Opinion issued July 23, 2026.
In the
Court of Appeals
for the
First District of Texas
NO. 01-26-00103-CV
IN THE INTEREST OF J.G.S., A CHILD
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2024-03008J
MEMORANDUM OPINION
In this accelerated appeal, Mother challenges the trial court’s order
terminating her parental rights to her child, J.G.S.1 Mother argues on appeal that
the trial court erred in terminating her parental rights because (1) the Department
of Family Services (the Department) failed in her service plan to make reasonable
1
We refer to the parties using pseudonyms. See TEX. R. APP. P. 9.8(b)(2). accommodations for her alleged disability; (2) the trial court improperly refused to
give Mother an extension of time in which to complete her service plan; (3) the
trial court’s termination of her parental rights under subsections 161.001(b)(1)(D),
(E), and (N) of the Texas Family Code is not supported by clear and convincing
evidence; and (4) the Department did not prove by clear and convincing evidence
that termination was in J.G.S.’s best interest under subsection 161.001(b)(2).
Mother waived her reasonable accommodation argument by not raising it in
the trial court, and the trial court did not abuse its discretion in denying Mother
additional time to complete her service plan. For these reasons, and because
sufficient evidence supports the trial court’s findings under subsections
161.001(b)(1) and (2), we affirm.
Background
This appeal concerns the termination of Mother’s parental rights to J.G.S., a
child who was between the ages of one and two years old at the time of the
December 10, 2025 trial. Following the trial, the trial court terminated Mother’s
parental rights based on its findings that (1) Mother had knowingly placed or
knowingly allowed J.G.S. to remain in conditions or surroundings that endangered
J.G.S.’s physical or emotional well-being, see TEX. FAM. CODE
§ 161.001(b)(1)(D); (2) Mother had engaged in conduct or knowingly placed
J.G.S. with persons who engaged in conduct that endangered J.G.S.’s physical or
2
emotional well-being, see id. § 161.001(b)(1)(E); (3) Mother had constructively
abandoned J.G.S., see id. § 161.001(b)(l)(N); and (4) termination of the
parent-child relationship between Mother and J.G.S. was in J.G.S.’s best interest,
see id. § 161.001(b)(2). Mother then filed this appeal.
Reasonable Accommodations
In her first point of error, Mother argues that the trial court erred in
terminating her parental rights because, in her service plan, the Department did not
make reasonable accommodations under the Americans with Disabilities Act
(ADA) for her alleged disability.2 Mother did not make this argument in the trial
court,3 and acknowledges this Court’s ruling in In re C.M., 996 S.W.2d 269 (Tex.
App.—Houston [1st Dist.] 1999, no pet.), that an ADA violation is an affirmative
defense that must be pleaded and/or proven in the trial court below to be preserved
for appeal. Id. at 270. Appellee does not contest the application of the ADA to
Mother’s service plan, but argues that Mother waived her ADA defense.
2
In her brief, Mother references her “disability/perceived disability.” Mother and
the Department presented conflicting evidence at trial regarding the scope and
status of Mother’s alleged mental-health diagnoses. But it is undisputed that the
Department sought termination of Mother’s parental rights based in part on
endangerment grounds that included Mother’s alleged untreated mental illness.
Amicus Disability Rights Texas notes that the mental-health conditions referenced
in the parties’ briefs are conditions that will almost always satisfy the ADA’s
definition of disability.
3
As discussed below, Mother filed a motion for an extension of her deadline to
complete her service plan. However, she premised her request on scheduling
obstacles arising from a course instructor’s illness and technical issues connecting
to a videoconference.
3
Mother asks this Court to reconsider its holding in C.M. in light of In re
N.G., 577 S.W.3d 230 (Tex. 2019), in which the Texas Supreme Court recognized
“the interest of parents in the care, custody, and control of their children” as “[o]ne
of the most fundamental liberty interests,” requiring “heightened protection against
government interference” under the due-process clauses of our federal and state
constitutions. Id. at 235. Mother argues further or in the alternative that the
prohibition in sections 161.001(f) and (g) of the Texas Family Code against
terminating parental rights absent a showing that the Department made “reasonable
efforts” to return the child to the parent4—a prohibition that went into effect in
4
Section 161.001(f) of the Texas Family Code mandates that:
In a suit for termination of the parent-child relationship filed by the
[Department], the court may not order termination of the parentchild relationship under Subsection (b)(1) unless the court finds by
clear and convincing evidence and describes in writing with
specificity in a separate section of the order that:
(1) the department made reasonable efforts to return the child
to the parent before commencement of a trial on the merits and
despite those reasonable efforts, a continuing danger remains in the
home that prevents the return of the child to the parent; or
(2) reasonable efforts to return the child to the parent,
including the requirement for the department to provide a family
service plan to the parent, have been waived under Section
262.2015.
Neither side argues that a waiver under section 262.2015 occurred here. Section
161.001(g) provides further that: “In a suit for termination of the parent-child
relationship filed by the [Department] in which the department made reasonable
efforts to return the child to the child’s home but a continuing danger in the home
prevented the child’s return, the court shall include in a separate section of its
order written findings describing with specificity the reasonable efforts the
department made to return the child to the child’s home.”
4
September 2023—should be read as requiring a showing that the Department
provided a disabled parent a service plan that made reasonable accommodations
for the parent’s disability.
A. Application of ADA
Title II of the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132; Silguero v.
CSL Plasma, Inc., 579 S.W.3d 53, 68 (Tex. 2019) (quoting 42 U.S.C. § 12132).
Federal agencies charged with the enforcement of the ADA have taken the position
that “Title II [of the ADA] covers essentially everything state and local
governments and their agencies do,” including a state child welfare system’s
“investigations, assessments, removals, family preservation, provision of services,
determining goals and permanency plans, setting service plan tasks, reunification,
guardianship, adoption, and assisting clients in meeting such tasks.” Grullon v.
Admin. for Children’s Servs., No. 18-CV-3129 (LJL), 2021 WL 981848, at *12
(S.D.N.Y. Mar. 16, 2021) (quoting Letter from U.S. Dep’t of Just., Civ. Rights
Div. & U.S. Dep’t of Health & Hum. Serv., Off. for Civil Rights, to Interim
Comm’r Erin Deveney, Mass. Dep’t of Child. & Fams. (Jan. 29, 2015) (available
5
online at https://archive.ada.gov/ma_docf_lof.pdf)).5 Amicus Disability Rights
Texas argues that, under the ADA, a request for accommodation is not required if
the disability and need for accommodation are known or obvious. See Windham v.
Harris Cnty., 875 F.3d 229, 237 (5th Cir. 2017) (noting that, when plaintiff fails to
request accommodation under ADA, plaintiff can prevail on Title II claim only by
showing that disability, resulting limitation, and necessary reasonable
accommodation were open, obvious, and apparent).
Some states have passed legislation expressly requiring that a service plan
for a parent from whose custody a child has been removed make reasonable
accommodations for any disability the parent may have. See, e.g., Colo. Rev. Stat.
§ 19-3-208(2)(g); S.C. Code § 63-21-20; W. Va. Code § 49-4-604(a)(1), (c)(5)(C).
A number of state courts have held or otherwise indicated that the ADA’s
“reasonable accommodations” requirement is subsumed by an existing statutory
requirement that “reasonable efforts” be made to reunify a child with the parent or
parents from whose custody the child has been removed. See, e.g., In re Z.F., 338
A.3d 893, 917 (Md. 2025); In re A.P., 868 S.E. 2d 692, 698 (N.C. 2022); Jessica
5
See also U.S. Dep’t of Just., Civ. Rights Div., Protecting the Rights of Parents and
Prospective Parents with Disabilities: Technical Assistance for State and Local
Child Welfare Agencies and Courts under Title II of the Americans with
Disabilities Act and Section 504 of the Rehabilitation Act, ADA.GOV,
https://www.ada.gov/resources/protecting-parent-rights/ (last visited June 30,
2026) (discussing application of Title II of ADA to parent service plans, service
planning, and service plan compliance in child welfare context).
6
P. v. Dep’t of Child Safety, 484 P.3d 148, 153 (Ariz. Ct. App. 2021); In re K.L.N.,
482 P.3d 650, 658-59 (Mont. 2021); Lacee L. v. Stephanie L., 114 N.E.3d 123, 129
(N.Y. 2018); In re H.C., 187 A.3d 1254, 1265 (D.C. 2018); In re Elijah C., 165
A.3d 1149, 1166 (Conn. 2017); In re Hicks/Brown, 893 N.W.2d 637, 640 (Mich.
2017); Lucy J. v. State Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
244 P.3d 1099, 1116 (Alaska 2010).
B. Texas Courts’ Application of ADA
Texas has not passed legislation requiring that a service plan for a parent
from whose custody a child has been removed make reasonable accommodations
for any disability the parent may have. Mother and amicus Disability Rights Texas
argue that the Department’s internal guidelines require a service plan and that the
service plan make accommodations for a parent’s disability. But Mother has cited,
and we have found, no Texas case holding that section 161.001(f)’s “reasonable
efforts” prerequisite to termination requires a service plan, see In re S.M.M., No.
01-22-00482-CV, 2022 WL 17981669, at *7 (Tex. App.—Houston [1st Dist.] Dec.
29, 2022, pet. denied) (mem. op.) (noting that, while implementation of service
plan “is often the means by which the Department establishes its reasonable efforts
to return a child to a parent, it is not the exclusive means of establishing that
element”), much less a service plan that makes reasonable accommodations for a
disabled parent’s disability.
7
Instead, this Court and most other Texas courts of appeals have treated
non-compliance with the ADA as an affirmative defense that must be pleaded and
proven by the parent in the trial court. See O.G.M. v. Dep’t of Fam. & Protective
Servs., No. 14-23-00424-CV, 2023 WL 8464998, at *6 (Tex. App.—Houston [14th
Dist.] Dec. 7, 2023, no pet.) (mem. op.); C.C.F. v. Tex. Dep’t of Fam. & Protective
Servs., No. 03-20-00152-CV, 2020 WL 4929782, at *3-4 (Tex. App.—Austin Aug.
19, 2020, pet. denied) (mem. op.); In re B.L.M., 114 S.W.3d 641, 649 (Tex.
App.—Fort Worth 2003, no pet.); In re D.M.S., No. 11-16-00101-CV, 2016 WL
5853263, at *1 (Tex. App.—Eastland Oct. 5, 2016, no pet.) (mem. op.); In re
M.N.M., No. 05-14-00723-CV, 2014 WL 6737003, at *12 (Tex. App.—Dallas
Dec. 1, 2014, pet. denied) (mem. op.); In re C.L., No. 07-14-00180-CV, 2014 WL
5037982, at *3 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.); C.M., 996
S.W.2d at 270.6 This approach mirrors Texas courts of appeals’ treatment of
section 161.001(d) of the Texas Family Code, which prohibits termination of
parental rights based on a failure to comply with a court order under subsection (O)
6
In some of these cases, the court assumed without holding that ADA
non-compliance is a defense to parental termination. See, e.g., J.G. v. Tex. Dep’t of
Fam. & Protective Servs., No. 03-22-00790-CV, 2023 WL 3634364, at *7 (Tex.
App.—Austin May 25, 2023, no pet.) (mem. op.); In re M.N.M., No. 05–14–
00723–CV, 2014 WL 6737003, at *12 (Tex. App.—Dallas Dec. 1, 2014, pet.
denied) (mem. op.). Two courts of appeals have declined to recognize an ADA
violation as a defense to parental termination. See In re A.S., No. 09-21-00142-CV, 2021 WL 5113817, at *1 (Tex. App.—Beaumont Nov. 4, 2021, pet. denied)
(mem. op.); In re A.M.M., No. 06-05-00039-CV, 2006 WL 42229, at *6 (Tex.
App.—Texarkana Jan. 10, 2006, no pet.) (mem. op.).
8
with which the parent sought in good faith to comply if the parent establishes an
inability to comply with the order through no fault of the parent.7
Further narrowing its application, the Austin court of appeals has held that
the defense of ADA non-compliance, like a defense under section 161.001(d),
applies only to parental terminations under (now former) subsection (O) of section
161.001(b)(l) of the Texas Family Code. See O.G.M., 2023 WL 8464998, at *6 n.4
(“We also note that to the extent that Texas appellate courts have recognized
alleged ADA violations as an affirmative defense in termination proceedings, such
an affirmative defense is only relevant to termination under subsection (O).”).
We have found no case in which a Texas court of appeals has reversed a
parental termination based on the Department’s non-compliance with the ADA.
Instead, Texas courts of appeals have generally held that the parent, through some
combination of procedural failures, waived the defense in the trial court.8 In one
7
See TEX. FAM. CODE § 161.001(d) (“A court may not order termination under
Subsection (b)(1)(O) based on the failure by the parent to comply with a specific
provision of a court order if a parent proves by a preponderance of evidence that:
(1) the parent was unable to comply with specific provisions of the court order;
and (2) the parent made a good faith effort to comply with the order and the failure
to comply with the order is not attributable to any fault of the parent.”); In re C.C.,
No. 01-23-00765-CV, 2024 WL 1558721, at *14 (Tex. App.—Houston [1st Dist.]
Apr. 11, 2024, pet. denied) (mem. op.) (holding that, assuming parent had not
waived section 161.001(d) defense, trial court did not err in holding that parent
failed to meet burden of proof under that section); In re B.J.F., No. 01-23-00522-CV, 2024 WL 117174, at *21 (Tex. App.—Houston [1st Dist.] Jan. 11, 2024, pet.
denied) (mem. op.) (same).
8
See, e.g., Udall v. Minns, 730 S.W.3d 704, 738 (Tex. App.—Austin 2026, pet.
denied) (parent “did not offer evidence at trial of accommodations that the trial
9
court should have made for her special needs”); O.G.M. v. Dep’t of Fam. & Protective Servs., No. 14-23-00424-CV, 2023 WL 8464998, at *6 (Tex. App.— Houston [14th Dist.] Dec. 7, 2023, no pet.) (mem. op.) (parent “never actually explained to the trial court what disability she had, what accommodations were necessitated by her disability, or what specific provisions of the ADA were violated” and did not request accommodations); J.G., 2023 WL 3634364, at *7 (parent “did not introduce any evidence at trial demonstrating that she requested accommodations from the Department regarding drug testing or that any particular accommodations for that requirement were necessitated by her alleged disabilities”); C.C.F. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-20-00152-CV, 2020 WL 4929782, at *4 (Tex. App.—Austin Aug. 19, 2020, pet. denied) (mem. op.) (parent “did not identify any specific provisions of the court order that were unworkable, explain how her mental illness was interfering with her efforts to comply, allege that her physical disability was interfering with any efforts, or provide any details or evidence related to her assertions”); In re V.A., 598 S.W.3d 317, 330 n.5 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (noting that parent conceded she did not preserve ADA defense in trial court); In re H.M., No. 09-18-00464-CV, 2019 WL 1837462, at *4 & n.26 (Tex. App.—Beaumont Apr. 25, 2019, no pet.) (mem. op.) (“After the trial court ordered Mother to comply with the parenting plan, the record does not show that Mother ever made the trial court aware she had a disability that interfered with her ability to comply with the trial court’s order.” (citing TEX. R. APP. P. 33.1)); In re D.M.S., No. 11-16-00101-CV, 2016 WL 5853263, at *1 (Tex. App.—Eastland Oct. 5, 2016, no pet.) (mem. op.) (parent “pleaded no such affirmative defense, and the trial court made no findings with respect to the Department’s ADA compliance”); In re P.M., No. 02-14-00205-CV, 2014 WL 8097064, at *33 (Tex. App.—Fort Worth Dec. 31, 2014) (mem. op.) (parent “did not plead, prove, or obtain a finding on the affirmative defense”); M.N.M., 2014 WL 6737003, at *12 (parent “does not address the requirement to ‘plead, prove, and secure findings’ respecting her [ADA] complaint or explain how the record shows that requirement was satisfied, nor does the record show [she] specified in the trial court any provision of the ADA with which there was no compliance”); In re C.L., No. 07-14-00180-CV, 2014 WL 5037982, at *4 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.) (“As an affirmative defense the theory of ADA compliance was neither plead nor proved and no instructions, definitions, or questions concerning such a theory were submitted to the jury.”); McKay v. Dep’t of Fam. & Protective Servs., No. 01-06-00568-CV, 2007 WL 1775985, at *4 (Tex. App.—Houston [1st Dist.] June 21, 2007, no pet.) (mem. op.) (parent did not “plead, prove, and secure findings sustaining an affirmative defense related to DFPS’s alleged noncompliance with the ADA”);A.M.M., 2006 WL 42229, at *6 (parent “did not plead or prove a violation of the A.D.A.”); In re J.I., No. 2-04-299-CV, 2005 WL 1047891, at *14 (Tex. App.—Fort Worth May 5, 2005, no pet.) (mem. op.) (parent “failed to plead or
10
such case, the court of appeals held further that the affirmative defense of ADA
non-compliance must be pleaded and proven in the trial court even if the
Department sought termination of the parent-child relationship based in part on the
parent’s disability, and thus arguably should have anticipated the affirmative
defense. See B.L.M., 114 S.W.3d at 649 (rejecting application of Texas Supreme
Court case law permitting party to raise unpleaded affirmative defense on appeal
where opposing party anticipated affirmative defense by its pleading, holding that
“it cannot be said that . . . pleading the parent-child relationship should be
terminated under the mental health grounds found in family code section 161.003
anticipates the defense of a possible ADA violation.”).
The applicable precedent, including this Court’s holding in C.M. that ADA
non-compliance is an affirmative defense in a parental-termination case that must
be pleaded and/or proven in the trial court, offers no basis on which we may
consider Mother’s ADA non-compliance defense. Mother admits she did not raise
the defense in the trial court. Mother asks us to revisit our decision in C.M. in light
of the adoption of sections 161.001(f) and (g) of the Texas Family Code and the
prove her contention that TDFPS violated the ADA by failing to accommodate her
mental deficiencies associated with bipolar disorder”); In re B.L.M., 114 S.W.3d
641, 649 (Tex. App.—Fort Worth 2003, no pet.) (parent “did not plead or prove
his contention that TDPRS violated the ADA by failing to accommodate his
mental deficiencies and provide him with services designed for his special needs
as a schizophrenic”); In re C.M., 996 S.W.2d 269, 270 (Tex. App.—Houston [1st
Dist.] 1999, no pet.) (parent “did not plead or prove a violation of the ADA”).
11
Texas Supreme Court’s recognition in N.G. that “the interest of parents in the care,
custody, and control of their children” is a fundamental liberty interest, requiring
“heightened protection against government interference” under the due-process
clauses of our federal and state constitutions. N.G., 577 S.W.3d at 235; see also
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (noting that involuntary
termination statutes are strictly construed in favor of parent). But we are reluctant
to depart from our own precedent and the rule applied by the majority of Texas
courts of appeals absent direct guidance from the supreme court. See Grapevine
Excavation, Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex. 2000) (“Adhering to
precedent fosters efficiency, fairness, and legitimacy.”). We thus overrule Mother’s
first point of error.
Denial of Extension of Time to Complete Services
In her second point of error, Mother argues that the trial court abused its
discretion by failing to grant her November 21, 2025 motion for an extension of
her deadline to complete her service plan. The Department argues that Mother did
not preserve her complaint for appellate review.
To preserve her complaint for appellate review, the appellate record must
show either that (a) the trial court denied Mother’s motion or (b) the trial court
refused to rule on Mother’s motion and Mother objected to that refusal. TEX. R.
APP. P. 33.1(a)(2). The appellate record does not show that Mother’s motion was
12
ever set for hearing or ruled upon by the trial court. See Noel v. Oakbend Med.
Ctr., No. 01-21-00206-CV, 2022 WL 3031347, at *7 (Tex. App.—Houston [1st
Dist.] Aug. 2, 2022, pet. denied) (mem. op.) (“Simply filing a motion or even
setting the motion for hearing is insufficient to preserve error if the record does not
also show the motion was brought to the trial court’s attention. The complaining
party must get a ruling—either express or implied—from the trial court.” (citation
modified)). Nor does the appellate record show that the trial court refused to rule
on Mother’s motion. See Harris Cent. Appraisal Dist. v. Hou. Pipe Line Co., 706
S.W.3d 568, 577 (Tex. App.—Houston [1st Dist.] 2024, no pet.) (“[A] mere failure
to rule is not one and the same thing as a refusal to rule. A trial court must neglect
or decline to rule in the face of an objection to its failure to rule in order for a party
to preserve error based on the court’s refusal to rule.”). If the trial court did not
have the opportunity to exercise its discretion, it cannot be said to have abused that
discretion.
Mother’s counsel may have referred to the motion in her direct examination
of Mother at trial, in this exchange:
[Mother’s counsel]: Then you come back to Houston and you’re
trying to get your services on track, correct?
[Mother]: Correct.
[Mother’s counsel]: That’s why we were reurging to the Court that
you wanted a short continuance so you can reunite with your child
through completion of your services, correct?
13
[Mother]: Correct.
But even assuming Mother’s counsel was referring to Mother’s motion in this
exchange, the reference is insufficient to satisfy rule 33.1(a)(2). We overrule
Mother’s second point of error.
Sufficiency of the Evidence
In her third and fourth points of error, Mother argues that the trial court’s
termination of her parental rights under subsections 161.001(b)(1)(D), (E), and (N)
of the Texas Family Code is not supported by clear and convincing evidence. In
her fifth point of error, Mother argues that the Department did not prove by clear
and convincing evidence that termination was in J.G.S.’s best interest under
subsection 161.001(b)(2).
A. Standard of Review
In a case to terminate parental rights under section 161.001 of the Texas
Family Code, the Department must establish that (1) the parent committed one or
more of the enumerated acts or omissions justifying termination and
(2) termination is in the best interest of the child. TEX. FAM. CODE § 161.001(b).
Only one predicate finding under section 161.001(b)(1) is necessary to support a
judgment of termination when there is also a finding that termination is in the
child’s best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The Department
must prove both elements—i.e., both the statutorily prescribed predicate finding(s)
14
and that termination is in the child’s best interest—by clear and convincing
evidence. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). The Family Code
defines “clear and convincing evidence” as “the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established.” TEX. FAM. CODE § 101.007.
When assessing the legal sufficiency of the evidence in a termination
proceeding, we consider all evidence in the record in the light most favorable to the
trial court’s finding and decide “whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true.” In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002); City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex.
2005) (discussing elevated standard of review in parental termination cases). We
assume that any disputed facts were resolved in favor of the finding if a reasonable
factfinder could have done so. J.F.C., 96 S.W.3d at 266. When “no reasonable
factfinder could form a firm belief or conviction” that the matter on which the
Department bears the burden of proof is true, we “must conclude that the evidence
is legally insufficient.” Id. In reviewing the evidence’s factual sufficiency, we
consider the entire record, including disputed evidence. Id. The evidence is
factually insufficient if, considering the entire record, the disputed evidence that a
reasonable factfinder could not have resolved in favor of the finding is so
15
significant that the factfinder could not reasonably have formed a firm belief or
conviction. Id.
We give due deference to the factfinder’s findings, and we cannot substitute
our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006) (per curiam). The factfinder is the sole arbiter when assessing the
credibility and demeanor of witnesses. Id. at 109.
B. Predicate Findings Under Subsections (D) and (E)
Protection of the best interests of the child is the primary focus of a
termination proceeding. See A.V., 113 S.W.3d at 361. However, a parent’s rights to
the “companionship, care, custody, and management” of a child is a constitutional
interest “far more precious than any property right.” Santosky v. Kramer, 455 U.S.
745, 758-59 (1982) (citation modified); In re M.S., 115 S.W.3d 534, 547 (Tex.
2003). Accordingly, we strictly scrutinize termination proceedings and strictly
construe the involuntary termination statutes in favor of the parent. Holick, 685
S.W.2d at 20-21.
Here, the trial court terminated Mother’s rights under subsections
161.001(b)(1)(D), (E), and (N). The Texas Supreme Court has held that, because
subsection (M) provides a basis to terminate parental rights due to a prior
subsection (D) or (E) finding, due process concerns coupled with the requirement
for a meaningful appeal require that, if an appellate court affirms a termination
16
order based on a (D) or (E) finding, the court must provide the details of its
analysis. See N.G., 577 S.W.3d at 236-37. Further, because termination under
subsection (D) or (E) may justify termination of parental rights to other children in
future cases, we must review both grounds, even though only one ground is
sufficient to support termination. In re R.R.A., 687 S.W.3d 269, 279 (Tex. 2024)
(citing N.G., 577 S.W.3d at 235-37; TEX. FAM. CODE § 161.001(b)(1)(M)); see
TEX. FAM. CODE § 161.001(b)(1)(M) (providing as ground of termination that
parent “had his or her parent-child relationship terminated with respect to another
child based on a finding that the parent’s conduct was in violation of Paragraph (D)
or (E)”).
Section 161.001(b)(1)(D) of the Family Code provides that the trial court
may order termination of the parent-child relationship if it finds by clear and
convincing evidence that the parent has “knowingly placed or knowingly allowed
the child to remain in conditions or surroundings which endanger the physical or
emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(D). Section
161.001(b)(1)(E) provides that the trial court may terminate a parent’s rights if the
trial court finds by clear and convincing evidence that the parent “engaged in
conduct or knowingly placed the child with persons who engaged in conduct which
endangers the physical or emotional well-being of the child.” Id.
§ 161.001(b)(1)(E).
17
Because evidence concerning termination under subsections (D) and (E) is
interrelated, we may consolidate our examination of the evidence for both grounds.
In re A.J.H., No. 01-18-00245-CV, 2019 WL 190050, at *8 (Tex. App.—Houston
[1st Dist.] Jan. 15, 2019, no pet.) (mem. op.) (citing In re M.T.W., No. 01-11-00162-CV, 2011 WL 6938542, at *13 (Tex. App.—Houston [1st Dist.] Dec. 29,
2011, no pet.) (mem. op.); In re J.T.G., 121 S.W.3d 117, 126 (Tex. App.—Fort
Worth 2003, no pet.)). “Endanger” is a term used in both subsections (D) and (E).
To “endanger” a child means to jeopardize the child or expose him or her to loss or
injury. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (citing Tex. Dep’t of Hum.
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). While endangerment often
involves physical jeopardy, the statute does not require that endangering conduct
be directed at a child or that the child actually suffer any injury; rather, the specific
danger to the child’s well-being may be inferred from the parent’s misconduct
alone. Boyd, 727 S.W.2d at 533; In re N.J.H., 575 S.W.3d 822, 831 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied) (mem. op.). A parent’s conduct that subjects
a child to a life of uncertainty and instability endangers the child’s physical and
emotional well-being. In re J.S., 584 S.W.3d 622, 635 (Tex. App.—Houston [1st
Dist.] 2019, no pet.). The Department does not need to establish that a parent
intended to endanger a child to support termination based on endangerment. In re
M.A.J., 612 S.W.3d 398, 407 (Tex. App.—Houston [1st Dist.] 2020, pet. denied).
18
Although subsections (D) and (E) both focus on endangerment, “they differ
with regard to the source and proof of endangerment.” In re A.S., 261 S.W.3d 76,
83 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing In re S.M.L., 171
S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.), overruled on
other grounds by In re L.C.L., 599 S.W.3d 79 (Tex. App.—Houston [14th Dist.]
2020, pet. denied) (en banc)). Subsection (D) concerns the children’s living
environment, rather than the parent’s conduct, although the parent’s conduct can
affect the children’s environment. Id. Under subsection (D), “knowingly” does not
require that a parent have “certain knowledge that an actual injury is occurring.” In
re L.M.M., 522 S.W.3d 34, 44 (Tex. App.—Houston [1st Dist.] 2017, pet. denied)
(citing A.S., 261 S.W.3d at 83). Rather, a parent acts “knowingly” when he or she
is aware of the potential danger but disregards that risk. Id. Under subsection (E),
the evidence must show that the endangerment was the result of the parent’s
conduct, including acts, omissions, or a failure to act. In re K.P., 498 S.W.3d 157,
171 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). Under that subsection,
courts may consider conduct both before and after the child’s birth and before and
after the Department removed the child from the home. In re J.A.R., 696 S.W.3d
245, 254 (Tex. App.—Houston [14th Dist.] 2024, pet. denied); In re J.D.G., 570
S.W.3d 839, 851 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).
19
1. Endangerment evidence at trial
The trial court heard evidence at trial from a Department investigator,
Mother, and a Child Protective Services (CPS) supervisor.
Department investigator’s testimony. The trial court heard testimony from a
Department investigator that the Department began its investigation in December
2024, when J.G.S. was two months old. The investigator testified that the
Department was told by Texas Children’s Hospital that Mother brought J.G.S. to
the hospital because of a fever.9 She said that the hospital’s medical staff were
concerned that J.G.S. had not gained any weight since her birth. The investigator
testified that the medical staff attributed the deficiency mostly to J.G.S.’s diet but
were also investigating whether J.G.S. had “something . . . inside her blood that
they [saw] that would also contribute for her to have the failure to thrive.” She said
that she was told that the medical staff believed that Mother was not feeding J.G.S.
sufficient formula and was feeding J.G.S., in its place, diluted packaged iced tea
and grape juice. According to the investigator, once J.G.S. was admitted to the
hospital and given formula by or under supervision of the medical staff, J.G.S.
9
A medical records exhibit introduced at trial includes a timeline of Mother and
J.G.S.’s visit to the emergency room at Texas Children’s Hospital. They arrived at
8:51 p.m. on December 4, 2024. An emergency room nurse notes at 9:12 p.m.:
“Per mom patient has not had weight gain since birth and unable to get formula
due to her wick [WIC] running out and is breastfeeding 2x/day. Mom is also
feeding patient grape juice and per mom patient is having 2 wet diapers per day.”
There is no mention of a fever and the nurse notes at 9:16 p.m. that J.G.S.’s
temperature is 97.4 degrees Fahrenheit.
20
began gaining weight. She testified that the hospital kept the formula for J.G.S. at
the nursing station. She said that the nurses would “come in and give mom the
bottle to feed [J.G.S.]. If not, the nurses would do it because mom was not writing
down the proper ounces that she was giving the child.”
Department investigators, including the investigator who testified at trial,
visited Mother and J.G.S. at the hospital. The investigator said that J.G.S. appeared
to be small for her age. Her impression was that Mother did not fully understand
the seriousness of the situation. She testified that Mother told her she had just
moved into the house in which she was currently living, and did not have enough
furniture. According to the investigator, Mother gave her contradictory information
about how she was feeding J.G.S. Mother claimed the home was “fully stocked”
with food, but also told the investigator that she had run out of the specific type of
formula J.G.S. needed about 10 days earlier, and during that period had been
feeding J.G.S. the iced tea and grape juice instead. The investigator testified that
Mother told her that she had at times used juice as a substitute for milk with her
two other children also, if she ran out of milk. (Mother has custody of her two
older children, who live with their father due to Mother’s financial issues.) The
investigator said that Mother told her that she was selling her food stamps, but that
Mother attributed running out of the formula to transportation issues.
21
The Department concluded that J.G.S. was in immediate danger in Mother’s
home because there was reason to believe that Mother was selling her food stamps,
did not have adequate appropriate food in the home for J.G.S., and had fed J.G.S.
diluted packaged iced tea and juice. The Department also concluded that there was
reason to believe that Mother was neglectful in supervising J.G.S. “because
[Mother] also mentioned to [the investigator] that [Mother] was smoking weed.”
According to the investigator, Mother did not know anyone in Houston or
elsewhere who could take custody of J.G.S. or serve as a monitor should Mother
retain custody. J.G.S.’s maternal grandmother was in the process of moving from
Dallas to Atlanta, and offered a home to Mother and J.G.S., but according to the
investigator Mother did not want to move from where she was currently living.
The investigator testified further that her investigation had uncovered reports
of “[d]omestic violence with [Mother’s] ex-partner, the child’s father.” She said
that Mother had also told her that she had been diagnosed with mental health
issues—“Bipolar, schizophrenia, postpartum depression”—and also had PTSD and
anxiety. Mother said that she had been prescribed medication, and was taking the
medication, but did not take it consistently. According to the investigator, Mother
said that she did not have any utilities in her home. The investigator said that
Mother had not been taking J.G.S. to the doctor prior to taking J.G.S. to the
hospital.
22
Mother’s testimony. Mother testified that she brought J.G.S. to the
emergency room at Texas Children’s Hospital to try to get a new prescription for
formula for J.G.S. because the specific formula prescribed by Mother’s local WIC
office—an office of Texas Health and Human Services’ Women, Infants, and
Children program—was not available at any store near Mother. She had also
telephoned the hospital. Mother said that J.G.S. had weighed six or seven pounds
at birth, and weighed seven pounds when she was admitted to the hospital. Mother
acknowledged that she had not previously taken J.G.S. to any medical or
well-check visits since her birth, but said that she had been in the process of trying
to find a primary care physician who would take her insurance. She said that she
had noticed in the week before going to the hospital that J.G.S. had a cough, but
had not noticed a fever. Mother said that she had been out of formula just two days
when she came to the hospital,10 and had been using formula just to supplement
breastfeeding, two to three hours after breastfeeding. Mother was concerned she
was not producing enough breast milk, but not that J.G.S. was not receiving
adequate nutrition.
10
This testimony is supported by notes the Department investigator made from an
interview with Mother the day after she brought J.G.S. to the hospital. The
investigator notes that Mother stated that she “did not give her daughter formula
for about one or two days and was only breastfeeding during that time,” but also
“started diluting juice with water.”
23
Mother denied telling the Department investigator that she had sold her food
stamps or had been out of formula for over a week. She explained that she had
been looking unsuccessfully at local stores for J.G.S.’s particular brand of formula
for roughly a week before going to the hospital, but had been looking before she
ran out. She denied having fed grape juice or iced tea to J.G.S.—or to her other
children, when they were infants. She testified that her mother helped her with bills
because she was unable to find a job. She acknowledged that her electricity had
gone out just before she took J.G.S. to Texas Children’s Hospital, but said that it
was a one-time incident and was only out for a day or two total.
Mother testified that she had not told the Department investigator that she
had any mental health diagnoses. She told the investigator that she had suffered
from post-partum depression only after the birth of the second of her two older
children, and had ultimately been able to dip into her 401(k) at that time to enable
her to stay home with the children for a period before returning to work as a
phlebotomist. She denied having ever been diagnosed as schizophrenic. Mother
testified that, while pregnant with J.G.S., she had been prescribed Zoloft for
anxiety and depression. She said that she had told the investigator that she was not
currently taking Zoloft. Mother underwent a psychological evaluation as part of
her services plan and, in that evaluation, denied having any mental health
diagnoses. She testified that she was unaware of any diagnoses resulting from that
24
evaluation. Mother testified that she was not currently seeing any mental-health
provider on a regular basis or going to any counseling, support groups, or therapy.
She said that she had recently had a follow-up appointment with a mental-health
provider regarding help with depression but was unsure “what other services they
are requiring that I do.” She said that she had not yet been referred to continuing
services. At the time of trial, the medications she was on were medications she had
been prescribed in 2023. One was oxcarbazepine. She could not remember the
name of the other.
When asked if she remembered reporting that she had smoked marijuana
two days before J.G.S.’s hospitalization, she answered no. She also testified that
she did not remember saying that she had smoked marijuana occasionally
throughout her pregnancy, and denied having done so. Mother acknowledged that,
in 2019, she tested positive for marijuana and the hair of one of her older children
also tested positive for marijuana. But she said that she had stopped using
marijuana in 2018, or possibly as early as 2017. As of the time of trial, there were
no criminal charges pending against Mother and she was not on probation for any
crime.
While Mother complained that her service plan requirements had expanded
over time, she believed she had been diligently working her services and had
completed all requirements in her service plan except her domestic violence
25
classes. She had completed her psychosocial assessment and a six-week parenting
class. As of the time of trial, she had attended only roughly half of her domestic
violence classes, and said she believed it is important for a child to have a home
that is free of the cycle of domestic violence. She testified that she had been the
victim of domestic violence in the past, but was no longer with the ex-partner
referenced in the domestic violence allegations. Mother said that she had missed
domestic violence classes during a period when she was unable to pay her
telephone bill and that, once her service was restored, she was told there were no
more classes until the month after trial. Mother was also required to submit to drug
testing throughout the pendency of her case. While she did not report for every
testing date, she tested negative when she did report. Mother’s visits with J.G.S.
were suspended for a short period. Mother testified that she did not know the
reason for the suspension, but that she was in Dallas for a period of time “getting
the court paperwork for custody of [her] other two children.” Having returned to
Houston, Mother sought a short continuance of her service plan so that she could
reunite with J.G.S. through completion of her services. When asked later if she was
aware that her visitations had been suspended pending her engagement in
mental-health services, she responded: “That wasn’t clear, but since it has been
reiterated, yes.”
26
Mother testified that, as of the time of trial, she had a 24-month lease on a
house that would terminate in July of the following year. She said that she had
received a housing voucher from the Houston Area Women’s Center, and was
required to either pursue employment or schooling to stay in their housing
program. Mother was not currently employed but was looking for employment
“every day.” She has previously worked as a phlebotomist. Mother’s grandmother
was helping her with her electricity bill. Mother testified that her mother had
moved back to the Dallas area in 2024 and, at the time of trial, was living in
Arlington, Texas. Mother testified that, given her inability to find work, she was
looking at moving in with her mother.
CPS supervisor’s testimony. The CPS supervisor testified that she had
overseen Mother’s case for roughly a year, and had worked with Mother’s
caseworker on developing Mother’s family service plan. The supervisor testified
that Mother had “recently started to engage in her services,” and had completed her
psychological evaluation and course of parenting classes, respectively, in August
and September 2025. But she said that Mother had not completed other
requirements, and that the Department “still has concerns in regard to her ability to
parent and understand the needs and well-being of a child of vulnerable ages and to
care for them throughout their life span.”
27
With regard to Mother’s mental health, the supervisor testified that: “the
mother has gone back and forth with -- in the acceptance of mental health
diagnosis, any follow-through with the evaluations that will determine the needs
for medication or different treatment recommendations.” She said that Mother had
not completed any mental-health counseling, despite the Department’s having
made referrals “to get assessments completed.”
The supervisor testified further, regarding the “domestic violence concerns,”
that those concerns were never fully addressed. The supervisor confirmed that
Mother had completed four of the eight required classes in the domestic violence
program in her service plan. The supervisor acknowledged that Mother was the
victim and not the perpetrator of domestic violence, and Mother’s testimony that
she was no longer in an abusive relationship, but said that the Department wants to
ensure that Mother “doesn’t develop a pattern of continuing to get [in] and [can]
recognize those same types of situations or relationships in the future.”
The supervisor said that her understanding was that Mother’s visitations had
been suspended in June, after Mother missed visits in April and May because she
was in Dallas. She noted that Mother had returned to Houston in June,11 but had
not visited or had other contact with J.G.S. since the suspension. The Department
11
However, when the trial court later asked the supervisor whether it was her
understanding that Mother “did move to Dallas for several months . . . this past
year,” the supervisor responded yes.
28
was not requesting that Mother be permitted to visit J.G.S. because the Department
had not “seen the change and willingness to make any efforts to mitigate the initial
issues that brought the child into care to prove that she’s ready to go back into
exhibiting parenting skills.”
The CPS supervisor testified that the Department was requesting that
Mother’s parental rights to J.G.S. be terminated so that J.G.S. could be adopted.
She believed that the Department had made reasonable efforts in offering Mother
services to reunite Mother with her child and, in the alternative, to try to place
J.G.S. with a relative. The CPS supervisor testified that the Department had looked
at every potential caretaker whom Mother had named. She said that J.G.S.’s
maternal aunt, in Chicago, indicated she was unable to care for J.G.S. J.G.S.’s
maternal grandfather, in Nashville, was unable to take J.G.S. due to financial
concerns. The Department also looked at another relative, in Louisiana, who was
unable to care for J.G.S. because she was already caring for her husband. She
testified that the Department had “reached out to [J.G.S.’s] maternal grandmother
. . . several, several times throughout the entire pendency of this case.” She stated
further that J.G.S.’s maternal great-aunt and maternal great-grandmother were not
viable options.
Trial exhibits. In her closing statement, counsel for the Department called
the trial court’s attention to a December 2024 affidavit from the Department
29
investigator who had testified at trial “outlining [Mother’s] admission that she was
feeding a child younger than three months old inappropriate nutrition by Arizona
Tea, water, grape juice.” The investigator’s affidavit mentions grape juice and iced
tea in a section of the affidavit titled “Present Referral and Allegations,” in which
the investigator stated in part:
On December 05, 2024, the Department . . . received a referral
regarding Medical Neglectful and Neglectful Supervision of 2-monthold [J.G.S.] by [Mother]. The referral generated from [Mother] called
9-1-1, concerned that her infant daughter, [J.G.S.], was not resting.
[Mother], who has auditory schizophrenia, bipolar, severe depression,
postpartum depression, and anxiety struggles to provide proper care;
she has been selling her food stamps, and [J.G.S.] has been drinking
only Arizona Iced Tea and grape juice for weeks.
In the affidavit, the investigator does not identify the source of the information
regarding J.G.S.’s drinking iced tea and grape juice. The Department investigator
testified at trial that the referral came from medical staff at the hospital. The
hospital’s medical records, which the Department also introduced as an exhibit at
trial, contain several references to Mother’s saying she had fed J.G.S. diluted juice,
tea, or both, but also several notes stating that Mother would also breastfeed J.G.S.
The only note in the medical records regarding the time period over which Mother
had fed J.G.S. diluted juice, tea, or both is a note stating that: “Per records and
mother, mom reportedly was offering [J.G.S.] breast milk twice weekly and juice
over the last week.”
30
Counsel for the Department also drew the trial court’s attention to J.G.S.’s
medical records, which counsel characterized as “outlin[ing] that [J.G.S.] was
extremely malnourished.” Those records contain many references to J.G.S.’s being
possibly malnourished, and a few references to a diagnosis of “severe
malnutrition” as evidenced by J.G.S.’s small weight gain since birth. Under the
heading “Nutrition Diagnosis,” the medical records state: “Increased nutrient needs
related to malnutrition/malabsorption as evidenced by growth failure. Malnutrition
Diagnosis: Severe malnutrition Related To: Social/environmental/behavioral As
Evidenced By: Weight gain velocity <25% of the norm for expected weight gain.”
Counsel for the Department told the trial court that the same exhibit of
medical records also “outlines the concerns for medical neglect due to lack of
follow-up with primary care physicians, especially when changes were noted.”
Counsel made specific reference to a note in the hospital records that J.G.S. “was
not see[n] by a pediatrician since birth hospital discharge. Mom explained that she
was dealing with housing instability and had no transportation to the doctor’s
office.” Elsewhere in the medical records exhibit, two separate physicians note that
J.G.S.’s failure to thrive is “non-specific for” (i.e., not necessarily) physical
neglect, but “concerning” (or similar) for medical neglect.
Counsel for the Department also referenced in her closing argument
Mother’s “statements to medical professionals and to the investigator that she was
31
struggling with post-partum depression, schizophrenia, depression and anxiety.”
The medical records exhibit contains a passing reference to Mother’s “untreated
mental health” being a risk factor relevant to the child welfare investigation. The
records include the following few references to Mother’s mental health:
• “Mother has a history of bipolar disorder [and] depression . . .”
• “Mom has diagnosis of Bipolar and Schizophrenia that are currently
untreated.”
• In list of circumstances surrounding J.G.S.’s birth: “untreated bipolar
disorder” and “depression”
The medical records do not note the source of this information.
2. Analysis
The evidence at trial was legally and factually sufficient to support the trial
court’s endangerment findings. Considering all evidence in the record in the light
most favorable to those findings, and deferring to the trial court as the sole arbiter
when assessing the credibility and demeanor of witnesses, we conclude that a
reasonable trier of fact could have formed a firm belief or conviction that the trial
court’s endangerment findings were true. See J.F.C., 96 S.W.3d at 266; H.R.M.,
209 S.W.3d at 108. While many of the fact issues material to those findings were
disputed at trial, we have not found disputed evidence that a reasonable factfinder
could not have resolved in favor of the trial court’s endangerment findings that is
32
so significant that the trial court could not have reasonably formed a firm belief or
conviction in its endangerment findings. J.F.C., 96 S.W.3d at 266.
There was evidence at trial of Mother’s medical neglect of J.G.S. As noted
in the medical records introduced at trial, newborn babies should be seen by a
medical provider to ensure adequate nutrition, weight gain, and development. The
records note further that the fact that a “caregiver should be aware to seek medical
care for a young infant” had been discussed with Mother when she was discharged
after giving birth. By Mother’s own account, J.G.S. had gained at most just a
pound since she was born. Mother admitted at trial that, before bringing J.G.S. to
the emergency room on December 4, 2024, she had not taken J.G.S. to any medical
or well-check visits since her birth. J.G.S.’s hospital records include a diagnosis of
“severe malnutrition” as evidenced by a weight-gain velocity under 25 percent of
the expected norm. See In re A.B., 437 S.W.3d 498, 506 (Tex. 2014) (concluding
that some evidence supported termination under subsection (E) based in part on
failure to thrive diagnosis and medical testimony that child was severely
malnourished). Physicians who reviewed J.G.S.’s case at the hospital, including a
consulting physician from the hospital’s CARE Team,12 found her presentation to
be non-specific for physical neglect, i.e., not necessarily caused by physical
neglect, but “concerning” for medical neglect. See In re J.H., No. 01-22-00629-12
Based on references in J.G.S.’s medical records, the hospital’s “CARE Team” is
consulted in cases of suspected child abuse.
33
CV, 2023 WL 2169952, at *14 (Tex. App.—Houston [1st Dist.] Feb. 23, 2023, pet.
denied) (mem. op.) (noting that “a parent’s neglect of her child’s medical . . . needs
endangers the child” and citing cases in which medical neglect was held to be
evidence of endangerment under subsection (D)); J.D.G., 570 S.W.3d at 852
(noting failure to provide medical care for child may constitute endangering
conduct under subsection (E) even if parent did not cause need for medical
treatment).
In addition, while there was conflicting evidence at trial regarding Mother’s
mental health, including what mental-health diagnoses Mother may have received,
that evidence included evidence suggesting that Mother’s untreated mental illness
caused or contributed to the medical neglect of J.G.S. See In re A.A., No. 01-25-01074-CV, 2026 WL 1689341, at *9 (Tex. App.—Houston [1st Dist.] June 11,
2026, no pet. h.) (mem. op.) (noting that, “[w]hile mental illness alone is not
grounds for terminating the parent-child relationship, untreated mental illness can
expose a child to endangerment and is a factor that the court can consider” under
subsection (E)); In re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.]
2017, pet. denied) (same).
The Department alleged in its pleading seeking the termination of Mother’s
parental rights to J.G.S. that Mother “is unmedicated, and her mental illness
significantly affects her ability to care for” J.G.S. The pleading included a copy of
34
notes regarding a conversation that a Department investigator allegedly had with
medical staff and a social worker a week after J.G.S. presented at the hospital,
stating:
The doctor and nurses are concerned about the mother’s adherence to
feeding schedule and instructions. [J.G.S.] had a fever but is currently
stable and not receiving antibiotics. The concerns that [Mother]
mental health and ability to care [sic] because she has been
diagnos[ed] with auditory schizophrenia, depression, severe anxiety
and post-partum depression. She is not currently on her prescribed
medications. Her behavior is observed as detached and flat, she lacks
emotional engagement with [J.G.S.]. The concerns were raised about
her ability to follow instructions and care for the baby at home. The
medical staff and social worker [are] concern[ed] that if the baby is
discharged home there is a high risk of the baby returning due[] to
inadequate care. They had stated the baby[’s] nutritional need[s] [are]
critical for brain development and malnutrition could lead to
development issues. There is a need for evaluation for psychiatric
evaluation of [Mother] to assess her understanding and capability to
care for her child.
Those notes are followed by allegations of a number of incidents in the hospital in
which Mother seemed unable or unwilling to follow instructions regarding feeding
J.G.S.
A consulting physician who reviewed J.G.S.’s case stated in J.G.S.’s
medical records that “[t]here are multiple risk factors [for child maltreatment]
noted when CARE team talked to mom and per social work evaluation including
mom’s untreated mental health . . . .” Mother’s medical records note that, while
pregnant with J.G.S., Mother suffered from “untreated bipolar disorder, and
depression” and received “limited prenatal care (mom was seen at UTMB twice).”
35
Her medical records from her emergency-room visit with J.G.S. also state that she
“has diagnosis of Bipolar and Schizophrenia that are currently untreated.” The
Department investigator who testified at trial said that Mother had told her that she
had diagnoses of “Bipolar, schizophrenia, postpartum depression,” “PTSD,” and
“anxiety,” and was not consistently taking the medication she had been prescribed.
See A.A., 2026 WL 1689341, at *9 (affirming termination of parental rights under
subsections (D) and (E) based in part on evidence that parent who had
mental-health issues requiring medication had “stopped and started her
medications, including not taking the medication for multiple months during the
pendency of the case”); In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston
[14th Dist.] 2003, no pet.) (affirming termination of parental rights under
subsection (E) based in part on parent’s mental health and noncompliance with
medication schedule). Mother testified that she was not seeing any mental health
provider on a regular basis. The CPS supervisor testified that the Department was
concerned “that the mother has gone back and forth with -- in the acceptance of
mental health diagnosis, any follow-through with the evaluations that will
determine the needs for medication or different treatment recommendations.” She
noted that Mother had also not completed mental-health counseling to which the
Department had referred Mother as part of her service plan. See In re S.R., 452
S.W.3d 351, 363 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (affirming
36
termination of parental rights under subsections (D) and (E) based in part on
evidence of parent’s failure to participate in services related to treatment of mental
illness). In the face of this evidence, the trial court could reasonably have
interpreted Mother’s testimony that she did not have any untreated mental illness
and was unaware of any requirements related to her mental health that she had not
fulfilled as evidence supporting rather than weighing against an endangerment
finding. In re R.R., 711 S.W.3d 126, 140 (Tex. App.—Houston [1st Dist.] 2024, no
pet.) (affirming termination of parental rights under subsections (D) and (E) based
in part on evidence that parent, despite her mental health diagnosis, denied she had
any need to address her mental health).
We overrule Mother’s third point of error, related to subsections (D) and (E).
Because we have concluded that sufficient evidence supported the trial court’s
endangerment findings, and conclude below that sufficient evidence supported the
trial court’s best-interest finding, we do not need to review Mother’s fourth point
of error, challenging the sufficiency of the evidence supporting the trial court’s
finding under subsection (N). See A.V., 113 S.W.3d at 363.
C. Best Interest of J.G.S.
In Mother’s fifth issue, she contends that the evidence is legally and
factually insufficient to support the trial court’s finding that termination of her
parental rights was in J.G.S.’s best interest. See TEX. FAM. CODE § 161.001(b)(2).
37
There is a strong presumption that the best interest of a child is served by keeping
the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (per curiam) (citing TEX. FAM. CODE § 153.131(b)); In re D.R.A., 374
S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). However,
prompt and permanent placement of the child in a safe environment is also
presumed to be in the child’s best interest. TEX. FAM. CODE § 263.307(a).
Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best-interest finding: (1) the desires of
the child; (2) the present and future physical and emotional needs of the child;
(3) the present and future emotional and physical danger to the child; (4) the
parental abilities of the persons seeking custody; (5) the programs available to
assist those persons seeking custody in promoting the best interest of the child;
(6) the plans for the child by the individuals or agency seeking custody; (7) the
stability of the home or proposed placement; (8) the acts or omissions of the parent
which may indicate the existing parent-child relationship is not appropriate; and
(9) any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d
367, 371-72 (Tex. 1976). These factors are not exhaustive, and evidence is not
required on each factor to support a finding that terminating a parent’s rights is in
the child’s best interest. Id. at 372; D.R.A., 374 S.W.3d at 533. Moreover, evidence
supporting termination under one of the grounds listed in section 161.001(b)(1) can
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also be considered in support of a finding that termination is in the best interest of
the child. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence
may be probative of both section 161.001(b)(1) grounds and best interest).
1. Mother’s ability to provide J.G.S. safe environment
Much of the evidence relevant to the trial court’s endangerment findings is
also relevant to our assessment of Mother’s willingness and ability to provide
J.G.S. a safe home environment. Mother was unemployed at the time of trial and
had been unable to find work. Her lease, which she obtained through a non-profit
organization, was scheduled to terminate within a year of trial. See In re B.J.C.,
495 S.W.3d 29, 39 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (noting child’s
need for permanence through establishment of stable, permanent home is
paramount consideration in best-interest determination).
As noted above, the Department had concerns that Mother had trouble
feeding J.G.S. properly even when provided with supplies and instructions. See In
re J.C.D.Y., No. 01-25-00640-CV, 2025 WL 4099753, at *18 (Tex. App.—
Houston [1st Dist.] Feb. 3, 2026, pet. denied) (mem. op.) (listing food as among
child’s basic needs to be considered in reviewing parent’s ability to meet child’s
present and future physical and emotional needs). The Department was also
concerned that Mother had mental-health issues that were unacknowledged and
untreated, and that Mother had not completed mental-health counseling and
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assessments to which she was referred. See In re N.S.M., No. 01-20-00764-CV,
2021 WL 1217328, at *5 (Tex. App.—Houston [1st Dist.] Apr. 1, 2021, pet.
denied) (mem. op.) (noting impact of parent’s mental health on parenting and
stability of home may be considered when determining child’s best interest).
The record does not contain any history of drug or alcohol use or abuse by
Mother other than social drinking and, for some period, marijuana use. See In re
M.A.J., 612 S.W.3d 398, 415 & n.22 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied) (as part of best-interest analysis, distinguishing between marijuana use and
use of “hard drugs,” and noting that “courts’ consideration of parental marijuana
use in termination-of-parental-rights cases is evolving”). Moreover, Mother
testified that she had not smoked marijuana since 2018 and, each time she
submitted to drug testing as part of her service plan, she tested negative. See A.A.,
2026 WL 1689341, at *15 (citing parent’s series of negative drug-test results as
evidence contrary to finding that termination of parental rights was in child’s best
interest). A drug test conducted on J.G.S. early in her stay at Texas Children’s
Hospital was negative.
However, Mother did not participate in all drug testing for which she was
scheduled. See In re J.H.G., No. 01-16-01006-CV, 2017 WL 2378141, at *6 (Tex.
App.—Houston [1st Dist.] June 1, 2017, pet. denied) (mem. op.) (stating father’s
failure to participate in court-ordered drug test was equivalent to positive test
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result). And in her December 2024 affidavit, the Department investigator stated
that Mother had told her that she had smoked marijuana occasionally while
pregnant and as recently as the day before she brought J.G.S. to the emergency
room. There is evidence in the record that a CPS investigation had been initiated
with regard to one of Mother’s older children after that child’s hair tested positive
for marijuana in 2019. While marijuana use may be distinguishable from the use of
hard drugs, Mother’s purported use of marijuana while pregnant with J.G.S. even
after her marijuana use caused one of her older children to test positive for
marijuana is sufficiently suggestive of a pattern of dangerous conduct that may
continue into the future to factor into a best-interest analysis. See In re E.D., 682
S.W.3d 595, 607 (Tex. App.—Houston [1st Dist.] 2023, pet. denied) (noting that
“continuing pattern of illegal drug use . . . will support a finding that termination of
parental rights is in a child’s best interest”).
Mother testified that she was seeking a short continuance of the proceedings
to enable her to complete her services and reunite with J.G.S. Mother testified that
her desired outcome was for her and J.G.S. to move in with her mother or, if she
was not allowed to retain custody of J.G.S., for her mother to have custody.
J.G.S.’s maternal grandmother had been a source of support for Mother and J.G.S.
but, having moved to Dallas, had been less help to Mother with J.G.S. than she had
been with Mother’s two older children. It is not clear from the record the extent to
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which a placement with J.G.S.’s maternal grandmother had been considered and, if
that possibility had been rejected, why. J.G.S.’s maternal grandmother had said she
was willing to have Mother and J.G.S. live with her. At one point, J.G.S.’s
maternal grandmother was in the process of moving from Texas to Georgia and, at
that stage, Mother was not inclined to move to Georgia. But it appears that either
the move did not occur or Mother had moved back to Texas by the time of trial.
2. J.G.S.’s environment, needs, and desires
At the time of trial, J.G.S. had been in foster care for almost a year. The CPS
supervisor testified that the Department was requesting that Mother’s parental
rights to J.G.S. be terminated so that J.G.S. could be adopted. J.G.S.’s foster
mother was present at trial, and was licensed and prepared to adopt J.G.S. if the
trial court terminated Mother’s parental rights. The supervisor testified that the
Department had no concerns regarding the foster placement. Since being placed
with her foster parent, J.G.S. had thrived, gained significant weight, and was
meeting her milestones. At the time of trial, J.G.S. was not on any medication or
receiving any special services. The supervisor believed that J.G.S.’s foster mother
would pass an adoptive home study. She believed that it was in J.G.S.’s best
interest that J.G.S. remain in her current placement, and that the parental rights of
Mother and J.G.S.’s alleged father be terminated.
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3. Analysis
The evidence at trial was legally and factually sufficient to support the trial
court’s best-interest finding. Considering all evidence in the record in the light
most favorable to that finding, and deferring to the trial court as the sole arbiter
when assessing the credibility and demeanor of witnesses, we conclude that a
reasonable trier of fact could have formed a firm belief or conviction that the trial
court’s best-interest finding was true. See J.F.C., 96 S.W.3d at 266; H.R.M., 209
S.W.3d at 108. We have not found disputed evidence that a reasonable factfinder
could not have resolved in favor of the trial court’s best-interest finding that is so
significant that the trial court could not have reasonably formed a firm belief or
conviction in its best-interest finding. J.F.C., 96 S.W.3d at 266.
We overrule Mother’s fifth point of error.
Conclusion
We affirm the trial court’s decree of termination.
Amparo “Amy” Guerra
Justice
Panel consists of Justices Guerra, Gunn, and Morgan.
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