In re M.A.J.

Full title: IN THE INTEREST OF M.A.J. JR., H.A.J., AND B.D.J., CHILDREN

Court: Court of Appeals For The First District of Texas

Date published: Jun 25, 2020

612 S.W.3d 398 (Tex. App. 2020)

Opinion

NO. 01-19-00685-CV

06-25-2020

In The INTEREST OF M.A.J. Jr., H.A.J., and B.D.J., Children

Julie Countiss, Justice

OPINION ON REHEARING

Appellee, the Department of Family and Protective Services ("DFPS"), has filed a motion for rehearing of our March 5, 2020 memorandum opinion and judgment.¹ We deny the motion for rehearing, withdraw our opinion and judgment of March 5, 2020, and issue the following opinion and judgment in their stead.

1 See Tex. R. App. P. 49.1.

In this accelerated appeal,² appellant, mother, challenges the trial court's order, entered after a bench trial, terminating her parental rights to her minor children, M.A.J. Jr. ("M.A.J."), H.A.J., and B.D.J. (collectively, "the children").³ In four issues, mother contends that the evidence is legally and factually insufficient to support the trial court's findings that she engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being;⁴ she constructively abandoned the children, who had been placed in the permanent or temporary managing conservatorship of DFPS for not less than six months;⁵ she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children;⁶ and termination of her parental rights was in the best interest of the children.⁷

2 See Tex. Fam. Code Ann. § 263.405(a) ; Tex. R. App. P. 28.4.

3 The trial court also terminated the parental rights of the children's father. He is not a party to this appeal.

4 See Tex. Fam. Code Ann. § 161.001(b)(1)(E).

5 See id. § 161.001(b)(1)(N) (trial court may terminate parental rights if it finds by clear and convincing evidence that parent constructively abandoned child who had been in permanent or temporary managing conservatorship of DFPS for not less than six months and (i) DFPS had made reasonable efforts to return child to parent; (ii) parent had not regularly visited or maintained significant contact with child; and (iii) parent had demonstrated inability to provide child with safe environment).

6 See id. § 161.001(b)(1)(O).

7 See id. § 161.001(b)(2).

We affirm in part and reverse in part.

Background

On August 22, 2018, DFPS filed a petition seeking termination of mother's parental rights to the children and managing conservatorship of the children.

DFPS Caseworker Cano

At trial, DFPS caseworker Gabriela Cano testified that M.A.J. was four years old and both H.A.J. and B.D.J. were one year old. H.A.J. and B.D.J. are twins. Cano stated that the children entered the care of DFPS based on an allegation of negligent supervision occurring on June 24, 2018, but she did not provide any additional information regarding that allegation.⁸ DFPS records also indicated that there was an incident involving injury to M.A.J. on July 23, 2018, but Cano did not know anything about the incident. Cano did not ever see any injuries on M.A.J. and did not see any photographs of injuries on M.A.J. When asked whether mother was "the alleged perpetrator of the physical abuse against [M.A.J.]," Cano acknowledged that she did not know. Instead, Cano stated that she "believe[d]," but did not know, that it was "a failure to protect on [mother's] part." When questioned regarding "the condition[ ] of the children ... when they first came into [DFPS's] care," Cano admitted that the children were "well."

8 Cano also testified that any allegations of sexual abuse against M.A.J. had been "ruled out" by DFPS. See Duffey v. Duffey , No. 14-16-00144-CV, 2017 WL 6045569, at *2 (Tex. App.—Houston [14th Dist.] Dec. 7, 2017, pet. denied) (mem. op.) ("[r]uled [o]ut" means that "it was reasonable to conclude that the alleged abuse or neglect did not occur" (internal quotations omitted)).

The children had been in their current placement, an "adoptive" home, for three months.⁹ According to Cano, the home was stable. When asked whether "[t]he current placement [was] doing well," Cano responded, "[y]es." Cano also stated that the children's needs were being met, including "[t]herapeutically." The children did not have any "special needs." H.A.J. and B.D.J. participated in occupational therapy and speech therapy. M.A.J. participated in individual therapy at school. DFPS's goal for the children was an unrelated adoption. M.A.J. attended daycare.

9 A May 14, 2019 "Permanency Hearing Order Before Final Order," admitted into evidence at trial, states that the children's foster home is also an adoptive home.

In regard to mother, Cano explained that mother was given a Family Service Plan ("FSP") and Cano discussed the FSP with mother. Mother had completed some of the requirements of her FSP, including completing her psychological evaluation and her substance abuse assessment. Without any specificity, Cano stated that mother had used narcotics in the past and continued to do so.¹⁰ Although mother had been referred to outpatient treatment for her substance-abuse issues, mother had not completed the treatment. According to Cano, mother had not regularly visited the children during the pendency of the case, but this was because the trial court had suspended her visits at the beginning of the case. Cano faulted mother for having her visits with the children suspended. Cano noted that mother was not present at trial.

10 Cano agreed that "there was ... a drug test result that dated back in 2016," but there is no testimony, explanation, or detail as to what that "drug test result" may have been. And although Cano also agreed that there were "drug allegations" from "back in 2016," again, no explanation or detail is provided.

Finally, Cano summarily testified that mother had engaged in a continuous course of conduct that had endangered the physical and emotional well-being of the children; the children's "circumstances ha[d] substantially improved from the time they came into [DFPS's] care"; and it would be in the best interest for mother's parental rights to the children to be terminated.

Child Advocates Volunteer Clark

Child Advocates Inc. ("Child Advocates") volunteer Kristy Clark testified that the children were doing well in their current home and DFPS's goal was to have the children adopted. Clark opined that M.A.J. needed "a little bit more therapy" and "had some trouble adjusting" to being in DFPS's care. Clark also explained that while the children had been in DFPS's care, they were neglected in a previous foster home.

Mother's FSP

The trial court admitted into evidence mother's FSP, which stated that DFPS received a referral for negligent supervision of M.A.J. on July 3, 2018. The referral also alleged that mother had engaged in narcotics use. According to the FSP, on July 24, 2018, mother tested positive for methamphetamine, amphetamine, and marijuana use. The FSP noted that mother had the support of the family of the children's father, and DFPS's permanency goal, when the FSP was issued, was family reunification for the children and mother.¹¹ The FSP states that mother "hopes that the children grow[ ] up to be healthy, happy, and resilient."

11 An October 11, 2018 "Status Hearing Order," admitted into evidence at trial, states that DFPS's goal was "to return the children to the[ir] parent."

Narcotics-Testing Results

The trial court admitted into evidence the results from mother's narcotics-use testing before and during the pendency of this case. Mother tested negative for narcotics use in April 2016 (hair follicle test), on November 8, 2018 (urinalysis), on November 28, 2018 (urinalysis and hair follicle test), and on December 11, 2018 (urinalysis).¹²

12 Mother also tested negative for alcohol use on March 27, 2019 (urinalysis).

Mother tested positive for amphetamine, methamphetamine, and marijuana use on July 24, 2018 (urinalysis), positive for marijuana use on September 6, 2018 (hair follicle test), positive for marijuana use on November 8, 2018 (hair follicle test), positive for marijuana use on December 11, 2018 (hair follicle test), positive for marijuana use on January 16, 2019 (urinalysis and hair follicle test), positive for marijuana use on February 13, 2019 (urinalysis), positive for marijuana use on March 14, 2019 (urinalysis), and positive for marijuana use on May 14, 2019 (hair follicle test).

Mother did not submit to narcotics-use testing on October 15, 2018 or on February 8, 2019.

Incident/Investigation Report

The trial court admitted into evidence a Harris County Sheriff's Office ("HCSO") incident/investigation report dated July 23, 2018 related to an incident of injury to a child. The report classifies mother as the "[r]eportee" of an incident during which M.A.J. was injured. When a law enforcement officer arrived at mother's home, he saw M.A.J., who was three years old at the time, wearing a shirt, shorts, and no shoes. M.A.J. had redness and swelling around both of his eyes, minor scrapes on the right side of his chin and along his forehead, and swollen wrists. Mother reported that M.A.J. had been playing with a neighbor, a five-year-old child, D.G., in the yard when the two children began fist-fighting. D.G. hit M.A.J., and M.A.J. fell to the ground. M.A.J. got back up, and the children continued fighting. M.A.J. eventually knocked D.G. to the ground. D.G.'s mother then approached the two children and struck M.A.J. with the back of her hand. This caused M.A.J. to fall to the ground and "scream in pain." Mother stated that she did not intervene in the fight because D.G. had been the aggressor and he was "losing." The law enforcement officer noted that M.A.J.'s injuries were consistent with "being in a fight with a larger child" and were not consistent with being struck by an adult.

In regard to mother's home at the time, the law enforcement officer stated in the report that the property "contained various scrap metal piles and junked vehicles." "Rusted scrap metal and broken glass were found on the ground throughout the property," and there were "numerous safety hazards." However, the officer also noted that "[v]isibility was poor due to nighttime hours."

A follow-up supplemental report states that there was "no further investigation [into the incident] by the Special Victims/Child Abuse Unit." "The allegations of injury to a child were due to[ ] 3 year old [M.A.J.] and 5 year old [D.G.] engag[ing] in a physical altercation outside their residence." Both parents were present and observed the altercation. D.G.'s mother "broke up the fight," but M.A.J. was struck in his back with her hand. The law enforcement officer reviewing the incident concluded that it involved "mutual combat between 2 children." And the case was closed.

Standard of Review

A parent's right to "the companionship, care, custody, and management" of her children is a constitutional interest "far more precious than any property right." Santosky v. Kramer , 455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (internal quotations omitted). The United States Supreme Court has emphasized that "the interest of [a] parent[ ] in the care, custody, and control of [her] children ... is perhaps the oldest of the fundamental liberty interests recognized by th[e] Court." Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Likewise, the Texas Supreme Court has concluded that "[t]his natural parental right" is "essential," "a basic civil right of man," and "far more precious than property rights." Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985) (internal quotations omitted). Consequently, "[w]e strictly construe involuntary termination statutes in favor of the parent." In re E.N.C. , 384 S.W.3d 796, 802 (Tex. 2012).

Because termination of parental rights is "complete, final, irrevocable and divests for all time that natural right ..., the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights." Holick , 685 S.W.2d at 20. 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." TEX. FAM. CODE ANN. § 101.007 ; see also In re J.F.C. , 96 S.W.3d 256, 264 (Tex. 2002). Because the standard of proof is "clear and convincing evidence," the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. In re J.F.C. , 96 S.W.3d at 264–68.

In conducting a legal-sufficiency review in a termination-of-parental-rights case, we must determine whether the evidence, viewed in the light most favorable to the finding, is such that the fact finder could reasonably have formed a firm belief or conviction about the truth of the matter on which DFPS bore the burden of proof. Id. at 266. In viewing the evidence in the light most favorable to the finding, we "must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so," and we "should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). However, this does not mean that we must disregard all evidence that does not support the finding. In re J.F.C. , 96 S.W.3d at 266. Because of the heightened standard, we must also be mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. Id. If we determine that no reasonable trier of fact could form a firm belief or conviction that the matter that must be proven is true, we must hold the evidence to be legally insufficient and render judgment in favor of the parent. Id.

In conducting a factual-sufficiency review in a termination-of-parental-rights case, we must determine whether, considering the entire record, including evidence both supporting and contradicting the finding, a fact finder 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, 25–26 (Tex. 2002). We should consider whether the disputed evidence is such that a reasonable fact finder 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) (internal quotations omitted).

Sufficiency of Evidence

In her first issue, mother argues that the trial court erred in terminating her parental rights to the children because the evidence is legally and factually insufficient to support the trial court's finding that she engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E). In her fourth issue, mother argues that the trial court erred in terminating her parental rights to the children because the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights was in the best interest of the children. See id. § 161.001(b)(2).

In order to terminate the parent-child relationship, DFPS must establish, by clear and convincing evidence, one or more of the acts or omissions enumerated in Texas Family Code section 161.001(b)(1) and that termination of parental rights is in the best interest of the children. See id. § 161.001(b). Both elements must be established, and termination may not be based solely on the best interest of the children as determined by the trier of fact. Id. ; Tex. Dep't of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987). "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[ren's] best interest." In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003).

A. Endangering Conduct

In a portion of her first issue, mother argues that the evidence is legally insufficient¹³ to support the trial court's termination of her parental rights for engaging, or knowingly placing the children with persons who engaged, in conduct that endangered their physical and emotional well-being because "the record contains insufficient evidence as to any injury to any of the children because of [m]other's acts or omissions," mother was "no longer using methamphetamine" at the time of trial, mother only tested positive for marijuana use prior to trial, and mother's results from the March 2019 narcotics-use testing "show[ed] lower levels of marijuana" in her system.

13 When a party presents multiple grounds for reversal, an appellate court should first address those issues that would afford the party the greatest relief. See Bradleys' Elec., Inc. v. Cigna Lloyds Ins. Co. , 995 S.W.2d 675, 677 (Tex. 1999) ; In re A.A.H. , Nos. 01-19-00612-CV, 01-19-00748-CV, 2020 WL 1056941, at *7 n.4 (Tex. App.—Houston [1st Dist.] Mar. 5, 2020, no pet.) (mem. op.). Because legally insufficient evidence requires a rendition of judgment in favor of the party raising the challenge, we must address a legal-sufficiency challenge first. See In re A.A.H. , 2020 WL 1056941, at *7 n.4 ; In re L.N.C. , 573 S.W.3d 309, 315 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).

A trial court may order termination of the parent-child relationship if it finds by clear and convincing evidence that the parent has "engaged in conduct or knowingly placed the child[ren] with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of the child[ren]" and termination is in the best interest of the children. TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (b)(2). Within this context, endangerment encompasses "more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment." Boyd , 727 S.W.2d at 533. Instead, "endanger" means to expose the children to loss or injury or to jeopardize their emotional or physical health. Id. (internal quotations omitted); Walker v. Tex. Dep't of Family & Protective Servs. , 312 S.W.3d 608, 616–17 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (internal quotations omitted).

We must look at a parent's conduct standing alone, including her actions or omissions. In re J.W. , 152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied). It is not necessary to establish that a parent intended to endanger the children. See In re M.C. , 917 S.W.2d 268, 270 (Tex. 1996). However, termination of parental rights requires "more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required." In re J.T.G. , 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.) ; see also In re J.W. , 152 S.W.3d at 205.

Mother's FSP states that DFPS received a referral alleging that mother had engaged in narcotics use. The FSP also notes that on July 24, 2018, mother tested positive for methamphetamine, amphetamine, and marijuana use.

Mother's narcotics-use testing results, admitted into evidence at trial, indicate that she tested positive for amphetamine, methamphetamine, and marijuana use on July 24, 2018 (urinalysis).¹⁴ Thereafter, mother tested positive for marijuana use on September 6, 2018 (hair follicle test), positive for marijuana use on November 8, 2018 (hair follicle test), positive for marijuana use on December 11, 2018 (hair follicle test), positive for marijuana use on January 16, 2019 (urinalysis and hair follicle test), positive for marijuana use on February 13, 2019 (urinalysis), positive for marijuana use on March 14, 2019 (urinalysis), and positive for marijuana use on May 14, 2019 (hair follicle test).¹⁵

14 This appears to be the same testing result referenced in mother's FSP.

15 Mother did not submit to narcotics-use testing on October 15, 2018 or on February 8, 2019.

This Court has previously stated that illegal narcotics use and its effect on an individual's ability to parent may constitute an endangering course of conduct. See In re A.A.M. , 464 S.W.3d 421, 426–27 (Tex. App.—Houston [1st Dist.] 2015, no pet.). And we have concluded that illegal narcotics use may support termination under Texas Family Code section 161.001(b)(1)(E). See Walker , 312 S.W.3d at 617–18 ; see also Vasquez v. Tex. Dep't of Protective & Regulatory Servs. , 190 S.W.3d 189, 195–96 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

Thus, viewing the evidence in the light most favorable to the trial court's finding, as we must when conducting a legal-sufficiency review, we conclude that the trial court could have formed a firm belief or conviction that mother engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E). We hold that the evidence is legally sufficient to support the trial court's finding that mother engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being. See id.

We overrule this portion of mother's first issue.

Having held that the evidence is legally sufficient to support the trial court's finding that mother engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being, we need not address the portions of mother's second and third issues in which she asserts that the evidence is legally insufficient to support the trial court's findings that she constructively abandoned the children, who had been placed in the permanent or temporary managing conservatorship of DFPS for not less than six months, and that she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children. See id. § 161.001(b)(1)(N), (O) ; In re A.V. , 113 S.W.3d at 362 (only one predicate finding under Texas Family Code section 161.001(b)(1) necessary to support judgment of termination); see also TEX. R. APP. P. 47.1.

Additionally, due to our disposition below,¹⁶ we need not address the portions of mother's first, second, and third issues in which she asserts that the evidence is factually insufficient to support the trial court's findings that she engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being; constructively abandoned the children, who had been placed in the permanent or temporary managing conservatorship of DFPS for not less than six months; and she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (N), (O). This is because, even were we to sustain any of the factual-sufficiency challenges raised in mother's first, second, or third issues, mother would not be granted any more relief than we have afforded her below. See In re A.A.H. , Nos. 01-19-00612-CV, 01-19-00748-CV, 2020 WL 1056941, at *18 (Tex. App.—Houston [1st Dist.] Mar. 5, 2020, no pet.) (mem. op.) ; see also TEX. R. APP. P. 47.1.

16 Because we reverse the portion of the trial court's order terminating mother's parental rights of the children and remand the case to the trial court for a new trial after concluding that the evidence is factually insufficient to support the trial court's best-interest finding, see infra , we do not run afoul of the Texas Supreme Court's decision in In re N.G. , 577 S.W.3d 230 (Tex. 2019), by not considering whether the evidence is factually insufficient to support the trial court's finding that mother engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being. See In re D.T. , Nos. 07-19-00071-CV, 07-19-00072-CV, 2019 WL 3210601, at *5 n.6 (Tex. App.—Amarillo July 16, 2019, no pet.) (mem. op.) ; see also Tex. Fam. Code Ann. § 161.001(1)(b)(E) ; In re N.G. , 577 S.W.3d at 237, 239 (explaining that only when appellate court "affirms the termination " of parental rights under section 161.001(b)(1)(D) or (E) must it address both legal and factual sufficiency of evidence "to support [a] section 161.001(b)(1)(D) and (E) finding[ ] as grounds for termination" (emphasis added)).

B. Best Interest of the Children

In her fourth issue, mother argues that the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights was in the best interest of the children because "[t]he record contains evidence that is neutral or weighs against the best interest termination finding" and "DFPS failed to meet its burden of proving that termination of [m]other's parental rights is in the children's best interest."

The best-interest analysis evaluates the best interest of the children. See In re D.S. , 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.). It is presumed that the prompt and permanent placement of the children in a safe environment is in their best interest. See TEX. FAM. CODE ANN. § 263.307(a) ; In re D.S. , 333 S.W.3d at 383.

There is also a strong presumption that the children's best interest is served by maintaining the parent-child relationship. In re L.M. , 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Thus, we strictly scrutinize termination proceedings in favor of the parent. In re N.L.D. , 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.). And because of the strong presumption in favor of maintaining the parent-child relationship and the due process implications of terminating a parent's rights to her minor children without clear and convincing evidence, "the best interest standard does not permit termination merely because ... child[ren] might be better off living elsewhere." In re J.G.S. , 574 S.W.3d 101, 121–22 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (internal quotations omitted); see also In re W.C. , 98 S.W.3d 753, 758 (Tex. App.—Fort Worth 2003, no pet.). Termination of parental rights should not be used as a mechanism to merely reallocate children to better and more prosperous parents. In re J.G.S. , 574 S.W.3d at 121–22 ; In re W.C. , 98 S.W.3d at 758 ; see also In re E.N.C. , 384 S.W.3d at 809 ; In re C.R. , 263 S.W.3d 368, 375 (Tex. App.—Dallas 2008, no pet.).

Moreover, termination is not warranted "without the most solid and substantial reasons." Wiley v. Spratlan , 543 S.W.2d 349, 352 (Tex. 1976) (internal quotations omitted); see also In re N.L.D. , 412 S.W.3d at 822. And in parental-termination proceedings, DFPS's burden is not simply to prove that a parent should not have custody of her children; DFPS must meet the heightened burden to prove, by clear and convincing evidence, that the parent should no longer have any relationship with her children whatsoever. See In re K.N.J. , 583 S.W.3d 813, 827 (Tex. App.—San Antonio 2019, no pet.) ; see also In re J.A.J. , 243 S.W.3d 611, 616–17 (Tex. 2007) (distinguishing conservatorship from termination).

In determining whether the termination of mother's parental rights is in the best interest of the children, we may consider several factors, including: (1) the children's desires; (2) the current and future physical and emotional needs of the children; (3) the current and future emotional and physical danger to the children; (4) the parental abilities of the parties seeking custody; (5) whether programs are available to assist those parties; (6) plans for the children by the parties seeking custody; (7) the stability of the proposed placement; (8) the parent's acts or omissions that may indicate that the parent-child relationship is not proper; and (9) any excuse for the parent's acts or omissions. See Holley v. Adams , 544 S.W.2d 367, 371–72 (Tex. 1976) ; In re L.M. , 104 S.W.3d at 647. We may also consider the statutory factors set forth in Texas Family Code section 263.307. See TEX. FAM. CODE ANN. § 263.307 ; In re A.C. , 560 S.W.3d 624, 631 n.29 (Tex. 2018) ; In re C.A.G. , No. 01-11-01094-CV, 2012 WL 2922544, at *6 & n.4 (Tex. App.—Houston [1st Dist.] June 12, 2012, no pet.) (mem. op.).

These factors are not exhaustive, and there is no requirement that DFPS prove all factors as a condition precedent to the termination of parental rights. See In re C.H. , 89 S.W.3d at 27 ; see also In re C.L.C. , 119 S.W.3d 382, 399 (Tex. App.—Tyler 2003, no pet.) ("[T]he best interest of the child does not require proof of any unique set of factors nor limit proof to any specific factors."). The absence of evidence about some of the factors would not preclude a fact finder from reasonably forming a strong conviction or belief that termination is in the children's best interest. In re C.H. , 89 S.W.3d at 27 ; In re J.G.S. , 574 S.W.3d at 122.

Likewise, a lack of evidence on one factor cannot be used as if it were clear and convincing evidence supporting termination of parental rights. In re E.N.C. , 384 S.W.3d at 808 ; In re J.G.S. , 574 S.W.3d at 122. In some cases, undisputed evidence of only one factor may be sufficient to support a finding that termination is in the children's best interest, while in other cases, there could be "more complex facts in which paltry evidence relevant to each consideration mentioned in Holley would not suffice" to support termination. In re C.H. , 89 S.W.3d at 27 ; see also In re J.G.S. , 574 S.W.3d at 122. The presence of scant evidence relevant to each factor will generally not support a finding that termination of parental rights is in the children's best interest. In re R.H. , No. 02-19-00273-CV, 2019 WL 6767804, at *4 (Tex. App.—Fort Worth Dec. 12, 2019, pet. denied) (mem. op.) ; In re A.W. , 444 S.W.3d 690, 693 (Tex. App.—Dallas 2014, pet. denied).

1. Children's Desires

At the time mother's parental rights were terminated, M.A.J. was four years old and both H.A.J. and B.D.J. were one year old. Generally, when children are too young to express their desires, this factor is considered neutral. See In re A.C. , 394 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2012, no pet.). And here, there is no evidence indicating that the children did not want to be returned to mother's care. See In re D.D.M. , No. 01-18-01033-CV, 2019 WL 2939259, at *5 (Tex. App.—Houston [1st Dist.] July 9, 2019, no pet.) (mem. op.) (considering in determining factor weighed against termination that no evidence indicated children did not want to be placed with parent).

Further, Child Advocates volunteer Clark testified that M.A.J. has "had some trouble adjusting" after being removed from mother's care. The children had been moved from one placement, and at the time of trial, they had only been in their current placement for a short period of time. There is no evidence that the children were bonded to their current foster parents. Cf. In re L.W. , No. 01-18-01025-CV, 2019 WL 1523124, at *17–18 (Tex. App.—Houston [1st Dist.] Apr. 9, 2019, pet. denied) (mem. op.) (factor weighed in favor of termination where children, although young, were "very close" to foster family and had "bonded" with and relied on foster parents for emotional support; foster family was only family one child had ever known and he never left foster parents' side (internal quotations omitted)). This factor does not weigh in favor of termination of mother's parental rights.

2. Current and Future Physical and Emotional Needs and Current and Future Physical and Emotional Danger

a. Condition of Home

The children need a safe and stable home. See TEX. FAM. CODE ANN. § 263.307(a) (prompt and permanent placement of child in safe environment presumed to be in child's best interest); In re G.M.G. , 444 S.W.3d 46, 60 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (parent who lacks ability to provide child with safe and stable home is unable to provide for child's emotional and physical needs). However, there is little evidence regarding the condition of mother's home before the children were removed from her care and no evidence about the conditions inside the home. The only evidence comes from the HCSO incident/investigation report dated July 23, 2018, which states that the property where mother was living at the time "contained various scrap metal piles and junked vehicles," "[r]usted scrap metal and broken glass ... on the ground," and "numerous safety hazards." Despite this description, there is no evidence that the children were harmed by these conditions. Nor is there evidence regarding the length of time these conditions remained on the property. See Ybarra v. Tex. Dep't of Human Servs. , 869 S.W.2d 574, 577–78 (Tex. App.—Corpus Christi–Edinburg 1993, no writ) (for conditions to endanger well-being of children, there must be connection between conditions and resulting danger to children's emotional or physical well-being). The law enforcement officer who visited the property noted in the report that his visibility of the property's condition was poor due to it being nighttime.

DFPS caseworker Cano testified that the children were "well" when they were removed from mother's care. And even cases involving unsanitary conditions do not uphold termination of parental rights based solely on such conditions. In re E.C.A. , No. 01-17-00623-CV, 2017 WL 6759198, at *13 (Tex. App.—Houston [1st Dist.] Dec. 28, 2017, no pet.) (mem. op.) ; In re R.W. , No. 01-11-00023-CV, 2011 WL 2436541, at *12–13 (Tex. App.—Houston [1st Dist.] June 16, 2011, no pet.) (mem. op.) (holding evidence factually insufficient to support termination of parental rights in best interest of children where, although children were dirty and lived in unsanitary home, they appeared healthy).

Additionally, DFPS presented no evidence that mother still lived at the aforementioned property at the time of trial or that any new residence of mother's was unsafe or unstable. See Ybarra , 869 S.W.2d at 579–80 ; see also Herrera v. Herrera , 409 S.W.2d 395, 396 (Tex. 1966) ; Toliver v. Tex. Dep't of Family & Protective Servs. , 217 S.W.3d 85, 101 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (DFPS has burden to rebut presumption that best interest of children is served by keeping custody with natural parent). A lack of evidence does not constitute clear and convincing evidence. In re E.N.C. , 384 S.W.3d at 808.

The record also does not contain any evidence of the condition of the children's current placement.¹⁷ See In re A.H. , 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.) (holding evidence insufficient to support best-interest finding where no information about children's current caregivers or nature of environment caregivers provided children); see also In re E.N.C. , 384 S.W.3d at 808. DFPS caseworker Cano opined that the children's current foster home was stable. See In re D.N. , No. 12-13-00373-CV, 2014 WL 3538550, at *3–5 (Tex. App.—Tyler July 9, 2014, no pet.) (mem. op.) (holding evidence insufficient to support termination of parental rights and noting DFPS caseworker and children's attorney ad litem did not provide any facts to form basis of opinion). But, conclusory opinion testimony, even if uncontradicted, does not amount to more than a scintilla of evidence; it is no evidence at all. See In re A.H. , 414 S.W.3d at 807 ; see also City of San Antonio v. Pollock , 284 S.W.3d 809, 818 (Tex. 2009) (opinion is conclusory "if no basis for the opinion is offered[ ] or the basis offered provides no support"); Arkoma Basin Expl. Co. v. FMF Assocs. 1990–A, Ltd. , 249 S.W.3d 380, 389 (Tex. 2008) (witness cannot "simply state a conclusion without any explanation" or ask trier of fact to just "take [her] word for it" (internal quotations omitted)); Earle v. Ratliff , 998 S.W.2d 882, 890 (Tex. 1999) (witness "must explain the basis of h[er] statements to link his conclusions to the facts"). This factor does not weigh in favor of termination of mother's parental rights.

17 The record only reveals that the children were neglected in a previous foster home while in DFPS's care.

b. Children's Needs

DFPS caseworker Cano testified that the children do not have any special needs. At the time of trial, H.A.J. and B.D.J. participated in occupational therapy and speech therapy and M.A.J. participated in individual therapy at school. Child Advocates volunteer Clark stated that M.A.J. needed "a little bit more therapy" because he had been having "trouble adjusting" to being in DFPS's care.

There is nothing in the record to establish that the children's physical and emotional needs differ in any respect to that of other children their age or that their needs would go unmet if they were returned to mother's care. Likewise, the record does not show that mother did not meet the children's physical and emotional needs while they were previously in her care, nor is there evidence that mother would not be able to meet the children's needs in the future. See In re E.N.C. , 384 S.W.3d at 808 (no evidence presented indicated that children's needs differ from other children or would go unmet if children were returned to parent); In re D.D.M. , 2019 WL 2939259, at *6 (DFPS presented no evidence parent could not meet children's therapeutic needs); In re E.W. , 494 S.W.3d 287, 300–01 (Tex. App.—Texarkana 2015, no pet.). DFPS caseworker Cano testified that when the children were removed from mother's care, they were "well." See In re W.C. , 98 S.W.3d at 758 (no evidence presented indicated that parent failed to meet children's needs in past); see also In re R.W. , 2011 WL 2436541, at *12–13 (holding evidence factually insufficient to support termination of parental rights in best interest of children where, although children were dirty and lived in unsanitary home, they appeared healthy).

And although Cano testified that the children's current placement was meeting their needs, this is nothing more than a conclusory opinion. See In re A.H. , 414 S.W.3d at 807 ; see also Pollock , 284 S.W.3d at 818 ; Arkoma Basin , 249 S.W.3d at 389 ; Earle , 998 S.W.2d at 890. In fact, there is no evidence addressing the children's physical and emotional condition at the time of trial. See In re D.T. , Nos. 07-19-00071-CV, 07-19-00072-CV, 2019 WL 3210601, at *6–9 (Tex. App.—Amarillo July 16, 2019, no pet.) (mem. op.) (holding evidence factually insufficient to support termination of parental rights in best interest of children where "[n]o caregiver testified" and "no evidence otherwise addressed the children's physical and emotional condition at the time of [the] final hearing"). And the record contains no details regarding the children's specific therapeutic needs, such as the severity of such needs or the amount of therapy believed to be required. This factor does not weigh in favor of termination of mother's parental rights.

c. Danger to Children

DFPS caseworker Cano testified that the children entered the care of DFPS based on an allegation of negligent supervision occurring on June 24, 2018, but Cano did not know anything about the allegation and did not testify that it was mother who had allegedly not supervised M.A.J. properly.¹⁸ Further, any allegation of sexual abuse of M.A.J. had also been "ruled out" by DFPS. See Duffey v. Duffey , No. 14-16-00144-CV, 2017 WL 6045569, at *2 (Tex. App.—Houston [14th Dist.] Dec. 7, 2017, pet. denied) (mem. op.) ("[r]uled [o]ut" means that "it was reasonable to conclude that the alleged abuse or neglect did not occur" (internal quotations omitted)). Cano knew nothing about an incident involving injury to M.A.J. on July 23, 2018, and she only speculated that it was "a failure to protect on [mother's] part." Still yet, Cano only offered conclusory testimony that mother had engaged in a continuous course of conduct that had endangered the physical and emotional well-being of the children. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp. , 136 S.W.3d 227, 232 (Tex. 2004) ("Opinion testimony that is conclusory or speculative is not relevant evidence...."); In re D.N. , 2014 WL 3538550, at *3–5 (holding evidence insufficient to support termination of parental rights and noting DFPS caseworker and children's attorney ad litem did not provide any facts to form basis of opinion); In re A.H. , 414 S.W.3d at 807 ; see also Pollock , 284 S.W.3d at 818 ; Arkoma Basin , 249 S.W.3d at 389 ; Earle , 998 S.W.2d at 890.

18 Mother's FSP notes that there was an allegation of negligent supervision of M.A.J. on July 3, 2018, but it provides no details related to this allegation and does not allege that mother was involved. See In re E.N.C. , 384 S.W.3d 796, 808 (Tex. 2012).

The HCSO incident/investigation report dated July 23, 2018 states that mother reported an incident after M.A.J. was injured while fighting with another child. A law enforcement officer who arrived at mother's home examined M.A.J., who had redness and swelling around both of his eyes, minor scrapes on the right side of his chin and along his forehead, and swollen wrists. Mother told the officer that M.A.J. was playing with a neighbor, a five-year-old child, D.G., in the yard when the two children began fist-fighting. D.G. hit M.A.J., and M.A.J. fell to the ground. M.A.J. got back up, and the children continued fighting. M.A.J. eventually knocked D.G. to the ground. D.G.'s mother then approached the two children and struck M.A.J. with the back of her hand. This caused M.A.J. to fall to the ground and "scream in pain." The law enforcement officer noted that M.A.J.'s injuries were consistent with "being in a fight with a larger child" and were not consistent with being struck by an adult.

A follow-up supplemental report states that there was "no further investigation [into the incident] by the Special Victims/Child Abuse Unit." "The allegations of injury to a child were due to[ ] 3 year old [M.A.J.] and 5 year old [D.G.] engag[ing] in a physical altercation outside their residence." Both parents were present and observed the altercation. D.G.'s mother "broke up the fight," but M.A.J. was struck in his back with her hand. The law enforcement officer reviewing the incident concluded that it involved "mutual combat between 2 children." And the case was closed.

The record does not contain evidence that mother acted aggressively or violently toward the children while they were in her care. And there is no evidence that mother negligently supervised the children, abused the children, or exposed them to physical danger. See In re E.N.C. , 384 S.W.3d at 808–10 ("A lack of evidence does not constitute clear and convincing evidence."); In re J.C. , No. 12-19-00102-CV, 2019 WL 3940803, at *4–5 (Tex. App.—Tyler Aug. 21, 2019, no pet.) (mem. op.) ; see also In re E.C.A. , 2017 WL 6759198, at *13 (noting children had not been abused by parent); In re J.P. , No. 02-10-00448-CV, 2012 WL 579481, at *9 (Tex. App.—Fort Worth Feb. 23, 2012, no pet.) (mem. op.) (holding evidence factually insufficient to support finding termination of parental rights in child's best interest where grounds for terminating parent's rights did not involve allegations of physical or sexual abuse of child by parent); In re R.W. , 2011 WL 2436541, at *13. In fact, DFPS's initial permanency goal was family reunification for the children and mother.¹⁹ And the HCSO incident/investigation report indicates that mother reported the incident during which M.A.J. was injured by another child.

19 The October 11, 2018 "Status Hearing Order," admitted into evidence at trial, also states that DFPS's goal was "to return the children to the[ir] parent."

Significantly, the record reveals that while the children have been in DFPS's care, they were placed in a foster home where they were neglected. See In re C.T.E. , 95 S.W.3d 462, 468 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (considering emotional and physical danger to children while in DFPS's care). This factor does not weigh in favor of termination of mother's parental rights.

d. Narcotics Use

Without providing any explanation or details, DFPS caseworker Cano testified that mother had used narcotics in the past and continued to do so. She also stated that mother had not completed her outpatient treatment related to her substance-abuse issues. Mother did complete her substance abuse assessment.

Mother's FSP states that DFPS received a referral alleging that mother had engaged in narcotics use. The FSP also notes that on July 24, 2018, mother tested positive for methamphetamine, amphetamine, and marijuana use.

Mother's narcotics-use testing results, admitted into evidence at trial, indicate that she tested positive for amphetamine, methamphetamine, and marijuana use on July 24, 2018 (urinalysis).²⁰ Thereafter, mother tested positive for marijuana use on September 6, 2018 (hair follicle test), positive for marijuana use on November 8, 2018 (hair follicle test), positive for marijuana use on December 11, 2018 (hair follicle test), positive for marijuana use on January 16, 2019 (urinalysis and hair follicle test), positive for marijuana use on February 13, 2019 (urinalysis), positive for marijuana use on March 14, 2019 (urinalysis), and positive for marijuana use on May 14, 2019 (hair follicle test).²¹

20 This appears to be the same testing result referenced in mother's FSP.

21 Mother did not submit to narcotics-use testing on October 15, 2018 or on February 8, 2019.

However, mother also tested negative for narcotics use in April 2016 (hair follicle test), on November 8, 2018 (urinalysis), on November 28, 2018 (urinalysis and hair follicle test), and on December 11, 2018 (urinalysis).

Narcotics use by a parent is certainly not desirable. See In re C.V.L. , 591 S.W.3d 734, 756 (Tex. App.—Dallas 2019, pet. denied) (agreeing parent's narcotics use constituted factor to be considered in best-interest analysis); see also In re J.N. , 301 S.W.3d 429, 434–35 (Tex. App.—Amarillo 2009, pet. denied) (although parent tested positive for narcotics use, holding evidence factually insufficient to support trial court's determination termination of parental rights in best interest of child). However, there is no evidence that mother used narcotics in the presence of the children or while she was caring for them. And there is no evidence that mother was impaired while caring for the children or that the narcotics were accessible to the children. DFPS caseworker Cano's testimony regarding narcotics use by mother is speculative and conclusory at best, and it is unclear at times during her testimony whether she is even referring to narcotics use by mother.

Notably, the results from mother's April 2016 narcotics-use testing, while M.A.J. was in her care, show that mother tested negative for narcotics use. Further, the only time that mother tested positive for amphetamine or methamphetamine use in this case was on July 24, 2018. Thus, mother stopped testing positive for any "hard drugs" a year before trial. See Campbell v. State , No. 11-10-00387, 2012 WL 2150739, at *3 (Tex. App.—Eastland June 14, 2012, no pet) (mem. op., not designated for publication) (characterizing methamphetamine as "[a] hard drug[ ]"); see also TEX. HEALTH & SAFETY CODE ANN. § 481.102(6) (methamphetamine constitutes "Penalty Group 1" narcotic). And although mother tested positive for marijuana use at times during the pendency of the case, on several occasions mother tested negative or both positive and negative for marijuana use on the same date.²² Finally, DFPS sought to return the children to mother's care, even after knowing that she had tested positive for narcotics use. See In re C.V.L. , 591 S.W.3d at 755–59 (refusing to hold, solely based on evidence of parent's narcotics use, that evidence was sufficient to support termination of parental rights); In re E.C.A. , 2017 WL 6759198, at *11–13 (holding evidence factually insufficient to support finding termination of parental rights in children's best interest, although "[m]other was a synthetic marijuana user[,] ... left the blunts from her drug use within reach of the children[, and] ... tested positive for cocaine on the same day that the [FSP] was approved by the trial court" and while she was pregnant); In re J.P. , 2012 WL 579481, at *8–9 (holding evidence factually insufficient to support termination of parental rights in best interest of trial event though parent "had been abusing drugs for years and had used crack, cocaine, and marijuana during the month prior to trial"); Turner v. Lutz , 685 S.W.2d 356, 360–61 (Tex. App.—Austin 1984, no writ) (evidence of parent's "alcohol problem" did not include any evidence showing emotional or physical danger to children); cf. In re G.N. , 510 S.W.3d 134, 135, 138–40 (Tex. App.—El Paso 2016, no pet.) (parent had "history of substance abuse, including use of cocaine, marijuana, and opiates" and "a substantial criminal history which include[d] ... four cases involving possession of drugs"; parent did not address his "substance abuse issues" and "refused to be tested for drugs after a pipe containing cocaine was found in his vehicle"); In re A.C. , 394 S.W.3d at 642 ("[M]other admitted she had used drugs during her pregnancy even though she knew it might harm the child. She tested positive for drugs a month after the child was removed. And she used drugs even though that violated the conditions of her probation, resulting in her going to jail, away from the child."). This factor only weighs slightly in favor of termination of mother's parental rights.

22 We note that courts' consideration of parental marijuana use in termination-of-parental-rights cases is evolving. See, e.g., In re N.J.H. , 575 S.W.3d 822, 836–41 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (Brown, J., concurring).

3. Parental Abilities, Plans for Children, Stability of Proposed Placement, and Availability of Assistance

a. Mother

DFPS casework Cano testified that when the children were removed from mother's care, they were "well." Cano also acknowledged that mother had completed some of the requirements of her FSP. Although mother had not visited the children during the pendency of the case, this was because the trial court had suspended her visits at the beginning of the case. See In re D.T. , 2019 WL 3210601, at *8–9 (noting limited evidence regarding trial court's suspension of visitation for parent in holding evidence factually insufficient to support termination of parental rights in children's best interest).

As previously noted, there is little evidence regarding the condition of mother's home before the children were removed from her care and no evidence about the conditions inside the home. The only evidence comes from the HCSO incident/investigation report dated July 23, 2018, which states that the property where mother was living at the time "contained various scrap metal piles and junked vehicles," "[r]usted scrap metal and broken glass ... on the ground," and "numerous safety hazards." However, there is no evidence that the children were harmed by any of these conditions, and the law enforcement officer who visited the property noted in his report that his visibility of the property's condition was poor due to it being nighttime. See Ybarra , 869 S.W.2d at 577–78 (for conditions to endanger well-being of children, there must be connection between conditions and resulting danger to children's emotional or physical well-being).

Additionally, DFPS presented no evidence that mother still lived at the aforementioned property at the time of trial or that any new residence of mother's was unsafe or unstable. There is no evidence regarding the condition of mother's current home at all. See Ybarra , 869 S.W.2d at 579–80 ; see also In re E.N.C. , 384 S.W.3d at 808 ; Herrera , 409 S.W.2d at 396 ; Toliver , 217 S.W.3d at 101 (DFPS has burden to rebut presumption that best interest of children is served by keeping custody with natural parent). This factor does not weigh in favor of termination of mother's parental rights. b. Children's Current Placement

As previously noted, the record contains no evidence of the condition of the children's current placement. There is also no evidence regarding the parental abilities of the children's current foster parents or the environment that they have provided the children. See In re E.N.C. , 384 S.W.3d at 808. At the time of trial, the children had only been in their placement for a short period of time. And although DFPS caseworker Cano testified that the children were residing in an "adoptive" home, there is no evidence that the children's current placement wants to adopt them or wants the children to remain in the home.²³ See Horvatich v. Tex. Dep't of Protective & Regulatory Servs. , 78 S.W.3d 594, 601–04 (Tex. App.—Austin 2002, no pet.) (holding evidence insufficient to support finding termination in best interest of children where record not developed concerning current circumstances of children); see also In re E.N.C. , 384 S.W.3d at 808–09 (DFPS "presented no evidence that another family wishe[d] to adopt the children, or that the children's foster parents c[ould] provide for them in a way [their parent could] [ ]not"); In re E.C.A. , 2017 WL 6759198, at *13 (considering significant in analysis "the fact that DFPS had no evidence about their plans for the children's future").

23 Although DFPS caseworker Cano stated that the children's foster parents were in the courtroom at trial, this is not evidence of anything other than their presence.

Additionally, the evidence shows that while in DFPS's care, the children were neglected. See In re C.T.E. , 95 S.W.3d at 468. This factor does not weigh in favor of termination of mother's parental rights.

DFPS must support its allegations against a parent, including its allegation that termination of parental rights is in the best interest of the children, by clear and convincing evidence; conjecture or a preponderance of evidence is not enough. See In re E.N.C. , 384 S.W.3d at 808–10 ; see also In re R.H. , 2019 WL 6767804, at *4 ; In re A.W. , 444 S.W.3d at 693 (presence of scant evidence relevant to each factor will generally not support finding that termination of parental rights is in children's best interest); Toliver , 217 S.W.3d at 101 (DFPS has burden to rebut presumption that best interest of children is served by keeping custody with natural parent). This is a high evidentiary burden that DFPS must meet, especially considering the presumption that the children's best interest is served by maintaining the parent-child relationship. In re E.C.A. , 2017 WL 6759198, at *13 ; In re R.W. , 2011 WL 2436541, at *12.

Although we recognize that the trial court and the parties in this proceeding had many hearings before the date of trial, we emphasize that none of the previous hearings constitute evidence that can support the trial court's order terminating mother's parental rights to the children. The only evidence that can support the trial court's order is that evidence admitted at trial.²⁴ See In re E.F. , 591 S.W.3d 138, 142 n.4 (Tex. App.—San Antonio 2019, no pet.). We are cognizant of the extraordinary burdens placed on all participants in a termination-of-parental-rights case, but given the constitutional rights of the parent involved in such a proceeding, the interests of the children involved, and the effect that placement of the children will have on numerous lives, it is imperative that the parties completely develop the evidence at trial. See id. There is a reason the law sets a high evidentiary bar for the termination of parental rights. See Santosky , 455 U.S. at 753–54, 102 S.Ct. 1388 ("The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.... If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections....").

24 The reporter's record from trial in this case is thirty-two pages total, including the cover, list of appearances, table of contents, and court reporter's certificate. Although the trial court admitted twenty-five exhibits into evidence at trial, most of them either do not relate to mother or have no bearing on whether her parental rights should have been terminated. Cf. In re E.F. , 591 S.W.3d 138, 142 n.4 (Tex. App.—San Antonio 2019, no pet.). To the extent that our dissenting colleague references matters not admitted into evidence at trial, we take exception.

Viewing the evidence in a neutral light, we conclude that a reasonable fact finder could not have formed a firm belief or conviction that termination of mother's parental rights was in the best interest of the children. See TEX. FAM. CODE ANN . § 161.001(b)(2). Accordingly, we hold that the evidence is factually insufficient to support the trial court's finding that termination of mother's parental rights is in the best interest of the children.²⁵ See id.

25 Due to mother's narcotics use and our prior case law, viewing the evidence in the light most favorable to the trial court's finding, as we must when conducting a legal-sufficiency review, we conclude that the trial court could have formed a firm belief or conviction that termination of mother's parental rights was in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(b)(2). Accordingly, we hold that the evidence is legally sufficient to support the trial court's finding that termination of mother's parental rights is in the best interest of the children. See id. ; see also In re A.A.H. , 2020 WL 1056941, at *7 n.4 (because legally insufficient evidence requires rendition of judgment in favor of party raising the challenge, we must address it); In re L.N.C. , 573 S.W.3d at 315.

We sustain a portion of mother's fourth issue.

Conclusion

We reverse the portion of the trial court's order terminating mother's parental rights and remand the case to the trial court for a new trial.²⁶ See TEX. R. APP. P. 28.4(c) ; In re J.O.A. , 283 S.W.3d 336, 347 (Tex. 2009). Because mother did not challenge the trial court's appointment of DFPS as the children's sole managing conservator, we affirm that portion of the trial court's order. See In re J.A.J. , 243 S.W.3d at 612–13.

26 Our dissenting colleague appears to criticize our analysis in this case because "[t]he result of [our] application of the law" purportedly keeps "the children in permanent foster care with no hope of adoption and with very little, if any, prospect of reunion with [their] parent." Contrary to our colleague's assertion, however, we have actually reversed the trial court's order terminating mother's parental rights and remanded the case to the trial court for a new trial (of which no one knows the outcome). In doing so, we remain vigilant in abstaining from "results-oriented judging." See In re V.V. , 349 S.W.3d 548, 576 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (Jennings, J., dissenting) (internal quotations omitted) ("Judges should decide cases that come before them based upon the facts in evidence and the governing law, not upon their moral preferences, desires, or the dictates of their emotions.").

Further, we recognize that decisions in cases involving termination of parental rights are never easy, but "the law and canons of ethics require that we remain neutral" and impartial and treat all parties with dignity and respect. See Jordan v. Jefferson Cty. , 153 S.W.3d 670, 676 (Tex. App.—Amarillo 2004, pet. denied) ; see also Barrie v. Costello , 401 S.W.2d 707, 711 (Tex. App.—Austin 1966, writ ref'd n.r.e.) (recognizing that even when parental rights are terminated, court should not express view "that a mother should never be forgiven for past mistakes or that she should never be permitted to reshape her life").

Keyes, J., dissenting. DISSENTING OPINION ON REHEARING

Evelyn V. Keyes, Justice, dissenting.

I respectfully dissent. The majority opinion subverts the carefully articulated and established standard of review of sufficiency of the evidence to support termination of parental rights. It omits evidentiary facts material to the determination of whether the Department of Family & Protective Services (DFPS) proved by clear and convincing evidence any of the alleged predicate acts necessary for termination under Texas Family Code subsections 161.001(b)(1)(E) (endangerment of a child), (N) (abandonment of a child), and (O) (failure to complete Family Service Plan), all of which were found by the trial court to support termination. It reviews only some of the evidence relating to subsection (E), and it faults DFPS for not including in the record hypothetical evidence favorable to Mother that it assumes must exist. It then declares, without legal argument, and in a footnote apart from its textual arguments, that the evidence in favor of the only predicate act that it reviews—endangerment of a child—is legally sufficient to support termination; but it refuses to address whether it is factually sufficient because that determination is not necessary to its review and would grant Mother more relief than she sought. It thus necessarily fails to perform the detailed review required to determine whether sufficient evidence supports the finding that Mother committed a predicate act, in clear violation of the standard of review.

It then turns to the sufficiency of the evidence to support the trial court's finding that termination of Mother's parental rights is in the best interest of the children. In another footnote, the majority similarly declares, on the basis of the same kind of review as before, that the evidence is legally but not factually sufficient to support the best interest finding. Accordingly, it reverses the trial court's order terminating Mother's parental rights to three of her children—M.A.J. Jr. (M.A.J.), H.A.J., and B.D.J.—under Family Code subsections 161.001(b)(1)(E), (N), and (O) and remands the case for a new trial. It affirms the part of the trial court's order appointing DFPS as the children's sole managing conservator, leaving the children in the perpetual limbo of permanent foster care with only the prospect of their return to a drug-addicted mother who has not bothered to visit them since they were removed from her care in 2018 and who satisfies none of the factors designed to show her fitness as a parent.

Established law requires that, to satisfy constitutional due process standards, the reviewing court must address both the legal and the factual sufficiency of the evidence supporting the statutory predicate acts required for termination and the evidence of the children's best interests; review the legal sufficiency of the evidence in the light most favorable to the trial court's ruling and the factual sufficiency in a neutral light; and base its own ruling on the legal and factual sufficiency of all the evidence to support termination. Here, such review shows that the evidence in favor of termination adduced at trial is overwhelming and the evidence against termination is virtually non-existent. Accordingly, I respectfully dissent. I would affirm the judgment of the trial court.

Background

Because the majority omits facts material to the trial court's determination that clear and convincing evidence supports the relevant predicate acts, and, therefore, likewise material to determining the children's best interests, I have restated the record facts below. See In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002) (in factual sufficiency review, appellate court "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing").

DFPS became involved with Mother and three of her children—M.A.J., a son born in January 2015, and H.A.J. and B.D.J., twin girls born in April 2018—after receiving a referral alleging sexual abuse of M.A.J. and drug use by both parents.¹ On June 25, 2018, Child Protective Services (CPS) investigator Wanda Alamutu interviewed Mother at her home and observed the three children.

1 Father did not appeal the trial court's decision to terminate his parental rights to the three children.

Mother told Alamutu that she was unmarried and unemployed, that she received governmental assistance, including food stamps and Medicaid for the three children, and that, although she did not receive court-ordered child support, the children's father offered financial help.² Mother denied drug use. When asked about the allegation of sexual abuse, she stated that M.A.J. told her that a family friend had "touched him." She stated that she took M.A.J. to see a doctor and that she no longer allowed the family friend access to him. Alamutu noted that Mother "appeared to be appropriate and cooperating with the agency." Alamutu also observed that all three children were dressed appropriately "with no visible bruises or marks" and were "bonding with their parents," and she noted no other concerns with Mother or the children.

2 The record indicates that Father committed arson nine months before M.A.J.'s birth and burglary in 2015 when M.A.J. was one year old. Father was confined for part of the time after the burglary offense in a substance abuse felony punishment facility. During that time, when not confined, he continued to live with Mother, as is shown by the fact that he is in the record as the father of all three children.

Alamutu arranged a forensic appointment for M.A.J. Mother agreed to take him to the appointment, but she failed to do so because she did not have money for gas. Alamutu rescheduled M.A.J.'s appointment and made transportation arrangements for Mother.

On July 3, 2018, Alamutu contacted Mother to inform her that DFPS had received another referral and that, as a result, Mother needed to take a drug test.³ Although Mother agreed to the testing, she did not follow through because the hair follicle testing required shaving the back of her hair.

3 There is no additional information about this referral in the appellate record.

On July 23, 2018, the Harris County Sheriff's Office responded to a report of injury to a child at Mother's home. The incident report stated that "[t]he location contained various scrap metal piles and junked vehicles. Rusted scrap metal and broken glass were found on the ground throughout the property. The location was found to have numerous safety hazards."

Mother told the responding officer that a 5-year-old neighbor had started a physical altercation with 3-year-old M.A.J. and that the neighbor's mother had intervened, striking M.A.J. on his face with the back of her hand and knocking him to the ground. Mother told the officer that she did not try to break up the fight because M.A.J. had not started the fight and he was winning. The neighbor's mother, who had reported the incident, had a different account of how the fight transpired. She also stated that, although she did pull her son away from the fight, she did not strike M.A.J.

The responding officer's report described M.A.J.'s injuries as "consistent with being in a fight with a larger child," including "[r]edness and swelling ... observed around both of his eyes," "[m]inor scrapes ... on the right side of his chin and along his forehead," and swelling to his wrists; and the report concluded that these injuries did not "match a strike from an adult." The report stated that, "[d]ue to conflicting stories and inconsistencies in injuries, [the responding officer] found all parties involved to not be credible." The reporting officer referred the case to DFPS due to "the violent nature of the incident and the hazardous environment in which both children lived."

The next day, July 24, 2018, Alamutu informed Mother of the new allegations. Mother stated that "children play and are going to hit each other." Alamutu also asked Mother to sign a "safety plan," stating her agreement to leave her home with the children to live with a family friend and to disallow Father further contact with the children "until he cooperates and completes drug testing." Alamutu also asked that Mother submit to urine drug testing. Mother complied with both requests that day. The service plan documented that Mother's drug use presented a health and safety concern for the children.

Alamutu asked M.A.J. about the allegations that his neighbor had hit him, but he did not want to speak about it. She did not notice any bruises or marks on M.A.J.'s face where Mother said the neighbor had hit him. She observed M.A.J. bonding with Mother, and she noted that he was dressed appropriately with clean clothes.

On August 6, 2018, Alamutu was informed that Mother and the children had moved to live with Mother's aunt in Goodrich, Texas, because Father was "talking to another woman" and Mother "wants the best for her children."

On August 10, 2018, the results from Mother's drug testing returned positive for high levels of methamphetamine and amphetamine and positive for marijuana. When Mother, who was then living in Livingston, Louisiana, was informed of the test results, she left Livingston, and "her whereabouts [were] unknown."

On August 21, 2018, Alamutu learned that Mother and the children were back at her home in Houston. Alamutu visited Mother and informed her that, based on her positive drug test, she was concerned about Mother's ability to provide a safe environment for the children.

The following day, August 22, 2018, DFPS filed an original petition for protection of the children, conservatorship, and termination of Mother's parental rights. The petition alleged that Mother had committed acts or omissions that constituted predicate grounds for termination of her parental rights under Family Code subsections 161.001(b)(1)(E), (N), and (O), and that termination of her parental rights was in the best interest of the children.

DFPS attached Alamutu's affidavit to its petition. In it, Alamutu stated that, prior to the 2018 referrals of Mother to CPS, Mother had been referred to CPS for physical neglect in May and June 2016 after M.A.J. was treated in a hospital emergency room for "bites or sores" on his buttock. The wounds were abscesses from bites that appeared to be "both new and old." Alamutu noted that Mother "did not appear to be concerned about the one-year old's condition." Mother completed Family Based Safety Services with CPS in October 2016 for the incident and DFPS's disposition of the referral was noted as "ruled out."

Alamutu's affidavit also stated that Mother had a criminal history, including a conviction for engaging in organized criminal activity in November 2015 and a conviction for burglary of a habitation in March 2016. And it stated that Mother had "current and previous drug usage," including positive drug testing results for marijuana and "high levels" of methamphetamine and amphetamine in her urine in July 2018. It also stated that Mother had refused to submit to hair follicle testing.

On that same day, August 22, 2018, the trial court issued an order of protection, and DFPS removed the children from Mother's home and placed them in a foster home.

On September 6, 2018, after the statutorily required adversary hearing, the trial court signed an order appointing DFPS temporary managing conservator of the children. The trial court also signed a separate order for Mother to submit to drug testing. A sample taken from Mother that day tested positive for marijuana. After the children were removed neither parent regularly visited the children, and Mother's visits were suspended near the beginning of the case because she would not provide information on the location of her other child, which would have allowed her to have visitation rights.

DFPS created a Family Service Plan for Mother, setting out the steps she had to take to be reunited with her children. Mother's Family Service Plan required her to obtain and maintain for more than six months stable, safe, clean housing that was free of hazards and had operational utilities such as electricity, water, and gas; to obtain and maintain stable employment; to refrain from criminal activity; to complete parenting classes; to submit to random drug screenings; to complete a substance abuse assessment and follow all recommendations; to complete a psychosocial assessment and follow all recommendations; and to participate in individual therapy and substance abuse treatment. DFPS filed Mother's Family Service Plan with the court on October 1, 2018.

DFPS also filed CPS specialist Gabriela Cano's status report, which recommended that DFPS continue as the children's temporary managing conservator and requested that Mother's Family Service Plan, filed contemporaneously with the status report, be made an order of the court. The court ordered the parents to comply with the service plan with a warning that failure to do so could result in termination of parental rights. The order also required that the parents provide a Child Placement Resources Form and contact information.

On October 11, 2018, the court found that Mother had reviewed her service plan and signed it, and it was made an order of the court. However, neither parent provided their Child Placement Resources Form and contact information.

Mother's urine sample, collected in November 2018, was negative but her hair sample was positive for marijuana.

In January 2019, both DFPS and Child Advocates, Inc., the children's court-appointed advocate, filed reports in anticipation of the trial court's February 2019 permanency hearing. DFPS, through Cano, filed a permanency report stating that Mother had been referred to DFPS in January 2016 for neglectful supervision and physical neglect of M.A.J. and in May 2016 for neglectful supervision and medical neglect of M.A.J., and noting that these referrals had been designated as "ruled out" by CPS. The report also stated that, in December 2018, Mother had been referred to DFPS for neglectful supervision of J.J., a child of Mother's who is not part of the underlying proceedings, and it noted that CPS had "ruled out" the referral. The report designated the July 2018 referral for neglectful supervision that arose from M.A.J.'s fight with his neighbor as "reason to believe" the allegations. The report described all three children who were in foster care as "happy." But it stated that DFPS's goal had changed from "family reunification" to "unrelated adoption ... due to [Mother's] testing positive [for drugs] consistently."

Cano also noted in the report that Mother was taking parenting classes and that although she had been referred for her psychosocial and drug assessments, she had not completed the assessments. And she noted that although Mother stated that she did not have contact with Father, "family friends have informed [Cano] that [Mother] does have contact" with Father, and Mother "admitted to seeing [Father] before Christmas." Additionally, Mother had not obtained an income or stable housing, and Cano stated that "[t]here are concerns that [Mother] also might be pregnant, and she admitted to smoking [during] the month of January due to finding out she has a warrant." The report also stated that Mother had tested negative for drugs twice in November, but that she had tested positive for marijuana in December.

In her January 2019 report to the trial court, Kristy Clark, the children's guardian ad litem through Child Advocates, stated that Mother had begun parenting classes but had "not completed any other services that Child Advocates is aware of at this time." Noting that Mother "has a history of substance abuse and recently admitted to Child Advocates that she used marijuana," and that she had a prior CPS history, Clark concluded that Mother was unable to care for the children's health and safety. Clark recommended that DFPS maintain temporary managing conservatorship of the children.

Clark's report also addressed the children's foster placements. After a family illness caused their original foster family to be unable to continue to care for them, the children were placed in a second foster home. While in the second foster home, all three of the children lost a significant amount of weight, and M.A.J. and H.A.J. had unexplained bruises. The children were medically evaluated for abuse and neglect. Due to concerns for their safety, the children were not returned to the second foster home; instead, they were placed in a third foster home. The twins were then evaluated by a pediatrician and referred to a hospital for a possible diagnosis of re-feeding syndrome.

The trial court held a permanency hearing in February 2019. The record indicates that Mother was not present at the hearing, after which the trial court signed an order approving and incorporating Mother's Family Service Plan and finding that Mother had "not demonstrated adequate and appropriate compliance with the service plan." The trial court also ordered Mother to submit to drug testing.

Urine samples collected from Mother in January, February, and March 2019 were positive for marijuana. Letters from the testing center confirm that neither Mother nor Father showed up for other court-ordered drug tests in January and February 2019.

In early May 2019, DFPS and Child Advocates each filed reports in advance of the permanency hearing set at the end of the month. On behalf of DFPS, Cano filed a permanency report, stating that Mother had completed her psychosocial assessment and that she had been referred for individual counseling "to address the stress she is dealing with and her past problems with [alcohol and other drugs]." While Mother had begun her parenting classes, maintained contact with CPS, and avoided new criminal activity, she had not completed her substance abuse assessment, provided proof of income or stable housing, attended court hearings, or demonstrated the ability to place her children's needs above her own. After the last permanency report in January 2019, Mother had tested positive for marijuana in January, February, and March. Cano recommended that the children's current placement be continued and approved.

In her report for Child Advocates filed in May 2019, Clark stated that although Mother had begun parenting classes, she had not completed any other services. She also recommended that, because of Mother's "history of substance abuse," Mother undergo further drug testing. With regard to the children's progress since being placed in foster homes, Clark stated that Child Advocates had continued to monitor H.A.J. and B.D.J. in connection with the weight loss they had experienced in their second placement. She also stated that both H.A.J. and B.D.J. were developmentally delayed, with cognitive, expressive, receptive, and language delays, and that B.D.J. was reported to have "trunk issues, which caused her not to be able to sit up straight," but Child Advocates had noticed improvement in B.D.J.'s posture. Clark also stated that M.A.J.'s speech had greatly improved and that he had made "a lot of progress" at school. Clark concluded that Mother had "not resolved the reasons for [her] involvement with DFPS," and she recommended that DFPS maintain temporary managing conservatorship of the children and that they remain in their current placement.

The trial court held a permanency hearing on May 14, 2019. The record indicates that Mother was present for the hearing. Cano testified that Mother had started parenting classes and completed her psychosocial assessment but had not provided proof of housing or stable income or undergone substance abuse treatment and was still testing positive for drugs. Cano agreed that Mother "really isn't working her services at all" and that, other than a psychosocial assessment, she had not "done anything really." Cano also testified that Mother had been charged recently with "prostitution." When asked whether CPS was opposed to permitting Mother supervised visits at CPS offices, Cano stated that CPS was opposed because Mother "is testing positive for drugs." Cano also stated that Mother had given her the name of a family friend as a possible placement for the children, but this family friend's home study was denied.

Clark also testified at this permanency hearing. She stated that she had visited the children at their current placement, which she described as "absolutely wonderful."

At the close of the hearing, the trial court called Mother to the bench and stated,

Okay. So you have a limited amount of time to provide a safe and stable home environment for your children. If you're unwilling to do so or cannot do so, then your parental rights can be restricted or terminated.... The trial on this case is July 30th, 2019, and dismissal date is August 23rd, 2019.

Mother replied, "[Y]es, ma'am."

After the hearing, the trial court signed an order finding that Mother had "not demonstrated adequate and appropriate compliance with the service plan." The trial court also ordered Mother to submit to drug testing.

DFPS filed its final pre-termination permanency report in July 2019. In it, Cano stated that Mother had maintained contact with DFPS and that she had avoided engaging in criminal activity. Mother had not, however, provided proof of housing or income, attended all of her court hearings, or demonstrated the ability to place her children's needs above her own. Mother had started but had not completed parenting classes. While she had completed her substance abuse assessment, she had not completed the outpatient treatment as instructed. And she had completed her psychosocial assessment, which recommended counseling "to address the stress she is dealing with and her past problems" with alcohol and drugs. The report also stated that Mother had tested positive for marijuana in January, February, and March 2019.

Trial of the case commenced on July 30, 2019. When Mother did not appear for trial, her counsel requested that the case be continued because she believed that Mother "would like to be here knowing that the goal is termination." The trial court denied Mother's counsel's request.

Before calling its witnesses, DFPS introduced and the trial court admitted Mother's Family Service Plan, the July 23, 2018 police incident report, the court's temporary orders, hearing status orders, and permanency orders in the case, and Mother's drug test results. The drug test results indicated that she had tested positive for marijuana and high levels of amphetamine and methamphetamine in July 2018, and positive for marijuana in September, November,⁴ and December 2018, and in January, February, March, and May 2019, and that she had failed to appear for testing on January 3 and February 8, 2019.

4 Although Mother tested negative for all substances tested on November 8, 2018, she tested positive for marijuana again on November 28, 2018.

Cano testified that DFPS sought termination of Mother's parental rights under Family Code subsection 161.001(b)(1)(E) because she had engaged in conduct that endangered the physical and emotional well-being of the children, specifically, drug use and physical abuse. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Cano stated that there were positive drug test results for Mother dating back to 2016 and that Mother continued to abuse drugs. When asked about the July 2018 physical abuse referral, Cano could not recall whether Mother was the alleged perpetrator, but she agreed that the allegation was "basically a failure to protect" and that Mother had not "addressed those issues."

Cano also asked the trial court to terminate Mother's parental rights pursuant to subsection (N) because she had failed to maintain significant contact with her children after they were removed from her custody. See id. § 161.001(b)(1)(N). Cano stated that Mother had not regularly visited the children since their removal, and she explained that Mother's visits had been suspended at the beginning of the case because Mother would not give DFPS the location or other information regarding a fourth biological child of Mother's who lived with a cousin or a family friend. She further explained that had Mother cooperated and provided this information, she would have been able to visit M.A.J., H.A.J., and B.D.J.

Cano testified that DFPS was also seeking termination of Mother's parental rights under subsection (O) for failure to complete her court-ordered Family Service Plan. See id. § 161.001(b)(1)(O). When asked about the progress Mother had made on her Family Service Plan, Cano stated that Mother had completed her psychological and substance abuse assessments, but she had not completed her outpatient treatment. She also stated that although Mother had not signed her Family Service Plan, Cano had met with Mother and Mother fully understood that her parental rights could be restricted or terminated if she did not successfully complete her Family Service Plan.

With regard to Father, Cano stated that she had only spoken with him once and that he told her that "he wanted the children to go back to [Mother], and that he would not show up to court because he has warrants out for his arrest and he was going to run until he got caught."

Cano further testified that the children were currently in a stable home environment and the placement was "going well," and she indicated that the foster parents wished to adopt the children and were present in the courtroom. She also stated that the children's circumstances had "substantially improved" since DFPS's involvement and that, in her opinion, it was in their best interest that Mother's parental rights be terminated.

On cross-examination by Mother's counsel, Cano testified that Mother had attended the May 2019 permanency hearing and understood that "today was the final trial date" and that "CPS's goal was termination." She also testified that Mother had not informed her that she would not be at trial. Cano also stated that, since the May 2019 permanency hearing, Mother had not contacted her to complete any services, and Cano agreed with Mother's counsel that Mother had not done "anything that was required, whether it was showing up clean on a drug test or giving [Cano] locating information, so that she could visit these three children."

On cross-examination by the children's ad litem attorney, Cano testified that the children's therapeutic needs were being met in their current placement, including occupational and speech therapy for the twins and individual therapy for M.A.J., and that she had no concerns with the permanency that this foster home could provide for the children.

Clark testified that the children were doing well in their current placement, and she agreed that termination of Mother's parental rights was in the children's best interest. On cross-examination by Mother's counsel, Clark agreed that Mother "had no family members for placement." On cross-examination by the children's ad litem attorney, Clark also testified that the children had been neglected while in their second foster home. She also stated that M.A.J. "has had some trouble adjusting" and that he "needs a little bit more therapy." She asked that the court order DFPS to identify a trauma-informed therapist to assist M.A.J.'s therapeutic needs, and she stated that she was willing to remain on the case to help facilitate the children's adjustment in their current foster home.

DFPS rested and Mother did not call any witnesses to testify.

The trial court signed a final decree of termination of Mother's parental rights on August 21, 2019. In the decree, the trial court found that termination of the parent-child relationship was in the children's best interest and that Mother had committed predicate acts or omissions under Family Code subsections 161.001(b)(1)(E), (N), and (O).

Mother filed a motion for new trial, in which she argued that the evidence was legally and factually insufficient to support the trial court's findings. After a hearing at which Mother testified by telephone, the trial court denied the motion.

Mother filed a notice of appeal of the trial court's order terminating her parental rights to M.A.J., H.A.J., and B.D.J.

Standard of Review

On appeal, Mother challenges the legal and factual sufficiency of the evidence to support the trial court's predicate-act and best-interest findings.

A trial court may order termination of the parent-child relationship if DFPS proves, by clear and convincing evidence, one of the statutorily enumerated predicate findings for termination and that termination of parental rights is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b) ; see In re E.N.C. , 384 S.W.3d 796, 802 (Tex. 2012) (stating that federal due process clause and Texas Family Code both mandate "heightened" standard of review of clear and convincing evidence in parental-rights termination cases). DFPS must prove both elements—a statutorily prescribed predicate finding and that termination is in the child's best interest—by clear and convincing evidence. In re E.N.C. , 384 S.W.3d at 803. 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 ANN. § 101.007 ; In re E.N.C. , 384 S.W.3d at 802.

In a legal sufficiency review, we look at all of the evidence in the light most favorable to the trial court's finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding was true. In re E.N.C. , 384 S.W.3d at 802 (quoting In re J.F.C. , 96 S.W.3d at 266 ); see In re K.M.L. , 443 S.W.3d 101, 112 (Tex. 2014). We must give appropriate deference to the factfinder's conclusions, which means we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. In re E.N.C. , 384 S.W.3d at 802 (quoting In re J.F.C. , 96 S.W.3d at 266 ). We should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible, but this does not mean that we must disregard all evidence that does not support the finding. Id. (quoting In re J.F.C. , 96 S.W.3d at 266 ). Disregarding undisputed facts that do not support the finding could skew our analysis of whether clear and convincing evidence exists. In re J.F.C. , 96 S.W.3d at 266 ; see In re A.C. , 560 S.W.3d 624, 630–31 (Tex. 2018) ("In conducting a legal-sufficiency review, the reviewing court cannot ignore undisputed evidence contrary to the finding, but must otherwise assume the factfinder resolved disputed facts in favor of the finding."). "In cases requiring clear and convincing evidence, even evidence that does more than raise surmise and suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction that the allegation is true." In re K.M.L. , 443 S.W.3d at 113. If we determine that no reasonable factfinder could have formed a firm belief or conviction that the matter that must be proven is true, we must conclude that the evidence is legally insufficient. In re E.N.C. , 384 S.W.3d at 802 (quoting In re J.F.C. , 96 S.W.3d at 266 ).

When a parent challenges the factual sufficiency of the evidence supporting the trial court's findings, we review all of the evidence, including disputed or conflicting evidence. In re J.O.A. , 283 S.W.3d 336, 345 (Tex. 2009). We should inquire whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the allegations. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (quoting In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002) ); see In re A.C. , 560 S.W.3d at 631 ("In a factual-sufficiency review, the appellate court must consider whether disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the finding."). "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 J.O.A. , 283 S.W.3d at 345 (quoting In re J.F.C. , 96 S.W.3d at 266 ). In applying this standard, our review "must not be so rigorous that the only factfindings that could withstand review are those established beyond a reasonable doubt." In re H.R.M. , 209 S.W.3d at 108 (quoting In re C.H. , 89 S.W.3d at 26 ); see also In re A.B. , 437 S.W.3d 498, 503 (Tex. 2014) (stating that, despite heightened standard, we must still provide due deference to decisions of factfinder, who had full opportunity to observe witness testimony first-hand and was sole arbiter of assessing witness credibility and demeanor).

Analysis

The majority opinion concentrates on whether termination of Mother's parental rights was in the children's best interest with only a cursory glance at the legal sufficiency of the evidence to prove just one of the predicate acts alleged—endangerment of a child. It does not even attempt to review all of the evidence neutrally to determine the factual sufficiency of the evidence supporting that one predicate act. Nor does it review any of the evidence supporting the other two predicate acts that the trial court found were supported by clear and convincing evidence. I would first address whether DFPS presented sufficient evidence of child endangerment to permit the trial court to find, as it did, that that predicate act was established by clear and convincing evidence. And I note that that evidence is also relevant to the best-interest determination.

A. Predicate Acts

1. Requirement of Reviewing Subsections (D) and (E)

Mother argues that the trial court erred in terminating her parental rights because the evidence was legally and factually insufficient to support the termination finding under all three Family Code subsections pleaded, subsections 161.001(b)(1)(E), (N), (O), and the evidence was also insufficient to support a finding under subsection 161.001(b)(2) that termination was in the best interests of the children.

"To affirm a termination judgment on appeal, a court need uphold only one termination ground—in addition to upholding a challenged best interest finding—even if the trial court based the termination on more than one ground." In re N.G. , 577 S.W.3d 230, 232 (Tex. 2019) (per curiam). Family Code section 161.001(b)(1)(M) provides that parental rights may be terminated if there is clear and convincing evidence that the parent has had their parent-child relationship with respect to another child terminated based on conduct in violation of section 161.001(b)(1)(D) or (E). See id. at 233–34 (citing TEX. FAM. CODE ANN. § 161.001(b)(1)(M) ).

When a trial court has terminated a parent's rights under subsection (D) or (E), that becomes a basis to terminate the parent's rights to other children, and that ground alone can be sufficient to support termination in a later proceeding; thus, terminating parental rights under subsections (D) and (E) has "significant" collateral consequences that can affect a parent's rights to other children. Id. The Texas Supreme Court has therefore held that "[w]hen a parent has presented the issue on appeal, an appellate court that denies review of a section 161.001(b)(1)(D) or (E) finding deprives the parent of a meaningful appeal and eliminates the parent's only chance for review of a finding that will be binding as to parental rights to other children." Id. at 235. "Allowing section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to the court thus violates the parent's due process and due course of law rights."⁵ Id. at 237. Accordingly, "[w]hen a court of appeals reverses a finding based on insufficient evidence, the court must ‘detail the evidence relevant to the issue of parental termination and clearly state why the evidence is insufficient to support a termination finding by clear and convincing evidence.’ " Id. (quoting In re A.B. , 437 S.W.3d at 503, and In re C.H. , 89 S.W.3d at 19 ). It is error for the appellate court to fail to review both the legal and factual sufficiency of the evidence to support termination under subsections (D) and (E). Id. at 239.

5 The majority emphasizes the "fundamental liberty interest[ ]" that a parent has in "the care, custody, and control of [her] children." Op. at 405 (citing Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ). However, the Supreme Court emphasized in Troxel that this is the right of a fit parent. See Troxel , 530 U.S. at 68–69, 120 S.Ct. 2054 ("[S]o long as a parent adequately cares for his or her children (i.e. , is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.").

The very point of termination proceedings is to determine whether a parent is fit to exercise that fundamental liberty interest. If the court does not fully address that issue in making its determination on whether to terminate a parent's rights to a child and declares a parent fit when the evidence shows she is not, the child , as well as the parent, is deprived of the benefit of the inquiry required by due process. See In re N.G. , 577 S.W.3d 230, 236 (Tex. 2019) (per curiam). (providing that not only do parents have "a fundamental liberty interest in the right to parent," but that also "[t]he state has a substantial, legitimate interest in protecting children and looking out for their best interests," and these interests must be balanced against each other).

2. Review of Sufficiency of the Evidence of Predicate Acts Supporting Termination

In her first issue, Mother argues that DFPS failed to produce clear and convincing evidence to support the trial court's finding under subsection (E) that she engaged in a course of conduct that endangered her children's physical or emotional well-being. DFPS responds that the undisputed evidence that Mother engaged in illegal drug use while parenting her children and continued illegal drug use even after DFPS removed the children from her care is legally and factually sufficient to support the trial court's endangerment finding. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E).

(a) The majority opinion

The majority conducts only a legal sufficiency review of the evidence of endangerment and "conclude[s] that the trial court could have formed a firm belief or conviction that [M]other engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being." Op. at 408. But it refuses to conduct a factual sufficiency review of the evidence in support of this predicate finding—the review needed to show that the evidence of endangerment is indeed objectively "clear and convincing" when considered as a whole. It claims it does not need to conduct this review because it finds that the evidence supporting the best interest finding is factually insufficient and thus reversal of the termination of Mother's rights is required for that reason, so that finding the evidence of endangerment to be factually insufficient would afford Mother no more relief. Id. at 408–09 & n.16.

The majority thus consciously refuses to follow the standard of review of the evidence in support of termination under In re N.G. , set forth in detail above, while claiming incorrectly that, by employing this tactic, "we do not run afoul of the Texas Supreme Court's decision in In re N.G. ... by not considering whether the evidence is factually insufficient to support the trial court's finding that [M]other engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotion well-being." Id. at 408 n.16. This claim misconstrues the mandate of In re N.G. that the appellate court must " ‘detail the evidence relevant to the issue of parental termination and clearly state why the evidence is insufficient to support a termination finding by clear and convincing evidence.’ " In re N.G. , 577 S.W.3d at 237 (citation omitted).

Moreover, having made the claim that its cursory review of the legal sufficiency of the evidence in favor of endangerment is enough to satisfy the standard of review of the predicate acts for termination, the majority decides that, in order to determine that Mother's parental rights were improperly terminated, it does not need to review any of the evidence pertinent to Mother's claims "that the evidence is legally insufficient to support the trial court's findings that she constructively abandoned the children, who had been placed in the permanent or temporary management conservatorship of DFPS for not less than six months and that she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children." Op. at 408. The majority might not have needed to review all of the evidence if it had concluded that endangerment of a child had been proved by clear and convincing evidence, which would have required a review of the factual sufficiency of all of the evidence—not just the minimal amount of evidence sufficient to find legal sufficiency. But it did not. Therefore, it should have turned to the other predicate acts found by the trial court to be supported by clear and convincing evidence. But it did not do that either.

The majority does not consider the trial court's finding that Mother constructively abandoned her children in violation of Family Code subsection 161.001(b)(1)(N). Thus, it does not review the evidence that Mother failed to take steps to visit the children in foster care from the date they were removed from her care until the date of termination of her parental rights two years later; that she failed to put their interests above her own interest in abusing drugs; and that she failed even to show up for the final termination hearing, unlike the children's prospective adoptive parents, their foster parents.

Nor does the majority consider whether the trial court erred in finding by clear and convincing evidence that Mother's rights should be terminated under Family Code subsection 161.001(b)(1)(O). Thus, it does not review the unrebutted evidence that Mother failed to complete her Family Service Plan, which she had reviewed and signed, by failing, inter alia, to refrain from criminal activity, to participate in random drug testing, and to show progress by testing negative. Nor does it review the evidence that she did not even file her Child Placement Resources Form or provide contact information.

In sum, the majority violates the express mandate of the Texas Supreme Court that it "detail the evidence relevant to the issue of parental termination and clearly state why the evidence is insufficient to support a termination finding by clear and convincing evidence." In re N.G. , 577 S.W.3d at 237.

(b) Endangerment of a child

I agree with DFPS that the evidence was both legally and factually sufficient to support termination under subsection 161.001(b)(1)(E). Family Code subsection 161.001(b)(1)(E) provides that the trial court may terminate a parent's rights if the court finds by clear and convincing evidence that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." See id. Under this subsection, the relevant inquiry is whether evidence exists that a parental course of conduct endangered the child's physical or emotional well-being. Jordan v. Dossey , 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Termination under subsection (E) must be based on more than a single act or omission; instead, "what is required is a voluntary, deliberate, and conscious course of conduct." Id. This conduct does not have to occur in the presence of the child. Id. Courts may consider conduct that occurred before the child's birth and both before and after DFPS removed the child from the parent's home. Walker v. Tex. Dep't of Family & Protective Servs. , 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

"Endanger" means "more than a threat of metaphysical injury or potential ill effects of a less-than-ideal family environment," but "endangering conduct need not be directed at the child." In re E.N.C. , 384 S.W.3d at 803 ; see Jordan , 325 S.W.3d at 723 ("[D]anger to a child need not be established as an independent proposition and may be inferred from parental misconduct even if the conduct is not directed at the child and the child suffers no actual injury."); In re J.J.S. , 272 S.W.3d 74, 78 (Tex. App.—Waco 2008, pet. struck) (stating that danger to child's physical or emotional well-being may be inferred from parental misconduct). Endangerment can occur through both acts and omissions. In re N.S.G. , 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.).

"Conduct that subjects a child to life of uncertainty and instability endangers the child's physical and emotional well-being." Jordan , 325 S.W.3d at 723. A parent's drug use and the effects of that drug use on the parent's life and ability to parent may establish an endangering course of conduct supporting termination under section 161.001(b)(1)(E). In re J.O.A. , 283 S.W.3d at 345 ; In re N.J.H. , 575 S.W.3d 822, 831 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) ; see also In re B.J. , 01-15-00886-CV, 2016 WL 1389054, at *7 (Tex. App.—Houston [1st Dist.] Apr. 7, 2016, no pet.) (mem. op.) ("[I]llegal narcotics use and its effect on an individual's ability to parent may constitute an endangering course of conduct."). Importantly, a parent's use of illegal drugs "exposes the child to the possibility that the parent may be impaired or imprisoned." In re N.J.H. , 575 S.W.3d at 831 (quoting Walker , 312 S.W.3d at 617 ); In re A.A.M. , 464 S.W.3d 421, 426 (Tex. App.—Houston [1st Dist.] 2015, no pet.) ("Illegal drug use creates the possibility that the parent will be impaired or imprisoned and thus incapable of parenting.").

In this case, DFPS presented evidence that Mother tested positive for drugs on several occasions during the pendency of the termination proceedings. DFPS presented evidence that, upon receiving the initial reports of sexual abuse by a family friend and neglectful supervision of M.A.J. in June and July 2018, it ordered Mother to submit to drug testing. DFPS introduced and the trial court admitted Mother's drug testing results, including the initial July 2018 results indicating that she tested positive for marijuana and for high levels of methamphetamine and amphetamine. After receiving these positive test results, DFPS sought temporary managing conservatorship and termination of Mother's parental rights, and the trial court ordered Mother to undergo random drug screenings. Mother's drug testing results admitted into evidence also indicate that, with the exception of one negative result for all substances tested on November 8, 2018, all of Mother's drug tests over the pendency of the termination proceedings returned positive for marijuana, including tests on samples taken in September, November, and December 2018, and January, February, March, and May 2019. Additionally, Mother failed to appear for testing on January 3 and February 8, 2019.⁶ Both Cano, the children's DFPS caseworker, and Clark, the children's Child Advocates ad litem, considered Mother's ongoing drug use to be a reason why they believed Mother could not provide the children with a safe living environment. DFPS thus presented evidence that Mother had a continuing problem with substance abuse and that this problem persisted throughout the termination proceedings.

6 Mother's failure to appear for testing may be treated as a positive result for illegal drugs. See In re J.V.B. , No. 01-17-00958-CV, 2018 WL 2727732, at *4 n.6 (Tex. App.—Houston [1st Dist.] June 7, 2018, pet. denied) (mem. op.) ; In re J.M.T. , 519 S.W.3d 258, 269 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

"[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 N.J.H. , 575 S.W.3d at 831–32 (quoting In re K.C.F. , No. 01-13-01078-CV, 2014 WL 2538624, at *10 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.) ); In re E.R.W. , 528 S.W.3d 251, 264–65 (Tex. App.—Houston [14th Dist.] 2017, no pet.) ; In re M.T.W. , 01-11-00162-CV, 2011 WL 6938542, at *13 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, no pet.) (mem. op.) ("A parent's engaging in illegal drug activity after agreeing not to do so in a service plan for reunification with her children is sufficient to establish clear and convincing proof of voluntary, deliberate, and conscious conduct that endangered the well-being of her children."). Thus, the undisputed evidence that Mother—in direct contravention of her Family Service Plan—continued to use drugs after the children were removed from her care further supports the trial court's endangerment finding.

Mother argues that this evidence is insufficient to show that her drug use endangered her children because she "was learning from her services and was trying to become drug free." She points out that, although she tested positive for marijuana, methamphetamine, and amphetamine at the start of the termination proceedings, she "engaged in services and completed a psychological and substance abuse assessment," she "no longer use[s] methamphetamine and amphetamine," and she tested "at lower levels for marijuana" in May 2019.

Evidence that Mother was trending toward engaging in less serious or less frequent drug use does not nullify the uncontroverted evidence that she continued to test positive for marijuana throughout the termination proceedings knowing that doing so placed her relationship with her children in jeopardy. See In re J.O.A. , 283 S.W.3d at 346 ("While the recent improvements made by [the parent] are significant, evidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of drug use and irresponsible choices."); In re N.J.H. , 575 S.W.3d at 832 (holding that "evidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of ... irresponsible choices") (quoting In re J.O.A. , 283 S.W.3d at 346 ); see also In re T.E.G. , No. 01-14-00051-CV, 2014 WL 1878919, at *7 (Tex. App.—Houston [1st Dist.] May 8, 2014, no pet.) (mem. op.) ("Nor was the trial court required to conclude that [mother] had adequately addressed her drug abuse issues in light of a single negative drug test.").

"Such evidence of improved conduct, especially of short-duration, does not preclude the trial court from reasonably forming a firm belief that [Mother]'s acts or omissions under Subsection (E) supported termination." See In re G.A. , No. 01-18-00395-CV, 2018 WL 5259905, at *5 (Tex. App.—Houston [1st Dist.] Oct. 23, 2018, pet. denied) (mem. op.) (rejecting mother's assertion that evidence of endangering conduct is "fatally undermined" by evidence that she had "been progressing in her therapy with her counselor" and "will eventually demonstrate that she can be protective" of her child) (citing In re J.O.A. , 283 S.W.3d at 346 ). Rather, "[e]vidence of a recent turnaround should be determinative only if it is reasonable to conclude that rehabilitation, once begun, will surely continue." In re Z.H. , No. 14-19-00061-CV, 2019 WL 2632015, at *4 (Tex. App.—Houston [14th Dist.] June 27, 2019, no pet.) (mem. op.) (quoting In re M.G.D. , 108 S.W.3d 508, 514 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) ). Because the record in this case does not provide evidence that Mother's trend toward sobriety was "sure to continue," the trial court reasonably could have concluded that it may not. See id.

Mother also argues that there was no evidence that she used drugs around the children or that they were neglected or abused and that "the evidence showed that the children were well when they came into care." But "[b]ecause it significantly harms the parenting relationship, drug activity can constitute endangerment even if it transpires outside the child's presence." In re N.J.H. , 575 S.W.3d at 831–32 (citing In re J.O.A. , 283 S.W.3d at 345, and Walker , 312 S.W.3d at 617 ); see In re A.A.M. , 464 S.W.3d at 426 (stating same).

Moreover, evidence in this case strengthens the trial court's conclusion that Mother endangered her children. There is evidence that Mother failed to adequately supervise and protect M.A.J. DFPS caseworker Cano testified at trial that Mother failed to protect M.A.J. from physical abuse by a neighbor. The evidence also included a report written by the officer who responded to the incident. The officer stated in his report that he found all witnesses, including Mother, not to be credible, and he concluded that M.A.J.'s injuries, including redness and swelling around his eyes, minor scrapes on his chin and forehead, and swelling to his wrists, did not appear to be caused by a strike to the face by an adult, as Mother had claimed. He also noted that Mother stated that she did not try to break up the fight because the other child had started it and M.A.J. was winning.

While on its own this additional evidence—showing that Mother failed to come to M.A.J.'s aid when he was engaged in a physical altercation with an older child—does not support an endangerment finding, it adds to the analysis by further demonstrating Mother's lack of judgment and resulting inability to adequately care for her children. See In re N.J.H. , 575 S.W.3d at 835 (stating that parent's "exercise of poor judgment currently and in the past demonstrates an inability to provide adequate care" for her children) (quoting In re J.M. , No. 01-14-00826-CV, 2015 WL 1020316, at *7 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem. op.) ). Taken as a whole, the uncontroverted evidence of Mother's history of drug use that continued during the pendency of this case—particularly given her awareness of the impact it could have on her chances of being reunited with her children—together with this evidence of neglect for M.A.J.'s physical well-being and the evidence that M.A.J. was sexually abused at the age of one year, even if Mother took steps to protect him after the fact, demonstrates Mother's inability to provide adequate care for her children and supports the trial court's endangerment finding.

I would conclude that the record contains legally and factually sufficient evidence to support the trial court's conclusion that Mother engaged in conduct that endangered the children's physical and emotional well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E) ; In re J.O.A. , 283 S.W.3d at 345 ; In re N.J.H. , 575 S.W.3d at 831 ; Walker , 312 S.W.3d at 617.

I would overrule Mother's first issue. Because I would conclude—unlike the majority—that the evidence is both legally and factually sufficient to support the trial court's finding under subsection (E) that Mother's conduct endangered the children and, therefore, the trial court did not err in terminating her rights on that ground—a possibility the majority leaves open—I would find it unnecessary to address Mother's second and third issues contesting the evidentiary sufficiency of the court's findings under subsections (N) and (O). See In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003). I would turn, therefore, to Mother's challenge to the trial court's finding that termination was in the children's best interests.

B. Best Interests of the Children

In her fourth issue, Mother contends that the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights is in the children's best interest.

1. Applicable Law

"[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." TEX. FAM. CODE ANN. § 263.307(a). There is a strong, but rebuttable, presumption that the best interest of a child is served by keeping the child with a parent. In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) ; see TEX. FAM. CODE ANN. § 153.131(b) ; Jordan , 325 S.W.3d at 729 (noting that while it is imperative for courts to recognize constitutional underpinnings of parent-child relationship, courts must not sacrifice emotional and physical interests of child "merely to preserve that right").

In determining whether a child's parent is willing and able to provide the child with a safe environment, courts should consider factors including: (1) the child's age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of harm to the child; (4) whether the child has been the victim of repeated harm after the initial intervention by DFPS; (5) whether there is a history of substance abuse by the child's family; (6) the willingness and ability of the child's family to seek out, accept, and complete counseling services; (7) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; and (8) whether the child's family demonstrates adequate parenting skills. TEX. FAM. CODE ANN. § 263.307(b).

The Texas Supreme Court has also set out several non-exclusive factors that we consider when determining whether termination of parental rights is in the child's best interest, including: (1) the child's desires; (2) the child's current and future physical and emotional needs; (3) the current and future physical danger to the child; (4) the parental abilities of the person seeking custody; (5) whether programs are available to assist the person seeking custody in promoting the best interests of the child; (6) the plans for the child by the person seeking custody; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate that the parent-child relationship is not proper; and (9) any excuse for acts or omissions of the parent. Holley v. Adams , 544 S.W.2d 367, 371–72 (Tex. 1976) ; In re A.C. , 394 S.W.3d 633, 641–42 (Tex. App.—Houston [1st Dist.] 2012, no pet.). These considerations are not exhaustive, and it is not necessary that all of these considerations be proved "as a condition precedent to parental termination." In re C.H. , 89 S.W.3d at 27. The absence of evidence concerning some factors does not preclude a factfinder from reasonably forming a firm belief or conviction that termination is in the children's best interest. In re A.C. , 394 S.W.3d at 642. Appellate courts examine the entire record to decide what is in the children's best interest. In re E.C.R. , 402 S.W.3d 239, 250 (Tex. 2013).

Although proof of the predicate findings under section 161.001(b)(1) does not relieve DFPS from proving that termination is in the children's best interest, "the same evidence may be probative of both issues." In re C.H. , 89 S.W.3d at 28. The best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence. In re B.R. , 456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.). "A trier of fact may measure a parent's future conduct by [her] past conduct and determine whether termination of parental rights is in the child's best interest." Id.

2. Application of the Holley Factors

In evaluating the sufficiency of the evidence to support a trial court's finding that termination of parental rights was in a child's best interest, courts consider the Holley factors and other relevant factors. See Holley , 544 S.W.2d at 371–72.

(a) The children's desires

Although DFPS did not present direct evidence concerning the desires of the children, "[w]hen children are too young to express their desires, the factfinder may consider that the children have bonded with the foster family, are well-cared for by them, and have spent minimal time with a parent." In re A.J.H. , No. 01-18-00673-CV, 2019 WL 190091, at *7 (Tex. App.—Houston [1st Dist.] Jan. 15, 2019, no pet.) (mem. op.) (quoting In re J.D. , 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ). Here, all of those factors support termination as being in the best interest of the children.

At the time of trial, M.A.J. was four years old and H.A.J. and B.D.J. were one year old. Their young ages weigh in favor of the trial court's best-interest determination. See TEX. FAM. CODE ANN. § 263.307(b)(1) (considering child's age and physical and mental vulnerabilities); In re J.M.T. , 519 S.W.3d 258, 270 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (noting that young age of child—fourteen months at time of trial—weighed in favor of trial court's finding that termination was in child's best interest). Here, Cano, the children's caseworker, and Clark, their ad litem, testified that the children were doing well in their current placement and the goal was adoption. Cano also stated that the children's circumstances had substantially improved from when they came into foster care. And Mother had not visited the children since they had been removed from her care in 2018 and did not appear for trial, knowing that her failure to do so could result in termination of her parental rights.

Mother argues that this factor weighs in her favor because there was evidence that the children were bonded with her, physically well, appropriately dressed while they were in her care, and had to be removed from a previous foster home for neglect and transferred to their present home. This does not outweigh the evidence that Mother jeopardized the children's emotional and physical needs prior to and after their removal by engaging in illegal drug use, has not had these young children in her custody for two years, and has failed both to take steps to visit them and to appear for trial.

I would find that this factor weighs strongly against Mother's retention of her parental rights. The majority, however, ignoring the evidence of the children's improved circumstances in foster care and claiming "there is no evidence indicating that the children did not want to be returned to [M]other's care," claims that "[t]his factor does not weigh in favor of termination of [M]other's parental rights." Op. at 410–11, 411. An evidentiary finding must be based, however, on what is in the record—namely clear and convincing evidence—not on what is not. See, e.g., In re E.N.C. , 384 S.W.3d at 803. The majority's evaluation of this factor is improper.

(b) The children's current and future physical and emotional needs

Mother also argues that there is no evidence that the children had bonded with the family currently fostering and planning to adopt them. And she points out that Clark recommended that M.A.J. undergo intense trauma therapy for the trouble he was having adjusting to the foster home. This argument ignores the testimony of both Cano and Clark that the foster placement was good and that it was meeting the children's needs. Specifically, Cano testified that the placement was meeting the children's therapeutic needs, including occupational and speech therapy for the twins and individual therapy for M.A.J., and she stated that the children's circumstances had "substantially improved" since DFPS's involvement. Cano also testified that she had no concerns with the permanency that this home could provide, and it was in the children's best interest that Mother's parental rights be terminated. Similarly, Clark testified that the children were doing well in their current placement, and she agreed that termination of Mother's parental rights was in their best interest. Finally, a reasonable factfinder could have concluded that M.A.J.'s adjustment difficulties resulted from having been neglected in his previous foster home and were not due to problems with his current placement.

Mother argues, however, that, because Cano and Clark testified that when they visited the children at her home they did not observe bruises or other signs of injury on them, and because they noted that the children were appropriately dressed, this factor weighs against the trial court's finding that termination of her parental rights was in the children's best interest.

But there is also evidence of Mother's past conduct showing that, on at least two occasions, she failed to adequately supervise M.A.J. See In re O.N.H. , 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.) (stating that past conduct is probative of future conduct when evaluating child's best interest). On June 25, 2018, two months after M.A.J.'s twin sisters were born, the family was referred to DFPS on allegations of sexual abuse of M.A.J. and drug use by both parents. Mother "appeared to be appropriate and cooperating with the Agency." However, she failed to keep a forensic appointment for M.A.J. Shortly after that, on July 23, 2018, the Sheriff's office responded to the report of injury to a child following M.A.J.'s fight with another child. Mother's account of the altercation was found by the responding officer to "not be credible." The condition of the premises was found to be "hazardous." However, the DFPS representative who visited the next day found that M.A.J. was bonded with Mother and was appropriately dressed and clean. Both Cano's testimony and the July 23, 2018 police incident report describing the physical altercation M.A.J. had with a neighbor tend to show that Mother failed to adequately supervise and protect M.A.J.

On August 10, the results of Mother's drug test came back positive, but she had moved from the state to Livingston, Louisiana, with the children. When contacted there, she left Livingston. However, having learned that she had returned to Houston, DFPS visited her on August 21 and informed her that DFPS was concerned about her ability to provide a safe environment for the children. The next day, DFPS filed a petition for termination of parental rights and the children were removed from her home pursuant to a protective order. Mother did not regularly visit the children after their removal and her visits were suspended after she failed to give DFPS the location or other information regarding a fourth child of hers.

By the time of the permanency hearing in May 2019, Mother had begun taking parenting classes but had not fulfilled any other part of her service plan, and she continued to test positive for drugs. Meanwhile, after being removed from two foster homes—once because of a family illness and once because of severe abuse and neglect—the three children had been placed in a foster home that their Child Advocates volunteer described as "absolutely wonderful" and had begun receiving therapy and remedial services. Mother did not appear for trial on July 30, 2019, and she failed to appear for drug testing twice in the seven months preceding trial.

This evidence supports the trial court's best-interest finding by demonstrating Mother's inability to attend to her children's physical and emotional needs. I would find that this factor also weighs against Mother's retention of her parental rights. The majority, however, again relies on the lack of evidence—evidence that was Mother's burden to produce—and clear misstatement of the record to conclude just the opposite. Op. at 412–13. It states, "There is nothing in the record to establish that the children's physical and emotional needs differ in any respect to that of other children their age or that their needs would go unmet if they were returned to [M]other's care." Id. at 412. This statement of the record is, in fact, false, as shown by the evidence of the children's special needs recited above—needs that were being satisfied in their foster home but not previously by their mother. Likewise, the majority's claim that "Cano testified that the children's current placement was meeting their needs ... is nothing more than a conclusory opinion" and its claim that "[i]n fact, there is no evidence addressing the children's physical and emotional condition as the time of trial," id. at 413, are both contradicted by the record.

(c) The current and future physical danger to the children

The evidence of Mother's past and ongoing drug use is uncontroverted. Such a pattern of illegal drug use by a parent suggests that she is "not willing and able to provide the child with a safe environment—a primary consideration in determining the child's best interest." In re A.C. , 394 S.W.3d at 642 ; In re E.R.W. , 528 S.W.3d at 266 ("Mother's history of drug abuse bespeaks a course of conduct that the fact finder reasonably could conclude endangers [the child's] well-being."); see TEX. FAM. CODE ANN. § 263.307(b)(8) (considering whether child's family has history of substance abuse).

Furthermore, the evidence that Mother continued to use illegal drugs while this case was pending, knowing that her parental rights were in jeopardy, shows a disregard for the risk of harm to her children by jeopardizing her relationship with them. See In re D.K.J.J. , No. 01-18-01081-CV, 2019 WL 2455623, at *11 (Tex. App.—Houston [1st Dist.] June 13, 2019, pet. denied) (mem. op.) (stating that evidence of mother's continued drug use during pendency of termination case and her failure to submit to court-ordered drug testing showed that she acted "with disregard for the risk of harm to her children by jeopardizing her relationship with them" and supported finding that termination was in children's best interest); In re S.G. , No. 01-18-00728-CV, 2019 WL 1448870, at *5 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet.) (mem. op.) ("Parental drug abuse also reflects poor judgment and an unwillingness to prioritize a child's safety and welfare and thus may be considered in determining a child's best interest.").

I conclude that this factor also weighs against Mother's retention of her parental rights. Yet, again, the majority improperly relies on omissions to support the opposite conclusion that "[t]his factor does not weigh in favor of termination of [M]other's parental rights." Op. at 414. These omissions include any mention of Mother's drug use as evidence of danger to the children; the majority's discounting and dismissal of evidence in the record; and the majority's reliance on the assumed existence of evidence not in the record.

The majority does, however, address Mother's drug use as a separate factor, introducing the topic by stating, incorrectly, "Without providing any explanation or details, DFPS caseworker Cano testified that [M]other had used narcotics in the past and continued to do so" and that Mother "had not completed her outpatient treatment related to her substance-abuse issues." Id. at 414. It then claims, "Mother did complete her substance abuse assessment." Id. It admits to some of the evidence of Mother's ongoing drug use only to excuse it by reverting again to the lack of evidence, saying, "However, there is no evidence that [M]other used narcotics in the presence of the children while she was caring for them. And there is no evidence that [M]other was impaired while caring for the children or that the narcotics were accessible to the children." Id. at 415. It even goes so far as to say, "DFPS caseworker Cano's testimony regarding narcotics use by [M]other is speculative and conclusory at best, and it is unclear at times during her testimony whether she is even referring to narcotics use by [M]other." Id. at 415. These claims are, however, all refuted by the record or are immaterial to the proof required for termination. Yet, on this basis, the majority concludes, "This factor only weighs slightly in favor of termination of [M]other's parental rights." Id. at 416. I disagree.

(d) The parental abilities of the person seeking custody

Mother argues that evidence that she engaged in services by completing "many parenting classes" and completing her psychosocial and substance abuse assessments "shows that she wanted to improve her parenting skills and was trying to become drug free." Even so, it is undisputed that Mother tested positive for marijuana consistently throughout these proceedings, including as late as May 2019. She also failed to appear for drug testing on January 3 and February 8, 2019, which may be treated as a positive result for drug use. See in re J.M.T. , 519 S.W.3d at 269. And she failed to complete her parenting classes and did not take part in court-ordered individual counseling or substance abuse treatment. Nor did she take steps to visit the children or appear for trial.

Furthermore, evidence of a recent turn-around does not necessarily make a best-interest finding in favor of termination factually insufficient. In re J.H.G. , 01-16-01006-CV, 2017 WL 2378141, at *9 (Tex. App.—Houston [1st Dist.] June 1, 2017, pet. denied) (mem. op.) (stating that factfinder "is not required to ignore a history of narcotics use merely because it abates as trial approaches"). Here, both Cano and Clark expressed concern about Mother's ability to remain drug-free. See In re M.G.D. , 108 S.W.3d at 513–14 (stating that "evidence of a recent turnaround should be determinative only if it is reasonable to conclude that rehabilitation, once begun, will surely continue"); see also In re J.M. , No. 01-17-00986-CV, 2018 WL 3117887, at *6 (Tex. App.—Houston [1st Dist.] June 26, 2018, no pet.) (mem. op.) ("While [m]other may have shown some improvement regarding her drug usage, the trial court, based on [m]other's history of repeated relapses, could reasonably have concluded that she remained at risk of relapses and was still a danger to the children.") (citing In re M.G.D. , 108 S.W.3d at 514 ).

The uncontroverted evidence that Mother continued to use drugs even after her parental rights were at stake shows that she lacks the ability to place her children's well-being ahead of her desire to do drugs and that termination of her parental rights would safeguard the children from emotional and physical danger now and in the future. See In re S.G. , 2019 WL 1448870, at *7. Mother's parental abilities were placed in doubt by her drug use, including during the pendency of this case to terminate her parental rights. See In re A.C. , 394 S.W.3d at 642 (stating that "pattern of illegal drug use suggests the mother was not willing and able to provide the child with a safe environment—a primary consideration in determining the child's best interest").

There is also evidence that Mother failed to provide the children with safe living conditions. For example, after receiving a report of injury to a child at Mother's home, the responding officer noted in the incident report that there were "numerous safety hazards" on the ground throughout the property, including "various scrap metal piles and junked vehicles ... [and] [r]usted scrap metal and broken glass were found on the ground throughout the property." The report also noted that Mother stated that she did not try to intervene in the fight between M.A.J. and an older child because M.A.J. had not started it and he was winning. This also demonstrates Mother's lack of concern for her children. And at no point was Mother able to demonstrate that she had obtained a job, much less maintained employment, or had stable housing for the children.

I would find that this factor too weighs against Mother's retention of her parental rights. But, again, the majority finds just the opposite, again downplaying the evidence and relying on the assumed existence of evidence not in the record. See Op. at 416–17 (noting evidence of glass on ground and "numerous safety hazards" at time children were removed from Mother's home, and stating, "However, there is no evidence that the children were harmed by any of these conditions" and "There is no evidence regarding the condition of [M]other's current home at all"—evidence it would have been Mother's burden to produce to rebut evidence of unsafe conditions at her home). The majority, accordingly, opines, "This factor does not weigh in favor of termination of mother's parental rights." Id. at 416.

(e) Whether programs are available to assist Mother in promoting the best interest of the children

The evidence shows that, for the most part, Mother did not take advantage of the programs available to aid her in making the changes necessary to properly care for her children. While she did complete some tasks in her Family Service Plan, she ultimately gave up her efforts to comply. Importantly, Mother never demonstrated that she had obtained employment or stable housing, and she failed to complete her parenting classes, individual therapy, and substance abuse treatment. The children's foster family, on the other hand, at the time of the final hearing—which Mother failed to attend—had provided a stable home and had been taking the twins to occupational and speech therapy and M.A.J. to individual therapy. And Cano testified that they wanted to adopt the children.

Thus, I conclude that this factor also weights in favor of termination of Mother's parental rights. The majority does not address this factor.

(f) The plans for the child by the person seeking custody

There is no evidence that Mother has plans for meeting the children's needs. The children's foster placement, on the other hand, has demonstrated an ability to plan for and follow through with engaging services to meet the children's needs, including a stable home. There was also testimony by Cano that the children were doing well in their foster home and that the foster parents wished to adopt them.

I would find that this factor also weights in favor of termination of Mother's parental rights. The majority, however, asserts, contrary to the record, that the record contains "no evidence regarding the parental abilities of the children's current foster parents or the environment that they have provided the children," and "there is no evidence that the children's current placement wants to adopt them or wants the children to remain in the home." Op. at 433.

(g) The stability of the home

"The stability of the home has been found ‘to be of paramount importance in a child's emotional and physical well-being.’ " In re D.K.J.J. , 2019 WL 2455623, at *19. "A parent's drug use may indicate instability in the home because it exposes the children to the possibility that the parent may be impaired or imprisoned." Id. ; see id. at *12 ("Evidence of a parent's pattern of drug use is relevant to present and future stability, especially regarding the parent's ability to provide for the children and protect them from emotional and physical danger.") (citing In re A.C. , 394 S.W.3d at 642 ). Thus, the uncontroverted evidence of Mother's drug use, including during the pendency of this case, demonstrates a risk of instability.

"Likewise, a parent's criminal history is indicative of a pattern of conduct that creates a risk of uncertainty and instability in the child's life." In re D.K.J.J. , 2019 WL 2455623, at *19. Accordingly, the evidence indicating that Mother was convicted of the offenses of engaging in organized criminal activity in 2015 and burglary of a habitation in 2016 also casts doubt upon Mother's ability to provide the children with a stable lifestyle. See id. ; see also In re O.N.H. , 401 S.W.3d at 684 (stating that past conduct is probative of future conduct when evaluating child's best interest). On this record, whether Mother can meet the children's financial needs or provide them with a safe or stable place to live is also uncertain, as Mother repeatedly failed to submit proof of income and stable housing as required in her Family Service Plan. See Holley , 544 S.W.2d at 372 (listing stability of parent's home as factor relevant to best-interest determination); In re J.D. , 436 S.W.3d at 121 (stating that mother subjected child to uncertainty and instability by failing to maintain stable housing and employment during pendency of case); In re D.R.A. , 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ("[T]he need for permanence is a paramount consideration for the child's present and future physical and emotional needs.").

I would find that this factor also weighs in favor of termination of Mother's parental rights. The majority does not separately address this issue.

(h) The willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time

There is no evidence of Mother's willingness or ability to effect positive and personal changes in the children's lives within any reasonable time period, which the burden was on her to introduce. Rather, all the evidence suggests her inability to make such changes, such as her failure to maintain a stable home or to find employment.

I would find that this factor too weighs in favor of termination of Mother's parental rights. The majority does not address it.

(i) The acts or omissions of the parent that may indicate that the parent-child relationship is not proper

For the reasons discussed above—primary among them, Mother's decision to continue to use drugs with the knowledge that doing so could cause her to lose her children and her failure to visit her children in foster care, to complete her Family Service Plan, or to fight for her parental rights in court—the trial court could reasonably have concluded that the relationship between Mother and her children was not proper. Here, I defer to the trial court and would find that this factor too weighs in favor of termination of Mother's parental rights. Again, this is a factor the majority does not address.

(j) Any excuse for acts or omissions of the parent

The evidence supports a finding that Mother has demonstrated a lack of care and concern for her children, and she has not offered an excuse for her decisions.

Accordingly, I would find that this factor, like all the others, weighs in favor of termination of Mother's parental rights.

3. Summation of the Record Under Applicable Legal Standards

In sum, the record includes uncontroverted evidence of Mother's ongoing drug use, failure to provide evidence of a safe and suitable residence, refusal to complete her Family Service Plan, and neglect of her children's physical and emotional needs, as well as evidence of her failure to visit the children and of the children's substantial positive improvement in their current foster placement from when they were in Mother's care. Viewing the evidence in the light most favorable to the trial court's finding, I would conclude that the trial court reasonably could have formed a firm belief or conviction that termination of Mother's parental rights is in the children's best interest. See In re J.O.A. , 283 S.W.3d at 345 ; In re S.B. , 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (stating that parent's drug use, inability to provide stable home, and failure to comply with family service plan supports finding that termination is in child's best interest). Further, in view of the entire record, I would conclude that the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that termination of Mother's parental rights is in the children's best interest. See In re J.O.A. , 283 S.W.3d at 345. Accordingly, I would hold that legally and factually sufficient evidence supports the trial court's best-interest finding under established principles of law.

The majority, by contrast, imports into the law in another footnote the exact same erroneous standard of review that it introduced into its assessment of the sufficiency of the evidence to support the trial court's predicate acts findings in a previous footnote. Despite its conclusions that the evidence supported none of the factors relating to the children's best interest, other than concluding that Mother's drug use "slightly" favored termination, it declares, effectively as an aside from its argument,

Due to [M]other's narcotics use and our prior case law, viewing the evidence in the light most favorable to the trial court's finding, as we must when conducting a legal-sufficiency review, we conclude that the trial court could have formed a firm belief or conviction that termination of [M]other's parental rights was in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001(b)(2). Accordingly, we hold that the evidence is legally sufficient to support the trial court's finding that termination of [M]other's parental rights is in the best interest of the children. See id.

See Op. at 418 n.25 (emphasis added); cf. id. at 408 n.16. Again splitting legal from factual sufficiency of the evidence to support a best-interest finding, and with no argument or precedent for doing so other than its own distorted version of the record and its own subjective belief, it declares that "a reasonable fact finder could not have formed a firm belief or conviction that termination of [M]other's parental rights was in the best interest of the children." Id. at 418. It therefore "hold[s] that the evidence is factually insufficient to support the trial court's finding that termination of [M]other's parental rights is in the best interest of the children." Id. (emphasis added).

This is an unhappy case for all concerned. But while Mother is a sympathetic figure, I cannot consent to the majority's elevation of its concern for her rights as a parent over these young children's right to a fit mother capable of satisfying their needs and best interests under established legal standards. See Troxel v. Granville , 530 U.S. 57, 68–69, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Both the majority's standard of review and its holding in this case are unsupported by a full accounting of the record—indeed, are often at odds with the record—and are deeply contrary to established legal standards. They impose a standard of review of termination cases unique to this Court that allows the reviewing court to omit and, alternatively, to editorially discount record evidence material to the proof of the predicate acts necessary to termination, to hold as a failure of proof on the part of the party seeking termination evidence not in the record that it was the burden of the party resisting termination to produce and that was not produced or shown to exist, to declare this type of review to be review in the light most favorable to the termination ruling, and thus, in a footnote that is not part of the argument made in the text, to declare the evidence in favor of termination to be legally sufficient but not factually sufficient to support termination, without any explanation of the difference between its "favorable" review of the evidence and a neutral review of the evidence. I reject what I must regard as a grave distortion of the law with negative consequences for both the law and the children involved in these proceedings.

The result of the majority's application of the law as it sees it to the facts of this case is that the majority opinion and judgment would keep the children in permanent foster care with no hope of adoption and with very little, if any, prospect of reunion with a parent who has consistently been indifferent to their circumstances to the point of not only failing consistently to act in their best interests, but also failing to cease taking drugs, to maintain a stable home and job, and even to exercise her own visitation rights or to appear at trial to protect her parental rights from termination.

Conclusion

For the foregoing reasons, I respectfully dissent. I would overrule Mother's issues on appeal under established legal precedents. And I would affirm the trial court's decree terminating Mother's parental rights to M.A.J., H.A.J., and B.D.J.