Opinion issued July 21, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-26-00128-CV
IN THE INTEREST OF C.K.J.-S., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2023-00498J
MEMORANDUM OPINION
Following an order naming the Texas Department of Family and Protective
Services as the sole managing conservator of C.K.J.-S. (Connor) and naming S.S.J.
(Mother) as Connor’s possessory conservator, the Department moved for
modification of the order and sought termination of Mother’s parental rights to Connor.1 The trial court held a bench trial and found, by clear and convincing
evidence, that termination of Mother’s parental rights was warranted based on three
statutory predicate grounds and was in Connor’s best interest.2 See TEX. FAM. CODE
§ 161.001(b)(1)(D), (E), (O), (b)(2).
Mother raises five issues on appeal. She first argues that the trial court erred
by admitting and considering evidence from before the trial proceeding that led to
the conservatorship order modified in the underlying trial. She next argues that the
court erred by terminating her parental rights under subsection (O) because the
Department pleaded for termination based on the former subsection (O), but
following a change in the law, the court terminated Mother’s rights based on the
current subsection (O). Finally, in her remaining three issues, Mother challenges the
legal and factual sufficiency of the evidence supporting the trial court’s findings on
subsection (D), subsection (E), and Connor’s best interest.
We affirm.
1
In this opinion, we use pseudonyms for the minor child and his family members to
protect their privacy. See TEX. R. APP. P. 9.8(b)(2).
2
The trial court also terminated the parental rights of C.M.-C.E. (Father) based on
Father’s execution of an irrevocable affidavit relinquishing his parental rights to
Connor. See TEX. FAM. CODE § 161.001(b)(1)(K). Father is not a party to this
appeal.
2
Background
Mother has three living children: an adult daughter; a daughter born in 2011;
and Connor, who was born in January 2022.3 Although Mother retains her parental
rights to her minor daughter, a relative has had sole managing conservatorship over
that daughter (and Mother’s older daughter, while she was still a minor) since
January 2021. At some point after his birth, Connor began living with this relative
as well after Mother experienced suicidal ideation and went to a psychiatric hospital.
Connor is the only child involved in this proceeding.
The events leading to initiation of this proceeding began in December 2022,
when Connor was eleven months old. The relative caring for all three of Mother’s
children reported that Mother had recently learned her address and began harassing
her and threatening violence to make the relative give custody of the oldest child
back to Mother. The relative refused because of Mother’s drug abuse history and
erratic behavior: Mother appeared under the influence of drugs; she threatened to
kill the relative; and she “even got into it with law enforcement when they escorted
mother off the premises.” Mother had “a history of mental health concerns” and
refused to take her medication. She also had made threats of suicide to her daughters
3
The appellate record reflects that Mother had a third daughter, but this daughter is
deceased. The record contains limited information about this daughter and her death.
3
and to the relative. The relative was “very fearful of mother and what mother might
do.”
The Department investigated over the course of several months. During this
time, Mother completed a drug test at the Department’s request, and she tested
positive for PCP. The relative contacted the Department investigator on several
occasions and reported that Mother was harassing her and threatening her with
violence. Based on Mother’s behavior, her history with the Department (which led
to the removal of her daughters from her home and their placement with the relative),
her documented history of PCP use, her mental health concerns, and her criminal
history (which included convictions for theft, DWI, possession of a controlled
substance, terroristic threat, and assault), the Department was concerned about
Mother’s ability to provide a safe environment for Connor. The Department filed
suit in March 2023 seeking managing conservatorship over Connor and,
alternatively, termination of Mother’s parental rights. As the case moved forward,
Connor resided with his paternal grandmother.
The trial court held a bench trial in February 2024. In between initiation of
this proceeding and the 2024 trial, Mother had completed inpatient substance abuse
treatment and some of the tasks required by her family service plan, including
parenting classes and individual therapy. In April 2024, the court found that
appointing Mother as a managing conservator of Connor would not be in his best
4
interest. However, it did not terminate Mother’s parental rights. Instead, it named
the Department as Connor’s sole managing conservator and named Mother as his
possessory conservator.
A year later, the Department moved to modify the conservatorship order,
alleging that “[t]he circumstances of the child, a conservator, or other party affected
by the order have materially and substantially changed since the date of the rendition
of the order.” The Department sought termination of Mother’s parental rights based
on three relevant statutory predicate grounds: subsection (D), subsection (E), and
former subsection (O) relating to failure to comply with a court order.
Three witnesses testified at the trial on the Department’s modification
petition: Ashley Craft, the Department caseworker; Mother; and Connor’s paternal
grandmother, who had had custody of him since July 2023. At the beginning of the
trial, the Department offered 17 exhibits—including exhibits that contained evidence
relating to events that occurred prior to the 2024 trial, such as the removal affidavit,
Mother’s family service plan evaluations, and drug testing results—into evidence.
Mother did not object to admission of these exhibits.
Craft testified that the Department had been concerned about Mother’s
substance abuse throughout the case, and Mother did not alleviate this concern.
Although she successfully completed treatment at an inpatient facility, Mother began
testing positive for PCP again in late 2024. Mother’s recent criminal history included
5
a conviction for the misdemeanor offense of harassing communication in May 2023;
a third-degree felony conviction for DWI (involving intoxication due to PCP) in July
2023; and a state-jail felony conviction for theft in April 2025. At the time of trial in
November 2025, Mother was incarcerated, and following her expected release in
early 2026, she would remain on community supervision until 2029. While
incarcerated, Mother was participating in a substance abuse treatment program,
individual counseling, group counseling, and anger management classes. The
Department believed that termination of Mother’s parental rights was in Connor’s
best interest due to Mother’s substance abuse history, her relapses even after
completing treatment programs, and her criminal history.
Mother disputed the 2024 drug testing results, stating that she had not used
PCP since her release from inpatient substance abuse treatment. At the time of trial,
she was incarcerated in a “Substance Abuse Felony Punishment” unit. Mother had
not “gotten in any trouble here,” so she had not been asked to take any drug tests
while at the facility. Mother was involved in the “Big Sister” program at the facility,
and her responsibilities included teaching classes and acting as a “positive peer” for
other women struggling with substance abuse. She served in this role for most of
2025. Mother acknowledged her prior drug history, but she insisted that her drug use
was in the past, and she was not willing to jeopardize her relationship with Connor
by continuing to use drugs.
6
Connor’s current caregiver, his paternal grandmother, testified that he was a
“great kid,” a “happy-go-lucky kid, very loving.” Connor was three years old and
had some behavioral issues: he experienced rage that was more intense than a typical
tantrum, and he had been suspended from daycare on several occasions for biting,
kicking, fighting, and throwing things at teachers. He had also been diagnosed with
“mild autism and a high level of ADHD.” He participated in play therapy and virtual
therapy with a psychiatrist. Connor’s grandmother loved him and planned to adopt
him.
After trial, the trial court signed an order modifying the April 2024
conservatorship order and finding that “the circumstances of the Child Conservators
or other party affected by the prior [conservatorship] order” had materially and
substantially changed. The court further found that three statutory predicate grounds
justified termination of Mother’s parental rights—subsection (D), subsection (E),
and current subsection (O) relating to abuse of a controlled substance—and that
termination of her parental rights was in Connor’s best interest. The court named the
Department as Connor’s sole managing conservator. This appeal followed.
Admission of Evidence
In her first issue, Mother argues that the trial court erred by admitting and
considering evidence from before the 2024 termination trial because the Department
pleaded for relief under the statutory provisions applicable to modification petitions
7
in suits affecting the parent–child relationship generally, but did not plead for relief
under a Family Code provision specifically applicable to termination proceedings
following an order denying termination of the parent-child relationship. Mother
argues that because the Department did not plead for relief under the more specific
provision, she did not have notice that the Department would seek to admit evidence
from the 2024 termination trial or before that date.
Family Code section 161.004 allows termination of parental rights following
rendition of an order that previously denied termination if the Department satisfies
four criteria:
(1) the Department files its petition under section 161.004 after the
date the trial court rendered the order denying termination;
(2) the circumstances of the child, parent, sole managing
conservator, possessory conservator, or other affected party have
materially and substantially changed since rendition of the order
denying termination;
(3) the parent committed a predicate ground for termination before
rendition of the order denying termination; and
(4) termination is in the child’s best interest.
TEX. FAM. CODE § 161.004(a). At a hearing under section 161.004, “the court may
consider evidence presented at a previous hearing in a suit for termination of the
parent-child relationship of the parent with respect to the same child.” Id.
§ 161.004(b).
8
Courts have held that while the Department can seek termination following
rendition of a prior order denying termination under either section 161.004 or the
usual section 161.001(b), if the Department chooses the section 161.004 route, it
must plead that section as a basis for termination. See, e.g., In re K.G., 350 S.W.3d
338, 352 (Tex. App.—Fort Worth 2011, pet. denied); In re K.P., 498 S.W.3d 157,
170 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). “When the Department does
not plead section 161.004 as grounds for termination, it is error to admit evidence
from before a prior decree denying termination.” In re K.P., 498 S.W.3d at 170.
However, the Department need not specifically name section 161.004 in its
pleadings so long as its modification petition alleges the required statutory elements
of that section. See In re A.A.M., 464 S.W.3d 421, 425 (Tex. App.—Houston [1st
Dist.] 2015, no pet.) (“Broadly construing the petitions in the absence of a special
exception, the Department’s pleadings notified the father that his earlier conduct
would be at issue.”).
In In re A.A.M., the Department sought termination of a father’s parental rights
to his two children. Id. at 423. The trial court did not grant the request for
termination, but it did name the Department as the children’s sole managing
conservator. Id. A year later, the Department moved to modify the conservatorship
order and again sought termination of the father’s rights. Id. The Department’s
modification petition did not expressly name section 161.004. Id. at 425. We held,
9
however, that the modification petition encompassed section 161.004 because the
Department “pleaded the statutory elements for modification of an earlier order,
including materially changed circumstances” and pleaded that “the orders are in the
best interest of the children.” Id. We further noted that the father did not specially
except to the Department’s modification petition, waiving “any complaint about the
perceived lack of notice from the omission of a specific reference to section 161.004
in the pleadings.” Id. Nor did he object to admission of his drug test results, evidence
concerning events that occurred prior to the previous order denying termination. Id.
The Department’s modification petition in this case is substantively identical
to the modification petition in In re A.A.M. that we found sufficiently encompassed
section 161.004. The modification petition identified the prior order to be modified:
the “‘Decree in Suit Affecting the Parent Child Relationship,’ signed on the 2nd day
of April, 2024.” It alleged that “[t]he circumstances of the child, a conservator, or
other party affected by the order have materially and substantially changed since the
date of the rendition of the order.” And in seeking termination of Mother’s parental
rights, it alleged that Mother had violated several statutory predicate grounds and
that termination was in Connor’s best interest.
Moreover, as in In re A.A.M., Mother’s counsel did not specially except to the
Department’s modification petition. Nor did counsel object at trial when the
Department offered 17 exhibits into evidence, some of which (such as the removal
10
affidavit and portions of Mother’s drug testing results) referenced information from
before the 2024 trial. Instead, Mother’s counsel stated that he had no objections to
admission of the exhibits. Counsel did not, at any point during the trial, challenge
the sufficiency of the Department’s modification petition or argue that Mother had
not received notice that the Department would rely upon exhibits referencing facts
from before the 2024 trial. Neither Mother’s trial counsel nor her appointed appellate
counsel filed any post-termination-decree motions arguing lack of notice,
challenging sufficiency of the Department’s pleadings, or arguing that the trial court
improperly admitted and considered evidence from before the 2024 trial.
We conclude that the Department’s modification petition encompassed the
statutory elements of section 161.004, and the trial court did not err by considering
evidence from before the first termination trial in 2024.
We overrule Mother’s first issue.
Pleading of Predicate Ground (O)
In her second issue, Mother argues that the Department did not properly plead
for termination based on subsection (O), and therefore the trial court erred by finding
that Mother violated this predicate ground.
The Department moved to modify the conservatorship order in April 2025,
and it asserted that Mother had violated several statutory predicate grounds for
termination, including subsection (O). At the time the Department filed its
11
modification petition, subsection (O) allowed a trial court to terminate a parent’s
rights if it found by clear and convincing evidence that the parent:
failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of
the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services
for not less than nine months as a result of the child’s removal from the
parent under Chapter 262 for the abuse or neglect of the child.
See Act of May 24, 2005, 79th Leg., R.S., ch. 508, § 2, sec. 161.001(b)(1), 2005
Tex. Gen. Laws 1395, 1396 (amended 2025). The modification petition tracked this
statutory language.
During the 2025 legislative session, the Texas Legislature amended section
161.001(b)(1) to remove that basis as a predicate ground supporting termination and
renamed the remaining predicate grounds. See Act of May 14, 2025, 89th Leg., R.S.,
ch. 211, H.B. 116, § 2, sec. 161.001(b)(1) (to be codified as an amendment to TEX.
FAM. CODE § 161.001(b)(1)). This amendment became effective on September 1,
2025, and applied to suits pending in a trial court on that date, including this suit to
terminate Mother’s parental rights. See id. §§ 3–4. Thus, after September 1, 2025,
subsection (O) allowed termination if the court found that the parent
used a controlled substance, as defined by Chapter 481, Health and
Safety Code, in a manner that endangered the health or safety of the
child, and:
(i) failed to complete a court-ordered substance abuse
treatment program; or
12
(ii) after completion of a court-ordered substance abuse
treatment program, continued to abuse a controlled
substance.
TEX. FAM. CODE § 161.001(b)(1)(O). The Department did not amend its
modification petition to reflect this change to subsection (O). The trial court’s order
granting the Department’s modification petition and terminating Mother’s parental
rights tracked the statutory language of current subsection (O), not former subsection
(O), which had been pleaded by the Department but subsequently repealed by the
legislature.
Mother argues that due to the change in law and the Department’s failure to
amend its modification petition accordingly, she “was without proper notice of the
ground for termination which was allegedly found by the trial court” and included
in the termination decree. The Department concedes that Mother is correct and that
the trial court erred by basing the termination order, in part, on subsection (O).
We agree. See Vasquez v. Tex. Dep’t of Protective & Regul. Servs., 190
S.W.3d 189, 194 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (“[A] parentalrights-termination order can be upheld only on grounds both pleaded by [the
Department] and found by the trial court.”); Cervantes-Peterson v. Tex. Dep’t of
Fam. & Protective Servs., 221 S.W.3d 244, 251 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (en banc) (same); see also In re S.M.R., 434 S.W.3d 576, 581 (Tex.
2014) (disagreeing that Vasquez line of cases conflicts with supreme court
13
precedent). We conclude that the trial court erred by terminating Mother’s parental
rights based on current subsection (O) in the absence of pleadings alleging this
predicate ground. However, this is not the end of our inquiry because the trial court
also based its termination decree on two other predicate grounds: subsections (D)
and (E). We therefore turn to Mother’s challenges to those two grounds and to the
best-interest finding.
Sufficiency of Evidence
In her third, fourth, and fifth issues, Mother challenges the legal and factual
sufficiency of the evidence supporting the trial court’s findings that termination of
her parental rights was warranted under subsections (D) and (E) and that termination
was in Connor’s best interest.
A. Standard of Review
We apply a well-established standard when reviewing the sufficiency of
evidence supporting a trial court’s findings terminating parental rights. Because the
rights involved are of a constitutional magnitude, due process requires both a
heightened burden of proof at trial—clear and convincing evidence—and a
heightened standard of review on appeal. See TEX. FAM. CODE § 101.007 (defining
“clear and convincing evidence”); In re C.E., 687 S.W.3d 304, 308 (Tex. 2024) (per
curiam).
14
When conducting a legal sufficiency review of termination findings, we
consider all the evidence in the light most favorable to the finding to determine
whether a factfinder could have reasonably formed a firm belief or conviction about
the truth of the Department’s allegations. In re R.R.A., 687 S.W.3d 269, 276 (Tex.
2024); In re C.E., 687 S.W.3d at 308. We may not disregard undisputed evidence
even if that evidence is inconsistent with the finding. In re J.W., 645 S.W.3d 726,
741 (Tex. 2022).
When reviewing the findings for factual sufficiency, we weigh disputed
evidence contrary to the finding against all evidence favoring the finding to
determine whether the disputed evidence is such that a reasonable factfinder could
not have resolved it in favor of the finding. In re A.C., 560 S.W.3d 624, 631 (Tex.
2018). The evidence is factually insufficient if the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant
that the factfinder could not have formed a firm belief or conviction that the finding
was true. Id.
Despite the heightened standard of appellate review, we still must defer to the
factfinder who heard the witnesses and evaluated their credibility. In re J.F.-G., 627
S.W.3d 304, 311–12 (Tex. 2021). We may not substitute our judgment for that of
the factfinder. In re C.E., 687 S.W.3d at 309.
15
B. Endangerment Findings
The trial court may terminate a parent’s rights to her minor child if the court
finds by clear and convincing evidence that the parent (1) knowingly placed or
allowed the child to remain in conditions or surroundings which endanger the child’s
physical or emotional well-being, or (2) engaged in conduct or knowingly placed the
child with persons who engaged in conduct which endangers the child’s physical or
emotional well-being. TEX. FAM. CODE § 161.001(b)(1)(D), (E). Subsection (D)
“focuses on the child’s environment,” and relevant considerations include “[t]he
suitability of the child’s living conditions and the conduct of parents or others in the
home.” In re J.W., 645 S.W.3d at 749. Subsection (E) requires a voluntary,
deliberate, and conscious course of conduct by the parent. In re R.R., 711 S.W.3d
126, 139 (Tex. App.—Houston [1st Dist.] 2024, no pet.).
A child need not suffer actual injury or harm for a parent’s conduct to be
endangering. In re R.R.A., 687 S.W.3d at 277; In re J.F.-G., 627 S.W.3d at 312
(stating that endangering conduct need not be directed at child). “Instead,
endangerment encompasses a larger array of conduct that ‘expose[s a child] to loss
or injury’ or ‘jeopardize[s]’ the child.” In re R.R.A., 687 S.W.3d at 277 (quoting Tex.
Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Because
endangering conduct is not limited to actions directed towards the child, such
conduct “may include the parent’s actions before the child’s birth, while the parent
16
had custody of older children.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). A
factfinder may infer endangerment from a parental course of conduct that presents
substantial risks to the child’s physical or emotional well-being. In re R.R.A., 687
S.W.3d at 277. These risks “must be more than ‘a threat of metaphysical injury or
the possible ill effects of a less-than-ideal family environment.’” Id. (quoting Boyd,
727 S.W.2d at 533).
In determining whether the Department presented sufficient evidence of the
endangerment grounds, courts may consider evidence of a parent’s illegal drug use.
In re J.O.A., 283 S.W.3d at 345 (“[A] parent’s use of narcotics and its effect on his
or her ability to parent may qualify as an endangering course of conduct.”). Although
illegal drug use alone may not be sufficient to show endangerment, “a pattern of
drug use accompanied by circumstances that indicate related dangers to the child can
establish a substantial risk of harm.” In re R.R.A., 687 S.W.3d at 278. We do not
evaluate evidence of drug use in isolation. Id. Instead, we must consider whether
additional evidence exists that demonstrates drug use “presents a risk to the parent’s
‘ability to parent.’” Id. (quoting In re J.O.A., 283 S.W.3d at 345). We conclude that
such evidence exists in this case.
The removal affidavit, admitted into evidence, details Mother’s history with
the Department. The first referral involving Mother occurred in 2007, and the first
referral involving allegations of illegal drug use occurred in 2016:
17
The referral states mother, paramour, and uncles all use cocaine, weed,
PCP, ecstasy, pills, [and] droll (a very potent type of marijuana). The
referral states drug use in the household is on a daily basis. The referral
states drug use occurs in front of the oldest victim and sibling [Mother’s
daughters]. The referral states all the adults stay high every day. The
referral states all the adults have been observed smoking marijuana in
front of the oldest victim and sibling. The referral states if you walk in
front of the door, you can smell the drugs.
Following investigation, the Department requested that Mother complete familybased services.
Two years later, in 2018, the Department received another referral alleging
that Mother “exposes [her daughters] to drugs and domestic situations.” Specifically,
Mother and the children were seen in a car parked in the driveway of a house that
was a known location for the purchase of PCP. The person making the referral “states
mother had either just smoked PCP or she was in the house where people [were]
smoking PCP and the smell got on mother’s person,” and the person was concerned
about the children’s presence and their possible exposure to PCP. The Department
initiated conservatorship proceedings for the daughters, which culminated in the trial
court signing an order in 2021 relating to conservatorship of the girls. Mother
retained her parental rights to her daughters, but a relative was named sole managing
conservator for the girls, and Mother was named possessory conservator. Connor
18
was born in January 2022. At some point in 2022, Connor began living with his older
sisters at their relative’s house.4
In December 2022, the Department began investigating after receiving a
report that Mother had learned of the caregiver’s address and “has been harassing
and threatening” the caregiver to return Mother’s oldest daughter. The caregiver
refused because of Mother’s history of drug abuse. Mother repeatedly texted the
caregiver, threatened to kill her, “got into it with law enforcement when they
escorted mother off the premises,” and appeared to be under the influence of drugs.
Mother had threatened to hurt herself and had threatened suicide “in front of the
children.” The caregiver was afraid of her and “what mother might do.”
The Department investigated for over three months. During that time, the
caregiver reported on several occasions that Mother repeatedly called her while
under the influence of drugs and threatened violence to force the caregiver to return
Connor to Mother. On one occasion, Mother “bust [the caregiver’s] windows out
while she was working.” In conversations with the Department investigator, Mother
acknowledged that she had been using PCP. Mother also stated that she “tried to
4
It is possible this occurred in May or June 2022. The removal affidavit reflects that
the Department received two referrals concerning Mother and Connor in May and
June 2022. In the May referral, Mother reported that she “was about to commit
suicide,” and in the June referral she reported that she was “unstable” and could not
care for Connor. Following the June referral, police responded and took Mother to
a hospital. Mother “appeared to be high, which was already obvious.”
19
harm herself because [Connor] was stolen from her,” and she insisted on getting
Connor back without Department assistance. Mother’s behavior during the
investigation was erratic, and she repeatedly stated that the caregiver was trying to
steal Connor from her, and she did not know who to trust.5 Mother tested positive
for PCP during the investigation.
The record contains drug testing results that were positive for PCP dating back
to 2019. Mother participated in inpatient substance abuse treatment in 2023 and early
2024, and her drug test results from this period were mostly negative. However, her
hair sample taken in October 2024 tested positive for PCP, as did a urine sample
collected in December 2024. Mother did not complete any further drug testing for
the Department, largely due to her incarceration throughout much of 2025.
The trial court also had evidence before it concerning Mother’s criminal
history. The history included convictions—mostly for misdemeanors—dating back
to 2006. Two of Mother’s misdemeanor convictions were for assault, including one
involving family violence. She also had a felony conviction for PCP possession in
2012 and a felony DWI conviction, which Mother testified was based on PCP and
not alcohol intoxication, in 2023. Following the DWI conviction, Mother was placed
on community supervision for four years with the requirement that she complete
5
The removal affidavit reported that Mother filed a civil suit against the caregiver,
which prevented the caregiver from obtaining a protective order against Mother in
response to Mother’s threats of violence.
20
inpatient substance abuse treatment. When Mother was convicted of a felony theft
offense almost two years later in 2025, the criminal court amended the community
supervision conditions to require participation in a substance abuse felony
punishment facility and extended the term of supervision until 2029.
We are mindful that incarceration, standing alone, does not “constitute
engaging in conduct which endangers the emotional or physical well-being of a
child.” In re J.F.-G., 627 S.W.3d at 312–13 (quotation omitted). Incarceration may,
however, support an endangerment finding “if the evidence, including the
imprisonment, shows a course of conduct which has the effect of endangering the
physical or emotional well-being of the child.” Id. at 313 (quotation omitted).
Relevant considerations include the nature of the crimes, the duration of
incarceration, and whether a pattern of escalating, repeated convictions exists. Id.
Here, Mother had thirteen convictions over twenty years. Although none of
the convictions had lengthy sentences of confinement, the convictions nevertheless
led to periods in which Mother was absent from her children’s lives. See In re T.G.R.-M., 404 S.W.3d 7, 15 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (noting that
even though criminal charges against mother were ultimately dismissed, “each time
the mother was jailed, she was absent from [the child’s] life and was not able to
provide for [the child’s] physical and emotional needs”). Moreover, two of Mother’s
criminal offenses involved assaultive conduct and two others were related to PCP
21
possession and intoxication, an additional way in which Mother’s struggles with
illegal drugs impacted her life and ability to parent.
In sum, the trial evidence included more than isolated positive drug test results
untethered to any effect on Mother’s children. Two of Mother’s criminal convictions
were drug related. The record contained allegations that Mother used PCP while
caring for, and in the presence of, her older daughters. The record also included
allegations that Mother was using PCP while harassing and threatening Connor’s
caregiver with violence. After a period of sobriety, Mother began testing positive for
PCP again, leading to the Department’s decision to seek modification of the prior
conservatorship order. This evidence, which the trial court reasonably could have
credited, “demonstrates that illegal drug use presents a risk to [Mother’s] ability to
parent.” See In re R.R.A., 687 S.W.3d at 278 (quotation omitted). We conclude, when
considering the evidence in the light most favorable to the findings, that the trial
court reasonably could have formed a firm belief or conviction about the truth of the
Department’s endangerment allegations. See id. at 276.
At trial, Mother acknowledged her prior history of PCP use but disputed the
October and December 2024 positive results, testifying that she requested retesting
because she knew she had not taken PCP. Mother also testified that she had been in
a substance abuse felony punishment facility for several months, and she served in
a leadership and teaching role at the facility, indicating that she was taking positive
22
steps toward maintaining sobriety. Mother agreed that her current incarceration had
helped her “conclude that drugs aren’t good and [she was not] going to take them
anymore,” and she did not wish to jeopardize her relationship with her children by
continuing to use drugs.
As the factfinder, it was the province of the trial court to evaluate Mother’s
credibility, and it could have disbelieved Mother’s testimony and believed the
documentary evidence reflecting Mother’s positive drug test results in October and
December 2024. See In re S.C.F., 522 S.W.3d 693, 703 (Tex. App.—Houston [1st
Dist.] 2017, pet. denied) (stating that trial court could have credited child advocate’s
testimony and “the lab reports over the father’s denials and claim of a ‘false test’”).
The court also could have weighed Mother’s testimony about her recent
improvement against her drug use history and concluded that while her progress was
significant, it did not “conclusively negate the probative value of a long history of
drug use and irresponsible choices.” See In re J.O.A., 283 S.W.3d at 346. We
conclude that the disputed evidence that a reasonable factfinder could not have
credited in favor of the endangerment findings is not so significant that the factfinder
could not have formed a firm belief or conviction that the findings were true. See In
re A.C., 560 S.W.3d at 631.
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We hold that legally and factually sufficient evidence supports the trial court’s
findings under subsections (D) and (E), and we therefore overrule Mother’s third
and fourth issues.
C. Best-Interest Finding
To terminate a parent’s rights, the trial court must also find by clear and
convincing evidence that termination is in the best interest of the child. TEX. FAM.
CODE § 161.001(b)(2). This is a “child-centered” inquiry that focuses on the child’s
well-being, safety, and development. In re J.W., 645 S.W.3d at 746 (quoting In re
A.C., 560 S.W.3d at 631). We consider a nonexclusive set of factors in making this
determination, including:
• the desires of the child;
• the child’s emotional and physical needs now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parenting abilities of the individuals seeking custody;
• the programs available to assist those individuals to promote the child’s
best interest;
• the plans for the child by those individuals or the agency seeking
custody;
• the stability of the home or proposed placement;
• the parent’s acts or omissions that may indicate the existing parentchild relationship is improper; and
• any excuse for the parent’s acts or omissions.
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Id. (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)). The Department
is not required to prove all of these factors—known as the Holley factors—as a
condition precedent to termination. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
When considering the Holley factors, we conclude that sufficient evidence
supports the trial court’s finding that termination of Mother’s parental rights was in
Connor’s best interest.
As discussed above with respect to the endangerment findings, Mother had a
history of illegal drug use and criminal offenses, both of which persisted throughout
the pendency of this proceeding. Mother also engaged in harassing and threatening
conduct directed toward Connor’s caregiver, who believed that Mother was using
PCP. This belief was confirmed when Mother tested positive for PCP during the
initial phase of the Department’s investigation. Mother tested positive for PCP later
in the case, after she had completed inpatient substance abuse treatment. Mother was
also convicted of two felony offenses during the proceeding: the 2023 DWI offense
and the 2025 theft offense. At the time of trial in November 2025, Mother was
incarcerated at a substance abuse felony punishment facility, with a projected release
date in December 2025 or January 2026. The criminal court extended Mother’s
community supervision for the DWI offense to 2029.
This evidence is relevant not just to the endangerment findings but also to
Connor’s best interest. See In re E.D., 682 S.W.3d 595, 607 (Tex. App.—Houston
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[1st Dist.] 2023, pet. denied) (noting that while courts have discounted evidence of
illegal drug use when not recent, “[a] continuing pattern of illegal drug use, however,
implicates most of the Holley factors” and supports best-interest finding); In re J.C.,
No. 01-25-00136-CV, 2025 WL 2109931, at *11 (Tex. App.—Houston [1st Dist.]
July 29, 2025, pet. denied) (mem. op.) (“A parent’s inability to maintain a lifestyle
free from arrests and incarcerations is relevant to the trial court’s best-interest
determination.”); In re E.S.T., No. 01-22-00404-CV, 2022 WL 17096713, at *18
(Tex. App.—Houston [1st Dist.] Nov. 21, 2022, no pet.) (mem. op.) (considering
parent’s “continued criminal conduct” and noting that even charges that did not
result in conviction were relevant for purposes of determining best interest).
Evidence that Mother engaged in criminal conduct during this proceeding,
threatened Connor’s caregiver with violence, and used illegal drugs after completing
inpatient substance abuse treatment supports the trial court’s finding that termination
of her parental rights was in Connor’s best interest. See In re J.C., 2025 WL
2109931, at *12 (concluding that evidence of mother’s drug use was relevant to
multiple Holley factors, including parenting abilities, stability of home, child’s
present and future emotional and physical needs, and present and future physical
danger to child).
Additionally, Connor was almost four years old at the time of trial and had
spent minimal time in Mother’s care. He was too young to express his desires about
26
his placement. When a child is too young to express his desires, the factfinder may
consider that the child has bonded with his caregiver, is well-cared for by the
caregiver, and has spent minimal time with a parent. In re K.W., No. 01-23-00530-CV, 2024 WL 116938, at *10 (Tex. App.—Houston [1st Dist.] Jan. 11, 2024, pet.
denied) (mem. op. on reh’g); In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston
[14th Dist.] 2014, no pet.) (same).
Connor moved from Mother’s home to live with his older sisters at their
caregiver’s house at some point during his first year of life. Since July 2023, he has
lived with his paternal grandmother. Connor was bonded with his grandmother, and
he was doing well in that placement. He had contact with his extended family and
his older sisters. Connor’s grandmother loved him and intended to adopt him.
Mother visited Connor twice per month on average, and the Department
transitioned to supervised home visits in September 2024. The Department planned
to have unsupervised home visits beginning in October 2024, but Mother then tested
positive for PCP. Mother’s last visit with Connor occurred in November 2024, and
that visit went well: Mother “brought him snacks and toys and was hands-on with
him with playing and engaged with him,” and the Department did not have any
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concerns about Mother visiting with Connor. She did not visit him in 2025 due to
her incarceration.6
Although Connor was doing well physically and developmentally, there were
some concerns about his behavior, specifically his increasing physical aggression.
His grandmother elaborated on this behavior:
But outside of him going through the behavior, the rage and, you know,
being like I have never seen a child being suspended from daycare. But
[Connor] has been suspended numerous occasions from daycare for
biting, kicking, and fighting, and throwing stuff at the teachers and, you
know students. It’s like a rage he’s going through. It’s not a tantrum.
It’s not a 3 year old temper tantrum where you can manipulate him or
get him to calm down. Like, I mean, he’s rage, where we have to go get
him, like.
And then when he calm down out it, it’s like he don’t even really know
what went on. He’s like—when you’re talking to him about it, you
know, try—you know, he’ll be, like, to find out why he did what he did,
it’s like he don’t even have the knowledge of—you know, what he did.
But outside of getting him help for that, he’s a great kid and he’s doing
good.
In response to other behaviors and at the behest of Connor’s pediatrician, Connor’s
grandmother took him to a psychiatrist to be evaluated for autism spectrum disorder.
6
The trial court heard disputed evidence concerning scheduling visits, particularly in
the latter part of 2024 and early 2025. Although Mother was approved for visits
three times per month, she ended up having visits twice per month due to her
schedule. The Department caseworker agreed that this was a scheduling issue and
not a lack of desire on Mother’s part to see Connor. The caseworker also testified
Mother had an issue with transportation and could not make it to a visit in late
November, Mother did not schedule a visit for December, and her January visit was
cancelled “due to her not confirming a visit.” Mother testified that she “never would
have given up three opportunities to see” Connor and that she “showed up at every
visit.”
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The psychiatrist “evaluated him with a mild autism and a high level of ADHD.”
Connor participated in play therapy and virtual therapy with a psychiatrist. The
caseworker agreed that Connor’s grandmother had been “proactive” in seeking out
resources and assistance.
In arguing that insufficient evidence supports the trial court’s best-interest
finding, Mother points out that she is bonded with Connor, Connor was bonded with
his older sisters, and there was no evidence in the record that Mother lacked the
ability to care for Connor. We do not dispute that Mother loves Connor and desires
to remain a part of his life. However, we cannot ignore the evidence that Connor is
a young, vulnerable age, Mother engaged in harassing and threatening conduct
directed at Connor’s initial caregiver, and Mother’s struggles with illegal drug use
and criminal conduct persisted throughout this proceeding.
When viewing the evidence in the light most favorable to the best-interest
finding, we conclude that the trial court reasonably could have formed a firm belief
or conviction that termination of Mother’s parental rights was in Connor’s best
interest. Furthermore, although the record contains conflicting evidence relating to
the child’s best interest, the trial court had the opportunity to evaluate the credibility
of the trial witnesses. We further conclude that the disputed evidence that a
reasonable factfinder could not have credited in favor of the best-interest finding is
not so significant that the factfinder could not have formed a firm belief or conviction
29
that the finding was true. We therefore hold that legally and factually sufficient
evidence supports the trial court’s best-interest finding.
We overrule Mother’s fifth issue.
Conclusion
We affirm the trial court’s order modifying the April 2024 conservatorship
decree and terminating Mother’s parental rights to Connor.
David Gunn
Justice
Panel consists of Justices Guerra, Gunn, and Morgan.
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