Sherry Radack Chief Justice

On Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2016-01847J

MEMORANDUM OPINION

In this accelerated appeal, appellant, J.I.A. ("Mother"), challenges the trial court's decree terminating her parental rights to her minor children, E.C.A. and A.A.G. In six issues, Mother argues that the evidence was legally and factually insufficient to support (1) the termination of her rights under Texas Family Code section 161.001(b)(1)(D); (2) the termination of her rights under Texas Family Code section 161.00(b)(1)(E); (3) the termination of her rights under Texas Family Code section 161.001(b)(1)(N); (4) the termination of her rights under Texas Family Code section 161.001(b)(1)(O); (5) the finding that termination of Mother's parental rights was in the best interest of the Child under Texas Family Code section 161.001(b)(2); and (6) the appointment of the Department of Family and Protective Services ("DFPS") as managing conservator. See TEX. FAM. CODE ANN. §§ 161.001(1)(D), (E), (N), (O), 161.001(b)(2), 153.131(a) (West Supp. 2017). We affirm in part and reverse and remand in part.

BACKGROUND

Mother has three children, two boys and a girl. The boys, E.C.A and A.A.C., were four and three years old at the time of trial, and they are the subject of this termination proceeding. The girl was born while this case was proceeding and is the subject of a separate termination proceeding. The two boys' fathers were also named in this termination proceeding, and their parental rights were also terminated, but they are not parties to this appeal. The Removal Affidavit

Jamelle Gibbs, the CPS investigative worker prepared an affidavit seeking the children's removal from Mother's Care, which provided:

On 5/23/2015, the Department of Family and Protective Services received a referral involving [Mother] and her two sons, [A.G.] and [E.C.A.] The referral indicated a concern that the children have been physically neglected by the mother. It was reported that the children

appeared "pale and weak." The children had red, peeling rashes upon their arms and legs. Both children had diaper rashes because [Mother], the mother left them in the same diapers all day. The rashes upon the arms and legs of the children were suspected to have been caused by bed bugs. The children were not believed to be showing visible signs of malnutrition and or starvation, and have no apparent injuries. It is reported that the mother only feeds the children milk and fruit punch and sometimes the milk is old. The home was unclean, it smells like urine, and the couch is allegedly soaked in urine. The children walked around the home barefoot, and had black feet. The mother left blunts rolled from synthetic marijuana within reach of the children. The mother was believed to be under the influence of synthetic marijuana while caring for the children, but it is unknown if she used in the presence of the children.

On May 6, 2016, a Family Service Plan was signed for mother, and on May 13, 2016, it was filed in the trial court. The service plan was approved by and made an order of the trial court on May 17, 2017. The plan provided as follows for Mother.

[Mother] will participate in random drug screens (oral, urine, or hair) and will have negative results for any nonprescribed or illegal drugs. [Mother] will complete random drug screens as requested by the case worker, from time of notification to take and complete the test. Failure to complete the drug testing within the timeframe will be considered a positive result[.]

[Mother] will agree to attend and successfully complete a substance abuse assessment and follow through with all recommendations. [Mother] is responsible for scheduling appointments and taking necessary notes to help demonstrate what she has learned. For any instance [Mother] misses an appointment, she is responsible for rescheduling for another date.

[Mother] will agree to make reasonable efforts in attending all meetings, visits, conferences, and court hearings relative to the case. [Mother] understands failure to comply with all court orders may result in further legal action.

[Mother] will agree to maintain contact with caseworker, LaKai Henderson, and will agree to notify the agency of any lifestyle changes: change of address, phone numbers, and employment within 48 hours of change.

[Mother] will agree to provide and obtain and maintain a stable home environment and legal employment. She will also inform the agency of her new address within 24 hours. [Mother] understands anyone residing in the home must be approved by CPS and be able to pass a criminal and CPS background check. Proof of lease, rental agreement, and check stubs should be available to CPS.

[Mother] will actively participate and complete a CPS approved eight week parenting class. She will demonstrate what she has learned from parenting classes in all parent-child visits. The parenting class cannot be completed online. She will be responsible for enrolling in classes and for any fees associated with parenting classes. Upon completion of the parenting classes, she will provide the caseworker with her certification for completion.

[Mother] will agree to participate in a psycho-social assessment. [Mother] is responsible for scheduling the appointment and following all recommendations from the evaluator. For any instance [Mother] is unable to make the scheduled appointment, she will agree to reschedule for a later date.

At a May 17, 2016 status hearing in the case—the same date the Family Service Plan became an order of the trial court—Mother was ordered to submit to a drug test, which she did. Her hair sample tested positive for cocaine metabolite. Mother did not test positive again, and, at the time of trial, she had tested clean for over a year. Trial—June 27 , 2017

The case was tried to the bench a little over a year after the Family Service Plan was entered. There were three witnesses: Brittany Johnson, the CPS caseworker; Sara Strom, the CASA Volunteer assigned by Child Advocates; and Mother.

Brittany Johnson's testimony

Johnson testified that DFPS received an allegation that Mother was under the influence while caring for the children and that she would leave them unattended and not attend to their daily needs. She also testified that the boys were initially separated, with E.C.A. going to Grandmother and A.A.G going to the paternal grandparents. Both children were eventually moved to the maternal grandmother because the paternal grandparents were letting Mother and their son live in the same home with A.A.G.

Johnson testified that, on May 17, 2017, Mother was given a Family Service Plan that required her to complete a substance-abuse assessment, a psycho-social assessment, and random drug testing. Johnson testified that Mother had failed to complete the individual counseling, although she had attended eight of the required ten counseling sessions. Johnson also testified that Mother had failed to stay in contact with the caseworker.

Johnson testified that Mother had tested positive for cocaine in May 2016, when she was pregnant with her daughter. Johnson also noted that, at the beginning of the case, Mother had acknowledged to DFPS that she was a "vivid user" of koosh, or synthetic marijuana. She clarified that, after her initial May 2016 drug test, Mother was drug free for an entire year. The baby girl that was born in June 2016, one month after Mother's failed drug test, did not test positive for any drugs.

Johnson testified that Mother maintained contact with the children until about a month before trial, when she told Johnson that she saw no need to visit the children if they were going to terminate her parental rights anyway.

Johnson said that Mother was working, but she had provided only one pay stub, and that DFPS had tried to contact Mother's employer, a tax service provider, but did not get an answer. Mother had not provided financial support to Grandmother while she was caring for the children, although Johnson acknowledged that Mother was under no support order to do so. Mother had also not participated in the childrens' birthdays or Christmas.

Johnson knew that Mother had moved in March 2017, but she did not know her new address. Before moving, Mother had lived with a friend's mother, but had moved because DFPS was concerned that the people with whom she had been living had criminal histories.

Regarding the children's placement with Grandmother, Johnson testified that the boys were "doing exceptionally well." She noted that A.A.G. had been attending speech therapy and that his speech had really improved. Johnson noted that Grandmother was in good physical health, except for a limp that did not affect her ability to care for the children. Johnson noted that Grandmother lived with her companion of over 10 years and that they were financially able to meet the children's needs. Grandmother would seek help from DFPS when she needed something for the children like beds or car seats. Johnson was of the opinion that there was nothing that the children were not currently getting from Grandmother. The boys were bonded with Grandmother, who also had custody of their baby sister. Johnson felt it would be detrimental to remove the children from their placement with Grandmother.

Johnson concluded that DFPS wished to terminate her rights because Mother had not attended two of her counseling sessions, had not kept in contact with DFPS, and had not visited the children in a month, thereby "essentially" abandoning the children. She conceded, however, that the children appeared to be bonded with Mother.

Sara Strom's testimony

Sarah Strom, the CASA volunteer assigned to the case by Child Advocates, agreed with DFPS's recommendation that Mother's parental rights be terminated. She stated that, initially, she was concerned about whether Grandmother was capable of taking care of the children and seemed overwhelmed, but, by the time of trial, she believed that Grandmother had adapted and was able to meet the children's needs.

Mother's testimony

Mother testified that, before the children were removed from her care, she was given family-based services, but she did not work with DFPS at that time because she was "scared [DFPS was] gonna take the kids away from [her]." Instead, she hid from DFPS when they would try to check on her and left the children with someone else. She was told by DFPS that if she kept hiding and moving the children "they were gonna be remov[ed]"

Mother testified that she had never used drugs and could not explain why she tested positive for drugs in May 2016.

She was aware when she signed the Family Services Plan that should could lose parental rights to her children if she did not comply with the Plan. Nevertheless, Mother admitted that she had not completed the counseling services that she had been ordered to complete. She explained that she went to all 10 of the counseling sessions, but because she was late to two of them, she had only completed eight.

Mother also admitted that she had not attended scheduled visitation for the month before trial. However, she denied abandoning her children. Instead, she claimed that she had worked it out with Grandmother that she would take the children on the weekends and that she had spent every weekend with the children for months. Mother admitted that she knew that she was violating the visitation arrangement ordered by the Court when she took the children for unsupervised visits. Mother believed that the children enjoyed being with her.

Mother testified that she told Johnson that she was moving because DFPS would not approve the place where she had been living based on the criminal record of the person with whom she had been staying. At the time of trial, Mother had been living on her own for three months. She conceded that, while she told Johnson she was moving, she had not provided DFPS with her new address.

Mother testified that she had been working for five months, and that she provided tax services and sold insurance.

Mother asked the court not to terminate her parental rights; she did not believe that termination would be in the best interest of her children.

Brittany Johnson's Rebuttal Testimony

Johnson testified that she was aware that Mother was claiming that she had been having unsupervised visits with the children. Johnson testified that Mother told her, "[I]t doesn't matter because I've been seeing my children behind you guy's back anyway. And she said she had proof." After Mother made this claim, Johnson asked Grandmother whether she had allowed Mother to have unsupervised visitation, and Grandmother denied it. The following exchange took place between Johnson and the trial court:

Trial Court: Are you telling us that you don't believe the mother, who just testified, when she said that she had the children spend the night with her by herself; you don't believe that?

Johnson: Honestly, sir, I do not.

Trial Court: Well I'm not telling you what to believe or not. I'm just wanting to make sure that you either do or do don't believe that. You know, in our world, we have kind of a phrase or a concept, a doctrine that people who say things that are against their own best interest are likely telling the truth. You seem not to understand that concept. I'm not holding you to that. But you seem that—like you had your mind made up on how you want it to go and it didn't really matter to you.
The most important thing to you, it seems to me, see I don't know this case very well. It looks like [another judge]'s heard every hearing except the first one, so I don't know anything about this. But

just from listening to you, you've convinced me that the most important thing about this case is that the children stay with the grandmother.

Johnson: Absolutely not.

Trial Court: You have convinced me that you were willing to fudge a little bit or not be completely open about the circumstances to what the mother just testified to. Kind of disturbing to me that—I mean it's okay to feel strong about, you know, your feelings. You should come in court and say how you feel. Nobody should stop you but you have to tell the truth. That's very important. And violations of, you know, either Court orders or agreements or understandings or whatever should be brought to our attention. Fortunately the children are okay, I take it, right?

Johnson: Yes, sir.

Trial Court: But so now that you know—let's just say this. Since you're pretty committed to your position, I don't think that I really have any desire to try to change your mind about anything. But if it were true that beginning back as far as February, that the grandmother was allowing the mother to have the kids unsupervised, with her, overnight, on the weekends. You heard her. She said, well, I take them on Friday and bring them to my house and you know, take them back on Sunday. If that were true, what would be your thoughts about that? What would be your feelings about the grandmother doing that, the placement, that kind of thing?

Johnson: I would definitely want to get the children into a different placement because she would not have complied with—

Trial Court: Well we don't want to be—be don't want to jump too soon. But I'm just curious that—so you would think that would be, at least, a violation of trust—

Johnson: Correct

Trial Court:—right? Okay. All right. Okay.

Argument and Trial Court's Ruling

During argument, the trial court asked DFPS's counsel, "There was some kind of shenanigans going on that the caseworker seemed to refuse to believe or accept. Do you think that should affect the placement?" DFPS's counsel responded, "Based on what you've heard today and what I've heard today, Judge, I do think that the placement should be affected. I don't think the outcome of the case should be affected. I think that . . . the parent's rights should be terminated but that the children probably should be moved and this Court certainly has the authority to order the department to change the placement to do that." DFPS counsel concluded by saying, "I tend to believe that she probably did get unsupervised contact and I think the placement should be affected. I think the children should be moved." The Child Advocate concurred "that Grandmother, if she was allowing these visits with Mother, that definitely, she cannot be protective and there has to be another placement found for the children."

When the trial court questioned the children's ad litem about the issue, the ad litem responded:

Well Judge, I was gonna say, we visited the grandmother numerous times. I don't know whether the mother had the children unsupervised or not. I have no idea. Obviously there's some differences on that. But we have visited the grandmother and we thought the grandmother was going a good job. We were satisfied with how the kids were progressing. She was taking care of the children's medical needs. She had worked with the agency and Child

Advocates, in terms of getting the proper facilities in the home, you know, so we liked her. So we don't have a problem with Grandma.

Based on what I've heard today and based on what I have seen before and based on Mom's testimony, quite honestly, Judge, I actually believe we shouldn't terminate Mother. I think we should do PMC to the agency and let Mom continue to get her life together.

Mother's counsel argued that Mother had "substantially complied with the order" and her rights should not be terminated. The trial court responded, "Well I've never seen a case yet or an annotation in the statute that says, substantial compliance is enough to work termination and otherwise—in an otherwise righteous case—[a]nd I'm not about to participate in changing the law." Mother's counsel concluded by arguing, "I would look at the total picture in light of the fact that she's missed two counseling session and then it appears they don't have a permanent placement. That would be my argument for considering PMC to the agency."

After the hearing, the trial court refused to grant termination of Mother's parental rights on the grounds of abandonment; instead, he terminated based on endangering conditions, endangerment, and failure to complete the family service plan. The trial court did not make any ruling about the placement of the children at the time of trial.

The trial court signed a written judgment that terminated Mother's parental rights based on endangering conditions, endangerment, abandonment, and failure to comply with a court order that established actions necessary for Mother to retain custody of the children. The order also gave sole managing conservatorship of the children to DFPS.

Mother timely appealed.

SUFFICIENCY OF THE EVIDENCE

In issues one through five, Mother challenges the sufficiency of the evidence to support termination under (1) Family Code section 161.001(1)(D) (endangering conditions), (2) Family Code section 161.001(1)(E) (endangerment), (3) Family Code section 161.001(1)(N) (constructive abandonment), (4) Family Code section 161.001(1)(O) (failure to comply with court order), and (3) Family Code section 161.001(2) (finding that termination of Mother's parental rights was in children's best interest); and (4) a finding that appointment of DFPS as managing conservator was in the children's best interest.

Applicable Law and Standard of Review

A parent's rights to the "companionship, care, custody, and management" of his or her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Therefore, 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). However, "the rights of natural parents are not absolute" and "[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). Recognizing that a parent may forfeit his or her parental rights by their acts or omissions, the primary focus of a termination suit is protection of the child's best interests. Id.

In a case to terminate parental rights by the Department under § 161.001 of the Family Code, DFPS must establish, by clear-and-convincing evidence, that (1) the parent committed one or more of the enumerated acts or omissions justifying termination and, that (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001. Clear-and-convincing evidence is "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." Id. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). "Only one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." A.V., 113 S.W.3d at 362.

In a legal-sufficiency review in a parental-rights-termination case, the appellate court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. J.F.C., 96 S.W.3d at 266. We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, disregarding all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. If, after conducting a legal sufficiency review of the record, we determine that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient. Id.

In conducting a factual-sufficiency review in a parental-rights-termination case, we must determine whether, considering the entire record, including evidence both supporting and contradicting the finding, a factfinder reasonably could have formed a firm conviction or belief about the truth of the matter on which DFPS bore the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should consider whether the disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266-67. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (quoting J.F.C., 96 S.W.3d at 266). Sufficiency of the evidence under section 161 .001(b)(E) —Endangerment

In her second issue, Mother contends that the evidence is legally and factually insufficient to support the trial court's termination of her parental rights under Family Code section 161.001(1)(E) (endangerment).

Subsection (E) allows termination when the parent has endangered the child. Specificically, it provides that the court may order termination upon a finding, by clear-and-convincing evidence, that a parent:

(E) 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[.]

Endangerment means to expose to loss or injury, to jeopardize. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child's physical well-being was the direct result of the parent's conduct, including acts, omissions, or failures to act. See J.T.G., 121 S.W.3d at 125; see also TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Additionally, termination under subsection (E) must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. J.T.G., 121 S.W.3d at 125; see TEX. FAM. CODE ANN. § 161.001(b)(1)(E). It is not necessary, however, that the parent's conduct be directed at the child or that the child actually suffer injury. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); J.T.G., 121 S.W.3d at 125. The specific danger to the child's well-being may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).

"[A] parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct." In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Illegal drug use may support termination under section 161.001(b)(1)(E) because "it exposes the child to the possibility that the parent may be impaired or imprisoned." Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App—Houston [1st Dist] 2009, pet. denied). Because it significantly harms the parenting relationship, drug activity can constitute endangerment even if it transpires outside the child's presence. See Boyd, 727 S.W.2d at 533; J.O.A., 283 S.W.3d at 345; Walker, 312 S.W.3d at 617. "[A] parent's decision to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of losing a child, may support a finding that the parent engaged in conduct that endangered the child's physical or emotional well-being." In re K.C.F., No. 01-13-01078-CV, 2014 WL 2538624, at *10 (Tex. App.—Houston [1 Dist.] 2014, no pet.) (mem. op.).

It is undisputed that Mother failed a drug test in May 2016, during the pendency of this termination suit. Mother was pregnant with her third child at the time she tested positive for cocaine. Although she denied using drugs, the trial court is entitled to disbelieve her testimony. The trial court, as factfinder, was the sole arbiter of the credibility of the witnesses. See In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam). Mother also admitted that she was a synthetic marijuana user at the outset of DFPS's involvement with the family. As such, the trial court had legally and factually sufficient evidence to conclude that Mother's use of synthetic marijuana before DFPS's involvement and her use of narcotics during pregnancy and the pending termination suit was conduct that endangered her children's physical and emotional well-being. See id. As such, the evidence is legally and factually sufficient to support the trial court's finding under Family Code section 161.001(1)(E) (endangerment).

We overrule Mother's second issue.

Sufficiency of the Evidence Regarding Best Interest of the Children

In issue five, Mother contends there is legally and factually insufficient evidence that termination of her parental rights was in the best interest of the children. As a matter of public policy, "the best interest of a child is usually served by maintaining the parent-child relationship." J.F.C., 96 S.W.3d at 294. Despite this important relationship, the Texas Supreme Court has held that "protection of the child is paramount" and "the rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." A.V., 113 S.W.3d at 361.

Appellate courts examine the entire record to decide what is in the best interest of the child. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that the best interest of a child is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In assessing whether termination is in a child's best interest, the courts are guided by the non-exclusive list of factors set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not proper, and (9) any excuse for the acts or omissions of the parent. Id. "[T]he State need not prove all of the factors as a condition precedent to parental termination, 'particularly if the evidence was undisputed that the parental relationship endangered the safety of the child.'" In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)).

The Texas Family Code also provides a list of relevant considerations:

§ 263.307 Factors in Determining Best Interest of Child

(a) In considering the factors established by this section, the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest.

(b) The following factors should be considered by the court and the department in determining whether the child's parents are willing and able to provide the child with a safe environment:

(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;

(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 ANN. § 263.307 (West Supp. 2017).

Termination of the parent-child relationship is not justified when the evidence shows that a parent's failure to provide a more desirable degree of care or support of the child is due solely to misfortune or the lack of intelligence or training, and not to indifference or malice. Clark v. Dearen, 715 S.W.2d 364, 367 (Tex. App—Houston [1st Dist.] 1986), no writ).

For purposes of determining legal sufficiency, we consider those factors that support the finding that termination was in the child's best interest. Yonko v. Dep't of Family & Protective Servs., 196 S.W.3d 236, 243 (Tex. App.—Houston [1st Dist.] 2006, no pet.). If the evidence is legally sufficient, we then balance the factors presented in the legal sufficiency argument against the evidence that undercuts any finding that termination is justified under the statute. C.T.E., 95 S.W.3d at 467. We consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. If, after considering the entire record, the disputed evidence that weighs against termination is so significant that a factfinder could not reasonable have formed a firm belief or conviction that termination was justified, then the evidence is factually insufficient to support termination. Id. A court of appeals should detail in its opinion why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of termination. Id. at 266-67.

Mother contends that "when all the evidence is considered in light of the Holley and §263.307(b) factors no rational trier of fact could have formed a strong conviction or belief that severing the mother-children bond is in the children's best interest."

Desires of the Children

The children were three and four years old at the time of trial. There was little direct evidence about whether they desired to remain with Mother. Mother, however, testified that the children seemed to enjoy visiting with her, and that "she had pictures and everything." Johnson also testified that the children were bonded with Mother. "Where the evidence of the parent's failures is not overwhelming, the desires of the child weigh against termination of parental rights." Yonko, 196 S.W.3d at 245. Nevertheless, we note that the children's young age may weigh in favor of the best-interest finding. See In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (citing TEX. FAM. CODE ANN. § 263.307(b)(1)).

Emotional and Physical Needs of and Danger to the Children

The same evidence that supports the trial court's findings regarding subsections (E) and (O), as detailed above, is also relevant to a sufficiency review of the best-interest finding. C.H., 89 S.W.3d at 28 (holding same evidence may be probative of both §161.001(b)(1) and best-interest grounds).

At the time of removal, the children appeared "pale and weak." They both had rashes, possibly from bedbugs, and diaper rash from wearing the same diaper all day. They were not malnourished and had no apparent injuries. Mother's house was unclean and smelled of urine. The children had dirty feet from walking around barefoot. Mother was a synthetic marijuana user and left the blunts from her drug use within reach of the children. Mother also tested positive for cocaine on the same day that the Family Service Plan was approved by the trial court. She was pregnant with her daughter at the time.

However, at the time of trial, Mother's drug tests had been clean for over a year. She testified that she had secured an apartment. She conceded that she had not provided the address to DFPS, although she had told Johnson that she planned to move because DFPS was not happy with her previous living arrangements.

Mother also testified that she had a job, but Johnson testified that she had seen only one paystub and had been unable to reach Mother's employer.

Although she did so outside of the prescribed visitation arrangements, Mother had been spending weekends with her children, and, as the ad litem pointed out, "nothing bad happened to the kids when they spent time with [Mother]." The children were, according to Johnson, "doing exceptionally well" while they were placed with Grandmother.

Parental Abilities of the Mother

Mother's parental abilities were lacking at the time DFPS became involved with the family because of suspected neglect. Her house was dirty and smelled of urine. The children were dirty, had bedbug bites and diaper rash, and appeared "weak and pale." She also admitted to using synthetic marijuana, which she left in the children's reach, and she failed a drug test for cocaine while the case was pending.

After the Family Services Plan was adopted by the trial court, Mother never tested positive for drugs again. Her daughter, born a month after the positive drug test, did not have drugs in her system at birth. Mother also apparently kept the children successfully on many weekends, albeit outside the proscribed visitation arrangement. The children were doing "exceptionally well" at the time of trial even though they had been staying with Mother on the weekends for several months. Mother had completed the eight-week parenting class required by her Family Services Plan.

Programs Available to the Mother

Before DFPS removed the children, Mother showed an unwillingness to accept any of the programs offered by DFPS. After the Family Services Plan was approved by the Court, however, Mother participated in all of the services required by the plan. She completed all of the programs and attended eight of the ten individual counseling sessions.

Plans for the Children by DFPS

DFPS's plans for the children were initially to leave them with Grandmother, where Johnson testified that they were doing "exceptionally well." However, once Mother testified that Grandmother had been allowing her unsupervised access to the children, the trial court questioned Johnson about whether DFPS would change its recommendation if Mother's testimony were true, and Johnson replied that DFPS "would definitely want to get the children into a different placement." Counsel for DFPS argued that Mother's rights should be terminated, and that the children should be moved from their placement with Grandmother. The trial court indicated that it wished to address the placement issue at a later date.

Thus, at the conclusion of trial, DFPS had no plans for the children.

Mother's Acts or Omissions

Here, most of Mother's acts and omissions occurred before DFPS became involved with the family. As detailed in the parenting abilities section above, Mother's house was dirty and smelled of urine. The children were dirty, had bedbug bites and diaper rash, and appeared "weak and pale." Mother used synthetic marijuana, which she left in the children's reach.

On the same day that the Family Service Plan was approved by the trial court, Mother tested positive for cocaine. The baby did not test positive for drugs when she was born, and Mother did not test positive for drugs for over a year after the Family Service Plan was ordered. Mother also took the children from the Grandmother for unsupervised visits on weekends, even though she knew that such an act was in violation of the custody order. Mother completed her parenting classes, psycho-social analysis, and eight of her 10 personal counseling classes.

Excuses for Mother's Acts or Omissions

Mother offered no excuses for the conditions that existed in her home at the time the children were removed. She testified that she initially declined to cooperate with DFPS because she was afraid that DFPS would take her children. Mother offered no excuse for failing the drug test; indeed, she denied using drugs. Mother testified that she did not complete her counseling classes because she was late for two of the classes. Mother admitted taking the children from Grandmother in violation of the court's order and without notice to DFPS. Mother denied abandoning her children and stated that she had been consistently visiting with them for a year, albeit without DFPS's knowledge or approval.

Analysis—Legal Sufficiency

Our review of the Holley and statutory factors above shows some evidence that termination was in the children's best interest. Mother allowed the children to live in dirty and possibly dangerous conditions prior to DFPS's intervention. She, admittedly, hid from DFPS and did not participate in any DFPS programs that were available to her prior to the children's removal. Mother was also a user of synthetic marijuana and failed a drug test for cocaine during the pendency of the termination proceedings. She also failed to complete counseling and took the children from Grandmother for unsupervised visitation in violation of a court order. Therefore, viewing the evidence in a light favorable to the trial court's findings, we conclude that it could have formed a firm belief or conviction that it was in the children's best interest to terminate the mother's parental rights. See In re J.F.C., 96 S.W.3d at 266.

Analysis—Factual Sufficiency

However, in light of the high evidentiary standard that DFPS must meet and the presumption that a child's best interests are served by maintaining the parent-child relationship, we hold that the evidence is factually insufficient to support the trial court's finding that termination of Mother's parental rights is in her children's best interest.

Before the children were removed, Mother's house was dirty, the children were dirty, they had rashes, and appeared "weak." However, the children were not malnourished and had not been abused. Most cases involving unsanitary conditions do not uphold termination of parental rights based solely on these conditions. See in re R.W., No. 01-11-00023-CV, 2011 WL 2436541, at *12 (Tex. App.—Houston [1st Dist.] June 16, 2011, no pet.) (mem. op.) (listing cases involving termination for unsanitary conditions).

Once the Family Service Plan was signed, Mother consistently tested negative for drugs for over a year, no drugs were detected in her infant child at birth, and Mother completed her substance-abuse assessment and recommendations. This is not a situation in which the parent claims that a single, clean drug test is sufficient to prevent termination. See 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.) (holding that one clean drug test before trial would not render termination for endangerment insufficient when parent also failed to complete substance abuse treatment).

Although Grandmother permitted Mother to take the children on weekends, despite a court order prohibiting unsupervised visitation, the evidence shows that, during that time, the children were happy, healthy, and doing "exceedingly well." While we do not condone Mother's action in exercising unsupervised visitation with the children without prior approval, we find no cases in which it was found in the children's best interest to terminate parental rights based on such conduct, without more.

The ad litem recommended that Mother be permitted to complete the two counseling sessions and that the court not terminate her parental rights. Mother's failure to comply with the service plan was not due to the indifference or malice toward her children. See Dearen, 715 S.W.2d at 367; In re R.W., 2011 WL 2436541 at *13.

Also, significant in our analysis of the children's best interest is the fact that DFPS had no evidence about their plans for the children's future and they were doing well in their current placement.

Considering all of the evidence presented at trial, given Mother's efforts to remain in contact with her children, her successful completion of the substance-abuse requirements of her Family Service Plan, her year-long record of clean drug tests, her successful completion of the other requirements of her Family Service Plan, and DFPS's lack of plans for the children's future, we hold that the disputed evidence that weighs against termination is so significant that a factfinder could not reasonable have formed a firm belief or conviction that termination was in the childrens' best interest.

Accordingly, we sustain Mother's fifth issue.

Sufficiency of the Evidence Regarding Conservatorship of the Children

In her sixth issue, Mother contends the evidence is legally and factually insufficient to support the appointment of DFPS as sole managing conservator of the children.

Termination of parental rights and the appointment of a non-parent as sole managing conservator are two distinct issues, with different elements, different standards of proof, and different standards of review. Compare TEX. FAM. CODE ANN. § 161.001, with TEX. FAM. CODE ANN. § 153.131(a) (West 2008); See also In re J.A.J., 243 S.W.3d 611, 615-17 (Tex. 2007); Earvin v. Dep't. of Family & Protective Servs., 229 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2007, no pet.). There is a rebuttable presumption that it is in a child's best interest for his parents to be named his joint managing conservators. TEX. FAM. CODE ANN. § 153.131(b). To rebut this presumption and appoint someone other than a parent as sole managing conservator of the child, a court must find that appointment of a parent would "significantly impair the child's physical health or emotional development." TEX. FAM. CODE ANN. § 153.131(a); J.A.J., 243 S.W.3d at 616. "The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship[.]" TEX. FAM. CODE ANN. § 153.002.

Unlike the standard of proof for termination of parental rights, the findings necessary to appoint a non-parent as sole managing conservator need not be proved by clear and convincing evidence; a preponderance of the evidence is sufficient. TEX. FAM. CODE ANN. § 105.005; J.A.J., 243 S.W.3d at 616. Likewise, the standard of review for the appointment of a non-parent as sole managing conservator is less stringent than the standard of review for termination of parental rights. J.A.J., 243 S.W.3d at 616. We review a trial court's appointment of a non-parent as sole managing conservator for abuse of discretion only. Id. (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). We reverse the trial court's appointment of a nonparent as sole managing conservator only if we determine that it is arbitrary or unreasonable. Id. "Because different standards apply, evidentiary review that results in reversal of a termination order may not yield the same result for a conservatorship appointment." Id.

In In re R .W., 2011 WL 2436541 at *13, this Court held that there was factually insufficient evidence to support a finding that termination of parental rights was in the children's best interest. Nevertheless, we held that the trial court did not abuse its discretion in appointing DFPS as sole managing conservator. Though the parent's offending conduct was insufficiently egregious to support a finding that termination was in the best interest of the child, it was sufficient under the lesser standard to support naming DFPS as sole managing conservator of the child. Id.

The same reasons that we gave for holding the evidence legally sufficient to show that termination was in the children's best interest also supports a holding that naming DFPS as sole managing conservator was not an abuse of discretion. As detailed in our legal sufficiency analysis of the best interest of the children, Mother allowed the children to live in dirty and possibly dangerous conditions prior to DFPS's intervention. She hid from DFPS and did not participate in any DFPS programs that were available to her prior to the children's removal. She used synthetic marijuana and failed a drug test for cocaine during the pendency of the termination proceedings. She also failed to complete court-order counseling and took the children from Grandmother for unsupervised visitation in violation of a court order. In light of this evidence, the trial court's ruling on the issue of sole managing conservatorship was not arbitrary and capricious; thus, it was not an abuse of discretion.

We overrule Mother's sixth issue.

CONCLUSION

We reverse the trial court's judgment terminating Mother's parental rights and remand for a new trial. We affirm the trial court's order regarding sole managing conservatorship of the children.

Sherry Radack

Chief Justice Panel consists of Chief Justice Radack and Justices Higley and Bland.