Opinion issued April 2, 2020




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-19-00888-CV
                            ———————————
      IN THE INTEREST OF A. L., T. L. S. AND T. S., Minor Children




                    On Appeal from the 246th District Court
                             Harris County, Texas
                       Trial Court Case No. 2016-72719


                          MEMORANDUM OPINION

      This is an appeal in a parental termination case. The trial court found that the

mother endangered her two youngest sons, see TEX. FAM. CODE § 161.001(b)(1)(E),

and that she failed to comply with the provisions of a court order without proof of a

statutory defense. See id. § 161.001(b)(O). The court further found that termination

of her parental rights to her sons was in their best interest. The trial court did not
terminate the mother’s parental rights to her teenage daughter, but it found that it

was in the best interest of the daughter to appoint the Department of Family and

Protective Services (“the Department”) as the sole managing conservator and the

mother as the sole possessory conservator.

      On appeal, the mother challenges the factual sufficiency of the evidence to

support the best-interest finding as to her two youngest sons and the trial court’s

exercise of discretion in appointing the Department sole managing conservator.

             We affirm.

                                       Background

      Appellant is the mother of five children: Amy (16), Andy (9), Cam (8), Jason

(7), and Joey (3).1 Andy and Cam were placed with their paternal relatives, and they

are not the subject of this appeal.2

      In September 2016, when appellant was nine months’ pregnant with Joey, the

Department received a referral alleging that she had been physically abusive to her



1
      These are fictitious names, which we use to protect the anonymity of the children,
      for ease of writing, and because of the similarity of the younger two children’s
      names. Both the mother and the Department referred to the daughter, A.L., as Amy.
      In her brief, the mother referred to T.L.S. as Tim and T.S. as Tom. In its brief, the
      Department reversed this, referring to T.L.S. as Tom and T.S. as Tim. To avoid the
      confusion created by the parties’ naming of the youngest sons, we refer to the older
      son involved in this case as Jason, and the younger son involved in this case as Joey.
2
      The mother’s parental rights to Andy and Cam were not terminated; she is their
      possessory conservatory with visitation rights in accordance with a standard
      possession order and based up on agreement with each son’s managing conservator.
                                            2
children and had been using illegal drugs. The Department investigated, and the

mother submitted to a drug test, which was positive for cocaine. The mother

voluntarily placed her children with a friend, who kept them for several weeks, until

they were each placed with family friends or relatives. After threatening to flee with

her children, the mother picked them up from school unsupervised. This violated her

agreement with the Department. In October 2016, weeks after Joey was born, the

Department became the temporary managing conservator of the children.

      When the children were removed, the mother was living in an apartment at

Cuney Homes, paying subsidized rent of $50 per month. The trial court permitted

her to keep custody of the newborn. Amy, who was 12 years old at the time,

remained with a family friend, and Jason, who was 3 years old, was placed with

Cam, who was 4 years old, with Cam’s biological father.

      In January and February 2017, the mother tested positive for cocaine,

indicating that she had used cocaine in the three days before the test. Hair follicle

testing in January 2017 also showed that the mother had used cocaine in the 90 days

before that sample was taken. Because of the positive drug tests, in February 2017,

the Department removed Joey from his mother’s care. He was cared for in baby

group homes until he was placed with the foster parents who want to adopt him.

      The trial court ordered the mother to comply with the terms of a family service

plan prepared by the Department and intended to address the reasons why the


                                          3
children came into care. The family service plan required the mother to take a

parenting class, undergo substance abuse assessment and counseling, submit to drug

testing, maintain sobriety, attend visitation with her children, maintain safe and

stable housing, maintain employment, and demonstrate an ability to nurture and

protect her children.

      In March 2017, the mother was evicted from her apartment at Cuney Homes

for nonpayment of rent. She later testified that she could no longer afford to pay rent

once Cam’s father stopped paying child support because Cam had been placed with

him. The mother lived in several other places, and for a period she was homeless.

The mother did not allow the Department to visit any of the places she lived since

Cuney Homes. At trial, the mother said that she did not ask the caseworker to see

any of her residences because she had stayed with several other people and she knew

they did not have the room for her children. At trial, she said she was living with her

boyfriend, Sidney Harrison.

      The mother took a parenting class, completed psychological, psychosocial,

and substance abuse assessments, and she participated in some individual

counseling. But she did not complete the services required by the Department and

the family service plan. In particular, she did not complete individual therapy,

substance abuse classes, and a drug treatment plan. The mother testified that the

counseling sessions were expensive—between $100 and $200 per hour—and she


                                          4
could not afford to pay. Keverlyn Walker, the Department’s casework assigned to

this case, testified that the Department paid for the services until the mother was

unsuccessfully discharged due to failure to participate. After the mother was

unsuccessfully discharged from several services, Walker informed her that she

would be financially responsible for completing her services, and Walker informed

the mother of several providers that offered the required services at no charge.

Walker testified that the mother’s estimated costs were based on her selection of

providers.

      The mother submitted to some drug tests, and she refused to submit to others,

despite having been told that a refusal to cooperate would be considered a positive

result for illegal drugs. At trial, the mother testified that sometimes she was unable

to get to the laboratory for testing due to lack of transportation or because she was

working. She explained that without a car, the bus ride to the downtown location

took about two hours and sometimes she could not afford the bus fare. The mother

also said that her identification card expired in 2018, and due to her difficulty

maintaining housing and employment, she had additional difficulty renewing her

identification. She also testified that she could not complete drug testing without

identification. Walker, however, testified that on several occasions she offered to

drive the mother to and from the drug testing laboratory and to vouch for her identity,

but the mother did not accept.


                                          5
      Bruce Jefferies, who works for the National Screening Centers, testified as an

expert in drug testing results and analysis. He testified about each drug test the

mother took and interpreted the results. According to Jefferies, a positive result on a

urinalysis meant that the mother used cocaine within three days preceding the date

the sample was collected. A positive result on a hair follicle test meant that the

mother used cocaine in the 90 days preceding the date the sample was collected.

      According to the test results and Jefferies’s testimony, the mother used

cocaine in the three days preceding the following dates: 1/24/17; 2/2/17; 2/28/17;

6/12/17; and 4/17/18. She also used cocaine in the 90 days preceding these dates:

10/21/16; 1/25/17; 2/2/17;5/4/17; 8/21/17; and 10/19/17. She tested positive for the

use of opiates within three days of a sample taken in May 2017. She tested negative

for the use of illegal drugs within three days of samples taken on these dates:

10/20/16, 12/1/16; 6/2/17; 7/28/17; 8/21/17; 9/8/17; 10/5/17; 10/19/17; and 6/19/18.

      The mother refused to take or failed to appear for drug tests in March and

April 2017. In June 2017 and June 2018, she refused hair follicle testing; once she

said that the laboratory was taking too much hair. The mother refused to take or

missed nine drug tests between November 2017 and April 2018, and she again

refused or missed five drug tests from August 2018 to December 2018. She refused

or missed another drug test on March 21, 2019. In June 2019, the mother tested

positive for marijuana, amphetamines, and methamphetamines.


                                          6
      At trial, the mother testified that she “completed all services except for—I

needed, like, six units of counseling, and I did like the substance abuse assessment,

like, three times, three or four times already, so—.” The mother asserted that she

missed two drug tests, saying that she had not received the voicemail message

because she was at work.

      The mother remembered signing two family service plans, but she claimed

that she “had no idea” that her parental rights could be terminated if she did not

complete the services or the recommendations of the family service plan. Although

she testified that she did not read the plans, she also testified that she understood the

family service plans to be “a list of requirements by the Department in order for me

to get my kids back.”

      The mother denied having used cocaine any time after November 11, 2003,

but she admitted that she had used drugs “every now and then” after her children

were born. She said that she “dibbled and dabbled a little,” but she maintained that

she did not use drugs “anywhere near my children.” The mother conceded that she

had missed more than one random drug screening. She testified that she had

difficulty with transportation to drug tests, but she admitted that she did not ask the

Department to find a closer drug testing location. Once, when Walker offered to

drive her to the drug test, take her home, and vouch for her when she lacked a valid




                                           7
identification, the mother declined because she “had some other pressing matters”

to deal with, including work.

      The mother worked part-time for People Ready, a temporary staffing

company, from April or May 2017 until October 2018. She did not provide a year’s

worth of paycheck stubs to Walker or anyone else in the Department. At trial, she

testified that while the case was pending, she also worked for Walmart, Texas

Southern University, Café Express, and GES Services. She also testified that she had

an offer to do office work for Warrior Electric. She did not provide the Department

with proof of employment with these employers while the case was pending, nor did

she testify at trial about how much she earned or how consistently she worked. She

testified that she could not provide paycheck stubs because she lost all her

paperwork. She did not provide financial support to her children during the case,

except to buy a small present occasionally or give the children a few dollars when

she saw them. The mother testified that the Department had refused to help her, but

both the caseworker and the Child Advocate testified that they gave her financial

assistance in the form of grocery gift cards and bus passes, as well as nonmonetary

assistance and encouragement.

      The mother described her relationship with her children as “very loving,” and

“close.” She called herself “a very active parent at the school,” and she said that she

was there often. She said that she and the children “have fun” during visits and that


                                          8
they play, talk, and laugh. But Walker, the Child Advocate, the boys’ foster parents,

and Amy’s foster mother all testified that the mother’s inconsistency in attending

visitation had negatively impacted the children. For example, Amy’s foster mother

reported that she would hear Amy crying when her mother failed to show up; Jason’s

foster parents noted that he became clingy or engaged in negative attention-seeking

behaviors when the mother cancelled a planned visit. Judy Ruhlin, the Child

Advocate, testified that she observed family visits in which the mother ignored the

children to use her phone and failed to observe and supervise them. For example, at

one visit, Jason and Cam ran through the halls while the mother made phone calls.

Ruhlin also noted that while the mother played well with Joey, she corrected Jason

frequently and ignored him when he behaved appropriately. Ruhlin described the

mother’s interaction with Amy as practically nonexistent, and she noted that Amy

often did not want to come to visits with her mother.

      Jason and Joey’s foster father testified that he had twenty years of experience

in education, including eight years teaching English and Special Education and

twelve years as a college football coach. He testified about the routine that he and

his wife created for Jason and how their use of consistency, positive reinforcement,

and structure have reduced Jason’s negative attention-seeking behaviors. He talked

about the activities he engages in with both Jason and Joey, and he said that he loves

them and wants to adopt them. He testified that he and his wife chose sports activities


                                          9
for Jason that would not interfere with his mother’s visitation schedule, noting the

genuine bond between the mother and Jason and that Jason misses his mother. He

also said, however, that the mother’s frequent last-minute cancellations of visitation

had an adverse effect on Jason. The foster father noted that Joey was just beginning

to understand what was happening.

      The boys’ foster mother, who was pregnant at the time of trial, testified that

she worked as an administrative assistant at a high school. She said the boys came

to them in September 2017. She noted that Jason arrived with negative attention-

seeking behaviors, like being noisy, disruptive, and running around. She said that

Jason’s behavior improved with play therapy and consistency in the home. She said

that she acknowledged him, let him know that she loved him, gave him positive

attention, played with him, and read to him. She also said that Joey, who was almost

three years old, was thriving, was advanced for his age, and enjoyed sports. The

foster mother said that Jason became nervous before visits because he never knew

what to expect. Sometimes they waited in the car outside of the Department’s office

for up to an hour for the mother to arrive. Because the children would be

disappointed by last minute cancellations, the foster mother planned fun family

activities as alternatives if the visitation did not take place. She said Joey, who had

spent most of his early life in baby group homes, would have difficulty transitioning

to a new home, and she said that she thought both boys would adjust if visits with


                                          10
the mother were permanently discontinued. She testified that she wants to adopt the

boys.

        Amy’s foster mother testified that she works two jobs, one of which she has

held for 26 years. She said that she would like to adopt Amy or provide a long-term

placement for her. She described Amy as “a normal teenager with a lot of baggage.”

She said that Amy was hurt when her mother missed visits, describing Amy as

“heartbroken” and “very sad.” The foster mother testified that she has an adopted

five-year-old daughter and a three-year-old foster daughter who live in the house

with them. She also has a large extended family, including children, grandchildren,

and cousins, who spend time together. She noted that six of those relatives were

present in court that day to provide support for Amy.

        Amy’s foster mother talked about the challenges Amy had experienced in

addition to her sadness and disappointment. She said that Amy fought with other

girls at school and had both engaged in and been victimized by bullying, including

online bullying. The foster mother noted that Amy had twice been temporarily

placed in an alternative school due to the fighting. The foster mother noted that in

one such instance Amy was the victim, but the school chose to discipline all the

children who were involved. The foster mother testified that she is frequently at

Amy’s school, she knows who bullied Amy, and she met with their parents about it.




                                         11
      Amy’s foster mother testified that she talks to Amy when her behavior falls

short, and she imposes consequences such as taking away the privilege of using a

cell phone or participating in fun outside activities. She testified that she periodically

monitors Amy’s cell phone and imposes consequences when she finds inappropriate

content, such as photographs of boys who are too old for Amy.

      The foster mother testified about an incident that happened when Amy was

15 years old. Amy let her boyfriend in to the foster mother’s house when everyone

was asleep. The foster mother learned about this later when she overheard Amy

telling someone that she had sex with her boyfriend that night. The foster mother

impressed upon her that this behavior was unacceptable particularly because other

foster children reside in the house. She also called the caseworker and took Amy to

the doctor.3 She also changed the locks and testified that she was in the process of

installing cameras.

      Amy’s foster mother testified that Amy was an A/B student who likes math

and wants to be a lawyer, and she said she was committed to helping Amy

accomplish her goals. She encouraged Amy to attend visitation to maintain a

connection with her mother and brothers. She said that Amy loves the three-year-old

and the five-year-old girls who live with them, and she refers to them as her sisters.


3
      The caseworker testified that when she told the mother what had happened, she
      referred to her daughter as a “ho” and requested that Amy not attend the next
      visitation.
                                           12
The foster mother said that Amy does not babysit for the little girls, noting that Amy

is “my baby herself.” She said that Amy was safe and secure in her home and that

she had promised Amy that she would adopt her if that was what Amy wanted.

      The caseworker and the Child Advocate both opined that termination of the

mother’s parental rights was in the best interest of the children because she had not

demonstrated an ability to provide the children with a safe and stable environment,

she had not achieved or maintained a drug-free life, and she had not addressed her

substance abuse issues. The mother said it was not in her children’s best interest to

terminate her rights, specifically noting that she was the only mother Amy knew.

The mother said she would “never believe” that her children’s needs for consistency,

routine, structure, or trust were being met in foster care. The mother was asked if

she understood what might happen if her parental rights were not terminated:

      Q.     Do you understand you could potentially be named as a
             possessory conservator in this suit if this Court is so inclined?

      A.     Okay. That’s fine, yes.

      After a bench trial, the court terminated the mother’s parental rights to Jason

and Joey, and though it did not terminate her parental rights to Amy, it appointed the

Department as sole managing conservator and appointed the mother as possessory

conservator. The mother appealed.

                                       Analysis

I.    Sufficiency of the evidence

                                          13
      The mother concedes the predicate act findings and the legal sufficiency of

the evidence to support the trial court’s finding that termination of her rights was in

the best interest of her two youngest sons. In her first issue, she challenges only the

factual sufficiency of the court’s finding that termination of her parental rights to

Jason and Joey was in their best interest.

      A.     Standards of review

      The interest of parents in the care, custody, and control of their children is a

fundamental liberty interest protected by the Constitution. See, e.g., Troxel v.

Granville, 530 U.S. 57, 65 (2000); Santosky v. Kramer, 455 U.S. 745, 758–59

(1982). But the rights of natural parents are not absolute. In re A.V., 113 S.W.3d 355,

361 (Tex. 2003). Protection of the child is paramount, and when the State institutes

proceedings to terminate parental rights, courts focus on protecting the best interests

of the child. See id.

      “A strong presumption exists that a child’s best interests are served by

maintaining the parent-child relationship.” Walker v. Tex. Dep’t of Family &

Protective Servs., 312 S.W.3d 608, 618 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied). We strictly scrutinize termination proceedings on appeal because “the

evidence in support of termination must be clear and convincing before a court may

involuntarily terminate a parent’s rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex.

1985) (citing Santosky, 455 U.S. at 747–48); see In re J.F.C., 96 S.W.3d 256, 263–


                                             14
64 (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 a factual sufficiency review, the reviewing court determines “whether the

evidence is such that a factfinder could reasonably form a firm belief or conviction

about the truth of the State’s allegations.” J.F.C., 96 S.W.3d at 266 (quoting In re

C.H., 89 S.W.3d 17, 25 (Tex. 2002)). We do not disregard disputed evidence that

the factfinder could have disbelieved; rather, we consider whether “a reasonable

factfinder could not have resolved that disputed evidence in favor of its finding.” Id.

“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.” Id.; see In re A.R.R., No. 01-18-00043-CV, 2018 WL 3233334, at *3–

4 (Tex. App.—Houston [1st Dist.] July 3, 2018, pet. denied) (mem. op.).

      A court may order termination of the parent-child relationship when it finds

by clear and convincing evidence that the parent has committed one or more of the

statutorily enumerated predicate acts or omissions, and that termination is in the

children’s best interests. TEX. FAM. CODE § 161.001(b)(1), (2). “Only one predicate

finding” under section 161.001(b)(1) “is necessary to support a judgment of

termination when there is also a finding that termination is in the child’s best


                                           15
interest.” A.V., 113 S.W.3d at 362; see In re A.H.L., No. 01-16-00784-CV, 2017 WL

1149222, at *3 (Tex. App.—Houston [1st Dist.] Mar. 28, 2017, pet. denied) (mem.

op.).

         The “best interest” finding is a separate inquiry from the finding of a predicate

act, but evidence that supports a predicate-act finding may also be probative of the

best interest of the child. See TEX. FAM. CODE § 161.001(b)(2); A.R.R., 2018 WL

3233334, at *4. Our review of a trial court’s best interest finding is guided by the

following non-exclusive factors: (1) the desires of the child, (2) the emotional and

physical needs of the child now and in the future, (3) the emotional and physical

danger to the child now and in the future, (4) the parental abilities of the individuals

seeking custody, (5) the programs available to assist these individuals to promote

the best interest of the child, (6) the plans for the child by these individuals or by the

agency seeking custody, (7) the stability of the home or proposed placement, (8) the

acts or omissions of the parent that may indicate the existing parent-child

relationship is not proper, and (9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); A.R.R., 2018 WL 3233334,

at *4.




                                             16
      B.     The evidence is factually sufficient to support the trial court’s
             finding that termination of the mother’s parental rights was in the
             best interest of the children.

      Desires of the children. Jason and Joey were seven and three years old,

respectively, at the time of trial, and no evidence indicates that either expressed any

desire about termination of their mother’s parental rights. This factor is neutral.

      The emotional and physical needs of the child now and in the future, the

emotional and physical danger to the child now and in the future, the parental

abilities of the individuals seeking custody, and the stability of the home or

proposed placement. No evidence indicated that either Jason or Joey had any special

emotional or physical needs. However, the evidence showed that the mother had not

demonstrated an ability to meet the children’s basic needs, such as providing a safe

and stable home for the children. She moved multiple times during the case, and she

did not permit the Department to see her homes because she knew that they could

not accommodate her children. She testified that she had worked for multiple

employers, but she did not provide evidence verifying her employment to the

Department. She frequently missed visitation with the children, and multiple

witnesses testified at trial that her frequent and unpredictable absences from her

children’s lives caused them emotional harm. Although the mother completed a

parenting class—and testified that she learned how to communicate with her




                                          17
children—she did not demonstrate these skills during visitations in which she

sometimes ignored her children or scolded Jason.

      To the contrary, the foster parents demonstrated an ability to nurture the

children and provide them with structure and consistency. They engaged with the

children in positive ways that enabled Jason to grow beyond his negative attention-

seeking behaviors. They demonstrated stability in their professional roles as well as

in their family life. This factor weighs strongly in favor of the trial court’s decree.

      The programs available to assist these individuals to promote the best

interest of the child. Walker testified that if the mother’s parental rights to the boys

were not terminated, the Department would again offer services to the mother to help

address the reasons why the children came into care. However, she noted that the

mother had already been offered these services, free of cost, and she had failed to

participate. This factor does not weigh against the trial court’s decree.

      The plans for the child by these individuals or by the agency seeking

custody. The mother did not testify about any plans for her children, despite the

sincerity of her expressions of love for them. The foster parents testified that they

loved the boys and wanted to adopt them. This weighs in favor of the trial court’s

decree.

      The acts or omissions of the parent that may indicate the existing parent-

child relationship is not proper, and any excuse for the acts or omissions of the


                                           18
parent. Three areas indicate that the existing parent-child relationship is not proper.

First, the mother failed to address her substance abuse problem and continued to use

cocaine and other illegal substances at a time when she knew her parental rights were

in jeopardy. Second, she failed to comply with the provisions of a court order that

established the actions necessary to obtain return of her children. At trial she offered

excuses for her lack of follow-through, including lack of financial resources and

transportation. But other testimony indicated that she declined offers for help with

transportation and failed to avail herself of services when they were provided to her

at no charge. Third, the mother’s frequent and unpredictable absences from visitation

caused her children emotional harm. This factor weighs in favor of the trial court’s

decree.

                                         ***

      Much of the evidence was undisputed. The evidence that did not support the

trial court’s decree consisted of the mother’s testimony. For example, she denied

using cocaine since her children were born. Her testimony regarding her drug use,

however, was inconsistent. She admitted at trial that she “dibbled and dabbled” with

drugs, i.e., used cocaine after her children were born. She also testified that, in her

opinion, termination of her parental rights was not in the best interest of the children.

The trial court as factfinder could have assessed the mother’s credibility against her,

and thus it could have disregarded the parts of her testimony that conflicted with the


                                           19
other evidence in this case. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009)

(“[T]he factfinder, not the appellate court, is the sole arbiter of the witnesses’

credibility and demeanor.”).

      We conclude that that the disputed evidence regarding the mother’s drug

use—i.e., the mother’s denial of drug use—was not so significant that it would have

prevented the trial court from reasonably forming a firm belief or conviction that

termination of the mother’s parental rights is in the best interest of the children. See

J.F.C., 96 S.W.3d at 266. We overrule the mother’s first issue.

II.   The trial court did not abuse its discretion by appointing the Department
      sole managing conservator of Amy.

      In her second issue the mother argues that the court abused its discretion by

appointing the Department as Amy’s sole managing conservator. Under our abuse-

of-discretion standard, we will reverse a trial court’s appointment of a nonparent as

sole managing conservator only if we determine that it is arbitrary or unreasonable

or without evidentiary support. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re

R.L., No. 01-16-00851-CV, 2017 WL 1496955, at *12 (Tex. App.—Houston [1st

Dist.] Apr. 21, 2017, no pet.). A trial court does not abuse its discretion if it bases its

decision on conflicting evidence, so long as some evidence of a substantive and

probative character supports its decision. See Unifund CCR Partners v. Villa, 299

S.W.3d 92, 97 (Tex. 2009).



                                            20
      The primary consideration in determining issues of conservatorship and

possession of and access to a child is always the child’s best interest. See TEX. FAM.

CODE § 153.002; J.A.J., 243 S.W.3d at 616. “A managing conservator must be a

parent, a competent adult, the Department of Family and Protective Services, or a

licensed child-placing agency.” TEX. FAM. CODE § 153.005(b); see J.A.J., 243

S.W.3d at 614. “[U]nless the court finds that appointment of the parent or parents

would not be in the best interest of the child because the appointment would

significantly impair the child’s physical health or emotional development, a parent

shall be appointed sole managing conservator or both parents shall be appointed as

joint managing conservators of the child.” TEX. FAM. CODE § 153.131(a).

      “The trial court may render a final order appointing the Department as

managing conservator of the child without terminating the rights of the parent of the

child if the court finds that: (1) appointment of a parent as managing conservator

would not be in the best interest of the child because the appointment would

significantly impair the child’s physical health or emotional development; and (2) it

would not be in the best interest of the child to appoint a relative of the child or

another person as managing conservator.” Id. § 263.404(a). The court must consider

the following factors when determining whether the Department should be appointed

sole managing conservator of a child whose parent’s rights have not been terminated:

(1) whether the child will reach 18 years of age in not less than three years; (2)


                                         21
whether the child who is 12 years old or older has expressed a strong desire against

termination or being adopted; and (3) the needs and desires of the child. Id.

§ 263.404(b).

      In this case, the evidence showed that appointing the mother as managing

conservator of Amy would significantly impair her physical health or emotional

development because the mother was unable to demonstrate that she could provide

a safe and stable home and avoid the use of cocaine and other illegal substances like

methamphetamine. The mother’s repeated failure to visitations caused Amy

emotional harm.

      In addition, Walker and Ruhlin both testified to the efforts made to place Amy

with a relative. They investigated more than seven potential placements including

aunts, grandparents, and fictive kin in both Texas and California. Not only did they

investigate relatives and family friends identified by the mother, they also

investigated any names supplied by Amy. Some relatives were unable due to health

or other concerns to take Amy, others were disqualified by their criminal history or

prior involvement with Child Protective Services, and others were rejected because

they were not biological relatives and they had no preexisting relationship with Amy.

      The record indicates that Amy was nearly 16 years old at the time of trial, and

that she had requested an opportunity to speak privately with the trial court judge

about her wishes. The record indicates that, although Amy had made some poor


                                         22
choices, her needs for support, discipline, structure, and nurturing were being met

by her foster mother who wanted to continue caring for Amy as either a foster or an

adoptive mother.

      We conclude that the trial court did not abuse its discretion by appointing the

Department as sole managing conservator because its decision was not arbitrary or

unreasonable and was based on evidence. We overrule the mother’s second issue.

                                    Conclusion

      We affirm the decree of the trial court.




                                              Peter Kelly
                                              Justice

Panel consists of Chief Justice Radack and Justices Kelly and Goodman.




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