Opinion issued August 11, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-26-00250-CV
IN THE INTEREST OF Z.I.A.B., Z.J.T.B. A/K/A Z.B., AND Z.S.B. A/K/A
Z.B., CHILDREN
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2022-01281J
MEMORANDUM OPINION
In this accelerated appeal,1 appellant, mother, challenges the trial court’s
order, entered after a bench trial, awarding her possessory conservatorship of her
minor children, , Z.I.A.B. and Z.J.T.B., also known as Z.B., and Z.S.B., also known
1
See TEX. FAM. CODE ANN. § 263.405(a); TEX. R. APP. P. 28.4.
as Z.B. (collectively, the “children”), awarding the Department of Family and
Protective Services (“DFPS”) sole managing conservatorship of Z.I.A.B. and
Z.J.T.B., and awarding H.S., Z.S.B.’s godmother, sole managing conservatorship
of Z.S.B.2 In her sole issue, mother contends that the evidence is legally and
factually insufficient to support the trial court’s finding that appointing mother as
the children’s sole managing conservator would not be in the children’s best interest
because it “would significantly impair [their] physical health or emotional
development.”3
We affirm.
Background
In July 2022, DFPS filed a “Petition for Protection of a Child[,] For
Conservatorship, and For Termination in Suit Affecting the Parent-Child
Relationship.” At trial, DFPS requested that it be awarded sole managing
conservatorship of Z.I.A.B. and Z.J.T.B. and that Z.S.B.’s godmother be awarded
sole managing conservatorship of Z.S.B.
2
At the time DFPS and Z.S.B.’s godmother were awarded sole managing
conservatorship of the children, Z.I.A.B. was sixteen years old, Z.J.T.B. was
fourteen years old, and Z.S.B. was eleven years old.
3
See TEX. FAM. CODE ANN. § 153.131 (“Presumption That Parent to be Appointed
Managing Conservator”).
2
Removal Affidavit
The trial court admitted into evidence a copy of the affidavit of DFPS
investigator Kimberly Wilbert. Wilbert testified that on July 3, 2022, DFPS received
a referral alleging neglectful supervision of the children by mother. According to
Wilbert, the children were “completely reliant on . . . mother for their daily needs
and protection,” and mother was failing to properly care for them because of her
substance abuse issues. Mother was not meeting the children’s basic needs and
tested positive for cocaine, amphetamine, methamphetamine, and alcohol use. The
children “kn[ew] what drugs were.” Further, mother’s home lacked electricity and
was “not conducive for the children to live in.”
DFPS Caseworker Bermudez
Amanda Bermudez testified that she was the DFPS caseworker assigned to
the children. According to Bermudez, Z.S.B. was in a fictive kin placement with her
godmother in Freeport, Illinois, where she had lived for more than two years.
Z.S.B.’s godmother wanted the child to continue living with her. Z.J.T.B. was
placed in a foster home in Harris County, Texas, and Z.I.A.B. was placed in a
separate foster home in Harris County, where she lived for most of the case.
Z.I.A.B.’s foster placement was willing to provide “a long-term safe and stable”
placement for the child. Z.I.A.B. and Z.J.T.B. “ha[d] each other’s phone number[s]
to keep in contact.”
3
Bermudez further testified that the children did not have any special needs,
but Z.I.A.B. took medication to address her depression, anxiety, attention
deficit/hyperactivity disorder (“ADHD”), and post-traumatic stress disorder
(“PTSD”). Z.J.T.B. took medication to treat his ADHD, PTSD, and mood disorder.
The children’s placements were meeting their physical and emotional needs and
could continue to do so in the future. While in DFPS’s care, the children received
trauma treatment and counseling due to their past experiences living with mother.
Regarding Z.I.A.B., Bermudez explained that she was a cheerleader. She was
also involved in a couple of mentorship programs. She was about to start her
sophomore year of high school and had made friends. While in DFPS’s care, she
had toured colleges and attended sleepovers. Her foster placement was willing to
keep Z.I.A.B. at the same school for the remainder of high school so she could
continue her activities and maintain friendships.
As to Z.J.T.B., Bermudez testified that he had recently been to an overnight
summer camp. His current foster mother had a son, and the two boys played video
games together at the home. Z.J.T.B.’s foster placement was committed to keeping
him in contact with his siblings.
As to Z.S.B., Bermudez stated that she was on the swim team and she had
recently joined a program for children focusing on college. She also participated in
the Boys & Girls Club and was involved with activities at her school. She was doing
4
well in her placement, and her godmother was committed to maintaining her
activities.
DFPS was seeking sole managing conservatorship of Z.I.A.B. and Z.J.T.B.,
and Z.S.B.’s godmother was seeking sole managing conservatorship of her.
Bermudez had spoken to Z.I.A.B., who wanted to remain in her foster placement, as
did Z.S.B. Z.J.T.B. wanted to live with mother, but he had changed his mind several
times during the case. Because he was in a relatively new placement at the time of
trial, Bermudez was not surprised that he had stated that he wanted to live with
mother. The children did not want mother’s parental rights to be terminated.
Bermudez stated that awarding DFPS sole managing conservatorship of
Z.I.A.B. was in the child’s best interest because she was doing well in her foster
placement, and her foster mother was dedicated to Z.I.A.B. remaining in the home.
Z.I.A.B. “ha[d] established a life for herself,” which was “very goal-oriented.”
Bermudez believed that awarding DFPS sole managing conservatorship of Z.J.T.B.
was in the child’s best interest because DFPS was committed to “work[ing] with him
and find[ing] him [a] stable placement.” At the time of trial, Z.J.T.B.’s foster
placement was safe. As to Z.S.B., Bermudez explained that awarding her godmother
sole managing conservatorship of Z.S.B. was in the child’s best interest because her
godmother had known her for many years. Z.S.B. already had a room in her
godmother’s home even before DFPS became involved with the family. Z.S.B.’s
5
godmother was “dedicated to providing her normalcy, fun activities[,] and just
providing for her until she[] [was] an adult.” Z.S.B.’s placement with her godmother
was safe and stable. All the children’s placements were committed to the children’s
education and developing future plans for the children.
As to mother, Bermudez testified that in July 2022, DFPS received a report
alleging neglectful supervision of the children by mother. The report stated that
mother had been using cocaine and was unable to provide for the children’s basic
needs. According to Bermudez, while the children were in mother’s care, they had
witnessed the father of one of the children shoot at mother’s boyfriend. Z.J.T.B. was
severely traumatized by the incident. The children were removed from mother’s
care because of domestic violence in her home and her neglect of the children.
At the time of trial, mother lived in Des Moines, Iowa, where she had moved
soon after the children were removed from her care. Mother had received a family
service plan (“FSP”), and she had completed some of its requirements. For instance,
mother had completed the required parenting classes, and she had started her
“substance abuse services,” but she had been unsuccessfully discharged from those
services. Mother had provided Bermudez with some pay stubs to show proof of
income, but Bermudez had not received any recent pay stubs from mother. It had
been more than six months since Bermudez had received proof that mother was
6
employed.4 Mother had participated in virtual visits with the children, but she had
only traveled to Houston once in three years to see the children in person. Mother
had not provided financial support or physical items to the children during the
pendency of the case.
Bermudez further testified that mother tested positive for cocaine and
methamphetamine use in July 2022, tested positive for narcotics use in August 2023,
and tested positive for cocaine use in October 2023. Mother had failed to
consistently engage in the required narcotics-use testing during the pendency of the
case, including missing a required narcotics-use test in July 2023. Mother tested
negative for narcotics use in September 2024 and June 2025.
Bermudez stated that returning the children to mother’s care could cause them
physical or emotional danger.
Mother’s FSP
The trial court admitted a copy of mother’s FSP into evidence.5 As to the
children the FSP stated that they needed physical and dental examinations, and they
4
Bermudez described mother’s employment history as “very sporadic.” 5
The trial court also admitted into evidence an order wherein it found that mother
had reviewed and understood her FSP and she had been “advised that unless she
[was] willing and able to provide the children with a safe environment . . . within
the reasonable period of time specified in the plan, her parental and custodial duties
and rights [would] be subject to restriction or to termination or the children [would]
not be returned to her.” Mother’s FSP noted that mother participated in the creation
of her FSP, but she did not sign it.
7
had been exposed to narcotics in mother’s home. Mother reported that Z.S.B. was
autistic and had a speech delay.
As to DFPS’s concerns about mother, the FSP stated that DFPS was
concerned that mother used narcotics, which placed the children at risk for neglectful
supervision, especially because mother did not believe she had a substance abuse
issue. DFPS also had concerns about mother’s parenting skills given that the
children, while in her care, were living in an apartment without working utilities and
mother used narcotics while the children were present. Further, mother reported to
DFPS that she had no support system, and DFPS was concerned that mother did not
have healthy ways to cope with stress.
Mother’s FSP required her to maintain safe and stable housing for a minimum
of six months consecutively. Mother needed to demonstrate that she could provide
housing that would protect the children and provide them with consistency and
stability. Mother was required to provide a DFPS caseworker with a lease agreement
to show proof of a safe and structured home environment. If mother moved, she
needed to provide her caseworker with new leasing information within twenty-four
hours of relocation. Mother’s FSP also required her to provide her DFPS caseworker
with proof of her source of income and maintain contact with her caseworker at least
once a month.
8
Further, mother was required to avoid engaging in criminal activity and using
narcotics during the case. Mother needed to complete a substance abuse assessment
and follow its recommendations, and she needed to participate in random
narcotics-use testing.6 She also needed to successfully complete in-person parenting
classes and provide a certification of competition to DFPS. Additionally, mother
had to be able to demonstrate “the learned behaviors during family visits with the
child[ren] and through discussions with [her] caseworker.” Mother’s FSP also
required her to complete a psychosocial evaluation and follow its recommendations.
Narcotics-Use Testing Results
The trial court admitted into evidence copies of mother’s narcotics-use testing
results, showing that on July 7, 2022, mother tested positive for amphetamine,
methamphetamine, cocaine, and alcohol use by hair-follicle analysis, on August 17,
2023, mother tested positive for cocaine use by urinalysis, and on August 28, 2023,
mother tested positive for cocaine and fentanyl use by urinalysis. Further, in July
2023, although mother was ordered to participate in narcotics-use testing, she failed
to submit to testing.
6
Mother’s FSP informed her that if she missed a required narcotics-use test, the result
would be treated as a positive testing result.
9
On July 7, 2022, mother tested negative for narcotics use by urinalysis. On
January 19, 2024, mother tested negative for narcotics use by urinalysis and
hair-follicle analysis.
Child Advocates Volunteer
Nicholas Alvarado, a volunteer with Child Advocates, Inc. (“Child
Advocates”), testified that he was assigned to the children’s case and believed it was
in the children’s best interest for DFPS to be awarded sole managing conservatorship
of Z.I.A.B. and Z.J.T.B. and for Z.S.B.’s godmother to be awarded sole managing
conservatorship of Z.S.B.
According to Alvardao, when the children were removed from mother’s care,
they had some behavior issues and “needed a lot of therapy” to work on those
behaviors. Since leaving mother’s care, Z.I.A.B. had worked hard making friends
and was thriving in a healthy environment. Z.J.T.B. had a “couple of setbacks,” but
he had improved his behavioral issues. Z.S.B. was doing well in school and thriving
in her placement with her godmother. The children were in three separate
placements but maintained contact through virtual visits and the telephone.
If the children were returned to mother’s care, it would significantly impair
their physical and emotional well-being because it would cause their behavioral
issues to return and the children would not be mother’s priority. Z.I.A.B. told
Alvarado that she wanted to stay in her foster placement because she was bonded
10
with her foster mother. Z.I.A.B. believed returning to mother’s care “would be a
setback for her . . . [a]nd everything that she[] [had] accomplished.” Even though
she did love mother, she did not believe that mother had her life together. Z.I.A.B.
wanted to complete high school where she was attending, continuing cheerleading
at her school, and work toward her goal of attending college, which she believed she
would best accomplish by staying in her foster placement. Z.I.A.B. was concerned
that mother would not be a caregiver for her and would not be able to “provide her
the level of emotional and physical assistance that her current foster home d[id].”
Z.I.A.B. had not seen mother in person in three years.
Z.S.B. also told Alvarado that she wanted to remain in her placement with her
godmother. Z.S.B. had no memory of living with mother, and her current placement
was meeting her needs. She was happy in her placement but missed her siblings.
According to Alvarado, Z.J.T.B. had “gone back and forth several times”
about where he wanted to live. Alvarado did not believe that Z.J.T.B. understood
what living with mother would be like or the severity of the case, given his age at
the time of removal from mother’s care. Z.J.T.B.’s behavioral issues had prevented
him from being able to be placed with either of his siblings, but he had a “therapeutic
plan” in place so that he could hopefully be placed with either Z.I.A.B. or Z.S.B. in
the future. Alvarado testified that Z.J.T.B. had significant trauma to work through
related to being in mother’s care.
11
As to mother, Alvarado stated the children were removed from her care due
to mother’s issues with domestic violence and narcotics use. Mother recently had
submitted documents required for her FSP, but she had not completed all the
requirements of her FSP. Mother wanted the children returned to her care.
Mother
Mother testified that she lived in Des Moines and she was the children’s
mother. Mother moved to Iowa about three months after the children were removed
from her care. She wanted the children returned to her care, and she had
“substantial[ly]” completed the requirements of her FSP. She was employed and
lived in a townhouse, with a one-year lease agreement. Mother had virtual visits
with the children, but she had not done so for several months. According to mother,
each of the children had told her that they wanted to live with her. Mother felt she
was stable enough for the children to be returned to her care. Mother further testified
that Z.S.B.’s godmother had made it difficult for mother to contact Z.S.B. Mother
did not have contact with Z.J.T.B.
Mother agreed that one reason the children were removed from her care was
due to domestic violence issues and that she had previously tested positive for
narcotics use. Mother was not in a romantic relationship at the time of trial. Mother
stated that she tested positive for narcotics use because a friend gave her “an X pill”
and she had taken it twice.
12
Mother admitted that she was previously arrested for and pleaded guilty to the
offenses of battery and damage to property in 2013. She was arrested for “domestic
abuse” in 2014 and “received a deferred adjudication.”
Standard of Review
The standard of review for the appointment of a non-parent as sole managing
conservator of a child is less stringent than the standard of review for the termination
of parental rights. See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re A.C.,
394 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Unlike the
standard of proof for the termination of parental rights, the findings necessary to
appoint a non-parent as sole managing conservator need only be established by a
preponderance of the evidence. In re J.A.J., 243 S.W.3d at 616; see TEX. FAM. CODE
ANN. § 105.005. Moreover, we review a trial court’s appointment of a non-parent
as sole managing conservator for an abuse of discretion. In re J.A.J., 243 S.W.3d at
616; Earvin v. Dep’t of Family & Protective Servs., 229 S.W.3d 345, 350 (Tex.
App.–Houston [1st Dist.] 2007, no pet.). To determine whether a trial court abused
its discretion, an appellate court must decide whether the trial court acted without
reference to any guiding rules or principles, that is, whether its decision was arbitrary
or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); In re M.M.M.,
307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010, no pet.). “An abuse of
discretion does not occur when the trial court bases its decisions on conflicting
13
evidence,” nor does an abuse of discretion occur so long as there is some evidence
of substantive and probative character to support the trial court’s decision. Unifund
CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); In re M.M.M., 307 S.W.3d
at 849.
Under an abuse-of-discretion standard, legal and factual insufficiency are not
independent grounds of error, but rather, relevant factors in assessing whether the
trial court abused its discretion. See Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied). When, as here, an appellant
challenges the legal and factual sufficiency of the evidence in a case where the
proper standard is abuse of discretion, we engage in a two-pronged analysis:
(1) whether the trial court had sufficient information upon which to exercise its
discretion, and (2) whether the trial court erred in its application of discretion.
Stamper v. Knox, 254 S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.] 2008, no
pet.). We conduct the applicable sufficiency review when considering the first prong
of the test. Bush v. Bush, 336 S.W.3d 722, 729 (Tex. App.—Houston [1st Dist.]
2010, no pet.); see also In re S.T., 508 S.W.3d 482, 489 (Tex. App.—Fort Worth
2015, no pet.).
In conducting a legal-sufficiency review in a conservatorship case, an
appellate court reviews all the evidence in a light favorable to the finding, crediting
favorable evidence if a reasonable fact finder could do so and disregarding contrary
14
evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168
S.W.3d 802, 810, 827 (Tex. 2005); In re J.J.G., 540 S.W.3d 44, 55 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied). If the evidence would enable reasonable,
fair-minded people to differ in their conclusions, then the fact finder’s determination
must stand. City of Keller, 168 S.W.3d at 822; In re J.J.G., 540 S.W.3d at 56. We
cannot substitute our judgment for the fact finder’s as long as the evidence lies within
this zone of reasonable disagreement. City of Keller, 168 S.W.3d at 822; In re J.J.G.,
540 S.W.3d at 56.
In a factual-sufficiency review, we examine the evidence in a neutral light and
affirm so long as the evidence supporting the trial court’s finding is not so weak as
to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986). In a bench trial, the trial court is the sole judge of the credibility of the
witnesses. Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston
[1st Dist.] 1992, writ denied).
Sole Managing Conservatorship
In her sole issue, mother argues that the trial court erred in appointing DFPS
as the sole managing conservator of Z.I.A.B. and Z.J.T.B. and appointing Z.S.B.’s
godmother as sole managing conservator of Z.S.B. because the evidence is legally
and factually insufficient to support the trial court’s finding that appointing mother
as the children’s sole managing conservator would not be in the children’s best
15
interest because it would significantly impair their physical health and emotional
development. See TEX. FAM. CODE ANN. § 153.131 (“Presumption That Parent to
be Appointed Managing Conservator”).
A managing conservator is a person or entity who, by court order, has been
awarded custody of a child and may determine the child’s primary residence. See
Phillips v. Beaber, 995 S.W.2d 655, 660 (Tex. 1999); In re C.A.M.M., 243 S.W.3d
211, 215 n.7 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); see also TEX.
FAM. CODE ANN. §§ 153.132 (listing “rights and duties” of parent appointed sole
managing conservator), 153.371 (listing “rights and duties” of non-parent appointed
as sole managing conservator). The managing conservator has nearly sole authority
to make decisions for the child. See TEX. FAM. CODE ANN. §§ 153.132(1)–(11),
153.371(1)–(13); see also In re N.L.D., 412 S.W.3d 810, 816 (Tex. App.—
Texarkana 2013, no pet.) (“Conservatorship of a child includes the day-to-day
management of the child.”).
The primary consideration in determining issues of conservatorship and
possession of and access to a child is always the child’s best interest.7 See TEX. FAM.
7
In determining the best interest of a child, courts may consider the following
non-exhaustive factors: (1) the child’s desires; (2) the current and future physical
and emotional needs of the child; (3) the current and future physical and emotional
danger to the child; (4) the parental abilities of the parties seeking custody;
(5) whether programs are available to assist those parties; (6) plans for the child by
the parties seeking custody; (7) the stability of the proposed placement; (8) the
parent’s acts or omissions that may indicate that the parent-child relationship is not
16
CODE ANN. § 153.002; In re J.A.J., 243 S.W.3d at 614. The Texas Family Code
authorizes the appointment of a managing conservator, and it provides that the
managing conservator must be a parent, a competent adult, DFPS, or a licensed
child-placing agency. TEX. FAM. CODE ANN. § 153.005(a)–(b); In re J.A.J., 243
S.W.3d at 614. Although rebuttable, the Family Code creates a strong presumption
that it is in a child’s best interest for his parent to be named his managing
conservator, and it imposes a heavy burden on a non-parent to rebut this
presumption.8 TEX. FAM. CODE ANN. § 153.131(a)–(b); Lewelling v. Lewelling, 796
S.W.2d 164, 167 (Tex. 1990); see also Whitworth v. Whitworth, 222 S.W.3d 616,
623 (Tex. App.—Houston [1st Dist.] 2007, no pet.). To rebut the presumption and
appoint someone other than a parent as the managing conservator of a child, the
party seeking appointment as managing conservator must affirmatively prove, and
the trial court must find, that the appointment of a parent would “significantly impair
the child’s physical health or emotional development.” TEX. FAM. CODE ANN.
§ 153.131(a); see also In re J.A.J., 243 S.W.3d at 616; Lewelling, 796 S.W.2d at
167.
proper; and (9) any excuse for the parent’s acts or omissions. See Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976); In re S.T., 508 S.W.3d 482, 490 (Tex. App.—
Fort Worth 2015, no pet.).
8
“The parental presumption is based upon the natural affection usually flowing
between parent and child.” In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000).
17
Texas Family Code section 263.404 governs a trial court’s appointment of
DFPS as a child’s managing conservator without the termination of parental rights,
and it allows the trial court to render a final order appointing DFPS as a child’s sole
managing conservator if the court finds that: (1) a parent’s appointment would not
be in the child’s best interest because the appointment would significantly impair the
child’s physical health or emotional development and (2) the appointment of a
relative of the child or another person would not be in the child’s best interest. TEX.
FAM. CODE ANN. § 263.404(a); see also In re J.A.J., 243 S.W.3d at 614. In deciding
whether to appoint DFPS without terminating parental rights, the court must
consider the following factors: (1) whether the child will reach eighteen years of age
in not less than three years; (2) whether the child is twelve years of age or older and
has expressed a strong desire against termination or has continuously expressed a
strong desire against being adopted; and (3) the needs and desires of the child. TEX.
FAM. CODE ANN. § 263.404(b); In re J.A.J., 243 S.W.3d at 614. As evidence, DFPS
must offer “specific actions or omissions of the parent that demonstrate an award of
custody to the parent would result in physical or emotional harm to the child.”
Lewelling, 796 S.W.2d at 167; see also In re L.W., No. 02-16-00091-CV, 2016 WL
3960600, at *3 (Tex. App.—Fort Worth July 21, 2016, no pet.) (mem. op.) (there
must be “some specific, identifiable behavior or conduct of the parent, demonstrated
by specific acts or omissions of the parent”).
18
Here, the trial court made the following relevant findings related to sole
managing conservatorship of the children: (1) the appointment of mother as
managing conservator for Z.I.A.B. and Z.J.T.B. would not be in their best interest
because the appointment “would significantly impair [their] physical health or
emotional development”; (2) it would not be in the best interest of Z.I.A.B. and
Z.J.T.B. to appoint a relative or another person as their managing conservator;
(3) the appointment of DFPS as the sole managing conservator of Z.I.A.B. and
Z.J.T.B. would be in their best interest; (4) the appointment of mother as managing
conservator for Z.S.B. would not be in the child’s best interest because the
appointment “would significantly impair [her] physical health or emotional
development”; and (5) the appointment of Z.S.B.’s godmother as Z.S.B.’s sole
managing conservator would be in her best interest.
On appeal, mother challenges the trial court’s finding that the appointment of
mother as managing conservator of the children would not be in their best interest
because the appointment “would significantly impair [their] physical health or
emotional development.” As to that finding, the non-parents had the burden of proof
at trial to offer evidence of specific acts or omissions of mother showing that
awarding custody of the children to her would significantly impair the children,
either physically or emotionally. See Lewelling, 796 S.W.2d at 167; In re R.L., Nos.
01-16-00851-CV, 01-16-00852-CV, 01-16-00875-CV, 2017 WL 1496955, at *15
19
(Tex. App.—Houston [1st Dist.] Apr. 21, 2017, no pet.) (mem. op.). Usually, a
non-parent must present evidence that shows that a parent’s conduct would have a
detrimental effect on the children. In re R.L., 2017 WL 1496955, at *15.
Generally, acts or omissions that constitute significant impairment include,
but are not limited to, physical abuse, severe neglect, abandonment, narcotics or
alcohol abuse, or immoral behavior by a parent. Id.; In re S.T., 508 S.W.3d at 492.
“Other considerations may include parental irresponsibility, a history of mental
disorders and suicidal thoughts, frequent moves, bad judgment, child abandonment,
and an unstable, disorganized, and chaotic lifestyle that has put and will continue to
put the child at risk.” In re S.T., 508 S.W.3d at 492. These circumstances need not
rise to a level that warrants termination of parental rights, which is governed by a
higher standard of proof, for them to support a finding that the appointment of a
parent as a conservator would impair the child’s physical health or emotional
development. See In re J.A.J., 243 S.W.3d at 615–16; In re J.J.G., 540 S.W.3d at
60–61
While evidence of past misconduct alone may not be sufficient to show
present unfitness, “we recognize that a[] [parent]’s future conduct may be somewhat
determined by recent past conduct.” In re De La Pena, 999 S.W.2d 521, 528 (Tex.
App.—El Paso 1999, no pet.). And conduct from two or three years prior plus other
evidence of more recent conduct, such as failure to visit a child and inconsistent
20
communication with a child, as well as evidence of the child’s bond with his foster
parents in a stable environment, in which he was placed because of the parent’s acts
and omissions, constitutes some evidence to support a finding of significant
impairment to a child’s physical health or emotional development if the child were
placed back in the parent’s custody. In re R.L., 2017 WL 1496955, at *15; In re
S.T., 508 S.W.3d at 492.
Here, the record establishes that mother has a history of substance abuse
which led to the children’s removal from her care, and she tested positive for
narcotics use multiple times during the pendency of the case. See In re R.L., 2017
WL 1496955, at *15 (acts or omissions constituting significant impairment include
narcotics or alcohol abuse). On July 7, 2022, mother tested positive for
amphetamine, methamphetamine, cocaine, and alcohol use; on August 17, 2023,
mother tested positive for cocaine use; and on August 28, 2023, mother tested
positive for cocaine and fentanyl use.
DFPS caseworker Bermudez also testified that mother failed to consistently
engage in narcotics-use testing during the pendency of the care, including failing to
appear for narcotics-use testing in July 2023. See In re W.E.C., 110 S.W.3d 231,
239 (Tex. App.—Fort Worth 2003, no pet.) (fact finder could reasonably infer
parent’s failure to complete scheduled narcotics-use screenings indicated she
avoided testing because she had used narcotics).
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Although mother tested negative for narcotics use on January 19, 2024,
September 2024, and June 2025, “evidence of improved conduct, especially of
short-duration, does not conclusively negate the probative value of a long history of
[narcotics] use and irresponsible choices.” In re J.O.A., 283 S.W.3d 336, 346 (Tex.
2009); see also In re Y.G., No. 01-22-00181-CV, 2022 WL 3362953, at *14 (Tex.
App.—Houston [1st Dist.] Aug. 16, 2022, pet. denied) (mem. op.) (stating two
negative narcotics-use tests among multiple positive tests did not negate history of
narcotics use); In re T.E.G., No. 01-14-00051-CV, 2014 WL 1878919, at *7 (Tex.
App.—Houston [1st Dist.] May 8, 2014, no pet.) (mem. op.) (“Nor was the trial court
required to conclude that [parent] had adequately addressed her drug abuse issues in
light of a single negative drug test.”). Further, mother did not dispute that the
children were removed from her care because of her narcotics use, and she admitted
to using narcotics.
Additionally, DFPS investigator Wilbert testified that while the children were
in mother’s care, mother failed to properly care for them because of her substance
abuse issues. The children “kn[ew] what drugs were” because they lived with
mother. Mother did not complete the “substance abuse services” she was required
to complete in this case, which DFPS deemed necessary because mother had
engaged in narcotics use in the presence of the children. See In re K.B., No.
01-23-00658-CV, 2024 WL 791630, at *6 (Tex. App.—Houston [1st Dist.] Feb. 27,
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2024, pet. denied) (mem. op.) (parent’s history of illegal narcotics use, positive
narcotics-use testing results, and lack of follow through when referred to substance
abuse services supported inference by trial court that parent was at risk for
continuing narcotics use); see also In re D.L.W.W., 617 S.W.3d 64, 94–95 (Tex.
App.—Houston [1st Dist.] 2020, no pet.) (even though parent had made progress
addressing substance abuse issues, holding trial court did not err in appointing DFPS
as children’s sole managing conservator).
The record also shows incidents of domestic violence in mother’s past that
negatively affected the children. See In re S.T., 508 S.W.3d at 492 (considering
parental irresponsibility and bad judgment). Mother admitted that the children were
removed from her care also because of domestic violence issues in her home.
Mother had previously been arrested for assaultive offenses, and DFPS caseworker
Bermudez testified that while the children were in mother’s care, they witnessed the
father of one of the children shoot at mother’s boyfriend. Z.J.T.B. was heavily
traumatized by the incident. See In re R.L., 2017 WL 1496955, at *15 (evidence
children witnessed violence while in parent’s care supported trial court’s finding
appointing parent as managing conservator would significantly impair children’s
physical health or emotional development); see also In re J.C.D.Y., No.
01-25-00640-CV, 2025 WL 4099753, at *24–25 (Tex. App.—Houston [1st Dist.]
Feb. 3, 2026, pet. denied) (mem. op.) (considering parent exposed children to
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domestic violence and holding trial court did not err in finding appointing parent as
managing conservator would significantly impair child’s physical health or
emotional development); In re B.K.D., 131 S.W.3d 10, 17 (Tex. App.—Fort Worth
2003, pet. denied) (stating fact finder may infer that past conduct endangering child’s
well-being may recur in future if child returned to parent).
Child Advocates volunteer Alvarado explained that once the children were
removed from mother’s care, they “needed a lot of therapy,” and DFPS caseworker
Bermudez stated that the children required trauma treatment and therapy due to their
past experiences living with mother. See In re R.L., 2017 WL 1496955, at *18
(considering child had suffered trauma while living with parent due to violence).
Further, Alvarado testified that returning the children to mother’s care would
significantly impair their physical and emotional well-being because it would cause
their behavioral issues to return and the children would not be mother’s priority.
We note that mother testified that she wanted the children returned to her care.
See In re A.C.-D.R., No. 02-13-00150-CV, 2013 WL 6198854, at *8 (Tex. App.—
Fort Worth Nov. 27, 2013, no pet.) (mem. op.) (not parent’s wishes, but child’s best
interest, “that trumps all other considerations”); J.C. v. Dep’t of Fam. & Protective
Servs., No. 03-12-00670-CV, 2013 WL 1405892, at *7 (Tex. App.—Austin Apr. 3,
2013, no pet.) (mem. op.) (trial court did not err in appointing DFPS as children’s
permanent managing conservator despite evidence parent loved children and bonded
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with them). But there is evidence that mother has not acted consistently toward the
children during the case. For instance, mother moved out of state three months after
the children were removed from her care and does not currently reside in the same
state as any of the children. She returned to Texas once in three years to visit the
children in person. Child Advocates volunteer Alvarado testified that Z.I.A.B. had
not seen mother in person in three years. Although mother had virtual visits with
the children, she testified that she had not had a visit in several months. She also
was not in contact with Z.J.T.B. at the time of trial. See In re R.L., 2017 WL
1496955, at *17; In re S.T., 508 S.W.3d at 492 (considering inconsistent
communication with child and failure to visit child as evidence of significant
impairment).
Finally, the children were doing well in their respective placements, which
were meeting their needs. See In re R.L., 2017 WL 1496955, at *18 (children doing
well in placements); see also TEX. FAM. CODE ANN. § 263.307(a) (“[T]he prompt
and permanent placement of the child in a safe environment is presumed to be in the
child’s best interest.”). Z.S.B. was placed with her godmother, whom she had known
since birth. Z.S.B. had a room in her godmother’s home even before this case began.
Z.S.B. wanted to remain in her placement, and her godmother wanted the child to
continue living with her. See In re S.T., 508 S.W.3d at 492 (considering evidence of
child’s bond with his foster parents in stable environment). Z.S.B. was on the swim
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team, participated in the Boys & Girls Club and other activities, and was thriving in
her placement. Z.S.B.’s godmother was committed to maintaining the child’s
activities. DFPS caseworker Bermudez testified that awarding Z.S.B.’s godmother
sole managing conservatorship of the child was in Z.S.B.’s best interest because her
godmother had known her for many years, the placement was safe and stable,
Z.S.B.’s godmother was “dedicated to providing her normalcy, fun activities[,]
and . . . providing for her until she[] [was] an adult.” Z.S.B.’s godmother was
committed to Z.S.B.’s education and developing future plans for the child.
Z.I.A.B. was placed in a foster home that was willing to provide “a long-term
safe and stable” placement for the child, and Z.I.A.B., who was a sophomore in high
school at the time of trial, wanted to remain in her foster placement. See In re R.L.,
2017 WL 1496955, at *18 (considering child’s desires). Z.I.A.B. was a cheerleader
at school, had made friends, and was involved in a couple of mentorship programs.
Her foster placement was willing to keep Z.I.A.B. at the same school for the
remainder of high school so that she could continue her activities and maintain
friendships. DFPS caseworker Bermudez testified that awarding DFPS sole
managing conservatorship of Z.I.A.B. was in the child’s best interest because she
was doing well in her foster placement, and her foster mother was dedicated to
Z.I.A.B. remaining in the home. Z.I.A.B. “ha[d] established a life for herself,” which
was “very goal-oriented.” Z.I.A.B. told Child Advocates volunteer Alvarado that
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she was bonded with her foster mother, and she believed returning to mother’s care
“would be a setback for her . . . [a]nd everything that she[] [had] accomplished.”
Even though she did love mother, she did not believe that mother had her life
together. Z.I.A.B. was concerned that mother would not be a caregiver for her and
would not be able to “provide her the level of emotional and physical assistance that
her current foster home d[id].”
As to Z.J.T.B., Child Advocates volunteer Alvarado testified that Z.J.T.B. had
“gone back and forth several times” as to whether he wanted to be returned to
mother’s care, and he was living in a foster home at the time of trial. Z.J.T.B.’s
foster placement was committed to keeping him in touch with his siblings, and his
foster mother had a son whom Z.J.T.B. played video games with at the home.
Z.J.T.B. had attended overnight summer camp. Z.J.T.B.’s foster placement was
committed to his education and developing future plans for the child.
Alvarado did not believe that Z.J.T.B. understood what living with mother
would be like or the severity of the case because of his age when he was removed
from mother’s care. Z.J.T.B.’s behavioral issues had prevented him from being able
to be placed with either of his siblings, but he had a “therapeutic plan” in place so
that he could hopefully be placed with either Z.I.A.B. or Z.S.B. in the future.
Alvarado testified that Z.J.T.B. had a significant amount of trauma to work through
related to previously being in mother’s care. DFPS caseworker Bermudez testified
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that awarding DFPS sole managing conservatorship of Z.J.T.B. was in the child’s
best interest because DFPS was committed to “work[ing] with him and find[ing] him
[a] stable placement,” and at the time of trial, Z.J.T.B.’s foster placement was safe.
Based on the foregoing and viewing the evidence in the light most favorable
to the trial court’s judgment, we conclude that the evidence is legally sufficient to
support the trial court’s finding that the appointment of mother as managing
conservator of the children would not be in their best interest because the
appointment “would significantly impair [their] physical health or emotional
development.” See TEX. FAM. CODE ANN. § 153.131. Viewing the evidence in a
neutral light, we conclude that the evidence is factually sufficient to support the trial
court’s finding that appointment of mother as managing conservator of the children
would not be in their best interest because the appointment “would significantly
impair [their] physical health or emotional development.” Id. Accordingly, we hold
that the trial court did not abuse its discretion in appointing DFPS sole managing
conservator of Z.I.A.B. and Z.J.T.B. and Z.S.B.’s godmother sole managing
conservator of Z.S.B.
We overrule mother’s sole issue.
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Conclusion
We affirm the order of the trial court.
Kristin Guiney
Justice
Panel consists of Chief Justice Adams and Justices Rivas-Molloy and Guiney.
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