Opinion issued July 9, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-01033-CV
                            ———————————
    IN THE INTEREST OF D.D.M., J.C.M., AND J.D.M., JR., CHILDREN



                    On Appeal from the 300th District Court
                           Brazoria County, Texas
                        Trial Court Case No. 89321-F


                          MEMORANDUM OPINION1

      Appellant J.M. appeals after having his parental rights to his two children

terminated. He contends that the evidence is legally and factually insufficient to


1
      We withdraw our memorandum opinion and judgment dated May 2, 2019 and
      issue this new opinion. Because we issue this new opinion, the appellee’s motion
      for en banc reconsideration is moot. In re Wagner, 560 S.W.3d 311, 312 (Tex.
      App.—Houston [1st Dist.] 2018, orig. proceeding [mand. denied]) (“Because we
      issue a new opinion in connection with denial of rehearing, the motion for en banc
      reconsideration is rendered moot.”).
support a finding that he engaged in endangering conduct under Family Code

section 161.001(b)(1)(E) and a finding that termination was in his children’s best

interest. He further contends that the trial court abused its discretion by appointing

the Department of Family and Protective Services as permanent managing

conservator of the children. Because the evidence is factually insufficient to

support the trial court’s finding that termination is in the children’s best interest,

we reverse the order of termination and remand for a new trial. We affirm,

however, the trial court’s appointment of the Department as permanent managing

conservator of the children.

                                    Background

      J.M. is the biological father of two children, five-year-old D.D.M. and six-

year-old J.D.M., the subjects of this suit. J.M. ended his relationship with the

children’s biological mother after he found out that she was having multiple

affairs. One of the affairs resulted in the mother having another child, six-year old

J.C.M. Although J.M. was not J.C.M.’s biological father, she called J.M. “daddy”

and otherwise treated him as her father. After the couple split up, J.M. lived with

his sister at her apartment, and the children stayed at the mother’s apartment. The

mother had another child, M.N., with yet another man after her relationship with

J.M. ended.




                                          2
      Sometime after the couple split up, J.M. learned through Facebook messages

that some men at the mother’s apartment were “whooping on [his] kids.” J.M.

called the police and asked them to conduct a welfare check on the children. A

man living with the mother later spoke with J.M. over the phone and asked why he

called “the police to come out and check on [the] kids.” The record does not

indicate how or if the police actually conducted the welfare check, but it is clear

that the children were not taken from the mother. J.M. was still concerned that men

at the mother’s apartment were abusing his children, so he attempted to get the

children from the mother’s apartment himself.

      After a friend drove him to the mother’s apartment, J.M. approached and

knocked on the mother’s door. He heard through the door a man on the inside say,

“This is your baby daddy at the door.” Then he heard a gun cock. J.M. quickly

moved away from the door and returned to his friend’s car, but he did not leave; he

was still worried about the safety of his children. He looked back at the door to the

mother’s apartment and saw that it had been opened. J.M. turned to his friend and

said, “Look here, man. I am here to try to get one of my kids.” He then went back

to the door and saw his son D.D.M. J.M. grabbed D.D.M., returned to the car, and

left. J.M. later stated that, had the opportunity presented itself without the risk of

being shot, he would have taken all the children.




                                          3
      In early winter 2016, after J.M. got D.D.M. from the mother’s house, he

called the police for a second time and asked that they check again on the children

at the mother’s apartment. The police told him that there was nothing they could do

because the Department had already taken the children from the home. This was

news to J.M. The Department then sent a caseworker to the sister’s apartment

where J.M. was staying with D.D.M. The caseworker explained to him that J.C.M.

and J.D.M. were taken from the mother on November 22, 2016, after the

Department discovered that the mother’s boyfriend had drowned two-month-old

M.N. in a toilet because he would not stop crying.2 Within a week, the Department

filed suit seeking custody of J.C.M. and J.D.M.

      The following month, J.M.’s sister kicked him and D.D.M. out of her

apartment. While on a bus with D.D.M., J.M. called the Department and informed

it that he had been kicked out of his sister’s apartment. He explained that he and

D.D.M. were going to a relative’s house to see if they could stay there or otherwise

receive help. Later that same day, J.M. informed the Department that his sister was

allowing him and D.D.M. to stay at her apartment but that she wanted him out

within thirty days. Three days later, J.M. called the Department again. He informed

it that he would not be able to find a place to stay before his sister kicked him out.

2
      The man who murdered M.N. was later convicted and sentenced to life in prison.
      See Gorman v. State, No. 01-18-00316-CR, 2019 WL 610739 (Tex. App.—
      Houston [1st Dist.] Feb. 14, 2019, no pet.) (mem. op., not designated for
      publication).
                                          4
J.M. stated that he had only $80 of food stamps and four diapers and that he would

be incapable of properly caring for D.D.M. after being kicked out. As he put it, “I

didn’t want [D.D.M.] to sleep on the fence like I had to.” The Department asked

J.M. if he understood that he was asking it to take his child from him. He stated

that he understood, and the Department took D.D.M. into its care.

      On January 23, 2017, the Department filed an original petition seeking

custody of D.D.M. This case was consolidated with the Department’s earlier

petition that sought custody of J.C.M. and J.D.M.3 The Department provided J.M.

with a family-services plan that laid out requirements he had to satisfy to ensure

that his parental rights were not terminated. The requirements included that he

“participate in random drug testing”; “complete drug and alcohol assessments” if

he tested positive on a drug test; “complete a psychological evaluation”;

“participate in individual therapy”; and “maintain a safe and stable home

environment as well as maintain employment.”

      By the time trial began in September 2018, J.M. had taken four drug tests.

The first was a leg-hair test on October 2, 2017. He tested positive for

methamphetamine at a level indicating “very heavy use”; he also tested positive for


3
      The Department also sought termination of the mother’s parental rights as well as
      the parental rights of J.C.M.’s biological father. The trial court terminated the
      mother’s rights as to D.D.M., J.D.M., and J.C.M. and the parental rights of
      J.C.M.’s biological father. Neither the mother’s or J.C.M.’s father’s terminations
      are before us.
                                           5
marijuana. The second was a urine test a day later. He again tested positive for

methamphetamine. The third was another leg-hair test, conducted on January 10,

2018. He tested positive for methamphetamine, marijuana, and cocaine. The fourth

was also a leg-hair test. It was conducted on April 4, 2018 and returned positive for

methamphetamine. J.M. completed his final drug test, another leg-hair test, on

September 21, 2018, eight days after trial began. The final test returned positive for

methamphetamine and ecstasy.

      Trial testimony revealed that J.M. completed his psychological evaluation

and the drug and alcohol assessment, he was participating in individual therapy, he

had been living in a safe home with his new girlfriend for four months, he was

working forty hours a week at McDonald’s earning $8.45 an hour, and he never

missed a visit with his children. J.M. testified that he and his girlfriend were

capable of paying their rent, utilities, and other expenses and would have enough

money left over to cover food, education, medical, and related expenses for

D.D.M. and J.D.M. A Department caseworker testified that the children loved their

father and enjoyed their visits with him.

      The same caseworker explained that J.D.M. was diagnosed with a “mood

disorder and conduct disorder, oppositional defiant disorder, and ADHD.” She

explained that, in the Department’s care, J.D.M. is enrolled in weekly therapy to

address these disorders. The caseworker testified that D.D.M. has “impulse control


                                            6
and conduct disorder and ADHD” and that he is currently in “play therapy.” The

caseworker averred that it was the Department’s position that J.M.’s rights should

be terminated and that the children should not be split apart but be placed together.

      The trial court also heard testimony from a Court Appointed Special

Advocate. The CASA testified that the father’s rights should not be terminated.

When asked why, the CASA replied:

      I’m at all the visits that [J.M.] has. He is very bonded with the
      children. The children are very bonded with him. Could he take care
      of them all the time? I haven’t seen that yet. But they do . . . look
      forward to him. They do interact with him. Yes, they do wear him out,
      but there’s a bond there. There’s a definite bond.

      The trial court struggled on the record with this difficult case. The trial court

explained that it was clear that the children were bonded to and loved J.M. It

rejected the Department’s argument that J.M. placed the children in a situation that

endangered their emotional and physical safety when he took D.D.M. from the

mother’s apartment but left the other children there, noting “it was clear from the

evidence he didn’t want to leave the child there” but felt that he had to or risk

serious physical harm to either himself or the children. Nevertheless, the trial court

concluded that J.M.’s drug tests indicated, at the very least, that he used illicit

drugs two months before trial, and that it was likely he used drugs during trial.

      The trial court noted that J.M.’s drug use was problematic both because he

was well aware of the fact that his parental rights were in question, yet he still used


                                          7
drugs, and because his testimony was entirely inconsistent on his drug use: At first,

when J.M. was asked about his drug use, he “plead[ed] the Fifth,” then he claimed

to have never used any drugs, and then—after repeated questioning—he admitted

to using drugs at some point in the past. Accordingly, the trial court concluded that,

by using illicit drugs, J.M. engaged in conduct that put the children’s physical and

emotional well-being at risk. For this reason, in addition to all of the other

evidence presented, the trial court concluded that termination would be in the

children’s best interests. Accordingly, the trial court terminated J.M.’s parental

rights.

                                        Analysis

          J.M. challenges the legal and factual sufficiency of the evidence supporting

the trial court’s finding that he engaged in conduct that endangered the physical or

emotional well-being of his children under Family Code section 161.001(b)(1)(E),

and the trial court’s finding that termination of his parental rights would be in the

children’s best interests under Family Code section 161.001(b)(2). J.M. also

challenges the trial court’s appointment of the Department as the permanent

managing conservator of the children.

I.        Standard of review

          It is well-established that a suit affecting the relationship between parents

and their children implicates a natural right that is “far more precious than any


                                            8
property right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (quoting Stanley

v. Illinois, 405 U.S. 645, 651 (1972)); In re J.W.T., 872 S.W.2d 189, 194–95 (Tex.

1994). And when the government seeks to terminate that natural right,

constitutional-based protections activate: Legislation that authorizes involuntary

termination is strictly construed, the government must justify termination with

“clear and convincing evidence,” and termination orders are strictly scrutinized. In

re A.C., 560 S.W.3d 624, 630 (Tex. 2018); Holick v. Smith, 685 S.W.2d 18, 20

(Tex. 1985); cf. Ray v. Burns, 832 S.W.2d 431, 434 (Tex. App.—Waco 1992, no

writ) (in reviewing sufficiency of evidence, “close calls” go to parent (citing

Lewelling v. Lewelling, 796 S.W.2d 164, 168 (Tex. 1990)). “Clear and convincing”

evidence denotes that “measure or degree of proof which 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.” In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).

      In a proceeding to terminate a parent-child relationship brought under

Family Code section 161.001, the Department must prove two elements by clear

and convincing evidence: It must establish a predicate statutory finding by showing

one or more acts or omissions enumerated under section 161.001(b)(1), and it must

demonstrate that termination of parental rights is in the children’s best interests.

TEX. FAM. CODE § 161.001(b)(1), (2); In re B.L.D., 113 S.W.3d 340, 353–54 (Tex.




                                         9
2003). Proof of one element cannot obviate proof of the other. Holley v. Adams,

544 S.W.2d 367, 370 (Tex. 1976).

      This clear-and-convincing-evidence standard renders the typical standards of

review for legal- and factual-sufficiency challenges inadequate. In re J.F.C., 96

S.W.3d 256, 264–68 (Tex. 2002). To assess the legal sufficiency of the evidence in

a termination proceeding, we consider all evidence in the light most favorable to

the trial court’s finding and decide “whether a reasonable trier of fact could have

formed a firm belief or conviction that its finding was true.” Id. at 266; see also

City of Keller v. Wilson, 168 S.W.3d 802, 814–17 (Tex. 2005). We assume that any

disputed facts were resolved in favor of the finding if a reasonable factfinder could

have done so. J.F.C., 96 S.W.3d at 266. Where “no reasonable factfinder could

form a firm belief or conviction” that the matter on which the Department bears the

burden of proof is true, we “must conclude that the evidence is legally

insufficient.” Id. In reviewing the evidence’s factual sufficiency, we consider the

entire record, including disputed evidence. Id. (citing C.H., 89 S.W.3d at 25). The

evidence is factually insufficient if, in light of the entire record, the disputed

evidence that a reasonable factfinder could not have resolved in favor of the

finding is so significant that the factfinder could not reasonably have formed a firm

belief or conviction. Id.




                                         10
II.   Predicate statutory finding under Family Code section 161.001(b)(1)(E)

      We begin with the legal and factual sufficiency of the evidence for the

predicate statutory finding under section 161.001(b)(1). The trial court made a

predicate statutory finding under section 161.001(b)(1)(E). Under that subsection,

a parent commits the predicate statutory act of endangerment if he “engaged in

conduct or knowingly placed the child with persons who engaged in conduct which

endangers the physical or emotional well-being of the child.” TEX. FAM. CODE

§ 161.001(b)(1)(E). “Endanger” means to expose to loss or injury, to

jeopardize. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

The relevant inquiry is whether evidence exists that the endangerment of the

child’s physical well-being was the direct result of the parent’s conduct, including

acts, omissions, or failures to act. See In re J.T.G., 121 S.W.3d 117, 125 (Tex.

App.—Fort Worth 2003, no pet.).

      In determining whether a parent engaged in “endangering” conduct, a trial

court may consider conduct that occurred before and after the child’s birth, in the

child’s presence and outside the child’s presence, and before and after removal by

the Department. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); Walker v. Tex.

Dep’t of Fam. & Prot. Servs., 312 S.W.3d 608, 617–18 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied). Because a parent’s drug use exposes children “to the

possibility that the parent may be impaired or imprisoned,” it may constitute


                                        11
endangerment of the child’s emotional and physical well-being. Walker, 312

S.W.3d at 617–18 (citing Vasquez v. Tex. Dep’t of Prot. & Reg. Servs., 190 S.W.3d

189, 195–96 (Tex. App.—Houston [1st Dist.] 2004, pet. denied)). And where the

record contains evidence that a parent engages in drug use during the pendency of

a termination suit, when he knows he is at risk of losing his children, the evidence

is legally sufficient to support a finding of endangerment. In re A.M., 495 S.W.3d

573, 580 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

      J.M. tested positive for methamphetamine in October 2017, January 2018,

April 2018, and September 2018, for marijuana in October 2017 and January 2018,

and for cocaine in January 2018 and September 2018. Considering the

Department’s expert’s testimony that leg-hair tests can indicate only whether an

individual used the tested-for drug within the last six months, the September 2018

test could reflect use of methamphetamine, at the earliest, in March 2018, which is

over a year after the Department sought to terminate J.M.’s parental rights.

Considering all the evidence, a factfinder reasonably could have inferred that J.M.

used illegal drugs during the pendency of this suit. Therefore, the evidence is

legally sufficient to support a finding of endangerment. See id. at 580. And because

no evidence directly contradicts that reasonable inference, the evidence is factually

sufficient to support a finding of endangerment. See id.




                                         12
       We are unconvinced by J.M.’s argument that the evidence of his good acts

outweighs or precludes a finding of endangerment. Section 161.001(b)(1)(E) asks a

yes-or-no question: Whether the parent “engaged in conduct or knowingly placed

the child with persons who engaged in conduct which endangers the physical or

emotional well-being of the child.” That a parent engages in endangering conduct

but also engages in other conduct that is good for the child’s emotional or physical

well-being does not change the fact that the parent engaged in endangering

conduct. We therefore overrule J.M.’s first issue.

III.   The children’s best interest

       J.M. next challenges the legal and factual sufficiency of the evidence

supporting the trial court’s finding that termination of his parental rights is in his

children’s best interests. Our analysis of the entire record is guided by the factors

set out in Holley v. Adams: (1) the child’s desires; (2) the child’s current and future

physical needs; (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 child’s best interests;

(6) the plans for the child by these individuals or by the agency seeking custody;

(7) the stability of the home or proposed placement; (8) the acts or omissions of the

parent that may indicate that the existing parent-child relationship is not a proper

one; and (9) any excuse for the acts or omissions of the parent. 544 S.W.2d at 371–


                                          13
72. The focus of this non-exhaustive list of factors is on the best interests of the

children, not of the parent. Dupree v. Tex. Dep’t of Prot. & Reg. Servs., 907

S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). Courts may consider any other

factor relevant to the children’s best interest, including evidence that establishes

the predicate act under section 161.001(b)(1). See C.H., 89 S.W.3d at 27–28. There

is, however, “[a] strong presumption . . . that a child’s best interests are served by

preserving the parent-child relationship, where possible.” Burns v. Burns, 434

S.W.3d 223, 230 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

      The children desire to remain with their father. The CASA, who supervised

J.M.’s visits with his children, described the children as having a very strong bond

with him and J.M. as having a very strong bond with them. In light of this

testimony, and the lack of any evidence indicating that the children did not want to

be placed with their father, this factor weighs against termination under the legal-

and factual-sufficiency standards of review and in favor of maintaining the parent-

children relationship.

      Next we consider the children’s current and future physical needs. Evidence

of this factor generally demonstrates what the children’s physical needs are,

specifically any special physical needs, and whether the parent seeking custody

was willing and able to meet those needs. See In re E.N.C., 384 S.W.3d 796, 808

(Tex. 2012). There was no evidence presented that the children had any physical


                                         14
needs aside from the basics such as housing and sustenance. J.M. testified that he

was working forty hours a week, he had a new home where the children could stay,

his girlfriend—who has no criminal or CPS history—was willing and able to watch

the children while he was at work, and he had the means to ensure the children

were fed, taken to school, and taken to their medical appointments. Nevertheless,

under a legal-sufficiency review, we must presume that the trial court disbelieved

J.M.’s testimony that he could meet his children’s physical needs. See In re A.S.,

261 S.W.3d 76, 87 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).

Accordingly, under a legal-sufficiency review, this factor weighs in favor of

termination. Under a factual-sufficiency review, however, we must consider all of

the evidence equally. Id. In light of J.M.’s testimony that he had the means and

willingness to meet his children’s physical needs, and the lack of any evidence

indicating that the children had any unique physical need or any physical need that

would be unmet if the children were in J.M.’s care, this factor weighs against

termination under a factual-sufficiency review. See E.N.C., 384 S.W.3d at 808

(“As to the second Holley factor, the court of appeals stated that the children’s

emotional and physical needs are great, but did not explain or cite any evidence

illuminating how those needs differ from other children or would go unmet if the

children were with [the father]. As such, we disagree that this factor weighs in

favor of termination.”).


                                        15
      Under the third Holley factor, we consider the emotional and physical

danger to the children now and in the future. The caseworker testified that, since

coming into the Department’s care, J.D.M. had been diagnosed with a “mood

disorder and conduct disorder, oppositional defiant disorder, and ADHD.” J.D.M.,

who is age six, also has “severe anger issues.” To treat these issues, J.D.M. is

currently taking medication and participating in weekly therapy. D.D.M., who is

age five, “has impulse control and conduct disorder and ADHD.” He also urinates

and defecates on himself, a problem that existed before he came into the

Department’s care but that has since worsened. He is currently in play therapy.

      According to the caseworker, the children’s unique mental health issues

require that certain needs be met so that the children do not face unnecessary

emotional danger. The caseworker testified that J.D.M. and D.D.M. “need more of

a structure and stable environment and a caregiver that will take care of all their

special needs,” such as taking them to therapy and medical appointments. The

Department presented no evidence that J.M. could not meet these special needs.

And, as mentioned above, J.M. testified that if the children were placed in his care,

he would ensure that they are taken to their medical appointments. Furthermore,

the caseworker testified that it would be in the children’s best interest if they were

all placed together. If J.M. is given custody of his children, they will be placed

together. And while J.D.M. and D.D.M. are currently living in the same foster


                                         16
home, there was no evidence that the brothers would remain together in that

placement or in a future placement.

      Because a reasonable factfinder could have disbelieved J.M.’s testimony that

he would make sure the children were brought to their medical appointments, the

third Holley factor weighs in favor of termination under a legal-sufficiency

analysis. See A.S., 261 S.W.3d at 87. Because, however, J.M. testified that he was

willing and able to take the necessary steps to mitigate the emotional and physical

danger stemming from the children’s mental-health issues, and because no

evidence suggests otherwise, this factor weighs against termination under a factual-

sufficiency analysis. See E.N.C., 384 S.W.3d at 808.

      The fourth Holley factor, which focuses on the parental abilities of those

seeking custody, ties in with the remaining factors: the programs available to assist

the individual seeking custody to promote the children’s best interest; the plans for

the children by the individual; the stability of the home or proposed placement; the

acts or omissions of the parent that may indicate an improper parent-child

relationship; and any excuse for those acts or omissions. We therefore address

these factors collectively. In addition to these factors, we are also mindful that

permanent placement of the children is presumed to be in their best interest. TEX.

FAM. CODE § 263.307(a). In addition to the remaining Holley factors, other factors

relevant to determining whether the parent is willing and able to provide a safe


                                         17
environment are the children’s age and vulnerabilities and whether there is a

history of abusive or assaultive conduct by the children’s family or others who

have access to the children’s home.

      D.D.M. was around five years old and J.D.M. was around six years old at

the time of the termination decree. There is no evidence or suggestion in the record

that J.M. engaged in assaultive conduct. J.M. testified that one of the reasons he

attempted to remove the children from the mother’s care was because he had heard

that men at her apartment were “whooping” his kids. Further, J.M. averred that he

is now living with his new girlfriend in her residence and that he was working forty

hours a week at McDonald’s. He explained that his new girlfriend has no criminal

history or CPS history and is willing and able to watch the children when he is at

work. J.M. explained that he and his girlfriend are financially stable and would be

capable of caring for the children appropriately, such as taking them to school,

taking them to doctors’ appointments and dental appointments, and making sure

they are fed. Further, the caseworker testified that she visited J.M.’s new home and

did not see anything that would be dangerous for the children.

      As for willingness to seek, accept, and complete counseling services and

cooperate with agency supervision, J.M. testified that he would do any therapy,

take any class, and follow any of the Department’s commands he needed to help




                                        18
him properly care for his children. He also demonstrated this by completing the

service plan, attending every visit, and seeking additional visitation.

      Although J.M.’s drug use tends to suggest that he has inadequate parenting

skills, the record contains evidence that suggests just the opposite. For example,

J.M. attempted to remove his children from the mother’s apartment because he

believed they were being harmed. Despite hearing a man inside cock a gun when

he knocked on the door, he waited for an opportunity and was able to successfully

remove D.D.M. from the apartment. Further, J.M. called the Department and asked

it to pick up D.D.M. before they were kicked out of his sister’s apartment, knowing

that he would not be able to properly care for D.D.M. on the streets. In addition to

his new home, new job, and care plan for his children, these acts demonstrate

J.M.’s protective and caring mindset towards his children.

      In the trial court and on appeal, however, the Department repeatedly stresses

J.M.’s drug use as evidence that termination is in the children’s best interest. The

Department argued to the trial court that, under the Holley best-interest analysis, all

the trial judge needed was “one ground under one of those factors to find best

interest for termination,” and that J.M.’s drug use alone was therefore sufficient to

support the best-interest finding. And on appeal, the Department similarly argues

that the evidence of J.M.’s drug use is enough to hold that the evidence was legally

and factually sufficient on best interest.


                                             19
      Although we agree that J.M.’s drug use is evidence that weighs in favor of

the best-interest finding, a factor we carefully consider in reaching our conclusion,

we cannot ignore all the other evidence and base our holding solely on evidence of

J.M.’s drug use. Under both legal- and factual-sufficiency standards of review, we

must consider all the evidence. In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006)

(holding that court of appeals erred in reversing termination on factual sufficiency

grounds by focusing on one pertinent factor “[r]ather than weighing all of the

evidence” and “not fully account[ing] for evidence that supported the jury’s

verdict”); J.F.C., 96 S.W.3d at 266–68; C.H., 89 S.W.3d at 28–29.

      The Department alternatively points out what it considers to be two other

events that indicate termination is in the children’s best interests: J.M.’s failure to

remove all of the children from the mother’s apartment and his calling the

Department to pick up D.D.M. before he was kicked out of his sister’s apartment.

We disagree that either of these events weighs in favor of termination.

      As for J.M.’s failure to remove all of the children from the mother’s

apartment, the Department’s argument is that J.M. removed only D.D.M. despite

knowing the dangerous situation all the children were being exposed to in the

mother’s apartment. The argument ignores other evidence that provides crucial

context for J.M.’s actions. As discussed above, after being driven to the mother’s

apartment by a friend, J.M. knocked on the mother’s door. He then heard through


                                          20
the doorway a gun cock and a man inside say, “This is your baby daddy at the

door.” He quickly returned to his friend’s car but was worried about the safety of

his children. He then noticed that the door to the mother’s apartment was open. He

turned to his friend and said, “Look here, man. I am here to try to get one of my

kids.” He then went back up to the door and saw D.D.M. He grabbed D.D.M.,

returned to his friend’s car, and left. J.M. testified that if he had the opportunity to

remove all of the children from the mother’s apartment, he would have done so.

Also, he twice contacted the police about all of the children.

      The trial court seemed to similarly reject the Department’s argument. The

Department’s original petition was based on alleged predicate acts under section

161.001(b)(1)(D) and (E). The Department’s argument under subsection (D)—

providing for termination upon a finding that the parent “knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which

endanger the physical or emotional well-being of the child”—was the same one it

makes here for best interest: That J.M. knowingly left his children in a place where

he knew they could be harmed. The trial court rejected the argument in the

following exchange:

      THE COURT: I think it was clear from the evidence he didn’t want to
      leave the child there. He went there.

      [DEPARTMENT]: But he took one child.

      THE COURT: Uh-huh.
                                          21
      [DEPARTMENT]: He could have taken all three.

      THE COURT: Could he have? That was clear in the evidence?

      [DEPARTMENT]: He told you he only took one child, Judge.

      THE COURT: Who -- who testified about that incident? Who was the
      only one that testified about that?

      [DEPARTMENT]: He did, sir.

      THE COURT: All right. That’s not clear and convincing evidence of
      Ground D. Period.

That J.M. believed his life was in jeopardy but nonetheless returned to get D.D.M.,

who was standing in the doorway, is not evidence that supports a finding that

termination was in the best interest of the children.

      The Department also argues that J.M.’s calling it to pick up D.D.M. before

they were kicked out of his sister’s apartment is also evidence that termination is in

the best interest of the children. That event suggests the opposite. J.M. first

informed the Department that his sister wanted him out within thirty days. Three

days later, J.M. called the Department again. He informed it that he would not be

able to find a place to stay before his sister kicked him out. J.M. stated that he had

only $80 of food stamps and four diapers and that he would not be capable of

properly caring for D.D.M. after being kicked out. As he put it, “I didn’t want

[D.D.M.] to sleep on the fence like I had to.” The Department asked J.M. if he

understood that he was asking it to take his child from him. He stated that he
                                          22
understood, and the Department took D.D.M. into its care. While this is some

evidence of J.M.’s instability, it also shows that he was willing to put the best

interest of his children first, even if doing so meant that he might lose possession

of his children. The evidence is that the circumstance that led J.M. to call the

Department in the first place—having no place to stay—no longer exists today;

J.M. testified that he now has a home, a home that the caseworker visited and

testified was safe for the children. Accordingly, J.M.’s call to the Department

requesting that it pick up D.D.M. is not evidence weighing in favor of termination.

      Much of the evidence weighing against termination under the remaining

Holley factors—such as J.M.’s testimony regarding his home, job, girlfriend,

willingness to complete counseling services and cooperate with agency

supervision—could properly be categorized as disputed evidence because the trial

court could have disbelieved his testimony. See A.S., 261 S.W.3d at 87. Under the

legal-sufficiency standard, we must presume that the trial court disbelieved J.M.’s

testimony. See id. Without J.M.’s testimony, the overwhelming majority of the

Holley factors support termination. Accordingly, we overrule J.M.’s contention

that the evidence was legally insufficient to support the trial court’s finding that

termination would be in the children’s best interest.

      Under the factual-sufficiency standard, however, we must consider J.M.’s

testimony. See id. (“While the trial court could have chosen to disbelieve this


                                         23
testimony, we are mindful that under a factual sufficiency review we must consider

all of the evidence equally.”). And with J.M.’s testimony, the majority of the

Holley factors substantially weigh against the best-interest finding, as detailed

above. In light of the constitutional concerns related to parental termination, clear

instructions from the supreme court to strictly scrutinize termination proceedings

and strictly construe involuntary-termination statutes, the strong presumption that

preservation of the parent-child relationship is in the children’s best interest, the

absence of evidence that J.M. would not meet his children’s needs, and our

obligation under a factual-sufficiency review to consider all evidence equally, we

conclude that the record evidence does not permit a reasonable factfinder to form a

firm belief or conviction that termination of J.M.’s parental rights would be in

J.D.M.’s and D.D.M.’s best interests. We therefore sustain J.M.’s issue that the

evidence is factually insufficient to support a finding that termination is in his

children’s best interests.

IV.   Conservatorship

      In his third issue, J.M. asserts that the trial court abused its discretion in

appointing the Department as permanent managing conservator of the children.

Specifically, he challenges the trial court’s finding that his “appointment . . . as

permanent managing conservator of the children is not in the children’s best




                                         24
interests because the appointment would significantly impair [the] children’s

physical health or emotional development.”

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

In re E.C.A., No. 01-17-00623-CV, 2017 WL 6759198, at *14 (Tex. App.—

Houston [1st Dist.] Dec. 28, 2017, no pet.) (mem. op.).

      We review a trial court’s conservatorship decision for an abuse of discretion.

J.A.J., 243 S.W.3d at 616. A trial court abuses its discretion if its decision is

arbitrary and unreasonable. Id. Unlike parental-termination orders, which are

subject to a clear-and-convincing-evidence standard, conservatorship orders are

governed by a preponderance-of-the-evidence standard. See id.

      [T]he standard of review for the appointment of a non-parent as sole
      managing conservator is less stringent than the standard of review for
      termination of parental rights. J.A.J., 243 S.W.3d at 616. We review a
      trial court’s appointment of a non-parent as sole managing
                                        25
      conservator for abuse of discretion only. Id. (citing Gillespie v.
      Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). We reverse the trial
      court’s appointment of a nonparent as sole managing conservator only
      if we determine that it is arbitrary or unreasonable. Id. “Because
      different standards apply, evidentiary review that results in reversal of
      a termination order may not yield the same result for a
      conservatorship appointment.” Id.

E.C.A., 2017 WL 6759198, at *14.

      Throughout trial, the trial court stressed its concern with J.M.’s drug use

during the pendency of the case. According to the Department’s expert, a leg-hair

drug test like the one taken by J.M. will indicate a positive result for

methamphetamine if the leg hair contains 300 or more picograms of

methamphetamine. J.M.’s leg hair had over 20,000 picograms, an amount the

expert averred reflected “very heavy use,” likely “daily use.” Given the abuse-of-

discretion and lightened evidentiary standards applicable to conservatorship

decisions, see J.A.J., 243 S.W.3d at 616, the recognition that a parent’s narcotics

use negatively affects his life and ability to parent, see Walker, 312 S.W.3d at 617–

18, and the evidence of J.M.’s drug use during the pendency of the case, we

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

Department as sole managing conservator.4 See E.C.A., 2017 WL 6759198, at *14

(“The same reasons that we gave for holding the evidence legally sufficient to

4
      “The trial court retains jurisdiction to modify a conservatorship order if it is in the
      child’s best interest, and the parent’s or child’s circumstances have materially and
      substantially changed since the order was rendered.” J.A.J., 243 S.W.3d at 617
      (citing TEX. FAM. CODE §§ 156.001, 156.101).
                                            26
show that termination was in the children’s best interest also supports a holding

that naming DFPS as sole managing conservator was not an abuse of discretion.”);

In re R.W., No. 01-11-00023-CV, 2011 WL 2436541, at *12–14 (Tex. App.—

Houston [1st Dist.] June 16, 2011, no pet.) (mem. op.) (holding that evidence was

factually insufficient to support finding that termination was in children’s best

interest but that trial court did not abuse its discretion in appointing DFPS as sole

managing conservator). We overrule issue three.

                                    Conclusion

      We affirm that part of the trial court’s termination order appointing the

Department as permanent managing conservator of D.D.M. and J.D.M. We reverse

the order’s termination of J.M.’s parental rights to D.D.M. and J.D.M. and remand

this case for a new trial.




                                                    Richard Hightower
                                                    Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




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