### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00239
- CV

S. W. and M. S., Appellants

v. Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 319,539-B, THE HONORABLE CHRISTOPHER L . CORNISH, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
M.S. (Mother) and S.W. (F ather) appeal from the trial court ’ s decree terminating their parental rights to their daughter “ Lily, ” who was bo rn August 25, 2020, and was about eighteen months o ld at the time of trial. 1 See Tex. Fam. Code. § 161.001(b). Bo th parents challenge the finding that termination is in Lil y’ s best interest, and Father also challen ges the finding of stat utory grounds. We affirm the tr ial court ’ s termination decree.

EVI D EN TIARY AND PROCEDURAL SUMMARY In l at e August 2020, t he Department sought a nd was aw arded cons ervatorship of Lily , alleging that Mother could not provide a safe home for the newborn. At the time, the Department had an open case related to Mother ’ s old er children “ Xander ,” bo rn in

1 Fo r the c hild ’s privacy, w e will ref e r to her by an al ias and to her family members by their r elati onships to her or by aliases

. See Tex. R. App. P. 9.8.2 September 2018, and “ Jules , ” bo r n in December 2017

. Lily was placed with Father but was removed and placed in a foster home when Father tested positive f or cocaine in a hair

- follicle
test in February 2021. In July 2021, the De p ar tment changed its goal from re unification wit h Father to unrelated adoption “ due to the lack of progress in this case by her mother and father. ” The Department explain ed that Fa ther had “ not accepted any r e spo nsibility ” for the po sitive test for cocain e , “ claiming he must have been drugged. ” De spite chang ing its goals, the Department and the parents entered into a Mediated Settlement Agreement (MSA) in August 20 21 , under w hich Fathe r agree d to complete a drug and alcohol assessment ( OSAR ) by the end of Au gust , par ticipate in counseling, install a Soberlink device on his vehicle at his own expense , and complete a psychological evaluation. He completed the psychological evaluation in September
2021 but did not complete the OSAR or engage in c ounseling un til December , although he made

an earlier attempt at counsel ing but was discharge d for lack of attendance

. T he case proceeded
to a final hearing that took place over several days in January and March 2022

. T he Department introduced into evidence the Nov em ber 2018 removal affidavit filed in t he case related to Mo th er ’ s older children , the December 2020 decree of termination signed in that case , its removal affidav it filed in Lily ’ s case, a January 8, 2021 safety plan , and the Affid avit of Disrupti on filed w hen Lily was removed from Father ’ s care in February 2 021

. I n the rem oval affidavit related to Xand er and Jules , De partment investigator Kend ra Estep

aver red that the Department had re ceived a referral alleging neglec tful supervision because Xander, who ha d b een in the NICU since hi s birth about t hree weeks earlier , was ready for discharge b ut “ cannot be discharged due t o not having a safe home to go to and his mother failing to learn how to adequately feed and care for him. ” Mother had informed the hosp it al that3 she was homeless and was staying with her mother, w i t h whom she had a “ domestic violence relationship

. ” In addition, Mother had “ repeatedly faile d to stay for feedings ” a t the NICU to learn how to feed Xander , a nd during an overnight visit short ly be fore th e report was made , hospital staff had observed tha t she “ cannot properly feed ” the infant

. Further, Mothe r had told hospital sta ff that she cou ld not visit or stay at the NICU because she had to care for Jules, but Mother ’ s mother ( “ Mary ” ) had s inc e informed the staff tha t Jules ha d been in her care and t hat Mary had been under the impression th at Mother had been staying at the hospital with Xand er
. The a ffidavit also stated that Mother had told NICU staff that she had been denied access to th e hos pital ’ s overnight room w hen she in fact had been given ac c ess but had attempted to bring a man who was not Xander ’ s father and then got upset and left when staff “ told he r that was
in appropriate. ” During her interview with Estep , Mother described her a rgu ments with M ary , say ing t hat although they had never phys i c ally hit each other , “ things do ge t thro wn around. ” Mother also said that Mary ’ s boy friend u sed cocaine and is violent and abus ive to Mary and occasionally to Mother . Mother told Estep that “ s he has tried to sta b her mot her . . . three times because s h e either wants to kill her mother or kill herself at this point due to the stre ss her mother

ca uses. ” Mother also said that she had suffered from post partum depression since giving birth to Jul es in December 2017 , that the medication she had been pr escrib e d was not helping , an d that she had stopped taking it . She described a suicide attempt in Dec ember 2017 in which she took about forty ib uprofen tablets “ in an attempt to kill herself, but it o nl y m ade her sleep for a whil e. ” She made th e attempt while J u l es and Mary were present and never told anyone about it.
In the Department ’ s removal a ffidavit in Lily ’ s case , Car la Gersna averred that the Department received a report i n late August 2020 t ha t L ily had been born premat urely that morning an d had requir ed o xygen and an IV “ to assist in breathing due to fluid being removed4 from her lungs at birth

. ” L i ly wa s transported to another medical fa cility ’ s neonat al intensive care unit (NICU) “ due to l ab ore d breathing and the facility’s ability to mee t her needs , ” and t wo days later, the Department was informed th at Lily w ould be able to be d ischarged in two days. However, Gersna did not believe Mother could properly su pervise or care for a newborn and

r eco mmended that Lily be plac ed with Father, who h ad tested n e g ative for illegal substances a nd had an appro priate home for a newborn

. Father denied knowing that Mother had an open CP S

case and said he was “ willing to supervise [Mother ’ s] visits and subm it to random alcohol
test ing. ” He also told Gersn a that he wa s in a relationshi p with Mother but said he would not sign Lily ’ s birth certificate without a paternity test

. Gersna summarized the circumstances surrounding Xander and Jules ’ s removal and av er r e d th at Mother was initially allowed overnight visitations wi th those children

. However , in the summer of 2019, Mother informed the Department that eighteen

- month

- old
J ules “ was talking back ” an d had “ yanked away , ” falling onto the floor , and that Jules “ c ould n ot move her arm above her head ” that night , a lthough s he was fine the next morning. Mother

“ as ked the care givers to come p ick up the children and [s a id] that ‘ she could not do it anymore, ’ ” so her visitation reverted to being Department

- supervise d

. I n addit ion, Mother had “ tested posi tive for Cocaine and A lcoh ol during her open CPS case ” ; had mis sed fourteen tests between February and May 2020 ; and test ed positive for alcohol in July 2020, while preg nant with Lily

. Gersna explained that the D epa rtm en t had c onc erns about M other continu ing “ to test positive or

m is s te sting for illegal or harm ful subst ance [s] during her open CPS case ” and about her ability to care for an infant . S he also noted that a psychiatric evaluation from earl y 2019 stated th at
Mo t h er “ i s not competent to care for a newborn, and this ex amin er certainly disagrees wi th any notion of [Mother ] living independent ly and car [ing] for two sm all children , ” and that other5 mental

- health profession als expresse d concerns about Mother ’ s par ent in g abili ties “ due to her d estructive behaviors and lack of emo ti onal maturity. ” Mother ’ s psychological eval uat ion from late 2019 stated that her inte l l ectual func tioning was “ within the low average range ” and that she show ed signs of depression and re com mend ed tha t Mother eng age in individual thera py. T he Depar tmen t was seek ing termination of Mother ’ s rights , and a final hearing was set for September 2020

. The Department ’ s Jan uary 2021 sa fety plan stated that Father had “ kno wingly left [Lily ] un superv ise d in the ca r e of ” Mother , which would place the child at ri sk o f harm or neglect if it happened ag ain. The Department expressed concerns about Mother ’ s “ continued positive alcohol drug testing results and her inab ility to address the b ehaviors leading to the removal of her children ” and instructed Father n ot to l eave L ily in Mother ’ s unsuper vised c are
. Gersn a ’ s February 22 , 2021 Affidavit of Disruption stat e s that the Department received a report i n January a lleging that while Father was in t o xicated , Li ly fell off a couch and landed on her face

. The report also a lleg e d that Father “ has been physically violent towards ”
M o ther and that there was a gun in the home. When Gersna visited , she did not see any marks o r bruising on Lil y , and Mother and Father d eni ed t he allegation s about domestic violence and a
weapon
. G er sn a a sked the par ents to “ refrain from alcohol consumption, as it app eared to be a heightened concern , ” and Father agreed. O n February 1, Mother tested positive for cocaine , and

o n February 1 1 , Fath er tested positive for cocaine in a hair

- follicle test , a t w h ich point Gersna

remov ed Lily fro m his car e
. Father denied all drug use and showed Gersna his pres c ript ions , but
Gersna informed him “ that these prescriptions would not cause a positive f or C oca ine. ” Gersna averred that Father was “ visi bly emotiona l ” b ut cooperative , providing clothing, diapers, formula , and other e ssential items for the child and giving Gersna “ p ertinent info rmation ” about6 Lily

. Ge rsna noted that Lily was as leep in her cr i b c overed with a b lanket and remind ed Father about “ S afe S leep ” and that it was safer to use “ warmer clothing such as footed pajamas ” to keep
t he child war m, but he insisted that the baby would be fine , “ shout[ing] that ‘ she was not going to suffocate ’ ” a n d t elling Gersna that he and his older children “ were in a nd o ut of the room. ”
T he Department also introduced Father ’ s 2017 and 2018 judgments of conviction for charges of driving while intoxicated (DWI) , the parents ’ family ser vice pla ns , and the
pare nts ’ ps ychological evaluations

. Father ’ s evaluation states th at h e had been “ open and forthcoming about circumstances leading to the current CPS case, ” did not show symptoms of mental illness, and “ appeared to have some defen sivenes s and to downplay the s eri ousn ess of his problems

. ” The “ concerns an d risk factors ” incl ud e d Father ’ s cr iminal history, ineffective coping s kills, history of “ marital problems particularly related t o poor communication skills, ”

“ [p]oor cognitive problem

- s olving skills, ” and lim ite d in sight into his issues . T he ps ychologist opined that Fa ther “ s houl d be challenged to go deeper in counseling ses sions in order to develop more insight that can lead t o more self

- control in the futur e ” and stated that Father w ou ld

“ benefit from a sho rt cour se of th erapy to discuss issues with the CPS investigat ion, r ela tional issues, and other con cerns that may surfac e , ” as well as parenting classes “ with a fo cus on understanding the impa ct of ongoing parent conflicts on children

. ” Mother ’ s psy chologi cal eva luation repor ted “ a high level of defensiveness ” and
st ated t hat she “ may n ot have answered in a completely forthright mann er. ” Mother “ described her thought processes as marked by conf usio n, distractibility, and difficult y concentra ting, ” she

seem ed to s ee “ little need for changes in her behavior, ” and she m ight “ hav e problems communicating clearly with other people

. ” The psychologist stated that Mother ’ s intellec tual7 f unctioning was “ within the low aver age range ” and concluded that Mother should con tinu e with

“ i nd ividual therapy until dis charged by her ther apis t. ”
F inally, t he Department introduced its drug and alcohol test results for the parents

. Mother tested positive for alcohol twice in early January 2 020 and on ce in early July 2020 , all whi le preg nant with Lily ; positive for alcohol in September , Oct o ber, a nd December 2020 and in January , February , Ma y, June , July , Aug ust, and September 2021 ; and positive for cocaine in August 2019 and January 2021 . She had a “ negative

- d ilute ” r esult in Mar ch 202 1

. Father twice tested pos itive for cocaine in hair

- fol licl e tes t s pe rformed in February and September 2021 and repeatedly tested positive f or alcohol between March and Se ptember 2021

. Father intro duced the results of a January 202 2 hair

- follic le t est tha t was negative for all substances. Departm ent co nservat orsh ip wo rker Me lat Mek onnen testified that Lily was removed because the Department “ had an open case with [Mother ’ s] previous child ren, ” her parental rights to whom were later terminated; Mothe r h ad t ested positive for alcohol whi le
pre gnant with Lily ; an d th e Dep ar tme nt had concerns about Mother’s “ mental health and a psychiatric evaluation that stated she was unable to care for small children

. ” Mekonnen testified that Mother had not been hone st abou t her drug and alcohol use in her psy chological evaluat ion , h ad been diagn osed with alcohol abuse in a psy chiatric evaluation , and had n ever acknowledged
to M ekonn en that she ha s a drug or alcohol problem

. Lily was released t o Fath er from the N IC U but was removed after the Department received reports allegin g th at Fa ther had been int oxicated while caring for Lily , who had falle n off the c ouch a nd hit her head ; that Father h ad left Li ly unsupervised in Mother ’ s care ; tha t Mother had a positive urina lysi s te st for cocaine ; and that Father had “ a positive hair s tran d tes t f or cocaine. ”8 When Lily was removed , she had COVID

- 19 an d bronchi olitis , she was overweight, and “ she appeared to have developmental delays

. ” Lily was plac ed in a foster home, wher e sh e rema ined throughout the case. T he Department had consid ered bo th gr and mot hers as possib le placements, but Mekonnen said that Fa th er ’ s mo ther ( “ Linda ” ) “ denie d placement when asked, ” and that Mary was ruled out because she te sted positive for cocaine an d d ue t o “ the reports of domestic violence between ” her and Mother

. Mot he r told Mekon nen that she an d F athe r had lived together until November
2021 , although she never admitted that she had lived with him during the monitored return

. M o ther said that s he h ad “ li e d in order for the Department to continue the path of reun if ica tion with ” Father. In addition, Meko nnen had seen women ’ s sho es in Fa ther ’ s bedroom , and he told her that the shoes were M o ther ’ s , although he never admitted tha t she w as living wit h hi m
. Me konnen did not r ecall seeing any ot her women ’ s items at the h ous e and c once ded that Mother might have left the shoes behind. In Novemb er 2021, one day after Mother told Mek onnen “ that she was moving out and she was going to be getting her new ap artm e nt , ” Mothe r wa s arrested for assaulting Father , bu t n either pa re nt reported the incident to the Department

. Mekonnen testified that during Mother ’ s weekly visit s with Lily , she w as

“ observed to have difficulties ” feeding Lily o r trying to chang e her cloth ing. Mekonnen also said that Mother , who had be en or dered to e ng age in individual therapy , had h ad t h ree or four thera pist s during the pend ency of the case

— s he was discharged from the first two for lack of attendance , and the third discharged h er after on e sess ion because Mother did the session while in a moving car wi th other people an d was “ dishon e st ” when asked who was in the vehicle with her. Mother had been seeing her current therapist since late October or early November 2021 ;9 s he had not ha d any po sitiv e drug or a lcohol tests since September 202 1 ; she had been e mpl oyed at the same job s ince November 2021 ; and her apartment was sa f e and suitable for a child

. Mekonnen testified that Fathe r tested negative in hi s alcoh ol and d rug tests until January 20 21, wh en he test ed positive for a lcohol and Mother tested posit iv e f or cocaine

. I n February 2021 , Father ’ s hair

- follicle test was positive “ for cocaine, be nzos and coc aine metaboli te , ” and Lil y was re m oved from his c are
. Mekonnen said that Fat her had dec lined an early o ffer of individual counseling but a dmitted that t her apy was not required of him until April
2021

. U ntil that point, Mekonnen testified, “ there were no service s provided to [Father] in

c onnect ion with a ny positive drug test resul ts or alcoh ol res ults

. ” She also agreed tha t he was not provi ded any serv ic es “ i n connec tion with alcohol consumption or the positive cocaine test result until July 2021 , ” by which point the Department change d its goal from reunification to adoption. Meko nnen agreed that a l though the Department ’ s July 19, 2021 perma n en cy report sta t ed t hat the goal had changed from reunification to termination, the Department believed at that time of the MSA “ that it was in the best interest of the child not to terminat e ” the parents ’ righ ts. She explained , “ It was my understanding that the pri mary goa l was u nrelated adoption and the concurrent goal was f amily reunification with the h opes of the g oals changing following the Mediated Settlement Agreement. ” Father agreed in the MSA to absta in from alcohol , complet e a drug and al cohol a sses sment ( OSA R ) , a n d engage in therapy

. Since then , however, Father had tested positive for alcohol multiple times . In addition, he had not begun therapy or complete d an OSAR until December, telling Me konn e n “ that he did not hav e a sub stance use proble m and did no t wan t t o

— he did not want to lie and say he did ju st because th e Department wants him to. ” Father was not referred to any resources after comple ting the OSAR.10 Mekonnen testified tha t Father ha d subm itted to most drug tests requested by the Dep artment and “ has bee n positive fo r alcoho l and co caine , ” including positive res ults for cocaine i n h air

- stran d tests in January 202 1 and September 2021. S ince L ily ’ s removal, Father had “ very f reque nt ” re sults for alcohol , w ith we ekly positive tests fro m A pr il to Jul y . Fa ther also
test ed positive for cocaine in September and had two positive alcohol test s on S eptember 27 and October 6 but had “ tested negative for everything ” since then

. Mek onn en testifie d that because of his two DWI convictions and his f reque nt posi ti v e a lcohol tests , the Department was

conce rn ed that Father is addicted to a lc ohol. S he noted that Father ’ s psychological evaluation

“ state[d] a concer n of cop ing ski lls ” and said that the De par tme nt had concerns that he uses drugs or alcohol as a cop ing me cha nis m , which could signifi cantly impai r Lily ’ s well

- bei ng
. Although Father was ordere d to start counseling in April 2021 , he did not receive a referral until August. Meko nnen t h ought the delay was initia ll y “ due to the counseling office
h aving a wait li st, however he was then able to make an appointment and they were having di fficulties reaching him, and on ce the y did he was a no

- show for his appointment , ” at which point he was discharged “ for n ot calling back

. ” Fa ther told Mekonnen that he never got a lin k from the therapist and that when he called to get a link , “ no one answere d or got back t o him , ” but the therapist ’ s office ’ s s ystem showed that a link was sent

. Father was r efer red to his cu rrent therapist in Decemb er , a t which point h e began to e nga ge in regular sessions.
F ather missed on ly three visitations, but Mekonnen said, “We have observed

c oncerns with him appearing to be lethargic in his vi sits. ” However, she could not recall w hich visits raised concerns about Father ’ s lack of interaction , s ayi ng that it o ccurred “ several ” t ime s and th at either she or other facilitators had mad e th e observation , and she could not point to any notes about such concerns
. Meko nnen ’ s no te s from a Septem ber 2021 vis it did not mention11 Father being l ethargic and ins tea d indicated that when Lily star ted to cry, he stood up and tried t o get her to play

. In addition, Father “ appeared happy to see her. He hugged and kisse d her, ” and he “ adher ed to the v isit ’ s exp ec tations. ” She also ackn owledged that F ather was more in ter active in his two in

- person visits in De ce mber, before the Department rever t ed to virtual visits due to COVI D expos ure
. Mek o nn e n testified that that Father “ does his best to bond with ” Lily , who

seem s to be “ getting more comfo rtable ” w ith him and di d n ot cr y when left with him during his last visit

. Mekonnen agr eed that since September 2021 , there have been no concerns ab out Father ’ s parenting skills, employment statu s , his a bility to provi d e a safe and stable home, or his bonding with L il y . In add iti on , he complied with the re quir ement s that h e engage in therapy , undergo a psychological evaluation , and follow its recommendations. Although Father ’ s ho me was safe, clean, and appropriat e , Mek onnen ha d concerns be cause Lily has asthma an d Father ’ s hom e “ sme ll s like smoke when you walked in

. ” Father told Mekonnen “ [t]hat hi s kids are n ot here, so he smokes i nside t he house, but he would stop when or if [Lily] was returned

. ” Lil y ha d be en in the s ame foster home for almost a year, and Meko nnen t estified th at sh e and the f oster parents appe ared to be closely bonded:

[Lily] is visibly excited every time she sees her foster parents. She seems

— she appears to be uneasy even with

— in my ca re , a nd she h as been observed to have separation anxiety where she wil l c ry f or a w hile when she initially leaves her foster parents. She does refer to her foster parents as dada and mom, so

— and she just is a lot more interactive when with them.

Me konn en w rot e in one of her reports that Lily wa s “hard to cons ole for day s ” aft er visits with the parents and that she was “ smiling, l aughin g when picked up ” by he r foster parents and “appear[ed] that she ’ s excite d to see them

. ” The foster pare nts reporte d that afte r visits, Lily

“ does not w an t to be left alone ” and “ wants to be wit hi n eyesight of ” her foster parents , she “g ets12 visibly upset and w ill cry ” when her foster parents leave the room at bed time, and t he foster parents “ have had to spend nights on the floor in her ro om because she wa sn ’ t able to go to sleep without them b ein g present

. ” Lily ’ s f oster par ents were meeting all her emotional and physical

nee ds and making sure she atte nds a ll medic al and physical

- therapy app ointments . They wanted
to a dopt her a n d were wi lling to continue supporting Lily , and Mek onnen said tha t i f F ather ’ s rights were not t er minated, the foster parents were willing to continue as Lily ’ s perma nent managing conservators

. De bbie Belvi y was the guardian ad litem for Mother ’ s older chi ldren and had recommended termination of Mother ’ s r ights to Xande r a n d Jules . S h e wa s appointed as Lil y ’ s guardian ad litem in Aug ust 2020

. When Belviy visited Father and Li ly in September 2020 , her main concern was that Lily was sleeping under blankets , a n d F ath er said that he had received informatio n about safe s l eep from the Department and the hospital

. During a nother vi sit sever al weeks later, “[t] he baby was covered in blankets again, an d we had the discussion again about safe slee p
. ” I n early Nove mber, Bel viy called to chec k in and heard Mother in the backgro und

. W hen Belvi y asked how ofte n Mother was having visits, Father “said she was visiting a couple of hours a day, a nd then mom yelled in the background

. She s aid, ‘ Don ’ t l ie . I ’ m here 24/7. ’ ” Belvi y called the Department caseworker , who later reported tha t she had found Mother alon e with Lily and that the Department was putting into place a safety plan

. Belvi y “[a]bsolutely ” agreed with the Department ’ s decision to remove L ily after Father ’ s hair

- fol licle test was posi tive for cocaine. F urther, w hen Li ly was placed with her foster hom e, Belvi y said , “her leg stren gth was not very goo d. She was not sitting up good, not like she should be

. ” T he foster parents did an early c hildhood intervent ion , whic h r esult ed in a referral to physical th e rapy to streng the n Lil y ’ s legs.13 Belviy observed on e in

- person visit between Lily and Father . She said that Lily

“ was ve ry eyes - on the foster mom. Wherever the foster mom went, she had ey es on her. She

wa s kicking her little legs li ke she was re al happ y and everythin g. She is very bonded to foster

m om. ” When Lily “ realized where she was, she started screaming , ” so Father “ took her and he

was holding her and patting her, and she would ca lm for a few minut es and the n she wo uld start

scr eaming again, ” at which point he wo uld pat her again. F ather event ually calmed Lily and got her sitting up , eating cereal , a nd watch ing a vid eo on h is phone

. “ [S] he would just start crying for no reason, a nd then he would t ry to cons ol e her, and after a little b it she wo uld stop again,

an d then

. . . it was just intermittent like that for a while. ” Father “ l ooked very un com fortable, ” but Belviy did not know if he was uncomfortable with Lily or because Belv iy wa s observing. Belvi y was concern ed about Father continuing to drink while car ing for Lily and after t he August 2 021 MSA ; his prior DWI convictions ; his honesty throughout the case, including his f ailure to tell his counse lor that he had been testing po sitive for alcohol and his
f ailure to admit to the Department that he and Mother wer e living together in November 2021; and hi s history of domestic violence with Mother and the mother of one of his other children

. Belvi y believe s Father “ has an alcohol pr oblem ” and might p ose a dang er to Lily if he does not address it

. She also noted th a t after the MSA , “ [t] here were things that were supposed to be done and they weren ’ t done , ” and that Father tested positive for alcohol in Septem ber after agreeing to stop drinking

. Althou gh Father ’ s recent progre ss indicated that he wa s “ start ing to mov e in the right direction , ” Belviy had “ concerns that he didn ’ t actually kick it in when we agreed that he was not going to do all this a nd we could increase his visitation and everything els e. He jus t

wasn ’ t taking it seriously for some reason and that bo t hers me

. ” She ackno wledged th at Father ’ s O SAR had determined that he did not need services but also noted that a pa re nt must b e hones t14 f or an OSAR to be accurate be cause “ [ i]t is self

- repo rting , and if a perso n does not be lieve they
h ave a problem a nd d on ’ t report it as an issue, th e n it ’ s not picked up that way. ” Belvi y testified that M o ther has not been truthful with her since “ the first time I talked to her ” and s aid, “ I k now she ’ s tryin g to get h erself stable, but I don ’ t think she ’ s there yet

. ” A s k ed whether Mother had “ever been this clean ” in her earlier case , Belviy said she thought Mother had “ gotten pretty clean ” to th e point that the Departmen t ha d allow ed weekend visits but that “ some men tal health issues kicked in at that point ”

— explain i ng t hat after so me weekend vi sits , Mother had called the Departmen t to say , “ I ’ m having troubles. ” Belvi y agreed “ that it ’ s in the best interest of a child to be placed w ith relative s ” and admit ted that sh e never contacted any of Lil y ’ s rel atives , includi ng h er paternal grandpar ents

or a maternal aunt , as possible placements . She also said that there was no reason why she did
not c all any relatives and acknowledged that i t was part of her d uty “ to investig ate and to interview anybody that y ou think has an y f a cts in the case
. ” However, t he possib ility of rel ative placements did not change her recommendation because “ they are also aware that there ’ s a CPS case going on, and my concern is if you ’ re so c oncer n ed about your grandchild, why haven ’ t y ou
contacte d u s to try t o get placement of your grandchild. ”
B elvi y agreed that Mother had been working services and that visit ation s have
gone well

. She also knew that Father ha d r ecently passed a hair

- fo lli cle test but said that although those resul ts indicate d “ t hat he ’ s f inally decided to take this seriousl y , ” they did not change her recommendation

. Bel vi y thought that Father should have made changes about a year earlier “ bec aus e that ’ s about when his child was r emoved from him. He should have st arted then. So I j ust don ’ t think that th is is a long

- last ing thing. I hope it i s for his sak e, but I just don ’ t have a lot of faith in his motivation. ” Belvi y thought that it “ wou ld take a long time ” to15 pro ve that Fat her was a safe parent by showing hi s “ [l]ong

- term sob r iety ” but that “ we don’t have a long time. ” Belvi y did not believe either parent could provide Lily with a stable home o r meet her p hysic al and emotional needs , did n ot think either parent h a d demonstr ated an ability to safely parent Li ly , and though t it “very probable ” that Lily cou ld be developmentally delay ed if
retu rned to the parents. Belvi y testified that Lily ’ s best interest “ would be served by staying with her foster parents and bein g adopted b y them an d making a life for he rsel f with them. ” Bel v iy had observed Lily in the home and said that Lily was “ very ” bonde d to her foster parent s, who were meeting all of the child ’ s needs . Belviy did not have any concer ns about the foster home and testif ied that she ha s no do ubt that term ination and ado pti o n was in Lily ’ s best interest

. Karyn Epstein, an early intervention specialist, tes tified that she had b ee n provi ding therapy to Lily si nce April 2021 , when she was seven month s old

. Lily started the
p rogram “ testing fo r milestones ba sically around two and three months old ”

— s he was not “ quite sitting up on her own yet, ” “ grabbing for toys l ike we would expect her to, ” answer ing to her

name , holding her ow n bottle, ro lling over, or b eari ng w eight on her feet when held in a standing posi tion. Epstein sai d there was “ no actual way to tel l ” why she was delayed, but in her experience, “ it usually c omes from lack of experience

. ” Lily “ is now walking, talking, eating on he r own, using utensils, r unning around , ” and Epstein testifi ed that the foster parents ha d “ done
every thing we have asked and more. They are usu ally asking for even more things that they can do during the week. ” Epstein agreed that Li l y was “ no w almost de velopmentally on tar get ” thanks to he r work with Eps t ein an d to the f o ster parents ’ e ffo rts

. Lily ’ s foster mother, “ Cla ire , ” is a psychologist who ha s worked with children in the past. Lily had lived with her , her hus band , and her two children for a year , since she was five and on e - half mont hs old . A t pl acement , she was ov erweight and “ q uit e a large baby

. ” S h e “ had16 a horrible, horrible cough ” and made a “ gurgli n g kind of a sound or a breaking kind of sound ” when she breathed and was diagnosed with b ronch iolitis and asthma. In addition, Lil y was not roll ing over or startin g to sit up on her own, she had a bald spot on the back of her head, and she

wou ld not try to push up on her arms when placed on her belly

. Lily was placed into p hysical th erapy and a p rogram aimed at he lping her reach exp ected developmental milestones

. The therapists pro vided strategies to wor k on at home , which Cla ire and her husband use “ throughou t the day with her in everything we do, from the way we communicate with her to the way we watch her, the toys w e give her t o play with, and , y ou know, the wa y w e wat ch her mov e around the house. ” L ily attend s a daycare that provides “ different kinds of . . . educati onal activities , ” and the family has established morning , bath, and bedtime routines. Cla ire testi fi ed that she b rings Lily to and from in

- perso n visits wi th t he parents :

Typically, after the visits

— when I first pick her up she ’ s very excited to see me and wants immedi ately for me to pick her up, and then typically for a d ay or two she has an incr ease d, kind of, desi re for us to hold her, to be a lways next to h er. She tends to get pretty upset if we kind of move out of her line of sight; if she ’ s in her highchair, we move away, she ca n ’ t quite see us. She really wants to be wi th us as much as pos sibl e
.
She had obser ved a number of the parents ’ v irtual visits a nd never saw anything inappropriate but said, “ I haven ’ t observ ed many parenting skills at all, ” explaining that she saw “ [m ]i nimal
in teraction ” during Father’s virtual vi sits . She said Father ’ s virtual visits usuall y only laste d for betwee n seven and ten mi nutes, despite being s chedule d for thirty minutes

. Cla ire was asked why his virtual visits were s o short, and she said:

H e seemed to end the visits whenever [Lily] dem onstrated kind of

— if she started to fuss or cry. I remember one time when she was

— pr ett y early on she spit up,17 and I was just c leaning her

— her shirt, and he said, “ Oh, well, I ’ ll let you go so you can take car e of cleaning her up, ” which, I mean, she ju st spit up a tiny bit. It was pretty typi cal for a

— she was probably a bout seven mon ths th en. So it was typically something like that or just he would just end the visit for no, necessarily specifically, verifia ble reason.

She said that he would typically tell Lily hello ; “say, ‘ T his is daddy ’ ”; “ tell her that he loved her, and say he wanted t o see her soon , and that was about it. He didn ’ t really, you know, comment on what she was doing or, you know, ask about her toy or even mak e comments about how she was interacting or engagin g. ” However, Cl a ire ac kno wledged that Lily was so young that sh e could not give him her exclusive attenti on during a vir tual visit , particularly when provided with toys in person

. Mother ’ s early visits were similar , but she “ beg an to in teract more , ” ask i ng quest ions or comment ing about toy s or Lil y ’ s clothing, and Cl a ire said Moth er ’ s visits have improved and “ have been appropr iate and increasingly interactive. ” Cla ire expressed concerns about gifts Father had recently given to Lily because “ everything t hat was made of cloth smelled of cigarettes, ” which was worr yi ng because Lily “ has a s thma and allergies a nd we are conce rned about what she might be exposed to. ” Further, Cla ire h ad doubts about the parents ’ ability “ to be fo rthr ight and honest and to kee p appropriate bo undaries

. ” Cla ire and her fa mily are bonded to L i ly and want to adopt her . S he, her husba nd, their sons, and their extended family were all “ ver y attached to her ” and “ want he r to have the b est life she can have , ” and s he thinks her family “ can provide a loving, happy home for her. ” The foster famil y i s willing to be permanent managing conservators a nd to “ take on all of the finan cial responsibilities ” for Lily if Mother and Father reta ined their parental rights. Officer Heath Crum of the Ki lleen P o lice D epartment testified that in November 2021, he r e s ponded to a c all about domestic violence at Father ’ s residence. Crum interviewed18 Mother , who said that “ they ’ d been drinking that night and they got into an argum en t regarding

w ho was head o f the household. ” She report ed that the arg u ment had “ escalat ed ” from “ verbal
to pushing and she g ot tired of it, walked into the kitche n , grabbed a kni fe and told him that if [he] put [ his] hands on her again that she ’ s going to stab him

. ” She told Cr um that she and
Fa ther “ continued arguing

. . . and t hen from th ere h e put his ha nds on her, ” explaining that “ she basically goaded him into

— or enticing him to come at her, and when he did, she lung ed at him and cut the left side of his neck

. ” Mother was ar rested for aggra vated assau lt on a family

me mber because she t old C r um that she and Father were in a dating relationship and “ lived together. ” Crum never asked Father if he and Mother were dati ng or living to gether , nor did he
kn ow who ha d been drinking

— M other had referr ed to “ they , ” and Crum said he “ assum[ed] that she ’ s referring to everyone in the household

. ” Mother testified that she worked at the sa me restaurant as Father and had been there for about three and one

- half months , earning abou t $1 ,200 to $ 1,500 a month. She had been living in her apartment since mi d

- Nov e mber 20 21 , and before that she “ lived in my own house currently where [ Father ] is li ving

. ” She testified that she moved in with him when the child wa s four or fi ve months o ld and lived th ere for “ [m] aybe a year or two ” but also sai d that she had not live d with him during the monit ored return , d uring which time Mother lived in her own place

. Moth er did not remember telling a psychologist that she had stopped t akin g antidepressants , and s he testified that she was not taking medicat io n for any mental h ealth issues and had been tol d she did not need “ MHMR

. ” 2

2 MHMR stands for Mental Health and Mental Reta rdation

. T he Texas De part ment of Mental He a lth and Mental Re tardation was abolis hed and replaced by the Department of State Health S ervices and Depart ment of Ag ing an d Disability Services

. See19 Mo ther testified that she and Father had ended their relationship about six months earlier because they “ did n ’ t see eye t o eye on a lot of things, ” such as finances , but that s he never h ad any conc erns a bout his parenting and that “ he ’ s a great father. ” Mother h ad obse rved
F ather ’ s weekend visits with his older children when she li ved with him and said that he w as

“ [v]ery bonded with them , ” they resp ect h im, he “ ma d e sure they ’ re fed and that

. . . thei r hygienes were kept up , ” and “ it was really good. ” Father did not drink while his older children were with him , he did not go to bars after work or invite friend s over to drink, and he onl y smoked cigarett es outside

. Mother testif ied that she also smoke s ciga ret tes and agreed that smoking around a child with asthma is not a good idea. Although Mother remembered telling the Department that she was concerned that
F ather was using marijuana w hile Lily was in his care, she testified t h at she ne ver saw h im u se marijuana around the child

. Sh e only saw Father drink “ [m]ay be a shot ” once a week in the time Lily was in his care

. She never saw Father use drugs , he never t old her tha t he had used co c aine , and when h e told her a bout his posit ive test , he denie d th at he had used the drug. Mother denied that she a nd Father had used cocaine together in Jan uary 2021 . She also denied that she and Father are alcoh olic s , that s he had a drug p robl em , or tha t she had attempt ed to avoid a po sitive test on the da y she ha d a di luted result in March 2021 . Mother was willing to complete a rehabilitation program to retain her p arental right s and said she had successfully completed suc h

a program in August 2021 and would “ definitel y be willing to do it a gain. ” However, Mothe r al so agreed , “ Correct . I gu ess, ” when asked , “ So rehab isn ’ t really going to be very succe ssful if
you can ’ t admit that you have a problem , correct? ” She later clarified that alt hough she di d not

htt ps:/ /www.sunset.texas.gov/reviews

- and

- reports/agencies/texas

- department

- mental

- h ealth

- an d

mental

- reta r dation ( last visited on Aug. 10, 2022 ).20 believe she had an addiction probl em, she was open to un der g oi ng an OSAR evaluation to

“ discuss this further to determine whether ” she had a problem

. Mother testified that s he last used illegal dr ugs more than a year ear lier , that she had not had a d rink since Septem ber 2021 , and that she would never d rink agai n , say ing, “ It has ruined my life. I will never use it again ever. I ’ m on a straight path. ” She was not currently attending AA or NA meetings and did not believe she might relapse in the futu re , but when

a ske d about her plan if she w ere to re lapse, Mot her an swered , “ I would go to AA meetings or I would join a rehab, but that is far from my brain right now. I would never rela pse. ” A sked w hat had changed since her rights to her older children were terminated, Mother said that she no w has transportation , emplo yment, and housing, and she knows “ for sure that I ’ m able to watch after her and feed her and bathe her and do everything I need to do as a parent. ” And al th o ugh they are no longer in a re lationship , s he a lso has the su pport and assistance of Father a nd h is fam ily, with whom she gets along

. Mother testified that she had look ed into daycare for Lily and that she got b enefits t hat could “ provide me daycare and a ny other resources that I migh t need while
I ’ m at work. ” Moreover, th e par ents ’ e mploye r would a llow t hem to w ork different shifts so they can care for Lily. Mother admitted that she had be en arrested in November 2021 and charged with assaulting Father

. That case was still pending a t the time of the final heari ng , and
Mot her refused to answer any q uestio ns about the allegations , invoking he r Fifth Amendme nt privile ge
. Father testi fied that he ha s th ree olde r children and that the Department had never be en involved with those children , saying that if he had not had Lily wi th Mother, “ y ’ all would

nev er [have] kn o wn me. ” He test ified, “ I ’ m a great father and I don ’ t have CPS p rob lems. I ’ m

n ot a dru g addict. . . . I don ’ t have any reason for CPS t o be in my life other than the fact tha t I21 had a child w ith so mebody with CP S in their life already. ” Fa ther said he did not know t hat Mother was drinking wh ile she w as pregnant with Lily , nor di d he know she ha d a pending CPS

case until the Departmen t “ walked th rough the do or in the hospital

. ” H e said that a lthough h e knew Mother had children, she sa id the y were with f amily members whene ver he a sked about them. Father said that w hen Lily was in his care, he met all her needs and she was never left unattended. F ath er denied the Department ’ s c l aims that Lily w as deve lopmentally del ayed when she was removed , saying , “ Yeah , that ’ s totally false

. . . . She wa s doing everything that a

n ormal child he r age was supposed to be doing, including playing on the floor. ” S h e was rolling over and could ho ld her bottle , an d Father said that whe n she was about three month s old , he
sta rted placing her in a jumper for exercise and play

. F ather also testified that he and Mother only lived together briefly, for “ [a] bout a month ” a fter he took over the lease to the house she liv ed in and before she m ove d into an apartment , and h e denied th at Mother had lived wi th h im while he had custody of Lily . He admitted that he once left the two of them alone when he had
to pick up his older c hildren from school

— Lily “ was a sleep, and the sc hool was like two minu tes
away, so I figured I ca n just go get them and come back and there wouldn ’ t be no problem ”

— and said “ that was a mistake on my end ” and that he told Ger sna it would not happen again

. F ather admitte d that he drank al cohol and sa id th at he last drank in Se ptember
2021

. He also test ified that he had told his therapist that he drank. He insisted h e does not have a drinking problem and said he “ drink[s] to be merry

. ” F ather noted that “ al cohol was not a

reason for the disruption of the monitored return ” and did not understand why it had bec ome a reason for the Department ’ s requ est to terminat e his rights. He said that since the positive test for co caine, which he denied using :22 I ’ ve just b een on the straight and narrow working, coming h ome, working, working, working. I work a lot. A nd al cohol is legal. I was never formally told I couldn ’ t

— The only time they told me I couldn ’ t drink is when she was in the home, which I didn ’ t. That ’ s not why y ’ all took my kid. So I w as even given per mission to have a Supe r Bowl party as long as my daugh ter wasn ’ t in the home, which was

— dri nking was going to be there. Carla can attest to that, the first ca seworker. So n ow all

— after all this time it ’ s, o h, you ’ re an alcoholic now.

He s aid he was never positive for alcohol while he was Lily ’ s primary caregiv er except when he asked for and obtained permission to have a Super Bowl party

. H e admitted to two prior convictions for DWI, saying, “ I couldn ’ t a ffo rd a lawyer, s o yes. ” Father a lso admitted t hat he
test ed positive on February 14, 202 2, a fter d rinking at a frie nd ’ s party the night before.
A sked about the hair

- follic le test that caused the Department to remove Lily from his care , F ather testified , “ I ’ ve ne ver done drugs before in my life , ” and , “ I can ’ t explain it to
you. Like, no drugs had ev er been in my uri ne, so I ’ m flabbergasted that it could be in my hair

. ”
H e “ never knowingly did any drugs.

. . . I thought I was slipped something . . . so m y daughter could be taken. I t hought it was all p urposefully done, ” e xplaining that even before Lily was placed w ith him, he had call e d the Department and “ told them they was going to start receiv ing phone calls making allegations against me because he r m other didn ’ t like the fact that I was getting [Lil y] and she wasn ’ t

. ” Father also testified that Mary “ told me b l a tantly out of her mouth that sh e was going to do everything possible for my daughter to be removed from me
. ” In addition, he never saw Mothe r use cocaine , never had concer ns about her having supervised visitati on with Lily , and never saw someone us ing co caine in front of him

. Father denied that he had been into xicated and allowed Lily to fall off a couch during the mon itored return. Father also sai d that although the y bo th tested positive fo r drugs or alcohol in September 2021 , he and Mothe r had not dr unk alcohol or used drugs t ogether since23 L ily ’ s removal. Father testified that in late February , he had done another OSAR evaluation, asking “ [f]or a professional an alys is ” and “ explaining in d etail what was goi ng o n , ” and that th e result “ was s ti ll not referring me to any sort of outpatient or in patient treatment . . . . I was not told to do any inpatient or outpatient rehab or AA or anything like tha t. ” He said he intende d to continu e therapy , and altho ugh he also said he did no t know i f he woul d conti nue therapy after the case conclu d e d because he did not think he need ed it , he agreed that counseling could help
h im an d M o ther co - parent

. Fa ther admitted t hat he had been arrested twice for assa ult against the mother of

on e of hi s older children but denied that he was ever violent toward Mother

. He testified about the November 20 21 incident that resulted in Mother ’ s arrest , explaining that Mo ther and his uncle came to his house

. Father was frus trated about Lil y ’ s removal and “ bl amed ” Mo t her,
sta rting an argument that resulted in her getting a kni fe from Father ’ s kitchen and threatening him with it before Father ’ s grand moth er took the knife aw ay
. Father did not be lieve Mot her actually intended t o harm him and t old the police that he did not want to press charges

. H e said:

I blamed her for my daughter being taken. I blamed her for the cocaine that was present in my hair follicle. Like, I ’ ve never partaken in any drug. An d, like, I almost passe d out when I got the test results t hat made my daugh te r get taken from m e. So yes, I brought it to her. I was mad. Like, I continued to state this, that yes, I was angry, that I felt like she was the one reason why my daughter was taken.

A t that point, he said, “ her em otio ns of being, I guess yo u would s ay, getting blamed for it and she ’ s denying it, made it blow up like i t was, like it did. ” He denied that either he or Mother had been drinking and s aid that if Mother told Officer Crum that she and Fath er were in a dat ing relationship, i t was no t true. He also said that they did not push each other during the altercatio n
.24 F ather was asked how he would make sure such an incident did not happen again, and he said that he would limit his interactions wit h Mother to co

- par enting and that “ we don ’ t h a ve to ha ve the conversation about anything but ou r children. ” He also said that arguments about who was to blame for Li ly ’ s removal wo uld not arise if Lily w as returned

. Further, Father

a nd Mother are cordial a t work, where th ey work in di fferen t areas , and h e s aid that “ at the end of the day it ’ s not about me or her; it ’ s about my child. And I ’ m

— I ’ m

— and she wi ll never be in no harm ’ s way ever. None of my k ids will be. ” He did not belie ve a no - cont act order b etwe en him and M other was necessary but h e was “ will ing to do it ” if ordered to do so. A sked about a February 2022 social

- media post in which Mother ref err ed to him as her fiancé , Father said he did no t kno w about it until he was to ld about it by a friend . He testified that he and Mother were

no long er in a relatio nship ; denied that they were enga ged ; and testifi ed that he did not plan to resume the relatio nship after the case was resolved

. Ev en if Mo ther ha d “ different ideas of wh at ’ s going to happen be twee n ” them, Fat her said, he did no t believ e it woul d affect their ab ility to co

- parent or lead to another incident of domestic violence. Father testified that he had look ed into daycare for Lily and ha d a favorite because it was bet ween his mother ’ s home and his job. Fa ther testified that he made enough m oney to take care of his b ills , his children ’ s needs , and his child

- support payments

. H e said he did not have enough ad ditional i n come to pay fo r a Soberlink devi ce on his vehicle, a s had been ordered by the trial cour t , but agreed that t he devic e was one of the conditions of the MSA and said that he would figure out how to pay for it if the trial court require d i t as a condition of him retaining his parental rights. Father though t that “ as a result of t he Mediated S et tlement Agreement [h is] righ ts were n ot going to be terminated ” an d that he would get increas ing visitation , and h e said that his mother Linda helped with Lily and offered to be a placem ent , but the Department never25 co ntact ed her

. Father al so testified th at Lily had grown mo re c omfo rtable at visitatio n s

— h is last visit ended with her giving him “ a high fiv e ” and a kiss , and s he no longer crie s during visit s , which he beli eved used to happ en because “ she probably didn ’ t remember” h im. Linda ob served Father w hen he had c ustody o f Lil y a nd said t hat he “ sho wed that he cared for her, that he was making sure that he had what he needed for her, and to me, I felt like he was doi ng a wonderful job with her. ” He was “ [a]lways lo ving, al ways attentive, ” and Lily alwa ys “ looked health y a nd loved

. ” Linda is a substitute elementary teacher with a master ’ s degree in special education , and she help ed care for one of his ol der children when the mother of that child had a n open CPS case

. She testified that n o one from the Department ever cont acted he r to ask if she wanted to be a placement for Lily . She would consider being a placement but said she never reached out to the Department because of “ [ p ]erson al reasons pertaining to ” Mother and her family , saying , “ I feel like they ’ re disturbing , drama , t hey like to disrupt stu ff, and I don ’ t want that in my life. ” Linda testified that Fa ther “ demonstrates ad equ ate and safe
p arenting skill s , ” “ love s his kids and he takes care of them

. ” T he y were never ab use d or neglected, the y never appeared to b e afraid of him, and they were “ a happy family. ” She knew Father drank , although she had never seen it impair his parenting abilities, and had “ never seen him us e drugs. ” She testified that she wo uld support and help Fa ther if L il y returned to his care , and s he believed it was in Lily ’ s best interest for Father to retain his parental rights and for Lily to be placed with hi m. T her apist Dawana Flowers testified th at she had b een doing weekly session s with Father since mid

- December 2 021 and that t he Departm ent ha d raised co ncerns about his

“ drinking, his abi lity to ta ke care of his child, t o make sure that he had all of the protective

meas ures that he needed to have in order to be a protective dad

. ” Flowers testified that Father26 had engag ed in therapy , arri ved on t ime, had not missed any sessions, a nd “ talks about what li fe

was like before we came int o his life with his baby. He talks about his other children, his love for his children, and how he ta kes care of his other c hildren

. ” Father told Flowers that he and Mother wo rk in the same restaurant but said that they were no longer in a rela tionship

. Flowers also testified that Father had explained that he had “ a d aycare plan for the baby ” and that h e “ is not a new dad, so he has alr eady had th at experience raising o ther ch i ldren

. ” Father told Flowers that Lily was removed due to “ false alleg ations made against him that he had an excessive drinki ng prob lem , that he was not fi t to take care . . . of th e baby. ” Father admitt ed to his t wo DWI convictions and t old Flow ers that he had tested pos itive for alcohol t wice and “ d oes not have an alcohol problem

. ” On cross

- examination , Flowers testifi ed that it was “ surprising ” t o learn that Father had tested po sit ive for alcohol ever y week in A pril, May, and June 2021 , “ almos t every w eek in July of 20 21 , and then again in S eptembe r of 2021, and October of 2021. ” She said that a parent will n ot b e successful with therapy “ if t hey ’ re not being honest and the ther apist is not aware of t he problem or the s ituation ” and op ined tha t althoug h alcoh ol and tobacco are le gal , Father should “ [a]bsolutely not ” drink or smoke while caring for Lily , particularly in light of her asthma. Fat he r admitted that he once test ed pos itive for cocaine but d id not tell her that it occurred wh il e Lily was in h is care. Flowers thought that
pos itive test “ was after the child was remove d ” a nd did not know “ he was caring fo r the child when he tested posit ive

. ” Flowers also did not know t ha t Mother had tested pos itive for c ocaine
in the same time period a nd while Father was superv ising her visitations and agreed t hat it would place Lily in danger if the pare n ts were using cocai ne to gether while caring fo r th e child

. Fat h er told Flowers he ha d taken a psychological evaluation bu t did not tell her th at the p sycholog i st expressed “ concerns with his ability to have effective cop in g skills , ” and27 Flowe rs agreed that if Father uses alcoho l or illega l drugs to cope , he c ould place Lily at risk

. Flow ers said she “ [a]bsol ut ely ” still need ed to cover drug abu se, alco hol abu se , and his lack of coping skills if Father was not honest about those issues. Flowers also testified that Father could not be a protective parent until he was ready to admit to a pr oblem with alco hol or d rugs and to

“ make some major change s ” and t hat if he w ere “ ever under the in fluence and caring for ” Lily, he w oul d “ continue to be a danger to ” the child. Flowers agreed that Father’s therapy requ ired

“ a lot more time ” and re commend ed substance

- abuse co un selin g , say ing that if he did not “ really

w ork[] on the substance abuse, ” his progno si s “ is not going to be good. ” F lowers knew Father had been ordered into thera py in July 2021 and said it would give her “ concerns ” if he had waited to start therapy until December

. However , sh e add ed, “ I don ’ t kn ow what w as going on with [Father]

. I don ’ t know what was going on in his life at tha t time. ” Flowers “ [a]bsol u tely ” t hought that Lily wou ld be bonded to her foster parents and that her be i ng away from Father and hav ing pri marily virtual visita tio n wo uld “ place a wedge ” be tween Lily and Father. She explained th at “ you cannot bond over a computer screen and because of the baby ’ s a ge, the eye cont act, their attention span is not long enoug h f or any bondi ng to take place. I t ’ s no

— she doesn ’ t even kn o w how h e feels p robably anymore because it ’ s been awhile, and

. . . that ’ s concerning. ” Flowers did not think termination was in Lily ’ s best interest and recom mended that Father be given more tim e t o prove “ that he can b e that pr otective parent

. ” She s aid she knew “ it ’ s based on a limited time that I ’ ve been speaking with him ” and testified , “ I don ’ t know about the back story. But since I ’ ve had him, I see his e agerness, hi s willingness to be a g ood dad or wanting to be a father to [Lily] because he ha s other children

. ” O n cross - examination , Flowers said sh e cou ld not recom mend re unification “ ba sed on what I just heard today ” :28 Well, after hearing what I ’ m he ar ing today, [Father ] would need, like I said, substance abuse counselin g mor e intensely than ju st what we do. I mean, I can help him with protective parenting, holding him accountable, working with problem solving, coping skills, but the other piece of i t is

— that ’ s the piece that ’ s going to make or break the decisio n wh ether or not he ’ s able to tak e care o f his ch i ld drug/alcohol free for life.
However, she did not believe that Father ’ s rights should be t ermi nated

. She thought that the fact that Father ’ s n egative drug and alcohol test result s indicat ed that he was “ a lready o n the path to
recovery. ” Flower s recomm e nded that Father be given “ a little b it of time , hold him accou ntable for it

. . . and, hopefully, you know, he would be able to live drug and al cohol free. ” Therapist Heather Penaf lor testified that she h a d worked with Mother since late
O ctober 2 021 and h ad discharged her successf ully on January 31, 2022. Pen aflor said that Mother atten ded all he r weekly sess ions and made “ significant progress in regards to her life , ” obtain ing ful l

- time employment , a vehi cle, and her own apartment and ma king “ so me reall y big changes in regards to that. ” Mother “ full y engaged ” wi th Penaflor , “ al ways had a good disposition , ” and was open to learn ing from therapy. M other told Penaflor about her p lan s if Lily was returned to her care , saying she had inves ti gated da ycare, m a de arrangements, an d spok en to her emp loyer abou t shi fting her schedule. Mother never told Penafl o r that she liv ed with Father dur ing the case bu t said in late 2021 that she had gon e to a shelter to get awa y from he r arguments with him and later s aid that she h ad moved into her own apartment “ because she wanted to be away from him. ” In late November, she told Pen a f lor that Father “ wasn ’ t doing wha t he was supposed to, he w asn ’ t foll owing the plan, and so th at she ha d to do everything on he r own
. ” Penaflor knew that this

was Mother ’ s se cond CPS case , and Moth er had told h er “ very genera l ” information about the first case but n ev er “ how they got rem oved from her care. ” Aske d about co ncerns that she or the29 De partment had , Pen a fl o r said that Moth er had p rovided “ con fl icting information ” about whether she was still in contact with Father

. Further , although Mo ther did “ very well ” in her protec tive
pare nting class, “ there was no way to mo nitor those skills and ho w they ’ re applie d when she cares for her daug hter because [ P enaflor had ] not observ ed that

. ” Mothe r had established a plan

“ for sobriety and to maintain the sobriety , ” a nd Penaflor never saw a r eason to seek psychiatric help for M other , nor did she recomm end s ubst ance - abuse counseling becaus e Mother “ had establis h ed a plan that s eemed to be working for her and didn ’ t mention any str uggle s with it. ”
A sked whether contact with Mother would pose a d anger to Lily , Penaflor said:

That i s a little difficult to s peak on j ust because I ’ ve not obser ve d the in terac tions tha t she has with the child. Again, as I ’ ve put in my notes, there ’ s a little bit of reservation only be cause I ’ ve not been able to observ e how she implements her

— the protect ive parenting skills that she ’ s le arn ed in the curriculum, s o that ’ s

— t hat ’ s kind of w here I ’ m at with that.

Pen aflor expressed some conc erns ab out Mother ’ s co g nitive abilitie s because “ [t] here were times where she w as un able to remember some of the things that we discussed in a pr evious se ssion when she came to a lat er sessi on ” but also a g reed that Mother had been able to maintain a full

- t ime job an d pay for her apartment and car. Mother never told Penaflor that she had tested positive for cocaine or alcoh ol during the case and “ b asically ” told P ena f lor “ that all of her

resu lts were negat ive until that one time she told me it was d iluted

. ” She also never t old Penaflor th at she had tested positive for alcohol while pregna nt with Li ly or t hat she had been ar re sted for d omesti c viole nce again st Fat her in November , a fac t Penafl or said was “ [ v ]ery ” concerning. At the conclusion of the hearing, the trial court verbally stated that it found that the Department ha d shown grounds as to Mother under Family Code Sect ion 161.001(b)(1), subsec tions D, E, O, and M, and as to Father under subsections D , E , and O

. T he court f urther30 state d , “ I ’ m making a specific finding that I find the testimony of [Father] uncredible to be inclu ded in the order. ” T he trial court ’ s decre e f inds that termination i s in Lil y ’ s best interest ; that both parents had endangered Lily throug h their conduct or had a llowed the chi ld to remain with other s who en gaged in endangering conduct , had placed Lily and know ingly allo wed her to remain in condi tions that endangered her well

- b ei ng , and ha d failed to comply with a court order establi shing t h e actio n s necessary t o regain custody ; and that Mother ’ s parental rights to another child had been terminated due to endang erme nt

. See id. § 161.001(b)(1)(D), (E), (M), (O), (2).
T he si gned o rder also states , “ The Court finds that [Father ’ s] testimony is not cre dible. ”

STAN DARD OF REVIEW We review the suffici e ncy of the evidence supporting a trial court ’ s termination decre e under wel l

- e stablished standards. The Depart ment m ust p rove by clea r and convin cin g evidence that the parent en gaged in conduc t th at amoun ts to at l east one statutory ground for terminatio n and that termination is in the child ’ s best interest. Tex. Fam . Code § 16 1.0 01(b). Clear and conv incing evid ence i s “ the mea sure o r degree of p roof that w ill produce in the mi nd of the trier of fact a f irm belief or convict ion as t o the truth of the allegations s o ught to be established. ” Id . § 101.007 ; In re A.C. , 560 S.W.3d 624, 630 ( Tex. 20 18)

. “ T h e distinction between lega l and f actual suffi cie ncy lies in the extent to which disputed evidenc e contra ry to a findin g may b e considered. ” A.C. , 56 0 S.W. 3d at 630. In reviewing lega l suffic iency, we view the evidence in th e light most favorab le to the factf inder ’ s determination, inc lu d ing undisput ed contrary ev idence, and assume the factfinder res olved di sputed facts i n favor of its finding. I d

. at 630

- 31

. In rev i ewing factual sufficiency, we weigh the eviden ce favo ring the finding against disputed ev idence and consider whether the ev iden ce “ a re asonable factf in der could not have31 credited in favo r of a f inding is so s ignific ant that the factfinder could n ot have f ormed a firm belief or convictio n that the finding w as true. ” Id

. W e must “ provide due d eference to the decisions o f the f actf inder, w ho, having ful l opp ortu nity to observe wit ness test imony fi rs t

- ha nd, is t he sole arbiter when assessing the credibility and de meanor of witne sses. ” In re A.B. , 437 S. W.3d 49 8, 503 ( Tex. 2014); In re J.P.B. , 18 0 S.W.3d 570, 573 (Tex. 200 5).

DIS C USSION Both parents c hallenge the f inding that termination w as in Lily ’ s best intere st, a nd Father chal lenges the court ’ s finding of stat utory grounds. W e will first consider whether t he trial court erred in finding of g rounds under S ubsections D or E.
Statu tory Grou nds Stability a nd pe rmanence are p aramount i n the upbringi ng of children

. In re
M.E.

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

— F o rt Worth 2011 , pet. den ied )

. S ubsec tion (D)
f o cuses on the child ’ s environment and whether it “ causes the chil d ’ s ph ysical or emotional well

- being to b e endangered , ” with “environment” ref er

ring t o both the chi ld ’ s living conditions and the environment produced by t he conduct of the parents or others in the home. V.P. v. Texas Dep ’ t of Fam

. & Protec tive Servs. , N o. 03

- 19

- 0053 1

- C V, 2 020 WL 544797 , at * 4 (T ex. App

. — A ustin F eb. 4, 2020 , n o pe t.) ( me m . op. )

. “ Inap propriate, abusive, or unlawful conduct ” by those who li ve in the chil d ’ s home , including “ p hysical violence or abusive conduct b y one parent toward the oth er par ent , ” is part of the en vironment under S ubsection (D). Id

. In consider ing
S ubs ection ( E), on the other hand, “ the focus is on the parent ’ s conduct

— i ncluding acts, omissions , or failures to act

— and, specifically, on whethe r the eviden ce shows that t he parent

en gaged in ‘ a voluntary, deliberate, and conscious course of co nduct ’ that e ndangered the child ’ s32 physi cal or emotional well

- being. ” Id

. (quoting Tex. Fam. Cod e § 161.00 1(b)(1)(E ) )

. T he factfinder may consider the par e nt ’ s actions and ina ctions before and after th e child was born

. Id . (citi ng In re M.D.M ., 579 S.W.3d 74 4, 76 5 ( Te x. App.

— Hous ton [1st Dist.] 2019, no pet.) )

.

“ When the evidence pertaining to both subsecti ons (D) and (E) is interrelated, as it is here, w e may consolidate o ur revie w of the recor d

. ” Id

. A fa ctfind er “ is en titled to give ‘ great weight ’ to a p arent ’ s drug

- related c onduct,

as it is considered a ‘ significant factor ’ supporting termination. ” A. C

. v. Texas Dep ’ t of Fa m . &
Protective S erv s . , 577 S.W.3d 689 , 705 (Tex . App.

— Austin 2019, pet. denie d ) ; see In re L.G.R ., 498 S.W.3d 195, 204 (Tex. App.

— H ouston [ 14th Dist.] 20 1 6, pe t. denied )

. In deed,

e ndan germent can include a parent ’ s “ knowledge t hat a child ’ s mother abused drugs ” and failur e to prot ect the c hild fr om th at con duct. See In re J.W.S. , No. 06

- 14

- 00018

- CV,
201 4 WL 3013352, at *6 (Tex. App.

— Texarka na J uly 2, 201 4, no pet.) (mem. op.) (quoting
In re U.P ., 105 S.W.3d 222, 234 (Tex. App.

— Houst on [14th Dist.] 2003, pet. denied) )

. In this cas e, there was evidence that Father had satisfied many of the Department ’ s requirement s and had taken recen t steps to establish t hat h e could maint ain sobriety and meet Lily ’ s needs. However, his t herapist in dicated that he ha d not been fully truthful about his drinking or his living ar rangements with Mother , expres sing concern about that fact and stating that she cou ld not recomme nd re unification b ased on the testimony she had heard . A lthough Father denied u sing cocaine, he tested positive twice during the case , and importantl y, the trial court stated verbally that it fo und Father ’ s testimony “ uncredible ” and include d in its order the finding that his “ testimony is not credible

. ”
We may not reevaluate t he cou rt ’ s deci sion to refus e to credit Father ’ s testim ony and to ins tead cr edi t t he testimony and documenta ry evidence produced by the Department ,33 inclu ding evidence that Mother tested positive for alcoho l during her pregnancy with Lily ; that Father allowed Mother to live with him and L i ly and allowed her to care for Lily uns upervised; that he test ed positive for cocaine twice, inclu ding onc e while he wa s car ing for Lily ; that Lily

was developmentally delay ed when removed from his ca re; that he continued to test positive for alcohol throughout the case , includ ing after he agreed to abst ain; that he did not engage in counseling or unde rgo an O SA R evaluatio n for several months after the MSA; that he never installed the Soberl ink devi ce as agreed; and that he was not honest with his therapist about the

cas e and hi s abuse of alcohol

. S ee A. B. , 437 S. W.3d at 503 ; J.P.B. , 180 S.W.3d at 573

. A

“ par ent ’ s use of n arcotics and its effect on his or her ability to par e nt m ay q ualify as an endang ering co urse of conduct. ” In re J.O.A. , 283 S.W.3d 336, 345 (Te x. 2 00 9) ; see In re C.V. L. , 591 S.W.3d 73 4, 751 (Tex. App.

— Dallas 201 9 , pet. denied ) ( e vid ence of parent ’ s drug

use or that parent allow ed child to be around drug user may show “ voluntary, del i berate, and conscious cou rs e of conduct ” th at endanger s chi ld ) ; A.C

. , 57 7 S.W .3d at 699 ( “ A par ent ’ s ill egal drug us e may constitute en dangerment under s ubsectio n (E)

. ” )

. T h e court could have conclu ded that b y allowing Lily to be alon e with Mother after being instructed t hat Mother had to be

su pervised, by not acting when Mother d rank while pregnant, by dri nking and using cocaine while Lily was in his car e, and b y refusing to engage in the processes that might have helped him regain custody , Father engage d in conduct or al lowed Lily to be cared for by someone whose conduct endanger ed her or placed Lily or al lowed her to remain in conditions t hat endangered her by not acting wh e n Mother was drinking during her pregnancy

. Based on this record and the trial court ’ s determination of credibility, we hold that sufficient evidence support ed the trial34 court ’ s findin g of grounds under S ubsections (D) and (E). 3 We o verr ule Father ’ s se co n d issue

on appeal.

B e st Interest We review a trial court ’ s best

- interes t d etermination in l ight of the considerat ions set out in Holley v. Adams , taking int o a ccount the c hi l dren ’ s wis hes, their emotion al and physic al nee ds now and i n the fu ture, present and future emoti onal or physical danger posed to the children, the paren tin g skills of those seeking custody, any programs available to assist th ose seeking cus tody to prom ot e the child ren ’ s best interes t, plans for the ch ildren ’ s fu t ure, the stability of the home or prop osed pla cement, conduct by the parent that might show th at the parent

- child relationship is inappr opriate, and any excuses for th e parent ’ s c ond uct. 544 S. W. 2 d 367, 37 1

– 72 (Tex. 1976). The Holley f actors are not ex h austive and need not a ll be proved, an d a lack of evidence about some of the factors does not “ p reclude a fac tfinder from reasonabl y forming a strong conviction or be lief that ter min ation i s i n th e child ’ s b est interest, particularly if th e evidence were u ndispute d that the pa r ental relationsh ip endan gered the safety of the child. ”
In re C.H. , 89 S. W.3d 17, 27 ( Tex. 2002). The child ren ’ s need for permanence is the pa ramount consi der ation w hen det ermining a child ’ s present and future physi cal and emo tional needs. L.R.
v. Texa s Dep ’ t of Fam

. & Protect ive Servs. , No. 03

- 18

- 00125

- CV, 2018 WL 3 059959, a t *1 (Tex. App.

— Austin J une 21, 2 018, no pet.) (mem. op.); In re D.R.A

. , 374 S.W.3d 52 8, 53 3 ( Tex.
A pp.

— Hous t on [14th Dist.] 2012, no p et.). A parent ’ s rights may not be terminated merely because t he child ren might be better off living elsewhere, but the factfinder may consider

3 Because sufficient evidence su ppo rt s the court ’ s findi ngs under ( D) and ( E) , we need not consi der Father ’ s first issue challeng ing the (O) find ing

. See Spurck v. Texas Dep ’ t of Fam. & Protect ive Serv s. , 396 S.W.3 d 205, 222 (Tex. A pp.

— Aus ti n 2 013, no pet.)

.35 whether t ermination and adoption versus an imp ermanent fost er - care arr angeme nt would be tter serve the children ’ s best interest. See L.R

. , 2018 WL 3059959, a t *1. Mother and Father both had steady employment and housing , had engaged in therapy, and h ad positive visitations with Lily . However, Mother test ed positi ve for alcoh ol while pregnan t with Lily, who was born premature and taken int o Depart ment conserva t orship because of Mother ’ s open case involving her older children. T here was also evidence that Lily

was overwe ight and developmental ly delayed when she was removed from Father ’ s care
. In

a ddition, there was evidence that Mother had l ived wit h Father and L ily and had uns upervised contact with the child in violation of orders a nd a saf ety plan to the contrary ; Mother assaulted
Fat her with a knif e after an arg ument about Lily ’ s re moval ; and neither parent reported that incident to the De partment

. T he eviden c e supports a finding that Father abused dru gs and alcohol while Lily w as in his care and tha t both parents tested positive for alcohol and c ocaine after sh e was removed , and there was evidence that both parents were not fully honest w ith thei r therapist s o r OSAR evaluat ors
. Father declined to engage in therapy early and , after agreei ng to it in the MSA , still del ayed his engagement wi th therapy and the OSAR process until very shortly before the fina l hearing

. Several witnesses testifi ed that both t he delay and the ap parent lack of hones ty raised concerns that Mother and Father could not be safe parent s and might place Lily at risk of harm if she was placed in their care
. On the other hand, Lily was thriving in her foster home, where s he had lived s ince her removal from Father at about five months old. The family wa s bonded with the child , was meeting all her needs, had ensured that s he received help
to rea ch he r developmental milesto nes, was able to meet her needs in the futur e, and h oped to adopt her. Based on this record, the trial court could have determined tha t clear and convi ncing36 evidence supported a conclu sion that terminatio n of the parents ’ right s was in Lily ’ s best interes t. We overrule Father ’ s third issue and M o t her ’ s fi rst issue.

CO N CLUSION H a ving upheld the challenged findings of stat uto ry grounds and best inte rest, we affirm the trial court ’ s final de cree terminating Mother ’ s and Father ’ s p arental rights to Lily.

___ _____________________ ______ ____________ Darlene Byrne , Chief Jus tice Before Chi ef Justice Byrne, Justices Triana and Sm it h

Concur ring and Dissen ting Opinion by Justice Triana Affirmed
F il ed: October 5 , 2022