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In the Interest of W.S.child v. Department of Family and Protective Services

2026-10-16

Authorities cited

Opinion

majority opinion

Opinion issued October 16, 2026.

In the

Court of Appeals

for the

First District of Texas

NO. 01-26-00479-CV

IN THE INTEREST OF W.S., A CHILD

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Case No. 2025-00549J

MEMORANDUM OPINION

This accelerated appeal arises from a suit for the termination of the parentchild relationship brought by the Department of Family and Protective Services (the Department). Appellant S.T. (Mother) challenges the trial court’s final decree

terminating her parental rights to her child, “William.”1

To terminate a parent’s relationship with her child under the Texas Family

Code, the Department must establish—and the trial court must find—by clear and

convincing evidence that (1) the parent committed one or more acts or omissions

prescribed by the legislature and (2) termination is in the best interest of the child.

TEX. FAM. CODE § 161.001(b). Mother contends that legally and factually

insufficient evidence supports (1) the trial court’s termination of her parental rights

under subsections 161.001(b)(1)(D) (endangering conditions), (E) (endangering

conduct), and (P) (inability to care for child due to incarceration)2 of the Texas

Family Code and (2) the trial court’s finding that termination is in the child’s best

interest. Because we conclude that the evidence is legally and factually sufficient to

support the trial court’s findings that Mother endangered the child under subsections

1

To protect the identity of the parties, we refer to them by fictitious names, initials,

or aliases. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 2

Under subsection 161.001(b)(1)(D) of the Texas Family Code, the parent-child

relationship may be terminated if the parent has “knowingly placed or knowingly

allowed the child to remain in” endangering conditions. TEX. FAM. CODE

§ 161.001(b)(1)(D). Relatedly, under subsection (E), the parent-child relationship

may be terminated if the parent has engaged in endangering conduct. Id.

§ 161.001(b)(1)(E). Under subsection (P), formerly subsection (Q), the parent-child

relationship may be terminated if the parent is convicted of a criminal offense, is

sentenced to serve at least two years’ confinement, and will not be able to provide

for the child during that time. Id. § 161.001(b)(1)(P).

2

161.001(b)(1)(D) and (E) and that termination is in the child’s best interest, we

affirm the trial court’s termination decree.3

Background

This appeal concerns the termination of Mother’s parental rights to William,

who was four years old at the start of the trial.

A. Child’s Removal

On December 9, 2024, the Department received a referral for Mother’s

neglectful supervision of William. According to a Department investigator’s

affidavit, filed in a support of an application for William’s emergency removal and

admitted as an exhibit at the trial, Mother allegedly had been leaving William home

alone “while she [was] out using and dealing ‘crystal meth.’” On December 10,

2024, the Department investigator visited Mother, who denied leaving William

home alone and refused to take a drug test. The following day, and unrelated to the

investigator’s visit, Aransas Pass Police arrested Mother, leaving no one to care for

3

Because only one predicate ground is necessary to support a judgment of

termination, we do not address Mother’s third issue, in which she challenges the

trial court’s finding under subsection (P). In re A.M., 495 S.W.3d 573, 580 (Tex.

App.—Houston [1st Dist.] 2016, pet. denied) (not addressing challenge to additional

predicate ground after affirming termination on one predicate ground); see also In

re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (holding that only one predicate ground

is sufficient to affirm termination). However, the Department concedes that it never

pleaded, or sought, termination under subsection (P).

3

William. On December 13, 2024, the trial court4 signed an emergency order

appointing the Department as William’s temporary managing conservator.

On December 17, 2024, William was placed in the home of “Sarah,” who at

the time was believed to be William’s paternal grandmother. DNA testing later

excluded Sarah’s son as William’s father. However, Sarah continued to care for

William through the trial, and later expressed an intention to adopt William.

B. Service Plan

On January 31, 2025, Mother signed a service plan, which the Department

subsequently filed and served on all parties. See TEX. FAM. CODE § 263.101

(requiring Department to file service plan); id. § 263.102 (prescribing content of

service plan). Mother’s service plan identified the following “NEEDS AND

ACTIONS TO ADDRESS”: (1) Mother’s leaving William unsupervised and using

illegal substances and (2) Mother’s incarceration and inability to provide William

with his basic needs. The service plan also stated that Mother should, among other

things, obtain safe housing, maintain contact with her Department caseworker,

secure employment, participate in supervised visits with William, complete

parenting courses, and submit to random drug tests. Under the service plan, “a no

show for a drug test [is] considered as a positive [result] by the Department.”

4

At the time of William’s removal from Mother’s care, the suit was pending in San

Patricio County. On February 20, 2025, the suit was transferred to Harris County,

where all subsequent proceedings, including the trial, took place.

4

C. Trial

Over three, non-consecutive days in December 2025 and January and

February 2026, the trial court received evidence and heard testimony from Yesenia

Robles, a Department caseworker; William’s caregiver, Sarah; and Mother. Mother

appeared on the first and second days of trial but failed to appear for the third day.

1. Mother’s background and post-removal conduct

Criminal history. According to Mother, she has been arrested almost 10 times

since she was 17 years old. The details of each of Mother’s arrests—including the

nature of the offense, whether the arrest led to a conviction, or the duration of her

incarceration—are not in the record. However, Mother testified to, and the

Department introduced evidence of, several offenses committed by Mother.

In 2014, Mother was charged with possession of a controlled substance.

According to Mother, the charge resulted from “one ecstasy pill that [she] didn’t

know was in the vehicle” she had been driving. The trial court overseeing her

criminal proceedings initially deferred adjudication of Mother’s guilt and placed her

on community supervision. However, while on community supervision, the State

filed a motion to adjudicate Mother’s guilt. According to Mother, she violated the

conditions of her community supervision by failing to complete her GED courses.

According to the judgment adjudicating guilt, Mother pled true to the allegations in

the State’s motion to adjudicate guilt and, as part of a plea bargain, she was sentenced

5

to seven months’ imprisonment. The State’s motion to adjudicate guilt is not in the

appellate record.

At some point, the date of which is unclear, Mother was charged with theft.

However, according to Mother, the charge was dropped. The record does not include

any document that evidences the theft charge or whether Mother was jailed as a

result. Mother testified that she picked up the charge because she “was driving a

vehicle with someone who stole something from Wal-Mart,” but she denied stealing

anything.

At another point in time, Mother was arrested on a charge of, according to

Mother, “misdemeanor failure to ID.” Mother testified that the charges were later

dropped but, during the period in which she was incarcerated, her children were

placed with Sarah. Mother has four children, and it is unclear whether all or only

some of her children were placed with Sarah and whether at that point in time

William had been born.

In December 2024, one or two days after a Department investigator visited

Mother concerning allegations of neglectful supervision, Mother was arrested for

burglary, to which Mother pled guilty. On June 25, 2025, Mother was paroled.

Because neither the judgment of conviction nor Mother’s conditions of release on

parole are part of the appellate record, the length of Mother’s sentence for the

burglary conviction and the amount of time that Mother must serve on parole are

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unknown to the Court. According to Mother, the December 2024 arrest is her most

recent.

History of drug use and drug testing. Mother admitted that she has used

“[d]rugs in general” for approximately the last decade. She stated that her use of

methamphetamine has been “[o]ff and on for . . . like six years.” She testified that

she completed one inpatient program for substance abuse “[s]ometime within the

last ten years.” She testified that she “stayed drug free for two and a half years”

following that program.

In 2018, Mother gave birth to her second child, who tested positive for

amphetamine at birth and was adopted shortly after. A few years later, around the

time Mother became pregnant with William, Mother began a romantic relationship

with Sarah’s son, although the relationship has since ended.5 According to Sarah,

her son suffers from a meth addiction.

In 2023, the Department alleged—but was unable to confirm—that Mother

was “living in a recreational vehicle and selling food stamps for drugs.” Mother

denied the allegations.

In December 2024, when a Department investigator visited Mother, Mother

refused to take a drug test but admitted to using a THC vape pen. After Mother was

5

Due to the timing of this relationship, Sarah’s son was William’s presumed father.

However, as mentioned, DNA testing later excluded Sarah’s son as William’s

father.

7

jailed later that month, she admitted to the Department investigator that she had

purchased “mushroom edibles,” which is why she had previously declined to take a

drug test.

Following Mother’s release from jail in June 2025, the Department requested

that Mother submit to drug tests in August, September, and October 2025. Mother

did not show up to any of the requested drug tests.6

On November 5, 2025, Mother appeared for a drug test and submitted urine

and hair follicle samples. Mother’s urine tested negative for ethyl glucuronide, a

metabolite of alcohol, and tested “INVALID” for purposes of the “Substance Abuse

Panel” due to “ABNORMAL PH.” In response to questioning, Robles, the

Department caseworker, agreed that an abnormal pH level is “normally indicative

of some type of adulteration.” Mother’s hair sample tested positive for amphetamine

and methamphetamine. Mother never submitted to any other drug testing during the

termination proceedings. Mother testified that she missed her appointments for drug

testing due to transportation issues and her work schedule.

In December 2025, Mother admitted to Robles that Mother had relapsed.

According to Robles, Mother “mentioned how hard it’s been not having her child

with her” and “she had a slip up.” When questioned about her relapse, Mother agreed

6

As mentioned, under Mother’s service plan, “a no show for a drug test will be

considered as a positive [result] by the Department.”

8

that her response to disappointment has been to “move on to drugs.” At the time of

the second day of trial on January 29, 2026, Mother estimated that she had been

sober for two and a half months. However, she agreed that her “addiction issues

[were] not under control.”

At the end of the second day of trial, the trial court ordered Mother to submit

to a drug test in the courthouse. The trial resumed three weeks later on February 19,

2026. Mother did not appear on that date, and Robles testified that Mother did not

submit to the drug test that the trial court ordered at the previous day of trial. The

attorney ad litem for William represented to the trial court that she was present while

Mother waited for drug-testing personnel to arrive and that Mother waited “[n]o

longer than 15 minutes.” Drug-testing personnel arrived a few minutes after Mother

had left.

Robles testified that, between the second and third days of trial, she met with

Mother while Mother visited William and, on February 10, 2026, asked that Mother

take a drug test. Mother did not. Robles asked Mother why she did not submit to the

court-ordered drug test at the previous day of trial and, according to Robles, Mother

said that “she was waiting [outside the courtroom] for a while, and that the people

were not here . . . . The drug testing people were not here.” Mother did not take a

drug test at any point between January 29 and February 19, 2026, the second and

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third days of the trial, respectively. The only drug test to which Mother submitted

after William’s removal is the November 5, 2025 test.

Mother’s home. Following Mother’s release from jail in June 2025, Mother

began living with “Mary,” her godmother, and “Rachel,” her minor daughter.

Mother admitted that, although Mary’s home was “safe and stable,” she did not have

a home of her own for William. Robles testified that Mary did not want William to

move into Mary’s home because Mary has a “heart problem.”

Robles testified that Mary is aware that Mother is an “active drug user.”

However, Mary reported to Robles that Mother “is much more active with her child,

[Rachel], than she has [been] in the past.” Mary also informed Robles of Mother’s

“improvement.” Sarah, who has known Mother for four and a half years due to

Mother’s prior romantic relationship with Sarah’s son, testified that she did not

believe that Mother had a good support system. Mother admitted that she did not

have “the most desirable people” in her life.

Mother’s employment. Mother’s service plan requires that she remain

employed and provide Robles with “verification of employment through pay stubs

or a letter from her employer.” Verification must occur monthly. Although Mother

never sent Robles any verification of her employment in 2025, Robles did not

dispute that Mother began working at a gas station after Mother was released from

jail in June 2025. However, Robles testified that, at some point between August and

10

December 2025, Mother was unemployed again. In January 2026, Mother began

working at a mechanic’s shop. On the morning of the second day of trial, Mother

purportedly sent Robles verification of her employment with the mechanic’s shop;

however, Robles did not have time to review the document, and it was never

introduced or admitted as an exhibit.

2. Mother’s relationship with William

Mother’s supervised visits with William occurred monthly, and Mother never

missed a visit. According to Robles, Mother’s visits with William “go well” without

“any issues” and Mother “is also attached to the child.” Robles had no concerns with

Mother’s behavior during the visits. According to Robles, William refers to Sarah

as “mom” and does not refer to Mother by any name. When William wants Mother’s

attention, he says, “Hey.”

3. William’s placement and relationship with Sarah

William has lived with Sarah since December 2024 and, prior to that, Sarah

had occasionally watched William and cared for him. Robles testified that William

was “doing well” with Sarah and “is attached” to her.

Sarah testified that her relationship with William is “[v]ery close.” She loves

him “like he’s [her] own.” William has started to call Sarah “[M]ommy.” Sarah

testified that William becomes upset when he is told that Sarah is not his mother, so

she does not “push that issue.” She testified that she told William that he “can call

11

[her] anything [he] want[s] to call [her],” but she has asked him to call her “Minnie”

and call her husband, “Papa,” because she is “like a grandmother figure for him.”

She testified that she is willing to care for William permanently.

4. Parties’ positions on termination of Mother’s parental rights

On the first day of trial, the Department did not seek to terminate Mother’s

parental rights to William. Rather, the Department sought to make Sarah the

permanent managing conservator of William without terminating Mother’s parental

rights. The Department requested that the trial commence but be continued so that

Mother could have “more time to work more services.” More than two months later,

following Mother’s failure to submit to the court-ordered drug test, Robles testified

that the Department sought to terminate Mother’s parental rights.

Mother contested termination of her parental rights, but she testified that she

wanted William to remain with Sarah.

As for Sarah, she did not appear to understand the different forms of relief that

the trial court could grant or how those different forms of relief would impact the

permanency of William’s placement with her. On the second day of trial, she

testified that she wanted William to be with Mother, but “[i]f [Mother] can’t get

herself together, [William] needs to stay with” Sarah. However, moments later in

the trial, Sarah testified that she believed that the termination of Mother’s parental

rights is in William’s best interest.

12

Sarah testified again on the last day of trial—after Mother had missed her

drug-test appointments, including the court-ordered drug test—and stated that she

intended to adopt William. Although she did not explicitly request that Mother’s

parental rights be terminated, she testified that it is in William’s best interest that she

“have custody of him to say nobody can take him.” Sarah understood that, if

Mother’s parental rights were terminated, Mother would have “no legal right at all”

to William. Sarah testified that, if Mother’s parental rights were not terminated, she

would not agree to Mother’s having visitation rights.

D. Termination Decree

Following the trial, on April 21, 2026, the trial court rendered a final decree

that terminated Mother’s parental rights to William and appointed the Department

as William’s sole managing conservator.7 The trial court found by clear and

convincing evidence that Mother had (1) “knowingly placed or knowingly allowed

the child to remain in conditions or surroundings which endanger the physical or

emotional well-being of the child,” (2) “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,” and (3) “knowingly engaged in criminal conduct

that has resulted in the mother’s conviction of an offense and confinement or

7

The trial court also terminated the parental rights of William’s father. The father did

not file a notice of appeal and is not a party to this appeal.

13

imprisonment and inability to care for the child for not less than two years from the

date of filing the petition.” See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (P). The

trial court also found that termination of the parent-child relationship is in the child’s

best interest.

Sufficiency of the Evidence

In a case to terminate parental rights under section 161.001(b) 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) 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

14

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); see 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 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.

A. Predicate Findings Under Subsections (D) and (E)

In Mother’s first and second issues, she challenges the factual and legal

sufficiency of the evidence to support the trial court’s findings that she (1)

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“knowingly placed or knowingly allowed the child to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child” and

(2) “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)(D), (E). She contends that there is no evidence of

William’s pre-removal environment or that her actions or omissions endangered

William. In response, the Department argues that the evidence “reflects a sustained

pattern of criminal conduct” and “an extensive, unresolved pattern of substance

abuse.” The Department contends that this pattern of behavior is legally and

factually sufficient to support the trial court’s findings under subsections (D) and

(E).

1. Applicable law

Protection of the best interest 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); accord 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 v. Smith,

685 S.W.2d 18, 20 (Tex. 1985).

16

Because subsection (M) provides a basis for terminating 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 order based on a (D) or (E) finding, the appellate court must provide the

details of its analysis. In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam).

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)”).

Subsection 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). Subsection

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

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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).

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

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support termination based on endangerment. In re M.A.J., 612 S.W.3d 398, 407

(Tex. App.—Houston [1st Dist.] 2020, pet. denied).

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

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(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).

Incarceration alone does not constitute “engaging in conduct” that “endangers

the emotional or physical well-being of a child.” In re J.F.-G., 627 S.W.3d 304,

312-13 (Tex. 2021) (quoting Boyd, 727 S.W.2d at 533-34). However, a parent’s

failure to “stop engaging in criminal activity” after the child’s birth—which risks

separating the parent from the child—is endangering conduct. Id. at 315. And

evidence of “an offense occurring before a person’s children are born can be a

relevant factor in establishing an endangering course of conduct.” In re E.N.C., 384

S.W.3d 796, 804-05 (Tex. 2012). Further, “endangerment does not require a parent’s

drug use to directly harm the child.” R.R.A., 687 S.W.3d at 278. Instead, “a pattern

of drug use accompanied by circumstances that indicate related dangers to the child

can establish a substantial risk of harm.” Id.; see id. at 271-72 (noting that

“endanger” under subsections (D) and (E) includes “a substantial risk of harm to the

child”). A factfinder may “reasonably credit” drug-use evidence coupled with

evidence of other endangering circumstances to find that “illegal drug use presents

a risk to the parent’s ‘ability to parent.’” Id. (quoting In re J.O.A., 283 S.W.3d 336,

345 (Tex. 2009)).

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2. Analysis

The Department opened its investigation into Mother based on allegations that

Mother had repeatedly left William home alone while Mother was “out using and

dealing ‘crystal meth.’” One to two days after a Department investigator visited

Mother, Mother was arrested on burglary charges, for which she was incarcerated

for seven months and to which she pled guilty. Her arrest left William home alone

without a suitable caregiver. Mother’s then-romantic partner, the only adult

apparently remaining in the household, told the Department investigator that he

could not care for William. After William was removed, Mother submitted to only

one drug test, and she tested positive for amphetamine and methamphetamine. She

failed to report to multiple requested drug tests, including one court-ordered drug

test on the second day of trial. Prior to William’s removal, Mother had been arrested

multiple times, including on drug-related offenses, at least some of which led to

sentences of incarceration. She has a decade-long history of drug abuse—including

ecstasy, “mushroom edibles,” THC, amphetamine, and methamphetamine—and

agreed at trial that her “addiction issues [were] not under control.” Furthermore, at

the time of trial, Mother conceded that she did not have a home for William and

requested that he remain with Sarah.

From Mother’s positive drug-test result and repeated failure to appear for

requested drug screenings, the trial court could have inferred that Mother was using

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illegal drugs. See In re J.C., No. 01-25-00136-CV, 2025 WL 2109931, at *10 (Tex.

App.—Houston [1st Dist.] July 29, 2025, pet. denied) (mem. op.) (noting that trial

court may consider failure to submit to drug test as equivalent to positive test result);

In re K.J.B., No. 01-23-00031-CV, 2023 WL 4188065, at *10 (Tex. App.—Houston

[1st Dist.] June 27, 2023, no pet.) (mem. op.) (noting that trial court may infer from

parent’s failure to appear for drug tests that parent continued to use illegal drugs).

Additionally, the trial court could have reasonably concluded that Mother’s

pattern of incarceration and her inability to secure housing for William are related

to her drug use. See R.R.A., 687 S.W.3d at 279 (noting that factfinder could

reasonably infer that parent’s difficulty in providing shelter and support “were

related to his drug use” and concluding sufficient evidence supported termination on

grounds (D) and (E)); In re C.K.J.-S., No. 01-26-00128-CV, 2026 WL 2089398, at

*8-9 (Tex. App.—Houston [1st Dist.] July 21, 2026, pet. denied) (mem. op.) (noting

relationship between parent’s drug use and criminal history and affirming

termination on grounds (D) and (E)); J.S., 584 S.W.3d at 636-38 (noting that parent’s

drug use, before and after child’s removal, and criminal history supported trial

court’s endangerment findings). Mother has been convicted of at least one drugrelated offense, and she has served prison time for other offenses, including a

burglary charge, for which she was incarcerated after William’s birth. See J.C., 2025

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WL 2109931, at *9 (noting parent’s continued criminal activity after child’s birth

supported endangerment findings).

Mother’s circumstances are unlike the facts in a case on which Mother relies:

In re D.T., 34 S.W.3d 625 (Tex. App.—Fort Worth 2000, pet. denied). In D.T., there

was no evidence of drug use, and the Department relied solely on a single instance

of incarceration: “It is undisputed that this is [the parent’s] first jail sentence, and it

is for a relatively short time . . . . The evidence amounts only to ‘possibilities’ as to

[the parent’s] future incarceration on other unspecified charges in other states.” Id.

at 639. Unlike the parent in D.T., Mother has been incarcerated multiple times, and

her continued drug use carries a substantial risk of harm to William in that she

exposes herself to future arrest and incarceration, leaving William without a

caregiver.

Mother also argues that, because the Department failed to present evidence

regarding the state of Mother’s home, there is no evidence that supports the trial

court’s findings under subsection (D). However, as mentioned, although subsection

(D) concerns the child’s living environment, rather than the parent’s conduct, the

parent’s conduct can affect the children’s environment. A.S., 261 S.W.3d at 83. A

parent “creates an endangering environment that may support termination of parental

rights when she leaves a young child alone in potentially dangerous settings, such as

leaving the child home alone or with other young children without competent adult

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supervision.” In re E.J., No. 14-23-00387-CV, 2023 WL 8043686, at *9 (Tex.

App.—Houston [14th Dist.] Nov. 21, 2023, no pet.) (mem. op.) (collecting cases).

Mother’s pattern of arrests and incarcerations creates an endangering environment

by leaving William alone without supervision. Each time Mother is jailed, she is

absent from William’s life and unable to provide for him. See In re T.G.R.-M., 404

S.W.3d 7, 15 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (noting that repeated

arrests and incarceration negatively impact child’s emotional and physical wellbeing). Moreover, given Mother’s drug-use history before and after William’s

removal, “the trial court could infer a course [of] conduct by which the mother

continued to place herself in situations that risked her imprisonment even though she

knew her parental rights were in jeopardy.” Id. Mother’s prior conduct permits an

inference that her endangering conduct will continue in the future. In re N.J.H., 575

S.W.3d 822, 832-33 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (mem. op.)

(citing Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.— Houston [1st Dist.]

2010, pet. denied); Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d

608, 617 (Tex. App—Houston [1st Dist.] 2009, pet. denied)).

A reasonable trier of fact could have formed a firm belief or conviction that

the trial court’s findings under subsections (D) and (E) were true, and the disputed

evidence is not so significant that a factfinder could not reasonably have formed a

firm belief or conviction that the findings were true. Accordingly, we hold that

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legally and factually sufficient evidence supports the trial court’s findings under

subsections (D) and (E).

We overrule Mother’s first and second issues. Because only one predicate

ground is necessary to support a judgment of termination and we have already

addressed subsections (D) and (E), as due process requires, we do not address

Mother’s third issue, in which she challenges the trial court’s finding under

subsection (P). See In re A.M., 495 S.W.3d 573, 580 (Tex. App.—Houston [1st Dist.]

2016, pet. denied) (not addressing challenge to additional predicate ground after

affirming termination on one predicate ground); see also A.V., 113 S.W.3d at 362

(holding that only one predicate ground is sufficient to affirm termination).

B. Best Interest of Child

In Mother’s fourth issue, she contends that the evidence is legally and

factually insufficient to support the trial court’s finding that termination of her

parental rights is in William’s best interest. See TEX. FAM. CODE § 161.001(b)(2).

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).

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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 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. Child’s desires, environment, and needs

The same evidence that supports the trial court’s endangerment findings also

supports the trial court’s best-interest finding: Mother’s multiple incarcerations

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leave William without a stable environment and “put a child in [Mother’s] custody

in emotional and physical danger now or in the future.” In re V.V., 349 S.W.3d 548,

558 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (en banc) (relying on

evidence of endangerment to support best-interest finding). Mother’s most recent

incarceration left William without anyone to care for him. Mother’s criminal history

and drug use have subjected—and may continue to subject—William to a life of

uncertainty and instability. See Jordan, 325 S.W.3d at 723 (“Conduct that subjects

a child to life of uncertainty and instability endangers the child’s physical and

emotional well-being.”).

Furthermore, although William was four years old at the time of trial and did

not testify, the factfinder may consider with whom the child has bonded as evidence

of the child’s desires. In re B.M.R., 84 S.W.3d 814, 820 (Tex. App.—Houston [1st

Dist.] 2002, no pet.); In re R.R.A., No. 14-22-00217-CV, 2025 WL 1375185, at *3

(Tex. App.—Houston [14th Dist.] May 13, 2025, no pet.) (mem. op.) (reviewing

sufficiency of best-interest finding on remand). William’s visits with Mother went

well; however, William has bonded with Sarah, has referred to Sarah as

“[M]ommy,” and, according to Sarah, becomes upset when he is told that Sarah is

not his mother. Additionally, the caseworker, Robles, testified that William does not

refer to Mother as “mom” or any similar name and instead says “hey” to get Mother’s

attention during visits.

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2. Proposed placement

Sarah testified that she and her husband intend to adopt William. Robles

testified that the Department has no concerns with Sarah as a placement. A home

study was conducted, during which William was observed hugging Sarah and asking

her for help with a puzzle, and the Department approved Sarah’s home as a

placement. Sarah’s husband has been employed by the same company since 2015,

and his income is sufficient to support Sarah and William.

3. Mother’s parenting abilities and acts or omissions

William is Mother’s fourth child and, although Mother lives in a home with

her third child, Mother does not have primary custody of any of her children.

Mother’s eldest child has lived with Mother’s former sister-in-law since 2017.

Mother’s next child tested positive for amphetamine at birth and was adopted shortly

after. And Mother’s third child lives with Mother’s godmother, Mary, with whom

Mother also resides. From Mother’s relationships with her other children, coupled

with the circumstances of William’s removal, the trial court could have reasonably

inferred that Mother lacked parenting abilities. See In re A.C., 559 S.W.3d 176, 182

(Tex. App.—Dallas 2017) (noting that parent’s agreement to termination in

mediation, among other things, supported inference that parenting abilities were

lacking and support best-interest finding), aff’d, 560 S.W.3d 624 (Tex. 2018); In re

M.C.H., No. 14-12-00103-CV, 2012 WL 1795123, at *5 (Tex. App.—Houston [14th

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Dist.] May 17, 2012, no pet.) (mem. op.) (noting that parent’s “lack of parenting

ability with her other three children” supported termination).

Additionally, Mother failed to appear on the third and final day of the trial.

On the final day of trial, Mother’s attorney represented that she had not heard from

Mother since the previous day of trial, three weeks earlier. Mother’s failure to attend

trial is “one more circumstance from which the factfinder could have inferred that

she was indifferent to her parental rights and responsibilities.” In re A.J.D.-J., 667

S.W.3d 813, 826 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (relying on parent’s

failure to attend trial to support best-interest finding and affirm termination).

4. Summary

Considering all evidence in the record in the light most favorable to the trial

court’s 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 H.R.M., 209 S.W.3d at 108; J.F.C., 96 S.W.3d at 266. 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. Accordingly, we hold that legally and factually

sufficient evidence supports the trial court’s best-interest finding.

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We overrule Mother’s fourth issue.

Conclusion

We affirm the trial court’s decree of termination.

Amparo “Amy” Guerra

Justice

Panel consists of Justices Rivas-Molloy, Guerra, and Gunn.

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