Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-26-00221-CV
IN THE INTEREST OF A.L.L.N.R. and A.R.A.R., Children
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2025-PA-00315
Honorable Charles E. Montemayor, Associate Judge Presiding
Opinion by: Lori Massey Brissette, Justice
Dissenting Opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice
Lori Massey Brissette, Justice
H. Todd McCray, Justice
Delivered and Filed: September 30, 2026
AFFIRMED
This appeal arises from the trial court’s order, signed after a bench trial, that terminates the
parental rights of appellants J.S.R. (“Father”) and M.A.C. (“Mother”), the biological parents of
A.L.L.N.R. (“Son” born in 2023) and A.R.A.R. (“Daughter” born in 2024) (collectively the
“Children”). 1 We affirm.
1
To protect the identities of the minor children in this appeal, we refer to the Children and their family members by pseudonyms. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
04-26-00221-CV
I. BACKGROUND
Mother and Father had a history of investigations by the Department before the February
13, 2026 bench trial in this matter. Indeed, Mother and Father’s parental rights to Son and
Daughter’s two older siblings had been terminated in earlier and unrelated proceedings. After those
proceedings, the Department instituted an investigation into the wellbeing of Son — Mother and
Father’s only child at the time. That investigation was closed without further intervention by the
Department, and Mother and Father were allowed to continue raising Son.
In September 2024, Daughter was born. A drug test performed on Daughter’s “meconium”
revealed amphetamines and marijuana. 2 Daughter’s results prompted Vanessa Espinosa, an
investigator with the Department, to question Mother and Father about the results while Mother
and Daughter were both still receiving health care at the hospital following Daughter’s birth.
Neither Mother nor Father appeared shocked when Espinosa disclosed the meconium results.
According to Espinosa, Father’s “words told [her] he was shocked, but his body language, his
facial expression did not show that he was surprised.” Mother admitted to Espinosa that she had
“tak[en] a hit of methamphetamine” out of peer pressure while Mother knew that she was pregnant.
Espinosa observed that Daughter “appeared to be fine.” Espinosa did not recall witnessing
Daughter go through any withdrawal symptoms.
After Daughter’s positive test results, the Department, according to Valerie Kelley, a
family-based safety services worker with the Department, did not remove the children. Kelley
noted that the Department decided not to seek removal of the Children to give the parents the
opportunity to engage in services. At this time, Mother, Father, and the children were living with
Father’s grandparents (“great grandparents”). Kelley testified that the initial safety plan called for
2
Mother, according to Valerie Kelley, a family-based safety services worker with the Department, also tested “positive” at child’s birth. However, the record does not specify what exactly Mother tested “positive” for.
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Father to be a “monitor,” but then he also tested positive for drugs. Thereafter, a new safety plan
required great grandparents to supervise the children and that the children were not to be left
unsupervised with Mother or Father. In February 2025, Kelley made an unannounced visit to great
grandparents’ home, and she observed that great grandparents had left the children unsupervised
with Mother and Father. The great grandparents, when confronted by Kelley, admitted they were
not following the safety plan and that the parents “were continuously left alone with the children
unattended.” At this point, the Department removed the children and placed them with unrelated
foster parents.
The Department, together with Mother and Father, crafted a family service plan. The
family service plan required the parents to participate in individual therapy and parenting classes,
complete drug, psychosocial, psychological and psychiatric assessments, participate in substance
abuse counseling at Crossroads to Recovery Counseling Services, provide proof of employment,
and submit to random drug testing. The family service plan was signed by both parents and
incorporated into a temporary order by the court. Jackeline Arrendondo, a legal caseworker with
the Department, recalled that Father completed parenting classes and a drug assessment. The drug
assessment yielded a recommendation that Father complete drug treatment. Father did not
complete drug treatment. He also missed “quite the majority” of drug tests according to
Arrendondo, that being eleven tests. Father completed the psychosocial assessment, but he did not
follow through on the recommendations that it yielded. Father engaged in counseling for two to
three months, but he was unsuccessfully discharged from counseling around July or August 2025
for missing too many sessions. Arredondo provided Father with a new counselor, but he insisted
on finding his own private counselor. There is no indication that he did so.
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The trial court admitted, without objection, the following results from Father’s drug tests:
• On November 21, 2024, Father’s pre-removal urine sample tested positive
for amphetamine and methamphetamine;
• On January 31, 2025, Father’s pre-removal urine sample tested positive for
amphetamine, methamphetamine, and marijuana;
• On April 30, 2025, Father’s hair sample tested positive for amphetamine,
methamphetamine, and marijuana;
• On July 25, 2025, Father’s urine sample tested positive for marijuana;
• On August 18, 2025, Father’s urine sample tested negative;
• On August 18, 2025, Father’s hair sample tested positive for amphetamine,
methamphetamine, and marijuana.
Lisa Gonzales, a licensed chemical dependency counselor at Crossroads, reviewed Father’s
treatment records. Gonzales noted that Father underwent three courses of treatment at Crossroads.
Father’s first course of treatment began on December 20, 2024. At that time, Father was diagnosed
with “amphetamine disorder mild.” Father’s treatment plan consisted of group and individual
counseling sessions twice a week for eight weeks. Father did not successfully complete this course
of treatment. Father’s second course of treatment began on May 2, 2025. During this course of
treatment, Father was again diagnosed with “amphetamine substance use disorder mild.” Father’s
Crossroads counselor made the same outpatient treatment recommendation. Again, Father failed
to successfully complete the recommended course of treatment. On October 15, 2025, Father
began his third course of treatment at Crossroads. The evaluation during this course of treatment
found that Father suffered from “alcohol use disorder, mild; cannabis use disorder, moderate, and
stimulant use disorder moderate for amphetamine use.” This diagnosis was based on Father’s selfreporting. Gonzales met with Father twice, and then she could not connect with him. Father went
into “inactive status” at Crossroads on November 14, 2025. Gonzales noted that Father only
engaged in the initial intake and treatment plan; he did not participate in any group services.
After the children’s February 2025 removal, Mother and Father were afforded thirty-one
visits with the children before the February 2026 trial. Father completed only nineteen of the thirty-4-04-26-00221-CV
one visits. Arrendondo acknowledged that these visits were “appropriate.” She did note that Father
gravitated to Son while Mother gravitated to Daughter. Father attributed his missed parent-child
visits to car trouble. He recalled that on one particular visit, he and Mother were on their way when
their vehicle left them stranded. Father also recalled that his vehicle was vandalized in September
2025. The damage left Father and Mother without a vehicle until December 2025.
The Department took the position at trial that termination was in the children’s best interest
and planned for the children to be adopted by their current, unrelated foster parents. At the time of
the February 2026 trial, the children had been living with the foster parents since their February
2025 removal. Arrendondo noted that the foster parents are bonded with the children, the children
look to the foster parents as “mom and dad,” and the children have no health or medical issues.
Father’s position at trial was that, if his parental rights were terminated, the children should be
placed with great grandparents. The Department, however, raised the fact that Mother and Father
refused to move out of the great grandparents’ home.
At the bench trial’s conclusion, the trial court found by clear and convincing evidence that,
among other things, Father and Mother had: (1) engaged in conduct or knowingly placed the
children with persons who engaged in conduct which endangers the physical or emotional wellbeing of the children (subsection (1)(E) endangerment by conduct); (2) constructively abandoned
the children (subsection (1)(N) constructive abandonment); and (3) used a controlled substance,
as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or
safety of the child, and (a) failed to complete a court-ordered substance abuse treatment program;
or (b) after completion of a court-ordered substance abuse treatment program continued to abuse
a controlled substance (subsection (O) endangering use of controlled substance). Id. §
161.001(b)(1)(E), (N), (O). The trial court also found by clear and convincing evidence that
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termination of Mother’s and Father’s parental rights is in the best interest of the children
(subsection (2) best interest). Id. 161.001(b)(2).
The trial court terminated Mother and Father’s parental rights and appointed the
Department as the children’s permanent managing conservator. Mother and Father timely appeal
from the termination order.
II. MOTHER’S ANDERS APPEAL
Mother’s court-appointed appellate counsel filed a motion to withdraw and a brief
containing a professional evaluation of the record, concluding there are no arguable grounds for
reversal of the termination order. The brief satisfies the requirements of Anders v. California, 386
U.S. 738 (1967). See In re P.M., 520 S.W.3d 24, 27 n.10 (Tex. 2016) (per curiam) (recognizing
that Anders procedures apply in parental termination cases). Additionally, counsel represents that
he provided Mother with a copy of the brief and the motion to withdraw, advised Mother of her
right to review the record and file her own brief, and informed Mother how to obtain a copy of the
record, providing her with a form motion for access to the appellate record. We issued an order
setting a deadline for Mother to file a pro se brief. Mother filed no pro se brief. After reviewing
the appellate record and the Anders brief filed by Mother’s appointed counsel, we conclude no
plausible grounds exist for reversal of the termination order as to Mother.
III. FATHER’S APPEAL
In four issues, Father contends that the evidence is legally and factually insufficient to
support the trial court’s termination order on the three predicate and best interest grounds. In
Father’s fifth issue, he contends that the trial court’s designation of the Department as the
children’s permanent managing conservator is erroneous because it rests on an invalid termination
order.
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A. Standard of Review
It has always been clear, and often repeated in these opinions, that
a suit involving the potential termination of a parent’s right to raise their child is of constitutional
import. See, e.g., In re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied).
“Few principles in our history and traditions are as deeply rooted as the sanctity of the family.”
Int. of H.S., ___ S.W.3d ___, 2026 WL 1614496, at *1 (Tex. June 5, 2026). In fact, based on the
statement of one Texas Supreme Court justice, these cases – which can result in the permanent
severance of any legal relationship between a parent and his or her child – are now commonly
referred to as the “death penalty” of civil cases. In re J.M.L., 443 S.W.3d 101, 121 (Tex. 2014)
(Lehrmann, J. concurring).
Our role in these cases is to protect the parent’s constitutional rights while also recognizing
the need to protect children in certain situations. See In re K.N., ___ S.W.3d ___, 2026 WL 1614378
(Tex. June 5, 2026). Because navigating those two concerns can be murky, the Texas Supreme
Court has recently reiterated the need for strict scrutiny of the records that come before us and in
the construction of the statutes that address parental termination. H.S., 2026 WL 1614496, at *1,
6–7; see also D.V. v. Tex. Dep’t of Fam. & Protective Servs., 722 S.W.3d 854, 858 (Tex. 2025).
And, in so doing, the Court made it clear that we should recognize “[t]he strong presumption is
that termination is not in a child’s best interest.” H.S., 2026 WL 1614496, at *1. For that reason,
termination of a parent’s rights “must always be a last resort and never a first impulse” and “only
in the absence of other legitimate options.” Id. at *1, 9.
At the same time, serious abuse or neglect cannot go unchecked. “The desired outcome of
[governmental] intervention is a family’s rehabilitation, the restoration of wayward parents to their
proper roles, and the government’s exit from the family’s affairs. In extreme cases, however,
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parents can forfeit their parental status altogether. When that happens, the government invokes the
judicial process to pursue the termination of parental rights, after which parents and their children
become strangers in the eyes of the law.” H.S., 2026 WL 1614496, at *1; see also In re C.H., 89
S.W.3d 17, 26 (Tex. 2002). Striking the balance between protecting the child and preserving the
parent’s constitutional rights, we may only terminate a parent-child relationship under Texas
Family Code section 161.001 if the factfinder finds by clear and convincing evidence at least one
predicate ground enumerated in subsection (b)(1) and finds that termination is in the best interest
of the child under subsection(b)(2). TEX. FAM. CODE § 161.001(b)(1),
(2); see, e.g., In re C.E., 687 S.W.3d 304, 308 (Tex. 2024).
We note, as the Texas Supreme Court recently did, that “the clear-and-convincing standard
is unforgiving” and that anything less than strict scrutiny of such cases “offends not only our
Constitution and Family Code” but the innate rights of parents “to direct their children’s
upbringing and to be their children’s primary source of protection and guidance.” K.N., 1614378,
at *1, 7. Even when giving deference to the trial court as the sole arbiter of the weight and
credibility to be given the evidence, the clear-and-convincing standard “requires a degree of proof
that elicits “a firm belief or conviction as to the truth of the allegations sought to be established.”
K.N., *7 (citing In re G.M., 596 S.W.2d 846, 847 (Tex. 1980)); see also TEX. FAM. CODE § 101.007.
In fact, with a heightened standard of sufficiency review given the clear-and-convincing standard,
“[e]vidence that might be regarded as legally sufficient to sustain a judgment in a case involving
the preponderance standard might constitute no evidence in a parental-termination case.” H.S., at
*8.
With that in mind, in this legal sufficiency review, we will “view the facts in a light most
favorable to the findings of the trial judge, who heard the testimony, evaluated the credibility, and
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dealt closest with the evidence at hand.” In re R.R.A., 687 S.W.3d 269, 276 (Tex.
2024) (quoting In re J.F.-G., 627 S.W.3d 304, 315 (Tex. 2021)) (internal quotation marks omitted).
We will assume the factfinder resolved disputed facts in favor of the findings and we will disregard
all evidence contrary to the determination if a reasonable factfinder could have found it incredible.
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Only if we find the evidence legally sufficient will
we move on to a factually sufficient review, where we consider the entire record and determine
whether the evidence contrary to the trial court’s ruling “is so significant that a factfinder could
not reasonably have formed a firm belief or conviction” on the challenged finding. J.F.C., 96
S.W.3d at 266.
B. Subsection (E) Endangerment & Subsection (O) Endangering Use of Controlled
Substances
In Father’s first issue, he argues that the evidence is legally and factually insufficient to
support the trial court’s subsection (E) endangerment by conduct finding. In Father’s third issue,
he argues that the evidence is legally and factually insufficient to support the trial court’s
subsection (O) endangering use of controlled substance finding.
Subsection 161.001(b)(1)(E) allows a trial court to terminate a parent’s rights if the 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 wellbeing of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Endangerment means to expose to
loss or injury, to jeopardize. See Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam). Under subsection (E),
the cause of the endangerment must be the parent’s conduct and must be the result of a conscious
course of conduct rather than a single act or omission. In re N.M.R., No. 04-22-00032-CV, 2022
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WL 3640223, at *3 (Tex. App.—San Antonio Aug. 24, 2022, pet. denied) (mem. op.) (citing In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)).
Subsection 161.001(b)(1)(O) allows a trial court to terminate a parent’s rights if the court
finds by clear and convincing evidence that the parent used a controlled substance, as defined by
Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child,
and: (i) failed to complete a court-ordered substance abuse treatment program; or (ii) after
completion of a court-ordered substance abuse treatment program, continued to abuse a controlled
substance. TEX. FAM. CODE ANN. § 161.001(b)(1)(O). “[E]ndangerment under Subsection (E), as
under Subsection [(O)], does not require [the parent’s conduct] to directly harm the child.” In re
N.L.S., 715 S.W.3d 760, 764 (Tex. 2025) (per curiam) (internal quotation citation and quotation
marks omitted). 3 “The proper inquiry is thus whether there is evidence that Father exhibited a
pattern of behavior presenting a substantial risk of harm to [child].” Id.
Father argues that the Department’s case regarding subsections (E) and (O) rests mainly
on Father’s positive drug testing, missed drug tests, incomplete treatment, and presence in great
grandparents’ home when the safety plan was violated. Father emphasizes that there is no evidence
Father used drugs in the children’s presence, that the children suffered from any injuries as a result
of Father’s drug use, or that the children were subject to malnutrition, medical neglect,
developmental harm, and domestic violence as a result of Father’s drug use. Father contends that
Crossroads’ diagnoses of mild amphetamine use disorder, later, mild alcohol use disorder,
moderate cannabis use disorder, and moderate stimulant use disorder do not, alone, qualify as the
kind of severe, persistent, child-endangering course of conduct required by subsection (E).
3
Since In re N.L.S., 715 S.W.3d at 764, the Texas Legislature has amended Section 161.001 so that the prior subsection (P) is now subsection (O).
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We agree that, to establish “endangerment” under subsection (E) or to satisfy the grounds
for termination under subsection (O), the Department is required to demonstrate both a course of
conduct of drug usage, rather than a single act or omission, and prove that the drug usage impacted
Father’s ability to parent the children. In re K.N., No. 24-0881, 2026 WL 1614378, at *14 (Tex.
June 5, 2026) (holding “illegal drug use alone may not be sufficient to show endangerment; rather,
a reviewing court should consider additional evidence that a factfinder could reasonably credit that
demonstrates that illegal drug use presents a risk to the parent’s ability to parent”). But we disagree
that the Department was required to show Father used drugs in the presence of the children or that
the children suffered physical consequences. In re R.R.A., 687 S.W.3d 269, 278 (Tex. 2024)
(noting “endangerment does not require a parent’s drug use to directly harm the child” but that “a
pattern of parental behavior that presents a substantial risk of harm to the child permits a factfinder
to reasonably find endangerment”). “A factfinder may infer endangerment from ‘a course of
conduct’ that presents substantial risks. . .to the child’s health and safety.” Id. at 277. “Such risk
must be more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal
family environment.” Id. (quoting Tx. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 534 (Tex.
1987)).
Here, there is evidence of a clear course of conduct. Father admitted to drug usage. He
tested positive for drug usage two times prior to removal of the children even though he knew the
family was being investigated by the Department and continued to test positive throughout the
pendency of the case. But, despite his repeated diagnoses of alcohol and drug use disorders, Father
failed to complete a drug rehabilitation program despite three opportunities to do so. Further, his
failure to take subsequent tests, combined with the pre-removal positive test results and his
admission of drug use, can serve as a reasonable basis for an inference that those tests, as well,
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would have been positive for the same drugs. In re T.I.P., No. 04-25-00335-CV, 2025 WL
3157652, *at 6 (Tex. App.—San Antonio November 12, 2025, no pet.) (mem. op.).
Further, there is evidence to demonstrate that Father’s drug usage impacted his ability to
parent his children. First, at the hospital, the caseworker testified that while he said he did not
know Mother had used drugs while pregnant, “his body language, his facial expression did not
show that he was surprised.” Further, the evidence is sufficient to support a reasonable inference
that Father was aware of Mother’s drug usage while pregnant. They both tested positive at the birth
of their child, all interactions between the parents and the Department occurred with the parents
together, they made decisions about treatment together, and all visits with the children were either
attended by both parents or neither. In fact, rather than appearing at trial in person they both
appeared via zoom sitting together in a car in their garage. 4
The record also supports an inference that the parents chose to live with the great
grandparents, not because of the advantages that come with multi-generational living, but because
it enabled their drug usage. See R.R.A., 687 S.W.3d at 279 (reasonable inference could be made
that father’s drug use impacted his ability to work and provide a home). While Father testified at
trial that he is employed and makes between $1200 and $1700 per month doing landscaping work
and working on old homes, he admitted that he had only been employed for about six months prior
to trial, meaning he was unemployed when the children were removed. Mother and Father live rent
free at his grandparents’ home and pay about $450 a month for food and necessities. And, both
Mother and Father refused to move out of the great grandparents’ home even when, by doing so,
they could have avoided their children being placed in foster care. Finally, given the evidence that
4
At the beginning of trial, the judge addressed the parents’ choice to appear by zoom, warning of the difficulties their choice posed. And, as a result of their decision not to appear in person, the zoom impacted on the presentation of their case. At times they were cut off, the zoom froze, or the court was unable to hear their testimony.
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the great grandparents routinely left the children alone with Mother and Father even when the
safety plan required, they not do so, this is not a case where the evidence demonstrated that living
with the great grandparents ensured that the children, who were two years of age and under and
requiring around the clock supervision, were safe and supervised despite the parents’ drug usage.
For these reasons, we hold there is legally sufficient evidence that Father “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.” TEX. FAM. CODE § 161.001(b)(1)(E). For the same
reasons, we believe there is legally sufficient evidence that Father “used a controlled substance, as
defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety
of the child” and “failed to complete a court-ordered substance abuse treatment program.” TEX.
FAM. CODE § 161.001(b)(1)(O).
In turning to a factual sufficiency review, we do not find evidence in the record
contradicting the evidence of Father’s drug usage, proving the children were cared for while in his
care, or proving that he has the ability to care for them as a safe and sober caretaker. While he
attended 19 of the 31 parent-child visits during the pendency of the underlying proceeding, acted
appropriately during those visits, and brought items to support the needs of the children during
those visits, such evidence does not rebut or effectively counter the risk created by his significant
drug usage and that of his chosen partner, Mother. We find the evidence in the full record is
factually sufficient to support the trial court’s grounds for termination under Texas Family Code
sections 161.001(b)(1)(E) and (O). Because we find the evidence sufficient to support the trial
court’s finding of termination, we need not address the other grounds for termination. In re N.G.,
577 S.W.3d 230, 232 (Tex. 2019) (per curiam).
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C. Best Interest
Finally, Father argues the evidence was legally and factually insufficient to support the
trial court’s findings that termination of his parental rights is in the best interest of the Children.
We disagree.
Under Texas law, “there is a strong presumption that the best interest of a child is served
by keeping the child with a parent.” In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam).
Saying it another way, the Texas Supreme Court has held that “[t]he strong presumption is that
termination is not in a child’s best interest.” H.S., 2026 WL 1614496, at *1. However, a trial court
must also presume “the prompt and permanent placement of the child in a safe environment
is . . . in the child’s best interest.” TEX. FAM. CODE § 263.307(a). In making a best-interest
determination, the factfinder looks at the entire record and considers all relevant circumstances. In
re C.H., 89 S.W.3d 17, 27–29 (Tex. 2002).
The Texas legislature codified certain factors to use in determining the best interest of a
child, including:
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the child;
(4) whether the child has been the victim of repeated harm after the initial report
and intervention by the department;
(5) whether the child is fearful of living in or returning to the child’s home;
(6) the results of psychiatric, psychological, or developmental evaluations of
the child, the child’s parents, other family members, or others who have
access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the child’s
family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s family or others
who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out, accept, and
complete counseling services and to cooperate with and facilitate an
appropriate agency’s close supervision;
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(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time;
(12) whether the child’s family demonstrates adequate parenting skills,
including providing the child and other children under the family’s care
with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with the
child’s physical and psychological development;
(C) guidance and supervision consistent with the child’s safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even though the
violence may not be directed at the child; and
(F) an understanding of the child’s needs and capabilities; and
(13) whether an adequate social support system consisting of an extended family
and friends is available to the child.
TEX. FAM. CODE § 263.307(b); see In re A.C., 560 S.W.3d 624, 631 n.29 (Tex. 2018) (recognizing
statutory factors as additional factors for consideration). Even before the legislature took action to
codify section 263.307(b), the Texas Supreme Court, in Holley v. Adams, identified factors to
determine the best interest of a child:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest
of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
544 S.W.2d 367, 371–72 (Tex. 1976).
The Department does not have to prove every factor for a trial court to find termination is
in the child’s best interest. C.H., 89 S.W.3d at 27. In our review of the trial court’s best-interest
findings, we must consider “the totality of the circumstances” in light of these factors to determine
whether sufficient evidence supports the challenged finding. In re B.F., No. 02-07-334-CV, 2008
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WL 902790, at *11 (Tex. App.—Fort Worth Apr. 3, 2008, no pet.) (mem. op.). Additionally, “[a]
trier of fact may measure a parent’s future conduct by his past conduct and determine whether
termination of parental rights is in the child’s best interest.” In re E.D., 419 S.W.3d 615, 620 (Tex.
App.—San Antonio 2013, pet. denied).
“The evidence supporting the statutory grounds for termination may also be used to support
a finding that the best interest of the child warrants termination of the parent-child relationship.”
In re S.M.G., No. 01-17-00056-CV, 2017 WL 2806332, at *6 (Tex. App.—Houston [1st Dist.]
June 29, 2017, pet. denied) (mem. op.). “Evidence of a parent’s unstable lifestyle, including
habitual drug and alcohol use, can support the conclusion that termination is in the child’s best
interest.” In re F.M., No. 14-18-00384-CV, 2018 WL 4925127, at *7 (Tex. App.—Houston [14th
Dist.] Oct. 11, 2018, pet. denied) (mem. op.); see TEX. FAM. CODE § 263.307(b)(8) (providing as
one factor whether there is history of substance abuse by child’s family or others who have access
to child’s home).
Under Texas Family Code section 263.307(b) and under Holley, we first look at the
children themselves – their age, their vulnerabilities, their emotional and physical needs as well as
the danger to them absent a sober and safe caretaker. TEX. FAM. CODE § 263.307(b)(1); Holley,
544 S.W.2d at 371-372 (factors A, B, and C). There is no evidence of direct physical harm to the
children as a result of Father’s drug usage that would give weight to factors (3) and (4) under
section 263.307(b). But, as we noted above, key to our decision are the ages of the children, being
two years of age and under, completely dependent upon their caretaker for safety and sustenance,
and particularly vulnerable to harm if their caretaker is using drugs. We also note that this is the
second time the oldest child, in just the first two years of his life, has been removed from the home.
TEX. FAM. CODE § 263.307(b)(2).
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Under section 263.307(b)(6) and (7), we note there is no evidence of mental illness or
domestic violence relating to Father. But there is a history of serious drug usage by both parents.
TEX. FAM. CODE § 263.307(b)(8). And Father has failed to demonstrate a willingness to address
his drug use disorders or to effect positive changes to benefit his children. Id., subsection (10) and
(11).
There was very little evidence presented by the Department as to Father’s parenting skills.
And, in fact, the evidence demonstrated that his visits were appropriate and that his son tended to
seek him out. Id., subsection (12); Holley, 544 S.W.2d at 371-72 (factor D). But there was also
evidence that Father has had four children in total, including these two children, and has had all of
them removed from his care. While there is evidence that Father has ample family support and a
seemingly stable home, living with his grandparents, the evidence also demonstrates that the
grandparents would regularly leave the young children with the parents even after the family-based
safety plan required that they not do so. TEX. FAM. CODE § 263.307(b)(13); Holley, 544 S.W.2d at
371-72 (factor G).
Finally, the record demonstrates the children are in the same foster home that they have
been in since April of 2025, that the foster parents “are all they know at this point,” that they are
bonded and affectionate with them, and that the foster parents plan to adopt them if the parental
rights are terminated. Further, the children are in foster care only because other family members
were not appropriate placements. The Department sought out the maternal grandmother and aunt,
both of whom declined placement. The maternal grandmother had no relationship with the children
and did not even know their name. And Father’s mother has a criminal history.
No case of parental termination is an easy case to review. But this case in particular is a
close call because of the minimal evidence presented by the Department relating to the condition
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of the children and the parenting abilities of both the parents and the great grandparents. Even so,
we are left with the fact that Father is unwilling or unable to address his drug usage, the great
grandparents did not exhibit a desire to protect the children from Father’s drug usage, and Father
could have avoided the removal of the children altogether had he chosen to put the needs of his
children above his own. With this, and the fact that the placement of the children serves their needs,
we must find that there is legally and factually sufficient evidence to support the trial court’s
determination that termination of Father’s parental rights is in the best interest of the children. See
J.F.C., 96 S.W.3d at 266. 5
IV. CONCLUSION
We affirm the trial court’s order that terminates the parental rights of Mother and of Father.
We deny the motion to withdraw filed by Mother’s counsel because it does not show good cause
for withdrawal. See In re P.M., 520 S.W.3d at 27 & n.7 (holding that counsel’s obligations in
parental termination case extend through exhaustion or waiver of all appeals and that withdrawal
should be permitted by court of appeals “only for good cause” (citing TEX. R. CIV. P. 10)).
Lori Massey Brissette, Justice
5
Because we have affirmed the termination of Father’s parental rights, we need not address the issue of conservatorship, raised by Father in his fifth point of error.
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