In the Interest of D.Y.V.M, and G.E.M., Children v. the State of Texas

Affirmed and Memorandum Opinion filed December 5, 2024.

In The

Fourteenth Court of Appeals

NO. 14-24-00427-CV

IN THE INTEREST OF D.Y.V.-M. AND G.E.M., CHILDREN

On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2023-00670J

MEMORANDUM OPINION 1

The trial court terminated the parental rights of appellant K.M. (“Mother”) to
her two young daughters, G.E.M. (“Gema”) and D.Y.V.-M. (“Darby”).2 In her
appeal, Mother acknowledges and identifies the legally sufficient evidence to
establish each of the trial court’s four predicate findings and only argues that the
evidence was legally and factually insufficient to support the trial court’s finding
that termination was in the children’s best interest. We affirm.

1
Justice Spain concurs in the judgment only without opinion.
2
“Gema” and “Darby” are pseudonyms. Pursuant to Texas Rule of Appellate Procedure 9.8, we
use fictitious names to identify the minor and other individuals involved in this case.
I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal concerns appellant Mother and her two daughters—Gema born
in July of 2019, and her younger sister Darby, born in June 2021.

Removal, Pre-Trial Reports and Events3

In March 2022, Mother was investigated by appellee Texas Department of
Family and Protective Services (“the Department”) on allegations of using crack
cocaine and heroin while caring for her children. The case was closed with a
“Reason to Believe” notation.

The girls came to the Department’s attention again in March of 2023 when
Mother left the girls with a babysitter to watch them for a couple of hours. The
babysitter texted Mother at 3:00 A.M. the next morning after Mother failed to
appear; Mother responded that she would be coming to pick the children up
shortly. When the babysitter texted again at 8:00 A.M., Mother responded that the
children’s aunt would come to pick them up. However, when evening arrived no
one had come to retrieve the children and Mother’s whereabouts were unknown.

While bathing the children, the babysitter’s concerns compounded when she
noted discharge from Gema’s vaginal area and bruising on Darby’s back. The
babysitter called the police, and the children were transported by ambulance to
Texas Children’s Hospital where they were admitted at 1:02 A.M. on March 27,
2023. Medical records of the visit included a description of the children’s medical
condition, noting the vaginal discharge and “obvious” bruising witnessed by the
children’s babysitter. The records reflect that the child’s discharge was not due to
infection but may have been caused by poor hygiene, and that the bruising and

3
Background facts pertaining to the removal, reports and other matters leading up to the trial are
generated from the testimony and various reports and letters admitted in evidence at trial without
objection.

2
vaginal discharge “could be consistent with abuse / neglect.”

A Department investigator arrived at the hospital, spoke to staff, observed
the children at their bedside, and made attempts to locate the children’s parents or
any relatives who might be available to pick up the children. According to the
records, the investigator contacted the children’s paternal grandmother who made
plans to come to the hospital, but the investigator was initially unable to contact the
parents to obtain consent for the grandmother to take the children. A report
authored by the children’s guardian ad litem detailed that Mother and Father 4
eventually came to the hospital and admitted to having used drugs. At the time, the
children’s paternal grandmother was involved in an ongoing CPS case so she could
not serve as a placement or monitor for the children. When asked about the
bruising, Mother reported that the child had birthmarks, but the doctor who
authored the physician statement indicated the marks were bruises.

The Department took emergency custody of the children on March 27, 2023
and filed its original petition the following day, requesting, among other relief, to
be named as the child’s emergency temporary managing conservator. The trial
court granted the request in an Order for Protection of a Child in an Emergency
signed that day and found that the Department made all reasonable efforts to
prevent or eliminate the need for the removal, but there was an immediate danger
to the children warranting their placement in the Department’s emergency
conservatorship, and set the case for an adversarial hearing.

Two days later, on March 30, 2023, Mother took a drug test indicating she
was positive for both cocaine and marijuana.

The court held the adversary hearing on April 13, 2023. In its order from this

4
“E.V.V.” was the alleged father of Gema, and confirmed father of Darby, (“Father”).
According to the record, Father passed away on October 23, 2023, while this case was pending.

3
hearing, the court found there was a danger to the children warranting their
continued placement in the Department’s possession and maintained the
Department’s appointment as the children’s temporary managing conservator.
Furthermore, the court ordered the parents “to comply with each requirement set
out in the Department’s original, or any amended, service plan during the
pendency of this suit.”

The court ordered Mother to appear for drug testing before April 14, 2023 –
the day after the trial court’s adversary hearing – but she failed to do so.

Family Service Plan

On May 5, 2023, the Department filed Mother’s family service plan (“the
Plan”). The Plan set forth several concerns regarding Mother’s parenting, as well
as goals and services for her to complete to obtain her children’s return. It noted
that the Department found reason to believe that Mother abused and neglected the
children and that because of her drug use and neglectful supervision, the children
could be placed in a dangerous situation if returned to her. It stated the goal that
she work with the Department and other professionals to “understand the serious
nature of the situation that placed her children in harms [sic] way,” and that she
“alter her behavior that exposed herself and her children to drug usage,” and
“demonstrate an ability to keep a clean home free of drug [sic] that is suitable for
herself and a [sic] children in her care.”

As concerns to be addressed, the Plan stated that Mother “severely
mismanages available resources,” which resulted in “unmet basic care needs of
housing, food, and clothing for the children.” The Plan detailed that the family’s
house lacked adequate plumbing, heating, or food, and that the children
“chronically present[]” with unclean clothing. It stated also that she had
“unrealistic expectations and gaps in her parenting skills,” and lacked “knowledge

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of developmentally appropriate disciplinary methods,” which interfered with her
ability to provide effective parenting. Further, the Plan noted that she had a
“limited support system,” and was “isolated, or is reluctant to use available
support.” The Plan stated that she was involved in substance use which “results in
behaviors that impede her ability to meet her own and/or her children’s needs,” and
demonstrated “periodic mental health symptoms,” including “depression, low self-
esteem or apathy.” Finally, the Plan stated that her relationship with the children’s
father was “characterized by increased disruption of positive interactions coupled
with lack of cooperation and/or emotional, or verbal abuse.”

To address these concerns, the Plan required Mother to attend all court
hearings and case conferences; provide proof of income as well as safe, stable
housing for a period of six months; complete parenting classes; provide the
Department with contact information for appropriate family members who might
help provide placement for the children; submit to random drug testing; and
complete drug and alcohol, psychosocial, and domestic violence assessments, and
follow any recommendations from those assessments.

On May 31, 2023, the trial court held a Status Hearing to review and
approve the terms of the Plan. In its order following the hearing the court found
Mother had reviewed and understood her Plan and was advised that unless she
demonstrated the ability to provide the children with a safe environment, her
parental rights could be restricted or terminated. The court made the terms of
Mother’s Plan a part of the orders of the court. The court also included orders
stating that visitation with the children was “suspended for both parents until they
show up, provide a negative test, and engage in services.” Further, the order
provided that any visitation “will require 24-hour notice of intent to visit.”

Department’s February 27, 2024 Permanency Progress Report

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On February 27, 2024, the Department filed a permanency progress report,
which included details about Gema and Darby, as well as Mother’s progress on her
service Plan.

The report reflects that the girls were placed in a foster home on March 27,
2023 when they were initially removed by the Department, and lived in that home
until it closed on October 13, 2023. They were then moved to a second foster
home. However, during the pendency of the suit the Department located a
maternal aunt in Tennessee, who was approved as a placement, and both girls were
moved into her home on February 5, 2024, where they remained when trial began.
The report shows that, following the move, both girls had adjusted well to the
aunt’s home and were participating in “age appropriate activities there.”

The report describes Gema as, at times, “very shy,” and that she enjoyed
playing with her dolls and watching cartoons. The child participated in a mental
health assessment on May 11, 2023, shortly after being removed by the
Department. The results from the assessment stated that Gema was behind
developmentally, was “acquiring adaptive skills more slowly than most of her age
peers,” and had “well-below average language and academic/cognitive
development, and low average physical development.” The assessment explained
Gema’s condition as a result of “likely neglect, impoverishment in her early
experiences, perhaps over-stimulation as well.” The assessment diagnosed Gema
with “Child Neglect, Confirmed,” and “Unspecified Communication Disorder.”
The report also shows that Gema was prescribed medication to address seizures.

Darby was two years’ old when the report was filed, and it described her as a
“friendly and bright” child who “loves her big sister and enjoys playing with her,”
and who, like her older sister, “likes playing with her dolls and watching cartoons.”
She was too young to be assessed but, the report shows, she had been to medical,

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vision, and dental checkups and, “participates in activities with her older sibling
and attends age appropriate outings with her caregivers and sibling.”

With respect to Mother, the report details that she completed some of the
services required of her but had several yet to finish. The report states, Mother “is
currently not engaged in services.” It details that she traveled to Honduras during
the month of November, 2023 to attend the burial of Darby’s father, but failed to
notify the caseworker. At the time the report was filed, Mother was living in
Dallas, Texas, “due to being fearful of retaliation by the individuals that [sic] killed
[the father].” The Department therefore assigned her a courtesy worker to assist
Mother with completing services there.

According to the report, Mother completed parenting classes, provided the
Department with the names of possible family members who might provide the
children with a placement, and participated in psycho-social and domestic violence
assessments. However, Mother had not yet completed a substance abuse
assessment or provided any information to the Department about whether she
obtained employment. The report states that Mother’s visits with the children had
been suspended since May 31, 2023, when the court conditioned her visitation on
her providing a negative drug test and engaging in services.

Moreover, she failed to complete many of the services recommended by her
assessments. The results of the psychosocial assessment show that Mother was
diagnosed with “Stimulant Disorder, severe,” as well as “Major Depressive
Disorder, moderate, recurrent episode.” It listed other conditions as well,
including “Child Neglect, confirmed,” “Child Physical Abuse, Confirmed,”
“Personal History (past history) of spouse or partner violence, physical,” and both
economic and housing problems. Additionally, during the assessment, Mother
identified her drug of choice as crack cocaine and reported using the drug on a

7
daily basis.

The assessment also recommended several services, including random drug
screens “to ensure sobriety”; both inpatient and outpatient substance abuse
treatment to address her “ongoing drug use”; parenting classes to address how to
properly care for and parent young children “due to concerns of child neglect and
physical abuse”; individual therapy to address depression and Mother’s coping
skills, history of domestic violence, neglect and physical abuse of the children, past
trauma, and her “drug use and the impact on her ability to care for her children’s
needs.” Other than the parenting classes, the report shows that Mother “still needs
to follow through” with the psycho-social assessment recommendations.

With respect to Mother’s domestic violence assessment, the report states,
“case reporting and interview indicate client is a victim of domestic violence.”
Accordingly, it recommended domestic violence group or individual counseling.
The report states that Mother had failed to follow through with this
recommendation as well.

Finally, the report, in addition to other evidence in the record, shows that
Mother failed to participate in some of the drug tests required of her and tested
positive for illegal drugs on several occasions. As noted above, she tested positive
for cocaine and marijuana on March 30, 2023 and failed to appear for a court-
ordered test on April 14, 2023. Subsequently, Mother failed to appear again for
testing on June 2, 2023, and was positive in testing on July 5th, 9th, and 21st, 2023
for cocaine, and on July 27, 2023 for cocaine and marijuana. Lastly, she was
positive again for cocaine on October 5, 2023, and provided a negative test result
on January 12, 2024

Child Advocate Report filed March 17, 2024

A report submitted by the guardian ad litem for the children (Child Advocate
8
Report) included the recommendation that parental rights be terminated and the
Department be named sole managing conservator of the two girls. The Child
Advocate Report listed concerns that, while Mother initiated some of the services
listed in her family service Plan, she failed to complete it. It also recounted that
following the court’s Status Hearing in May, Mother moved to North Carolina to
find work, but then moved back to Houston at of the end of August, 2023 and
moved in with her sister. At that time, she participated in a Family Group
Conference at which the services listed in her Plan were discussed, and the
Department provided her with referrals for those services. In September, Mother
moved again, this time to her cousin’s residence, and reported that she was
working at Men’s Warehouse, but failed to provide proof of any income.
Subsequently, after Darby’s father was killed, Mother relocated to Dallas.

The Child Advocate Report also set forth Mother’s drug test results,
including the positive results for cocaine and marijuana in March, two positives for
cocaine and marijuana in July and a positive result for cocaine in October of 2023.
Despite these results, Mother reported to the Child Advocate that she last used
drugs in June of 2023, at which time she said she used “crack cocaine.”

With respect to the children, the Child Advocate Report stated that they were
placed with their aunt in Tennessee, but the aunt had since expressed inability to
keep them for longer than two to three years. As a result, the plan was for the
children to remain in that home until an adoptive placement could be found. The
advocate had observed the children virtually in their aunt’s home and reported that
“both children seem happy and smiling,” and were “up to date with medical
appointments.”

Trial

The trial began on March 19, 2024, wherein the above discussed reports

9
were admitted into evidence and the following witnesses testified:

1. The Department’s case supervisor, Shamaila Khan
The Department called Shamaila Khan, the supervisor over the case
involving Gema, Darby and their Mother. She testified that the children were
removed on an emergency basis following a report alleging that the children were
abandoned by Mother when she left them with a babysitter and never returned, nor
could she or the children’s father be contacted. Khan reported that the children
were taken to Texas Children’s Hospital where they were examined, which
revealed that one child had bruises, and the older girl had some discharge which
indicated poor hygiene. Khan testified that Mother “was validated on neglectful
supervision, physical abuse and abandonment.” Kahn confirmed that Mother was
drug tested at the time of the children’s removal and showed positive for cocaine.
At the time, the Department was concerned that Mother was not readily available
to parent the children, was parenting them while under the influence of illegal
drugs, was “unable to keep up with their hygiene,” and lacked stability in her
housing and employment.

When asked about Mother’s housing stability at the time of trial, Khan
responded that since December 2023, Mother had been living with the deceased
father’s mother in Dallas. Khan testified that Mother moved several times during
the suit, which was consistent with her conduct during a previous case with the
Department in 2022 also involving Gema and Darby. Like the present suit, the
previous case involved Mother’s cocaine use and lack of stability. At that time,
Khan explained that Mother was unemployed and lived with her sister and her
sister’s boyfriend. Khan said the investigation in that case was closed, however, in
May of 2022 when Mother enrolled herself in services at “Santa Maria with both
of her children with her at the Bonita House.”

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According to Khan, Mother had apparently suffered a relapse when this case
began in March of 2023. The Department provided referrals for services on April
6, shortly after the children were removed, and Mother enrolled herself again in
Santa Maria for treatment near the end of June, 2023. However, Mother left the
program again “against their recommendations… according to her, because of
COVID.” Then on July 31, 2023, Mother notified the Department’s caseworker
that she was moving to North Carolina because Mother reported a family member
knew of employment for her.

Khan testified that when Mother was living in North Carolina, Mother was
advised that the Department could not pay for services outside of Texas. Khan
explained that Texas-licensed providers are not allowed to provide services in
another state. Khan said Mother was advised she would have to pay for any out-
of-state services herself and release or share records of any out-of-state services
she completed. Khan testified that Mother had not provided the Department with
any records or progress notes from any service providers to show that she
participated in any of the services required by her family service Plan.

The next contact Mother had with the Department after she moved to North
Carolina was on September 20, 2023 when she met with the Department’s
caseworker in person. Mother attended a court hearing on October 4, 2023, but
then later that month went to Honduras after Father was killed. She was there until
late November and then the Department was notified on December 21, 2023 that
she was living in Dallas. At that point, Mother informed the caseworker that she
wished to start participating in services. The following month, the Department
submitted a referral for a courtesy worker to assist Mother in Dallas, but said they
had no control over the assignment. Khan later explained that the Department does
not pay for inpatient services, and it was the parent’s responsibility to contact the

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provider for those services.

With respect to Mother’s drug use, Khan said Mother acknowledged that her
drug of choice was crack cocaine. Additionally, she missed court-ordered drug
tests in April and June of 2023. Khan said the missed tests indicated that
Mother’s “ongoing drug use was causing her not to submit to the drug testing.”
Khan said further that at the time the children were removed, Mother had “very
high levels of cocaine in her hair,” and had “cocaine metabolite in her UA.” Khan
therefore assumed Mother was using “a lot of cocaine” around the time she
abandoned the two girls. Subsequently, in July of 2023, Mother was positive in
two tests that showed “still – pretty high levels of cocaine in her system…” Khan
confirmed that the level of cocaine metabolite in Mother’s system on July 9, 2023
was actually higher than what was shown in the March 30, 2023 test. Additionally,
Mother was still testing positive for cocaine as late as October 5, 2023, though
Khan said the levels of drugs in her system were lower. Khan agreed that Mother’s
drug use was “very consistent and continuing,” and reiterated that Mother’s drug
use went back to March of 2022, so was not just a recent concern.

Khan testified that Mother was pregnant with another child, was “just about
due,” and it was possible Mother had continued to use drugs despite her pregnancy
because she never showed negative in a drug test from March of 2023 until
January of 2024. Khan thought Mother’s drug use constituted a danger to the two
girls because Mother had not been able to demonstrate “any long-term sobriety to
reflect that Mom has indeed changed behavior to be physically, emotionally,
mentally present to care for her children.”

Khan testified that Mother’s drug use was also concerning because of
Gema’s special needs. The Department was making attempts to have Gema
assessed for autism at the Texas Children’s Clinic. At over four years old Gema

12
was still in diapers, was verbally delayed and needed speech therapy services, and
experienced seizures which required seizure medication and follow-up
appointments with a neurologist. Khan expressed further concerns from an
assessment indicating that Gema’s developmental delays were secondary to early
neglect. Khan was also concerned that Mother had failed to participate in the
services required of her because Gema had a condition that required urgent
attention. 5

With respect to the Gema and Darby’s current placement, Khan said the
Department conducted an extensive evaluation of the maternal great aunt’s home
and the great aunt completed a home study in Tennessee before the girls were
placed with her. Additionally, she had expressed interest in having the children
placed with her throughout the case. The maternal great aunt had been meeting the
children’s needs but recently informed the Department that she could not provide a
long-term home for the girls. Khan also looked at several other relatives, including
the children’s maternal aunt, a paternal aunt, Maternal Grandmother, and Paternal
Grandmother, each of whom she denied as possible placements. The maternal
aunt had history with the Department from 2022 in which drug testing showed she
was using cocaine. Moreover, Mother lived with her during the case at a time
when Mother was showing positive for cocaine. That circumstance, Khan
testified, precluded placing the children in that home. Khan also denied Maternal
Grandmother as a possible placement because she reported to the Department that
she saw no concerns regarding Mother’s ability to parent even though Mother was
“extremely high on drugs.” The paternal aunt had only been in the U.S. for one
year, did not know if she was going to be filing for asylum, was driving without a

5
Khan explained her concern for Gema’s care was that she “had had these issues or
developmental delays, the sooner you catch them and address them, there’s more chances of
more success…at an earlier age than having to wait until they’re 5, 6, 7, 10 years old.”

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license, had never met the children, and had no resources or backup caregivers to
support them. Accordingly, Khan conducted a broadcast for the children and
found three homes that she believed would be a good fit for the two sisters. It was
Khan’s plan to have one of those homes selected by the next day.

Khan was recalled to testify several days later, and reported that (since the
time she had previously testified) the children had been moved into an adoptive
foster home, and it was the Department’s goal for them to stay there and be
adopted by that family. She also said that, since the previous trial date, she had
received nothing showing Mother had completed any additional services.

When asked about the children’s father, Khan said from what the
Department learned from Mother and the children’s paternal grandmother, “both
[Mother] and [Father] were purchasing drugs from somebody that somewhere went
wrong and the dad was murdered and [Mother] was afraid for her safety and life,
which caused her to move to Dallas.” Paternal Grandmother contacted the
Department and asked the Department to provide “some kind of shelter for mom or
a place where Mom can be safe and these people that have murdered the father
would not come after the mother.” The situation was concerning for Khan. Given
the grandmother’s request to find some kind of shelter for Mother so that she could
be protected from the father’s murderers, Mother’s home did not sound like a safe
or stable placement for the two girls. If returned to Mother’s care, Khan said, the
girls “could be in the middle of something that they have nothing to do with and
[the] parents’ actions [could] cause a bad reaction for the children.”

Khan testified that she believed terminating parental rights was in the
children’s best interest. She said Mother had the opportunity beginning in March
of 2022 to make the changes that “the children need, deserve,” to provide them
with “a permanent home, stability, drug-free environment, a present parent that can

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meet [the] social, emotional, physical needs of the children.”

Kahn indicated that while the children were in the Department’s care, they
had a place to live and did not need to “worry about being fed, they don’t have to
worry about where they’re going to sleep tonight,” and the Department had plans
to obtain a “permanent, safe and stable home for these two children.”

Khan agreed that Mother completed a substance abuse evaluation in Dallas,
which recommended three sessions of outpatient treatment, but was unaware
whether Mother completed those sessions. Khan, however, explained that the
assessment Mother completed in Houston had already recommended inpatient
treatment and that, while Mother began that inpatient treatment in July, she left
before the treatment was complete. In Khan’s view, “even though [Mother]
completed a new substance abuse assessment that does not recommend inpatient,
she still did not follow the recommendation of the initial assessment; and so,
therefore she has failed to complete what was asked of her.” Khan explained that
if Mother had completed the services when she first enrolled in the inpatient
facility, “her children could’ve been returned.”

Khan acknowledged that Mother completed parenting classes, a
psychosocial assessment, and a domestic violence assessment, but Khan was
unaware of any progress Mother had made on the recommendations from those
assessments. Mother failed to address her diagnosis of severe major depressive
disorder with therapy, nor had she participated in domestic violence group or
individual counseling. Additionally, Mother failed to provide proof of any income.

2. Child Advocate, Esther Gonzalez

The Department also called Esther Gonzalez, the Child Advocate appointed
to be the children’s guardian ad litem. Gonzalez agreed with the Department that
parental rights should be terminated and shared Khan’s concerns about Mother’s
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instability. Gonzalez said it was “definitely concerning that at the [] court hearing
in October, she was testing positive still.” Gonzalez also reported that in
September Mother said that she was no longer in a relationship with Darby’s father
and had distanced herself from him because he was engaged in drug use. However,
Mother revealed in December that she was approximately three months pregnant
because she had reengaged in a relationship with him before he was killed.
Therefore, Gonzalez said that she was concerned about Mother’s repetitive
behaviors and lack of stability and noted that despite knowing she was pregnant
Mother was still positive for illegal drugs. Gonzalez testified that she was not sure
how long Mother had been able to maintain sobriety and did not believe that
Mother was able to meet the children’s needs or provide them with a safe and
stable environment.

With respect to the children, Gonzalez said that their aunt had been meeting
their needs and they had done very well in her home. She said that after all the
work it took to get the children placed with her, the aunt surprised everyone by
saying that she was not interested in adopting them.

3. Mother
Next, Mother testified—largely about her whereabouts after the children’s
removal, her participation in services, and her excuses for falling short of
completing services. Mother also acknowledged facts unfavorable to her case.

Mother testified that in December she moved to Dallas to live with the
Paternal Grandmother after a friend of Father killed him, but she denied that the
murder had anything to do with drugs. She said too that she moved to North
Carolina during the case to find work, but moved back after a month when her
search was unsuccessful. When she returned to Houston, Mother said she worked
at a warehouse for two months but left that job when Darby’s father was killed. At

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that point she went to Honduras during the month of November because, she said,
she was the only person available to claim the body of the deceased.

Since moving to Dallas in December, she said no one from the Department
had contacted her to tell her she could complete her services virtually. She
testified that she reached out to the Department multiple times but received no
response, or a negative response.

On the second day of trial on April 3, 2024, Mother testified that she was
participating in services in Dallas and had completed “two sections of domestic
violence” out of seven required and was working on the third. She said, too, that
she was “going to be completing [individual] counseling,” which was beginning
next week. She already completed a substance abuse assessment “because I was
tired of waiting and I wanted to go ahead and take my own initiative.” The results
of that assessment recommended three counseling sessions, which she also
completed. She said that she sent the results of the evaluation and the completion
of the substance abuse sessions to the Department’s caseworker. She said she had
not been drug tested since moving to Dallas but provided a negative test in January
and averred that she had not used illegal drugs since June of 2023.

Mother told the judge that she was doing everything possible to get the girls
back. She said, “I know that I have made a mistake and I am now trying to remedy
that mistake. I knew that I had time to complete things and I didn’t, but now I am
completing them.” She said the loss of Darby’s father was difficult for her but was
“willing to go forward in order to get my girls back.”

On cross-examination, Mother acknowledged that the children were placed
into the Department’s custody in March of 2023 at a time she was using crack
cocaine daily. Mother denied, however, that she abandoned her children with a
neighbor and failed to return. She also denied that she was not present at the
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hospital with the children. Mother acknowledged, however, that though she was
ordered by the court in May to participate in services, she did not begin working on
those services until October of 2023. At that time, Mother completed a
psychosocial assessment, but she said she did not know that the assessment
recommended inpatient substance abuse treatment because, as Mother explained,
“They never told me any of that.” Mother also said the Department’s caseworker
told her the inpatient treatment “wasn’t – not that it wasn’t necessary, but she said
that it wasn’t obligatory.” Nonetheless, she enrolled in an inpatient program at
Santa Maria, but left after a week “due to COVID,” and did not complete the
treatment. She also testified that she had no employment in Dallas, had not yet
begun therapy, and acknowledged having moved to the city while knowing that her
children were either going to be living in Houston or Tennessee. Mother
acknowledged that she found out she was pregnant in August and was due on April
20, 2024.

4. Maternal Grandmother
Mother’s mother (“Maternal Grandmother”) testified next. Maternal
Grandmother wanted to be considered as a possible placement for the two girls and
said no one from the Department had contacted her. She acknowledged she had
history with the Department involving Mother when Mother was approximately 13
years old. Maternal Grandmother denied knowledge of Mother’s drug use. She
said Mother was not living with her and that she had to call the police to help her
get into her daughter’s apartment, and “when I got in there I didn’t know what had
been happening.” When asked what she did when she found out about Mother
using drugs, she testified that a neighbor called the Department, that Mother
enrolled in a drug rehabilitation program, and it was her understanding that Mother
was no longer using drugs.

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Maternal Grandmother testified that she lived in Houston, resided with her
three-year old son, and worked “at cleaning some offices.” She believed she could
provide a long-term, safe and stable place for Gema and Darby and said if she
knew Mother were using drugs again, she would keep the children away from her.

On cross-examination, the Maternal Grandmother denied knowledge that
Mother was using cocaine on a daily basis in 2022 during her previous case with
the Department. Maternal Grandmother said she saw Gema, Darby, and Mother all
the time in 2022, but failed to notice Mother’s drug use, she said, “because they
lived alone. And when I would get – when I would go and visit them, I didn’t – I
didn’t realize.” She denied, too, that either Gema and Darby had been abused or
neglected and said, “[t]hat’s a lie because there are no photographs or anything
about that.” And, when asked whether it was safe for a child’s caregiver to be
using crack cocaine, the grandmother’s response was that “she left them with the
babysitter…She never left them alone.” She also denied that the woman with
whom Mother left the children in March of 2023 had to call the police when
Mother failed to return, stating “That’s not – that a lie because she was a babysitter
and she would watch the kids.” She explained that the babysitter called the police
because Gema “had an attack,” and that Mother “was – she was – she was working
and…her phone died.” She said, too, that she had not before volunteered to care
for the children because her sister was willing to take them, and when asked why
she did not volunteer to be a placement when the children were first removed, she
said, “Well, I know – of course I was willing, but they never asked me.” She also
said she did not call to check on the children because she knew “how busy you-all
are and I didn’t want to keep calling to bother you.”

5. Paternal Grandmother
The mother of the children’s deceased father (“Paternal Grandmother”)

19
testified last. Paternal Grandmother lived in Houston until her son was killed, at
which point she moved to Dallas. She said she felt unsafe in Houston because in
July “somebody came and they were knocking really loud on my door.” She said,
however, she felt safe in Dallas. Paternal Grandmother had two siblings there and
lived with one of them along with her two children and Mother. She had no
concerns that Mother was continuing to use drugs and said she would not allow
anyone who was using drugs to be around her children. At one point Paternal
Grandmother testified that she wished to be considered a long-term placement for
Gema and Darby and planned to move to a bigger house if she were eligible once
the children were placed with her. In later testimony, she indicated that she and
her brother were already living in a bigger house and that Mother lived in her old
apartment. Paternal Grandmother said she was employed and believed she was
able to provide the children with a safe and stable home.

Paternal Grandmother acknowledged being involved in a prior CPS case in
which her 15-year-old daughter reported that the grandmother’s son sexually
assaulted her. However, she explained, her 15-year-old daughter later recanted and
said she made the allegation so that she could go back to Honduras. Paternal
Grandmother first testified that the Department’s caseworker never asked her
whether she would be interested in taking Gema and Darby, but later
acknowledged that she had a conversation with the caseworker at a visit in which
the caseworker asked her if she wanted to have the girls placed in her home. She
said at that time she told the caseworker she was unable to because she was dealing
with her previous CPS case with her 15-year old daughter. She also acknowledged
telling the caseworker that she could not care for Gema and Darby because she had
three children of her own. Paternal Grandmother also acknowledged again that a
part of the reason that she left Houston was because of the trouble her son was in

20
because of his use of drugs.

Trial Court’s Judgment
On May 22, 2024, the trial court signed its Decree for Termination which
ordered the termination of Mother’s parental rights under subsections (D), (E), (N),
and (O) of 161.001(b)(1) of the Texas Family Code, found that termination was in
the children’s best interest, and appointed the Department as the girls’ sole
managing conservator

II. BEST INTEREST OF THE CHILDREN

Mother presents one issue: whether the evidence is legally and factually
insufficient to support a finding that termination is in the best interest of Gema and
Darby.

A. Applicable Law and Standard of Review

Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). Although parental rights are of constitutional magnitude, they are not
absolute. In re A.C., 560 S.W.3d 624, 629 (Tex. 2018); In re C.H., 89 S.W.3d 17,
26 (Tex. 2002). In a proceeding to terminate the parent-child relationship under
Texas Family Code section 161.001, the petitioner must establish by clear and
convincing evidence one or more acts or omissions enumerated under subsection
(1) of section 161.001(b) and that termination is in the best interest of the child
under subsection (2). Tex. Fam. Code § 161.001; In re N.G., 577 S.W.3d 230, 232
(Tex. 2019) (per curiam); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

Due to the severity and permanency of terminating the parental relationship,
Texas requires clear and convincing evidence to support such an order. See Tex.

21
Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). “Clear and
convincing evidence” means “the measure or degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.” Tex. Fam. Code § 101.007; In re J.F.C., 96
S.W.3d at 264. This heightened burden of proof results in a “correspondingly
searching standard of appellate review.” In re A.C., 560 S.W.3d at 630; see also In
re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

In reviewing the legal sufficiency of the evidence in a parental termination
case, we must consider all evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or
conviction that its finding was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
We assume that the fact finder resolved disputed facts in favor of its finding if a
reasonable fact finder could do so, and we disregard all evidence that a reasonable
fact finder could have disbelieved. Id.; In re G.M.G., 444 S.W.3d 46, 52 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). However, this does not mean that we
must disregard all evidence that does not support the finding. In re D.R.A., 374
S.W.3d at 531. Because of the heightened standard, we also must be mindful of
any undisputed evidence contrary to the finding and consider that evidence in our
analysis. Id.

In reviewing the factual sufficiency of the evidence under the clear-and-
convincing standard, we consider and weigh disputed evidence contrary to the
finding against all the evidence favoring the finding. In re A.C., 560 S.W.3d at
631; In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed
evidence that a reasonable fact finder could not have credited in favor of the
finding is so significant that a fact finder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.” In re J.O.A., 283

22
S.W.3d at 345. We give due deference to the fact finder’s findings, and we cannot
substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006).

The best-interest inquiry is child-centered and focuses on the child’s well-
being, safety, and development. In re A.C., 560 S.W.3d at 631. The trier of fact
may consider several factors to determine the children’s best interest, including:
(1) the desires of the children; (2) the present and future physical and emotional
needs of the children; (3) the present and future emotional and physical danger to
the children; (4) the parental abilities of the persons seeking custody; (5) the
programs available to assist those persons seeking custody in promoting the best
interest of the children; (6) the plans for the children by the individuals or agency
seeking custody; (7) the stability of the home or proposed placement; (8) acts or
omissions of the parent that may indicate the existing parent-child relationship is
not appropriate; and (9) any excuse for the parents’ acts or omissions. See Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (the “Holley factors”); In re E.R.W.,
528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also
Tex. Fam. Code § 263.307(b) (listing factors to consider in evaluating parents’
willingness and ability to provide the children with a safe environment).

Courts apply a strong presumption that the best interest of the child is served
by keeping the child with the child’s natural parents, and it is the Department’s
burden to rebut that presumption. In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement in a safe
environment also is presumed to be in the child’s best interest. Tex. Fam. Code §
263.307(a). A finding in support of “best interest” does not require proof of any
unique set of factors, nor does it limit proof to any specific factors. See Holley, 544
S.W.2d at 371-72. Evidence that proves one or more statutory grounds for

23
termination may also constitute evidence illustrating that termination is in the
children’s best interest. In re C.H., 89 S.W.3d at 28. And a fact finder may
measure a parent’s future conduct by his past conduct in determining whether
termination of parental rights is in the children’s best interest. In re E.D., 419
S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).

B. Did the trial court reversibly err by concluding that termination of
Mother’s parental rights was in the best interest of Gema and Darby.

In conjunction with Mother’s arguing points, we review the Holley factors in
light of the evidence at trial.

The primary basis for Mother’s best-interest challenge rests on her
contention that the children were not living in an adoptive placement by the time of
trial and there were relatives available to care for them. Mother argues that because
a permanent placement for the children had not yet been found, there was no way
to evaluate the Holley factors regarding the children’s desires, their emotional and
physical needs, the parental abilities of those seeking custody or the stability of the
proposed home or placement. Holley, 544 S.W.2d at 371-72 (discussing factors
one, two, four, and seven). She asserts, therefore, that each of these factors was
neutral and, given the presumption that children should be placed with parents,
weighed in Mother’s favor.

Even if we were to discount Khan’s testimony that the Department had
successfully placed the girls in an adoptive home during trial, Mother’s argument
is not prevailing. Texas courts have repeatedly acknowledged the lack of evidence
about definitive plans for permanent placement and adoption cannot be the
dispositive factor in the best-interest analysis. In re C.H., 89 S.W.3d at 28; In
Interest of E.R., 555 S.W.3d 796, 810 (Tex. App.—Houston [14th Dist.] 2018, no
pet.) (finding termination in best interest despite silent record “as to whether or for

24
how long [child] will stay in his foster home following termination of Mother’s
parental rights”); Interest of E.A.D., No. 14-22-00025-CV, 2022 WL 2663981, at
*10 (Tex. App.—Houston [14th Dist.] July 11, 2022, no pet.)(finding termination
in the best interest of the child even though foster caregiver had not affirmatively
expressed interest in adopting child). Otherwise, determinations regarding best
interest would regularly be subject to reversal on the sole ground that an adoptive
family has yet to be located. C.H., 89 S.W.3d at 28. “Instead, the inquiry is
whether, on the entire record, a fact finder could reasonably form a firm conviction
or belief that termination of the parent’s rights would be in the child’s best
interest—even if the agency is unable to identify with precision the child’s future
home environment.” Id.

Additionally, Mother claims that placing the children with biological relatives
would alleviate any concern with respect to her ongoing drug use, and therefore the
Holley factor regarding any emotional or physical danger to the children was also
neutral and should weigh in her favor. This argument is legally untenable. Though
placement within the family is relevant to other concerns, her argument is not
germane to the particular termination analysis, as the same could be stated with
respect to placement with the Department. Interest of L.M., 572 S.W.3d 823, 837
(Tex. App.—Houston [14th Dist.] 2019, no pet.) (noting that even when the
Department has not yet considered a given relative, that fact “does not bear on
whether termination is in the child’s best interest.”). The argument is also factually
unsupported: the record does not support that the relatives suggested by Mother
were viable placements who would ensure Gema and Darby’s safety and stability.
Khan testified that the Department had considered the relatives suggested by
Mother and detailed the reasons why those relatives were rejected as possible
placements, i.e.:

25
• Maternal aunt (Texas). Khan testified the children’s maternal aunt had
history with the Department showing that she too was using cocaine in 2022
at the same time Mother and the girls were previously involved with the
Department. Moreover, Mother was residing with the aunt during the case
while showing positive for cocaine.

• Paternal aunt. Khan considered a paternal aunt and rejected her as a
possible placement because she had newly emigrated to the United States,
had never met the children, did not know whether she would be applying for
asylum, was driving without a license, and had no resources or backup
caregivers to support the children.

• Maternal grandmother. Khan had concerns too about Mother’s mother
because of Maternal Grandmother’s denial regarding Mother’s drug use.
Maternal Grandmother’s testimony supported Khan’s concerns and showed
that the grandmother remained in denial about Mother’s conduct and the
danger she posed to the girls. At trial, said she had never been aware of
Mother’s use of cocaine. Maternal Grandmother insisted that the girls had
not been neglected or abused, because despite the medical records in
evidence, “there are no photographs or anything about that.” She also
denied that Mother had abandoned the girls with the babysitter and denied
that the babysitter had to call the police because Mother failed to return. She
also acknowledged she had not volunteered to care for the children because
no one reached out to her to ask her to and said she did not want to call the
Department to check on the girls because she did not want to bother the
Department about the issue.

• Paternal grandmother. Khan had also considered and rejected the children’s
Paternal Grandmother. Though both Mother and Paternal Grandmother

26
denied any danger in Paternal Grandmother’s home, Khan testified that she
learned from them both during the suit that the reason they moved to Dallas
was to avoid the people who had murdered Darby’s father. According to
what Paternal Grandmother and Mother told Khan, Mother and Father were
involved in a drug sale that “went wrong,” and Father was murdered.
Mother was afraid for her safety and so moved to Dallas to live with the
paternal grandmother. Khan said the situation was concerning for her
because of the possible danger to the children if placed in Paternal
Grandmother’s home.

The only suitable relative, Mother’s aunt in Tennessee, declined the long-
term duty of adoption. Yet Khan testified that after initiating a broadcast to find an
adoptive foster placement, the Department had reviewed several home studies and
identified one she felt was a good fit for the girls. She reported that the Department
received fifteen home studies after the broadcast, held a meeting to discuss the best
three, and in considering the girls’ Hispanic culture and the desire that at least one
parent in the home speak Spanish, Khan selected the home she thought would best
suit the children. Khan testified on the third day of trial that the two girls had
recently been placed in that home and it was the Department’s goal to have the
girls be adopted by that family. Accordingly, the evidence did not show that there
were safe, stable options for placing the children with biological relatives, but
rather that the Department had reason to be concerned about all of the placements
Mother suggested. As a consequence, rather than weigh against the trial court’s
best interest determination, a review of the relatives suggested by Mother instead
supported that Mother had no viable plan for the children’s care. See Holley, 544
S.W.2d at 371-72 (discussing factor six and seven regarding plans for the child and
the stability of the proposed home or placement).

27
It is not insignificant to our analysis what Mother concedes on appeal—that
the record demonstrated that she exposed the children to endangering
circumstances, engaged in conduct which endangered their welfare, had minimal
contact with the children while they were in the Department’s conservatorship,
demonstrated an inability to provide them with a safe environment, and failed to
complete the services provided her to obtain the children’s return, also provided
weighty support for the court’s best interest determination. Tex. Fam. Code §
161.001(b)(1)(D), 6 (E), 7 (N), 8 (O); 9 Interest of A.C., 560 S.W.3d at 631–32 (noting
that while proof of acts or omissions under Tex. Fam. Code § 161.001(b)(1) may
not relieve the petitioner from proving the best interest element, the same evidence
may be probative of both.”).

6
In her brief, Mother concedes that she “does not contest whether the evidence indicating she
abandoned her children with a babysitter, and one of the children required medical treatment due
to poor hygiene, is factually and legally sufficient to support the trial court’s subsection (D)
finding.”
7
In her brief, she states, “[M]other confirmed that when the children were brought into the
agency’s custody, she was smoking crack-cocaine daily. She admitted that her drug of choice is
crack cocaine, which was the primary concern in both her CPS cases. Also, Mother is currently
pregnant, and possibly used illegal narcotics during the pregnancy as she is nearly full term and
has not provided a clean drug test between March of 2023 and January of 2024. [] The admitted
drug test results and mother’s admissions establish sufficient evidence to support the trial court’s
[subsection (E)] finding.”
8
In her brief, Mother concedes, “Mother does not dispute whether the evidence is sufficient to
establish that (i) the agency made reasonable efforts to return the children; (ii) Mother has not
regularly visited her children; and (iii) has not demonstrated she can provide the children with a
safe environment. Tex. Fam. Code §161.001(1)(b)(N). In addition to the abandonment evidence
listed above, mother admitted she had moved to North Carolina and Dallas and traveled to
Honduras while her children were in the care of DFPS.”
9
In her brief, Mother concedes, “Here the agency prepared a Family Service Plan for the mother,
which was filed with the court. [] The undisputed evidence establishes mother violated the terms
of her court-ordered Family Service Plan by testing positive for illegal substances during the
pendency of this case. . . Although mother indicated she was in substantial compliance with the
service plan, it does not undermine the trial court’s subsection (O) ground finding. The record
establishes that Mother never provided any proof or records indicating she completed her court-
ordered therapies.”

28
Mother argues that the evidence established that she was no longer using
illegal drugs. However, Mother’s history of drug use going back to 2022 when she
and the two girls were first involved with the Department; her admitted daily use
of crack cocaine in March of 2023 when the Department intervened after the
children were found abandoned with a babysitter showing signs of abuse and
neglect; her failure during this suit to participate in court-ordered drug testing and
her repeated positive results for cocaine in July and October of 2023; and her
failure to address her substance abuse issues by completing court-ordered
substance abuse services, all contradict her assertion that the evidence established
she was no longer using drugs, and supported the conclusion that her drug use
remained a concern and posed a continuing danger to the children’s welfare as well
as her own ability to care for the children and meet their needs. See Holley, 544
S.W.2d at 371-72 (discussing factors two and three regarding the children’s
physical and emotional needs and any danger to the children); see also In Interest
of A.A.Z., No. 14-17- 00276-CV, 2017 WL 3612259, at *11 (Tex. App.—Houston
[14th Dist.] Aug. 22, 2017, pet. denied) (holding that a mother’s drug use and
attendant unstable lifestyle, in addition to her continuing use during a child
protection suit, weighed in favor of the conclusion that termination was in the
child’s best interest).

Even if some of the Holley factors were neutral for lack of evidence, most
factors were supported decisively by evidence favoring termination. Viewing the
evidence in the light most favorable to the judgment for our legal-sufficiency
analysis and all of the evidence equally for our factual-sufficiency analysis, we
conclude that a reasonable fact finder could have formed a firm belief or
conviction that termination of Mother’s parental rights was in Gema and Darby’s
best interest. See Tex. Fam. Code § 161.001(b)(2).

29
III. CONCLUSION

We affirm the trial court’s judgment terminating Mother’s parental rights.

/s/ Randy Wilson
Justice

Panel consists of Justices Spain, Poissant, and Wilson. (Spain, J. concurring
without opinion).

30