385 S.W.3d 55 2, 554 (Tex. 2012) (citing Santosk y v. Kramer

, 455 U .S. 745,
747

– 48, 102 S. Ct. 1 388, 13 91

– 92 (1982)).
Clear an d convincing evidence must support the decision to terminate. See
Tex. Fam. Code Ann. §§ 161.001 (b), .206(a ); In re E.N.C. , 384 S.W.3d 796, 802 (T ex. 2012). Because “[a] parent al rights termin a t ion proceeding encumbers a va lue ‘fa r more precious than any p roperty ri ght,’” due process demands this heig htened
standard. E.R. , 385 S.W.3d at 555 (quotin g Santosky , 455 U.S. at 758

– 59, 102 S. Ct . at
1 397 ). To be clear and convincing, evidence must “ p r oduce in the mind of the trie r of fa ct a firm belief or conv ic tion as to the truth of the allegations sought to be
established.” T ex. F am. Code Ann. § 101.0 07; E.N.C. , 384 S.W.3d at 802.
For a trial cou rt to terminate a parent

– child rel ationship, the p a r ty seeking
termination must e stablis h, by clear and convinci ng evidence, that (1) the parent’s
actions satis fy just one of the many pred icate grounds listed in Family C ode S ection 161.001(b)(1), and (2) t erm ination is in the child’s best interest under S e c tion 161.001(b)(2). Tex. Fam . Code Ann. § 161.001(b)(1), (2 ); E.N.C. , 3 84 S.W.3d at 803; In re J.L. , 163 S. W.3d 79, 84 (Tex. 2005)

. B. Sufficiency Standa rds of Review
M other’s first two issues challe nge the legal and factual sufficie ncy of the
evide n c e supporting the trial court ’s findi ngs. Before addressing her issues on their merits, we set out the stand ards of review.22

1. L egal S uf

ficiency
When ev aluating the evi d ence for legal sufficiency in ter mination cases, we
determine wh ether the eviden c e is such that a factfinder co uld rea sonably form a firm
belie f or c onviction that the Department proved both the particular ground for

te rmi nation and that t ermination is in the child’s best interest. In re J.F.C. , 96 S.W.3d 256, 266 (Te x. 2002); see In r e J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005) (per curiam).
We r eview all the ev

idence in the light most favora ble to the findings and judgm ent, and we resolve any disputed fac t s in favor of the findings if a r easonable factfinder
could have done so. J.F.C

. , 96 S.W.3d at 266. We consid er evid ence favorable to
termina tion i f a reason able factfinder could, and we d isregard contrary evide nce un less

a reasonable fa ctfinder could n o t. See id. In doing our job, we must recognize that weighing a witness’s credi b i lity is the factfinder’s prov ince, n ot ours. J.P.B. , 180 S.W .3d at 573. And even when credibility issues a ppear in the appellate record , we defer to the fa ctfinder’s deter m inations provided they are not un reasonable. Id.
2 Factual Su fficiency
We mu s t perform “an exacting review of the entire record” when deter mining
wh ether the evidence is factually suffic ient to support termina ting a parent

– child
relati onship. In re A .B. , 437 S.W.3d 498, 500 (Tex. 201 4). In a factual

- sufficiency

r eview, we give d u e deference to the factfinder’ s findi ngs and do not supplant t hose
find ings with our own. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2 006) ( per curiam)

. We det ermine whether, on th e entire record, a factfin der could reasonably form a firm23

c onviction or bel i e f that the parent violated an allege d ground and that termina tion is
i n the chil d’s best interest. Tex. Fam . Code Ann. § 161.001(b ); see In re C.H. , 89 S.W. 3d 17, 25 (Tex. 2002)

. If, in light of the ent ire record, the disputed evidence is so significan t that a factfinder could not r easonab ly have formed a firm bel ief or

co nviction i n the truth of its finding, then the evidence is fa ctuall y insufficient

. H.R .M. , 209 S.W.3d at 10 8.
C. Scope of Evidentia ry Review In Mother’s reply brie f, relying on Se c t ion 161.004 of the Texas Fami ly Code , she argues for the firs t time tha t our suff iciency review is restricte d to evidence that

occu rred a fter the February 20 17 final order. See T ex. Fam. Code Ann. § 161. 004 (“Termination of Parental Righ ts After Denial o f Prior Petition to Terminate” ). 9 Sh e

9 S ection 161.004 p rovid es: ( a) The court ma y term inate th e parent

- child rela tio n ship after re nditi on of an order th at previously d e n i ed termination of the parent

- child relationship if

: ( 1) the petition under this section is filed after the date the order de nying terminat

i o n was rendered; ( 2) the circum stances of the c hild, paren t, s ole managing conse rvato r, possessor y conservator, o r other party affected by the order d enying terminat ion have materially and substa ntially changed since the date that the order was rendered; ( 3) t he parent c o mmitted an act listed un der Se ction 161.0 01 b efore the dat e the orde r denying te rmination was r e n d ered; and ( 4) t ermination is in th e best interest of the child.24

complains that the Depa rtment, in its respo nse bri ef, transgressed Sec tion 161.004 by relying on ev ents that occurred b efore February 2 017. 10 As our trial summary show s, the Department sought terminati on based on
Moth e r ’s conduct after the February 2017 f inal order. At trial, on the basis of res ju dicata (and not on the basi s of Section 161.004), Mother actively sought to preclude

( b) At a heari ng under this section, the court may consider evidence pres e n ted a t a previou s hearing in a suit for t ermina tion of the pa r ent

child rel ation ship of the paren t with respect t o the same child. T ex. Fam. Code Ann . § 161.004; se e I n re S.B ., No. 02

- 18

- 00310

- CV, 2019 WL 1388760, at *4 (Tex. App.

— Fort Wo rth Apr. 25, 2 0 1 9, pe t. denied) ( per curi am) (m em. op.).

10 Secti on 161.004 mak e s its first a ppear ance in Mother’s case in her rep l y brief. At the trial

- court level, S ection 161.004 pla yed no role at all. In the Department’s petition, in Mother’s answer, a nd in the term i n ation judgment, S ection 1 61.004 is never cited. At trial, Se c tion 161.004 was n ever mentioned. Even the trial c o u rt’s findings of fact and conclusio ns of law are s ilent regarding Section 161.00 4. At the appellate level, neither Mother in her original b r ief n or the Depa r tment in its r esponse br ief ci ted Section 16 1 .004. Ar guab ly an y rel iance on Sec tion 161.004 wa s w aived or not preserved. See In re T.B. , 594 S.W.3 d 773, 778 (Tex. App.

— Waco 201 9, no pet.) (holding that complaint was not p reserved becau s e it w as not rais e d at tri al); I n re A.R. , No. 0 2

- 18

- 00311

- CV, 2019 WL 1186963, at *9 (Tex. App.

— Fort Worth Mar. 14, 2019, pet. den ied) (mem. op.) ( “ We normally do not review issues raised for the first time in a reply brief

. ” ); M.M.V. v. Tex. Dep ’

t of Fami ly & Protective Se r

vs. , 455 S.W.3 d 18 6, 190 (Te x. App.

— Hou ston [1 st Dist.] 2014, no pet.) ( “ The rules governing error preservation apply to civil cases involving termination. ” ) ; Pineridge Assocs., L.P. v. Ridg epine, LLC , 33 7 S.W .3d 4 61, 472 n.10 (Tex. App.

— For t W orth 2011, n o pet.) (stati ng that a r gume nts raised for t he first time in a reply brief are waived). The gist of Mother’s com plaint, though, is th e scope of what we consider when determining her suffici ency complai nt s (in depen dent of any reliance on Sec t i o n 161.004), which Mo ther a sserts th e Dep artment ha s imp r operly expanded. Resolv ing Mother’s sufficiency complaints necessari ly requires res o lving that issue, so we will address it.25

evidenc e that predated the February 20 17 final order. She objected to o ne of the Depart m e nt’s witnesses because virtua lly all that witness’s knowledge predated the
Februa ry 2017 final order, and th e trial court refused t o hear that witness’s test imony. Later, M other objected to another witne ss’ s testimony to the extent that this witness
add r e ssed events predating Februar y 20 17, and the trial court sust ained Moth er’s objec tion. In a third instance, the trial court overru led Mo ther’s objection bec ause that partic ular p iece of evidence had alre ady been admitted without objectio n. Consequently , to the extent that the Depart ment a t tempted to address matter s before

t he final o rder, Mother objected.
In her reply brief, Mother ’s pri mary complaint is wi th the Departmen t’s
di scussion of the procedura l h istory, which it placed under t he rubric “State m e nt of
Facts.” The Department also r elied on the clerk’s reco rd to fles h out its family service plan discuss ion.
We too have looke d at t he procedural histor y. The procedur al his tory is precisely what ga ve rise to Mother’s res judicata o bjection at tria l and her Section
161.004 argum ent her e on appeal. Unlike the Departm ent , we have separated our
review of the procedural history fro m our review of the eviden ce presented at trial. We agree with Mother to th e extent that our sufficiency r eview is limited t o the evidence presented at t rial. See In re J.D. , 436 S.W.3 d 105, 121 (Tex. App

. — Houston [14th Dist.] 2014 , no pet.). Despite th e conf usion, the Departmen t appears to agr ee wit h this proposition as wel l. Under the heading “Argument,” the Department’s26

r esponse to Mother’s first iss ue is: “The evidence presented a t trial wa s legally and factually sufficient to support the trial cour t’s fi nding that [Mother] constructively

a bandon ed [Mary].” And in respo nse to Mother’s second issue, the Department

asser t e d: “The evidence presented at trial was le gally and factually sufficien t to
suppo rt the trial court’s findin g that termination is i n [Mar y’s] best interest.” As
discussed b elow, the evidence presented at tr ial focused on events following the February 20 1 7 final order.
D. Constructi ve Aban donment
In Mother’s fir st issue, s he challen ges the legal and factual sufficiency of the
evid ence s upporting the trial court’s construc tive

- ab andonment finding. For the reasons set out below, we over rule Mother’s fi r s t issue.
1. The Law
The D epartme nt proves th at a parent has constructive ly abandon ed a child by showing that
the child . . . h as bee n in the permanent o r temporary mana ging conser vatorship of the Dep art ment of Family and Protective S ervices for not l e ss than six months, and: (i ) the d epartment has made reas onable efforts to return th e child to the parent; (ii) the parent has not re gularly visited or m aintained signif icant conta ct with the child; a nd (iii) the parent has demonstr ated an inabilit y to provide the child with
a s afe env ironment[.]27

Tex. Fam. Code Ann. § 161. 001(b)(1)( N); accord In re F.E.N

. , 542 S.W.3d 752, 766 (Tex. App.

— Houston [14th D ist.] 2018), pet . denied , 5 79 S.W.3d 74 (Tex. 2 019 ) (per curiam). “The first ele ment focuses on t h e Department’s conduct; the s econd a nd
third elem ents focus on the parent’s conduct.” In re A.L.H. , 468 S.W .3d 738, 744 (Tex. App.

— Houst on [14th Dist.] 2015 , no pet.); acco rd In re C. E.P., III , No. 01

- 19

- 00 120

- CV, 2019 WL 3559004, at *17 (Tex. App.

— Hous t o n [1st Dist.] Aug. 6, 2019,

n o pet.) (mem. op.).
2. Discu ssion

a. Reasonable Efforts When reviewing w hether sufficient evide nce su pports termination u nder
Section 161 .001(b)(1)(N), t he issue is whe the r the Department made reasonabl e efforts, not i d e al efforts. See In re M.V.G. , 440 S .W.3d 54, 61 (Tex. App.

— Waco 2010, no pet.); In re G.K. G.A ., No. 01

- 16

- 0 0996

- CV, 2017 WL 237653 4, at *5 (Tex. App.

— Housto n [1st Dist.] Ju ne 1, 2017, pet. denied) (mem. op. ). When the Department removes a child, it des i g ns a family service plan to r eunify the parent with
the chi ld. Liu v. Dep’t of F amily & Pr

otective Servs. , 273 S.W.3d 785, 795 (Te x. App

. — Houston [1st Dist. ] 2008, no pet.)

. Preparing and administering a s ervice plan for the
parent cons titutes evidence t hat the Department made reaso nable e fforts to return the
ch ild to the parent. Se e , e.g. , I n re K.M.B. , 91 S .W.3d 18, 25 (Tex. App.

— Fort Worth 2002, no pet.)

.28

The testimony showed that the Department pre par ed family service plans for
Mot her (even if the s ervice plans wer e not introduced i nto evidence), and for ab ou t five yea rs, the Departmen t made reasonable effor ts to help Mother stabiliz e her life with the goal of safe ly r eunifying Mary with Mother

. F o r e xample , the D epartment placed M other and Mary i n a group h ome w it h other teenage mothers who were the
victim s of sex tra fficking. From there, the Department placed M other a nd Mary into
a foster home so that M other could develop more day

- to

- da y skills a nd have more practice at parenting on h er own wh ile she was still within a foster home setting,
wh er e she coul d have guidance a nd support , and where sh e could continue with her schooling

. T he Department develope d service plans that covered such things as par enting classes, ind ividual counseli n g , family counsel ing, drug assessment, drug testing, drug ed uc ation, sta ble employment, a nd appropriate childcar e. When Moth e r left foster care, the De partment set up weekl y visits between Mother and Mary, but
when w eek

ly visi ts proved unwork a b le, the D epartme nt set up bi

- weekly vis its. When
Mother di d not have t he means to trave l to Tyler to vis it Mar y, the Department arranged for someone to drive Mother to Tyler ( prov ided Mother could f

ind a way to the Depar tment ’ s Fo rt Worth office )

. Mother admitted taking the GED test four
times. Fina lly, the Department pr ovided Mar y with stable and safe homes while it
ga ve Mo ther an opport unity t o work ser vi ces and to get her life in o rder.
M other complains that “ she was no t giv en a reason a b le opportunity to comply
with the se rvice plans due to, amo ng other things, the numerous times that the29

Department changed the serv ice p lan without informing [her] or filing the plans with
the cour t and the visitation schedule implemented b y t he Departme n t
. ” We disagree.
B ased on the testim ony , the trial court could have concluded that Mother had been given a reasonabl e opportu nity to comply with her service plan.
To the extent there was a communi cation breakdown , Moth er played a role i n i t
. M o ther herself admitted that she was itinerant : “ Bas ica lly, I currently just got back on my feet. Like I said, I just moved [int o my apartment] in June. Before then, I was going fro m place to place, from sle eping

-- you know, sle eping at my frie n d ’ s hou se and not having a place to s tay and getting up on m y f eet. ” A s might be anticipated,
th is created problems for the D epartment
. Jensen testified th at when Mother left
fos ter care in May 2018 , she did n ot giv e the Depar tment an address , so the Departm ent did not know where she was. Miller too related how Mother would give
the De partment conflicting or gen erally un helpful information about where she was staying. Miller asserted that she never succeeded in det ermining Mot h e r ’ s exact location

. Conseque ntl y, on th is record , the tri al court could have concluded that if Mother did not have copies of her servic e plan, it was not because the Department
was not mak

ing th e effort but because Mother was diffi cult t o l o cate
. M othe r complains that the Dep ar tment le ft her uninforme d about ch anges. T he testimony, though, show s that even if the Department had difficult y locating Mother, the D epartment maintained some communica tions with her. Jensen testified
that afte r Ju ly 201 9 , she pers o nally gave Mother a copy of her service plan and30

asse rted that Mother had oppor tunit ies to h ave the service plan explained to her and noted, as an example, when M o ther c a me for vi si ts. Jensen added that if Mothe r was

“ unavailab l e , ” a cas eworker w ould attempt to mail the service p lan s to M other. Jen sen was no t alon e. Miller testified that she went ov er the ser vice plan with Mother by emails and phone calls i n January 2020

. And Glover , who be came M oth e r ’ s

casewo rker in N ovember 2020, tes tified that she communi cated wit h Mother by ph one . Although Glover acknowledged not g oi ng over the service plan with Mother,
Mother ha d oppor tunities to communicate any conce r ns that she had wi t h Glover. As for the changes in Mother ’ s service plan, Jens e n , who had w orked on the
case from July 2015 un til February 202 0 , described M other ’ s services after July 2019
as follows , “ Parenting, indivi dual counseling, and she had some famil y counseling on

t h ere, drug education, drug assessment, support group for se x trafficking victims, FOCUS, appro priate hou sin g, stable employment,

. . . ap propriate child care [, and drug testing]

. ” When as ked about the nature of any changes, Je nsen responded, “ I
know the services pretty much were the same. I know we t ried to chang e t hem based
on her lo cations of where she w as living because she said she did n ’ t want to start services in one place and then h ave to mov e again. ” Thus, t he evidence sho w s that the Department made the changes in the service plans to accommoda te Mother

. The changes i n the visit ation plan were also ma de to acc ommodate her

. Another opportunity for changing t he se rvice plan occurred in January 202 0.
Miller testi f

i ed that she created a service plan and sent it to Mother b y email in31

Ja nuary 2020 and that sh e went over it with M o ther and explained it to her

. M iller
descr ibed the service plan that she had created:
She had been asked to

-- to have a st e a dy income, employment, to make sure that she could provide fo r her chil d. We asked that she consistently vis it with her child. We aske d that she parti cip ate in family therapy when the therapist of the child felt that that would have bee n appropriate. W e asked that she complete FOCUS Motherhood, which is kind o f a parenting

-- like, CPS navigati on

- type course. We asked that she develop
a strong support sy stem to kind of help her with

-- I mean, kin d of just getting a stable living envir onment. We aske d her to be rand omly drug tested. We asked that she complet e a drug and alcohol assessment. W e asked that she complete a psychological e valuation. And we asked that she complete counseling. Based on the testimony, the trial court could have r easonably conclude d that what ever changes occur red, they w ere not radic al a nd that, as noted earlier, Mother had
opport u ni t

ies to discus s the plans with her casew ork ers. Therefore , the trial c ourt

co uld have reasonably con cluded that the Depa rtment was n o t changing M other ’ s

ser vice plan without telling her and t hen faulting her for noncompliance.
R egarding the filing of t he service plans, w ith some exceptions not app licable
here , the fir st service pl an must be filed. See Tex. Fam. Code A nn. § 263.101

. T h e same is true for visitation plans. See id

. § 263.10 7 (d) (specifying deadlin e for filing
vi sitation plan)

. Am ended o r modified servic e and visitation plans mus t a lso be filed

. Id. § § 263.10 5(a) , 263.107( e )

. The testimony is not clear about w hich ser v i ce plans
were and were not filed. R egardless, i f the pare nt has a ny complaint about an
amend ed service plan , the pare n t i s not without recourse : “ A pare nt may fi le a motion with the court at any time to request a review and modification of the a mended32

s e r vice plan. ” Id. § 263.104 ( c )

. This is also true for visitation plans

. See i d. § 263.10 8 ( c ) ( “ A parent who is ent itled to visitati on under a visitation plan m a y a t any time file a motion with the court to request review and m odifica tion o f an origi n a l or amended visitation plan. ” )

. When determining whether the Department made reasonable efforts, we focus
on its effor ts, not the paren t’s. See In re D.G. , No. 02

- 1 7

- 00332

- CV, 2018 WL 547787, at *4 (Tex. App.

— Fort Worth Jan. 25, 2018, no pet.) (mem. op.). The Department’s
efforts must be reasonable, not ideal. See M.V.G. , 440 S.W.3d at 61. When

encou ntering an amended service plan tha t did not appear in the re cor d , one of our
sister courts look ed at what the parent knew and what information the Department provided : Although the Department did not include the amended service plan in the record before this court, the rec ord reflects that the Department implemente d a n amended plan and mailed it to Father. According to th e caseworker’s report and the trial court’s orders, the record reflects that Father knew what was required by the service plan and was informed of the con sequences of a fa ilure to follow the plan.
In re A.M.T. , No. 14

- 18

- 01084

- CV, 2019 WL 2097541, at *5 (Tex. App.

— Houston [14th Dist.] May 14, 2019, pet. denied) (mem. op.). Desp ite the amen ded service plan ’ s ab sence from the reco rd, our sister court conclu ded that the Depa rtment ha d provided legall

y a n d factually sufficient evidence to support the finding that it had
made reasonable efforts to return the child to the p arent: By implementing a family service plan and notifying Father of the plan and the cons equences of failu re to comply with t he plan , t h e33

Department met its burden on the first element. We conclude a reasonable trier of fact could have formed a firm belief or conviction that the Department made reasonable efforts to return the child to Father

. I d.
Th e testi m ony shows that Mother was awa r e that service plan s existed that she
did not have copies of and that her services were chan ging : “ Two of my service plans,
I did not get, and one of my service plan s, things were a d d ed wi thout me even
know ing

. ” But t he first time that M other voiced a ny c ompl ain ts ab out any aspect of her service plans

—

including whether she had recei ved cop ie s of th em

— appears to have been at her termination trial

. Before trial, Mother had numerous opportuni ties to obtain a copy of her
service plan. E very time M other vi sit e d Mary, she had to first travel to the Department ’ s Fort Worth office. Therefore, e very trip was an opportunity to request a copy of her ser vice plan

. Her testimony does not point to any effort s that she had
pre v iously taken to alert the De p a rtment o r t h e tria l court to th is complaint. 11 See K.C. v. Tex. Dep ’

t of Family & Protective Servs. , No. 03

- 17

- 00184

- CV, 2017 WL 3585255, at * 3 (Tex. App.

—

Austin Aug. 17, 2017, no pet.) (mem. op.) ( “ The reco rd fur th er sho ws

11 The perma nency

- hear

ing orders for May 17, 2017, a nd Nov ember 15, 2 017,
s h ow that Mot h er was n ot not ifi ed and did not appear
. Bu t the permanency

- hearing order for April 25, 2018, sho w s that b oth Mother and her counsel appeared

. The remaining permanency

- hearing orders

— those for October 10, 2018 ; April 2 4, 2019; October 9, 2 019 ; May 6, 202 0; and Oc tober 7, 2020

— sh ow t hat only M o t her ’ s counsel appea red. M o ther thus had num erous opportunities to add ress any conc erns regarding her se rv

ice plan.34

t hat [the fath er

] did not seek m odificat

ion of or re lief from the court

- ordered ser vice plan on the basis of impossibil ity at any time prior to the termination heari ng when
modific ations or relief, if necessary, could have been ordered

. ” )

. Signif icantl y, t his is not a case in which th e Departme nt s ought to terminate
M o ther ’ s rights based on her failure to co mply with an o rder adopting the service plan

. See Tex. Fam. Code Ann. § 161.001(b )(1)( O) ( “ [T]he parent has .

. . failed to comply wi th the provisi ons of a c ourt or der that specifi c a lly esta bli s hed the actions

necess ary for the par ent to obtain the return of the child

. . . . ” ) ; In re J.M .T. , 519 S.W.3d 258, 261 (Tex. App.

— Houston [1 st Dist. ] 2 017, pet. denied) ( “ Followi ng the hearing, the trial cour t si gned a sta tus hearing order, a p proving and i ncorporating by reference the Department ’ s family service pl an, making the service plan an order of
the court. ” ) ; see also Tex . Fam. Code Ann. § 263.106 ( “ After r eviewing the original or
any ame nded service p lan and makin g an y changes or mod i f ications it deems necessary, the court shall in corporate the original and any amended service plan into
the orders of the court

. . . . ” ) ; cf. id

. § 263.10 9 (a) ( “ After revi ewi ng an orig inal o r amended visi tati on plan, the co urt shall rend e r an order regarding a pa ren t ’ s visitation
with a child that the court det ermines approp riate. ” )

. When serv

ices are court ordered, t he parent bears the burden o f complying
with them

. See K.C. , 2017 WL 3585 255, at *2 ; In re B.L.D.

- O. , N o . 13

- 16

- 00 64 1

- CV , 2017 WL 929486, at *4 (T ex. App.

— Corpus Christi Mar. 9, 2017, no pet.) (mem. op.) ; In re P.N.M. , No. 11

- 08

- 00080

- CV, 20 09 WL 714190, at * 3 (Tex. App.

— Eastland35

Ma r. 19, 20 09, no pet.) (mem. op .) ; Thompson v. Tex. Dep ’ t of Fam i ly & Protect

i ve Servs. , 1 76 S

. W .3d 121, 127 (Tex. App.

— Hou s t on [1 st Dist.] 2004 , pet. denied ), overruled on other grounds by Cervantes

- Peterson v. Tex. Dep ’ t of Family & Protective Servs. , 221 S.W.3d
244 , 250

– 52 (T ex. App.

— Houston [1 st Di st. ] 2006 , no pet. ) ( en banc ) (ho lding t h at courts review e videnti ary suf fic i ency issue under the statutory grounds spe cifically
found in the trial court ’ s termination order rather than any statutory g rounds supported by the evidence even if not found i n the orde r). If a parent is c on fused
abou t a service plan o r thinks th at i t i s unfair , the parent may file a motion at any time
to request the court to review th e plan. See Tex. Fam. Code Ann. § § 263.104(c) , 263.105(c)

. Whether the Department cou ld prove noncompl ian ce with an o rd er w it hout produ c ing the order al l e gedly violated is not before us. See In re M.G. , No. 07

- 19

- 00289

- CV, 2020 W L 611554, at *5 (Tex. Ap p.

— Amarillo Feb. 7, 2020, no pet. ) ( mem. op.) ( “ [T]o support a termination order based on section 161.001(b )(1)(O), there mus t be a court order rather tha n simply a Depar tme n t

- generated service plan. ” ). Rather,

t h e question before us is whether the D epartment made reasonable effort s to retur n th e child to the parent

. P reparing and administe ring a service plan for the paren t

co ns titutes ev

i dence that the D e p artment had ma de r easonable efforts

. See K.M.B. , 91 S.W.3 d at 25

. W hile implementation of a service plan is not the exclusive means of
show ing t hat the Department made a reasonable effor t to return the chil d to a parent , im pl ementation of a service pla n is often the m ean s by which the Department seeks36

to meet i ts burden

. In re J.W. , 615 S.W.3d 453, 46 3 (Tex. App.

— Texarkana 2020 , no pet.)

. The Department ’ s failure to file its service pla ns might have pr ejud iced its

a bil ity to seek term i nation under Sec t i on 161.001(b)( 1 )( O ), but efforts to re turn a child to a parent with unfiled service plans do not transl ate into n o efforts whatsoever under Section 161.001(b)(1)(N)

. I f Mother had shown progress under the unfi led
service pla ns and had s h own that she cou l d safely parent Ma r y, the unfiled servi ce plans would have se rved their purpose of facilitating Mary ’ s r eturn to h er . Mother does not dispute that she had service plans; just the opposite, Moth er

assert ed t h at she had t r ie d

— at l east recen t ly

— to work h er service plans. T hus , the
tri al court could have found that the Dep artment ha d made reasonable efforts to

r et urn Mary to Mother and that Mother had been given reasonable opportu nities to comply w ith the s ervi ce plan

. Se e In re J. S. , N o. 02

- 19

- 00231

- CV, 2019 WL 56 55254,

at *5 (Tex. App.

— Fort Worth Oct. 31, 2019, pet. deni ed) (mem. op.) ; In re G.T. , No. 02

- 17

- 00 279

- CV, 2017 WL 67 59036, at * 4 (Tex. App.

— Fort Worth De c. 28, 2017, no pet.) (mem. op.) ; In r e M. R.J.M. , 280 S.W. 3 d 4 94, 50 5

– 06 (Tex. App.

— Fort Worth 2009, n o pet.) ( op. on reh ’ g ).
b. Regular Visits and Significant Contact
The De partment placed Mother an d Mary togeth er. In May 2018, Mother left both foster care and Mary. After Moth er left foster care, she miss ed more tha n hal f
he r vi si ts wi th Ma ry. For the next two an d one

- half years, Mother’s contact w ith Mary was sporadic a nd chaotic

. Therefore, the trial court could have found that37

Mother failed to visit or maintain significant contact with Mary. See In r e K.G. , 350 S.W. 3 d 3 38, 35 5 (Te x. Ap p.

— Fort Worth 2011 , p e t. denied).

c. I nability to Provide Child a Safe Environment
Courts h ave applied the Secti on 263.30 7(b) factors wh en conducting a “safe environment” analysis in the contex t of constructiv e abandon ment. In r e G.P

. , 5 03 S .W .3d 5 31, 5 33

– 34 (Tex. App.

— W aco 20 16, pet. denied); In re N.A.V. , No. 04

- 19

- 00646

- CV, 2020 WL 1 250830, at *7 (Tex. App.

— San Antonio M ar. 17, 2020, p et. denied) (mem. op.). Section 263.307(b) provides: (b ) The following factors s hould be co nside r e d by t he cour t and the department in de t er mining whether the child’s parents a re willing and able to pr ovide th e child with a safe e nvironmen t: (1) the child’ s age and physical and mental vulnerabilities; (2) the freq uency an d nature of out

- of

- h ome p l a ce ment s; (3 ) the magnitude, freque ncy , a nd circumstances of the harm to the child; (4) whether th e child ha s been the victim of repeated harm after the initial report and intervention by the department; (5) whether the chil d is fear ful of livi ng in o r retu rn ing t o the child’s home; ( 6) t he results of psychiatric, psychological, or developmental
ev al uations of the child, the child’s par e nts, other family membe rs, or others who have access to the child’s home; (7) whether there is a history o f abu s i ve or as sault

iv e c onduct by the chil d’s fa mily or others who have access to the child’s home;38

(8) w he ther the re is a history of substance a buse by the child’s fam ily or others who have access to the child’s home; (9) whether the perpe trator of t he ha r m t o th e child is i dentified; (10) the wi llingness and ability of the child’s family to seek out,
ac ce pt, and complete counseling services a nd to cooperate with an d facilitate an appropriate agency’s close supervision; (11) th e willing

ness and ab ility o f the ch ild’s f ami ly to effect posit ive en vironmental and personal changes within a reasonable period o f time; (12) whether the child’s fa m ily demonstrates adequa te parenting skills, including providing the child and ot her chil dren unde r the famil y’s c a r e with : (A) min i mally adequate hea lth an d nutritional care; (B) care, nurturance, and appropriate d isciplin e consistent with the child’s physical and psychologi cal development; (C) guidance and supervision consisten t with t he child’ s safety; (D) a sa fe p hy sical home e nvironment; (E ) p r ot ection from repeated exposure to violence even though the v io lence ma y not be directed at the chil d ; and (F) an understa nding of the child’s needs and capabilities; and (13) w hether a n adequat e social su pport s ys tem co nsist ing o f an extended fami ly a nd friends is available to the child. Tex. Fam. Code Ann. § 2 63.307(b ). After separate placement s and then being placed together in a home for sex

trafficked children, Mother an d Mary w ere place d together in a f o st er h om e, bu t
Mot her wou ld run off wit h ou t telling anyone and without arranging for anyone to39

take c ar e of Mar

y. Eventually Mother left bo t h the foster home and M ary, and for about the next two years, Mother lived what appears to have b een a nomad ic

ex i s te nce. Mother ass erted that she had fi n ally rented an apartment six mo nths bef ore trial and that she shared it with her boy friend

. S he main tained that she had a lso nearly compl eted a ten

- week drug course. Mother contends that her life was n ow sta ble, t h at she h ad made pr ogress, a nd that s he c ould now provide Mary a safe environment. A factfinder is not compelled to be lieve un contradicted tes timony that is suspicious or that com es from a biased or an interested source. Hamilton v. Hami l ton , No. 02

- 19

- 0 0 2 11

- CV, 2 020 WL 649 8528, at *4 (Tex. App

. — Fort Worth Nov. 5, 2020, no pet.) (mem. op.) (c iting Medrano v. Gleinser , 76 9 S.W.2d 687, 689 (Tex. App.

— Corpus Christi 1989, no writ) )

. T he factfi nder may believe or disbelieve even
uncontradicte d , uni mpeac hed t e s t i mony f rom disint erested wi tnesses. C i ty of Keller v.
W ilson , 168 S.W.3d 802, 820 (Tex. 2005) ; Hamilton , 2020 WL 6 49 8528, at *4 ; Neurodiagno stic Consultants , LLC v. Nallia , No. 03

- 18

- 00609

- CV, 2019 WL 4231 232, at *11 (Tex. App.

—

Austin S e pt. 6 , 201 9, no p e t .) ( me m. op.)

. T he factfi nder ’ s

c red i bility decisions must , of course, be reasonable. City of Keller , 168 S.W.3d a t 816 , 8 20 ; Hamilton , 20 20 WL 6498528, at *4

. Mother said tha t she had a job, but she did n o t provide any proof of emplo y ment
. Mot her m a i n t aine d that she h ad an apartment, b ut a s the Department
noted dur ing final argument, Mother produ ced no lease. Mother asserted that she40

lived with a boyfriend who helped her wi th half the expenses, but she did n o t say that
h er bo yfriend ha d a job

. She des cribed him as “ t rying to get himse lf t oget her.” Mill er echoed this description of Mother ’ s boyfriend ; Miller s tated tha t about a ll the
information that Mother had shared about him was that “ he was trying to

. . . g et on his feet and be st a b l e as well. ”
When a sked a r el atively straightfo rwa r d question about how old her boyfriend

was , Mother re sponde d wi th wild ly incons istent an swer s . Mother initially said that her boyfriend was born in 1996, then asserted that he r boy friend was f o rty y ears old,

w hich wou ld hav e placed h is date of birth i n 1 9 80, and finally settled on his birth date being in 19 69.
Mo t h e r th ou g

ht that o ne of her earl

i er caseworkers had run a background check on her boyfriend, but the casewo r ker th at she name d was n ot among those

casew orke rs who had testi fied. Among the c a se w orkers who had testi fied, Mil ler sa id
that s he was a

w are of M other ’ s boyfriend but asserted that Mother had not pro vided
much info rmation about him. Consequ en t l y, o t her than M o ther ’ s reco llecti o n, t he
record did not s upport her impl i cit a ssertion that th e Depart ment had run a backgro und ch eck on her boyf r i e nd and t h at he had passed it

. When asked if Mother would be surprised to learn that her boyfriend had a reaso n

- t o
- b elieve f inding in h is
CPS history, she a nswered , “ No

-- Yes. ”
A lthough M other was re l ying on her boyf riend for support and s t ability , and although that re li ance would necessari ly raise questions about w hat risks, if any, he41

might pose to Mar y , he did not testi fy

. A sizeable piece of Mother ’ s stability and

s afety p uzz le was mi ssing.
Po int i ng to Glover ’ s t estimo ny that the apa r t m ent itself provided a clean and
safe en vironment li kewise does not help Mother. Glover denied that Mot her h ad
sho wn the a bility to provide Mary with a safe and stable e nvironmen t. Wh ile Mother
noted that she ha d r e cently move d i n to an apartment, t he trial court could have reasonably questioned Mother ’ s a bility to keep it . Moth er pointed to h er boyfriend as
add itional supp ort, but the trial court could have ques tioned w h ether he r boyf

riend
repr esented a positive ch a nge . Mother a l so touts her re cen t pro gr ess. A re asonabl e factfinder could have
credited M other’s recent progress as steps in the right direction, bu t a re asonable
fac tfinder cou ld also have concluded that the se steps were n evertheles s insufficient to
neg a te years of u n safe conduct. “Ev idence of a recent impro vement does not absolve
a parent o f a history of irresponsibl e choices.” In re A.M. , 385 S.W .3d 74 , 83 (Tex.
A pp.

— Waco 20 12, pet. denied).
Mother’s ar guments a ssume that she p rovided enough evi den c e to compel t h e trial court to find that she now had stability and could provide Mary with a safe environment. Mother presented e vide nce, but her ev idence was far from compell ing. Weighing a witness’s credib ility is the fa ctfinder’s province, not our s. J.P.B. , 180 S

. W.3d at 573. We defer to the factfinder’s credibility determinations provid ed they are not unreasonable. Id. On t his record, questio ning Mother’s credibility w as42

not unreasonable. Thus, the t rial cour t had the discre tion to disbelieve he r testimony.
S ee Hamilton , 2020 WL 6498528, at *4 ; Medrano , 769 S.W.2d at 689. As with the other elements, the record supports th e tria l court’s fin ding that Mother was not abl e to provide Mary a safe environ ment. Se e K.G. , 350 S.W. 3d at 354

– 55; M.R. J.M

. , 280 S.W.3 d a t 505

– 06.
3
. Conclusion
We ho ld that th e evidence sufficed both legally and factually to support the trial
court’s (N) f

inding

. See J.F.C. , 96 S.W.3d at 265

– 6 6 (stating that to be legally
suff icient, t he evi dence must be such that a f a ctf i nder could r e a sonably form a firm
belief or c onviction a bout the truth of the Department’s allegations); C.H. , 89 S.W.3d at 25 (st ating that t o be fa ctually su fficient, on the entire record, a factfinder must be
able t o reas onably for m a firm convicti o n o r beli ef th a t t he parent vi olated an alleged
g round)

. We overrule Mother’s first issue.
E. Best Interest
In Mother’s second i s sue, sh e cha llenges the lega l and factual suf ficiency of the evidence supportin g the tri a l cou rt’s best

- interest finding. As set ou t be l o w , we hold
that the evidence is l egally and factually sufficient and overrule Mother’s second issue.
1. The Law
T h ere is a st r ong pre sumption that keeping a ch ild with a parent is in the child’ s best in t erest
. In re R

.R. , 209 S.W.3d 1 1 2, 1 16 (Tex. 2 0 0 6 ) (per curiam ). W e review the

e ntire record to determine the child’s best interest. In re E.C.R. , 402 S.W.3d 239, 2 5043

(Tex. 20 1 3). Ev

idence th at is probative o f grounds under Section 161.001(b) (1) may

a l so be probative of best interest und e r Section 1 6 1

. 001(b)(2). Id. a t 249; C.H. , 8 9 S.W.3d at 28. Nonexclusive factors that the factfinder in a termination case may

a lso use in d etermin ing the c hild’s best inter est include:

• the child’s desire s;

• th e chil d’s emotio nal and physical n eed s now and i n t h e future;

• the e motional and physical danger to the child now and in the future;

• the parental abilities of t h e individua l s seeki ng custod y;

• the progra ms available to assist these indiv iduals to promo te the chi ld’s best interes t ;

• the plan s f

o r the child by th ese i ndividual s or by the agency seeking custody;

• the stability of the home or proposed placem e nt;

• the parent’ s acts or omissions that m ay indicate that the existing pare nt

- child r elati onship is not a proper one; and

• the pa r e n t ’s excuse, if any , fo r the acts or omissions. Holley v. Adams

, 544 S.W.2d 367, 371

– 72 (Tex. 1976); see E.C.R. , 40 2 S.W.3d at 2 49;
E.N .C. , 384 S.W.3d at 807. T hese factors do not form an exhaus tive list , and some facto rs may not apply t o s o me cases. C

. H

. , 89 S.W.3d at 2 7. Furt hermor e, undisputed evidence of just one factor may suffice in a particular case to suppor t a finding t hat ter mination is in the child’s best interest. Id. On the other hand, th e pres ence of pa ltry evidence rel e van t to each f a c t o r will not suppor t such a f indi ng. Id. ; In re C.G. , No. 02

- 20

- 00087

- CV, 2020 WL 4518590, at *7 (Tex. App.

— Fort44

Wor t h Aug. 6, 2 0 20, pet . denied) (mem. op.); In r e J.B. , No. 02

- 18

- 00034

- CV, 2018
W L 3289612 , at * 4 (Tex. Ap p.

— Fort Worth Jul y 5, 2018, no p e t
. ) (mem. op.).
2. Discussion

a . The Child’s Desires At the time of trial, Mary was only five years old. As su ch, she did n ot p osses s suffi cient maturity t o express an opinion regarding a pare ntal pre f erence , and she did
not testif y at tr i al. Se e I

n r e M.H. , 319 S.W.3d 13 7, 150 (Te x. App.

— Waco 2010, no pet.); see also Tex. Fam. Code. Ann. §§ 153.134(a)(6) (provid ing that a ch ild must be at
l east twelve year s old before the child’s preference, if any, r egardi ng the per son to have th e ex clu s ive rig

h t to designate the child’s primar y r esidence becomes a factor); 156.101(a)(2) (same). This factor is thus neutral.

b
. T he Child’s Emotion a l and Physical Needs
Mother did not show that she could me et Mary ’s emoti onal or ph ysical needs.
Fos ter Mother r e c ou nted h ow Mother’s failure to vis i t Mary consistently caused Mary
emotional turmoil. A child needs a home, and alt houg h Mother’s case ha d been going
on for five years, Mother purportedly procured a n apart me nt of her own on ly months
befo re t ria l , and M a r y ’s propo sed bedroom within t hat ap ar tment was unfurnished. In contrast, the foster and proposed adoptive home was m eeti ng both Ma ry’s

emo t ional and physical need s. Glover, Mary’s current caseworker , said, “ [Mary is] doing very good. Sh e’s ful l of joy

. . . . [S] he’s just a happy ki d.” T his fa ctor supports the trial court’s best

- interest finding.45 c. The Emotional an d Ph ysical Dan ger to th e Chil d
Mother had endangered Mary both emotionally and phys ically. M other ’s
inconsi stent visits cau se d a n emotiona l t oll on Mary, a nd when Mother and Mar y were h oused together in a foster home, Mother would sneak out of the house with out alerting a nyone that she had left Mary u nattended. By comparison, Mary had
emotional l

y bon ded to the foster and prop os ed a doptive f a m i ly, and Foster Mother
intervened to promote M ary’s safety when she thought that Mother was harming Mary by missing vi sits. This fa ctor favor s the trial court’s best

- interest finding.

d. The Pare ntal Abil i ties of the Ind ividuals Seeking C ust o dy
Mothe r h ad not shown an a bility to parent M ary. Jus t the opposite, Mother had shown an inability to parent. Foster Mother, however, had p arent ed her oth er children and was parenting Mary. This factor su pports th e tria l court’ s best

- interest
f i nd i ng .

e. The Program s Available t o Assist Th ese Individuals to Promote

the Child’s Best Interest Jensen, the case worker and sup ervi sor who had worked with Mo ther for about five years, stated that Mother’ s partic ipation i n serv ices tha t were designed t o h e lp her parent Mary was inconsist ent and that Mother had failed to show any progress.
Mother was in classes to add ress drug abus e at the tim e o f trial, and wh ile in those classes, she nonetheless used dru gs. Aft er four a ttempt s at get ti ng her GED, M o t h er

st i ll had not passe d it. Based on this track r ecord, the trial court could thus conclude46

that even if programs we re made availa ble to Mothe r, the prog rams wo uld not benefit
her. This factor weighs in fa vor of t he trial court’ s best

- i nt erest finding

.

f. T h e Plans for the Chil d by Thes e In dividuals or by the Agency Seeking Custody Mother ostensibly planned to move Mary into the apa rtment that she sha red
wit h her fifty

- one

- year

- old boyfriend. Wh ile M ary ’ s bedr oom had n o furn iture,
clo thing, or t oys, Mo the r would presumably furnish those. Casting a cloud over these plans, however, was Mother’s f ailure to provi d e any proof of employm ent. If adopted by the foster family, Mary would live in a “nice hom e” in a “ni ce n e i g hb o rhood ,”
would s ha re a b edroom wi t h a sister, and would have her own toys. Given Mother’s history of moving and gi ven the questi ons surrounding her employment , this f actor buttresses th e trial court’s bes t

- interest finding.

g. The St ability of the H o m e o r Pro posed Plac ement Mary had s p ent vir tually her entire life in foster placements. Mary was now in a placement that was adopt ion motivated. By t his point, Mother represented a
desta bilizing influence on Mary. Mother’s visits were unpredictab le, a n d M o ther saw hersel f as a vaga bond. Uns t abl e herself, Mother had no stability to offer Mary. Mother became an impedi ment to Mary’s stability. “[ C]hil dren need permanen cy and stability.” In re G.V., III

, 5 43 S.W.3d 342, 350 (Tex. App.

— F ort Worth 2 017, p e t. denie d). A chi ld’s need f or per m ane n ce through the establishment of a stable, permanent home is a paramount consi deration in th e best

- interest dete rmination. In47

re E.R.W. , 528 S.W.3d 251, 267 (Tex. App

. — Houston [14th Dist.] 2017, no pet.).
On ce a g a i n, this factor sup ports the t rial c o urt ’s f inding that termination was in Mary’s best interest.

h. The Parent’s Act s or Omissions that May Indic ate that the Ex isting P arent - Child Relatio nship is Not a Prop er One
Mother exhibited behav

ior s incons iste n t wi t h an appropriat e parent

- child

re l ati on ship. Rather than stay in a foster home with Mary to learn the skills neede d to
live and to parent indep endently, Mothe r sneake d out of the home w ithout arranging
fo r anyone to care for Mary. Fur ther, Mothe r le f t th e fost er home an d eliminated an y p oss ib ility of parenting Mary on a day

- to

- day basis. This factor favors the trial court’s
best

- interest findin g.

i. The P ar ent’s Ex cuse, if Any, for t he Acts or Omission s Faulting Mother seems unfai r. She was you n g , a n d her history w as turbulent
and t r au ma tic. Yet our focus is on what is in Mary’s best interest, and in this insta nce, Mother’s youth and troub led past, whi ch years o f services failed t o compensate for,

a re factors weighing in favor of the trial cour t ’ s b e st

- in terest fin ding.
3. Conclu s io n Viewing th e evidence in the light most favorable to the trial court’s findi ng, we hold that a reasonable factfinder co u ld have formed a firm belie f or conviction tha t termination was in Mary’s bes t inter est and t h u s that t he evidenc e was legally
suf f ic i en t. See J.F

.C. , 96 S.W.3d at 266. And when viewing the evidence equally, in48

light of th e entire record a nd while givin g due def erence to the trial court’s findings,
we hold that a reasonable factf inder cou ld hav e r e a sonabl y formed a firm belief or

c o nv i ct ion that th e termination was in Mary’s best interest and, therefore, that th e evidence i s factually suffi cient as well. See id. ; C.H. , 89 S.W.3d a t 26. We overrule
Mother’s second issue.
F. Conservatorshi p after T ermina tion
In i ssue three, Mother ar gu es tha t th e trial court erred by finding that appointing her as permanent managing conse rvator of Ma ry was not in Mar y’s best
in tere st because the appointment would significantly impair Mary’s physical health or emoti onal d e v e l o pment
. S ee Tex. Fam. C ode A nn. § 153. 131(a) (“[U]nl ess the court
finds that appointment of the parent . . . would n ot be in the best interest of the child
beca use the appoint ment would significantly impair the child’s physical health o r emotion a l dev e l o p m ent, a parent shall be app oi nted s ole managing conse rvator . . . of the child.”). Ignoring Mother’s reliance on Sec tion 153.131 , the Department responds
th at t he record suppo rts the trial court’s determina tion that appointing it as Mar y ’s
manag in g co n s e r

v ator was in Mary’s best in te rest. See In re T.M. , N o. 02

- 19

- 00329

- CV, 2020 WL 523272, at *5 (Tex. App.

— Fort Worth F eb. 3, 2020, no pet.) (mem.

o p.). We ag ree with the Depart ment. The trial court made a S ection 153.131 finding. We fi r st addre ss wh e r e t h e Sec tion 153.131 findi ng fi ts in the context of Mot her’s case.49

Section 153.131 applies when parental rights have n ot been term inated. In re
P. M.B. , No. 0 1

- 17

- 00621

- CV, 2017 WL 6459554, at *15 (Tex. App.

— Houston [1st Dist.] Dec. 19, 2 0 17, pet. denie d ) ( m em. o p.); In re E.R. , N o. 01

- 17

- 00 503

- CV, 2017
WL 58 92402, at *13 (Tex. App.

— Houston [1st Dist.] Nov. 30, 2017, pet. denied) (me m. op.); In re M. M.M. , No. 0 1

- 16

- 00998

- CV, 2017 WL 2645435, at *17 (Tex. App.

— Houston [1st Dist.] June 16, 2 0 17, no p et.) ( m e m . op.); In re S.N., Jr. , Nos

. 05

- 16

- 0101 0

- CV , 05

- 16

- 01 033

- CV, 05

- 16

- 01034

- CV, 05

- 16

- 01035

- CV, 2017 WL 2334241, at *5 (

Tex. App.

— Da llas May 30, 2017 , no pet.) (mem . op. nunc pro tunc)

. 12
When the termination is reversed, the presence or ab s ence of a Sect i o n 15 3.13 1 finding plays a rol e. See In re D.N.C. , 252 S .W.3d 317, 319 (Tex. 2008 ) (per curiam); In re J.A.J. , 243 S.W.3 d 611, 612

– 1 3, 617 (Tex. 2007 ). Here, thou g

h, Mother’s te rmination remains intact. When a trial court
terminates a bi r th paren t’s pa r e n t al rig hts, the birth par ent i s no l onger the “parent” under the Texas Family Cod e. Tex. Fam. Code Ann. § 101.024(a); In re N.B. , No. 05

- 15

- 00671

- C V, 2015 WL 643 76 81, at *5 (Te x. App.

— Dallas Oct. 23, 2015, pe t. denied) (mem. op.). More s pecifica lly, M o t h e r is n o longer a “parent ” u nd er Sec tion
1 53.131. See Tex. Fam. Code Ann. §§ 101.02 4(a), 153.131.
When a trial court terminates a birth parent’s r ights, Sec tion 1 61.207 contro ls the appointment of a managing conservator. P.M.B. , 2017 W L 6459554 , at * 1 5 ; E. R. ,

12 See I n re S.N., Jr. , Nos. 05

- 16

- 0 1010

- CV, 0 5

- 16

- 0 1033

- CV, 05

- 01034

- CV, 05

- 16

- 01035

- CV, 2017 WL 343 5599, at *5 (Te x. App.

— Da l las Jan. 18, 2 017, pe t. denie d) (mem. op.).50

2017 WL 5892402, a t * 13 ; M.M. M. , 20 17 WL 2645435 , at *17; S.N., Jr. , 2017 WL
2 334241, at *5. After termination, the trial c ourt appoints “a suitable, comp et ent adult, th e Department of Family and Prote ctive Services, or a licensed child

- pl acing

a g e n cy as managing conservat or of the c hild.” Tex. Fam. C ode Ann. § 161.207(a).
We revie w a trial court’s appointment of a non

- paren t as managing con servator f or a n abuse of disc retion. T.M. , 2020 WL 523272, a t *5. Thus, we may reverse t h e trial court’ s a p po intm ent of a non

- paren t a s managi ng con servator only if we
determine that the trial co urt acted arbitrarily or unrea sonably. Id

. When determini ng issues of c on servatorship, the primary consideration is th e best interest of the child. Tex. Fa m. Cod e A n n. § 1 53.002; T.M. , 2020 WL 5 23272, at *5

. And when d etermining a child’s best interest in the context of conservator ship
decisio ns, we may use th e Holley f acto rs , listed abov e in the context of best interes t and termination. T.M. , 202 0 WL 5232 72, at * 5

. Unli ke the burden of p roo f necess ary

to support the t ermination of parental rights (clear and convincing), the burde n of proof n ecessary to appoi nt a non

- p aren t as managing c onservator is a mere preponderan ce of the evidence. See id.
Because Mother ’ s p ar enta l rights were term ina te d, Sec tion 1 61.207

— not Se ct ion 151.131

— applies. See P.M.B. , 2017 WL 6459554, at *15. Under Section
161.20 7, Mo ther has failed to show that the tr ial c ourt abused its discretion by appointing the Department as Mary’s manag ing conser

vator. S e e M. M.M. , 2 01 7 WL 2645435, at *17. W e have previously h eld th at the Department met its clear

- and

-51

convincing burden to s how best int erest in the cont ext of term ina ti on, so it follows that the Department met the lower prep onderance

- of

- th e

- ev idence burden t o s ho w be st in terest in the context of conse rvatorship. Having terminated Mother’s parental rights, the trial court acte d neither ar bitrarily nor unr easonably b y a pp ointing the Department as Mary’s managing con servator. See T.M. , 2020 WL 5 23272, at *5. W e

ov erru le Mo ther’s third issue.
IV. C ONCL USION Havi ng overruled Mother’s three issues, we affirm the trial court’s ju dgment.

/s/ Dana Womack
Da na Womac k Jus t ice
Delive re d: June 28 , 2021