                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-18-00080-CV


IN THE INTEREST OF G.H. AND
G.H., CHILDREN


                                      ----------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 323-103932-16

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

                                 I. INTRODUCTION

      This is an ultra-accelerated appeal2 in which G.H. (Father) and K.B.

(Mother) appeal the termination of their parental rights to their children, Gail and




      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal is filed).
Grant,3 following a bench trial. In three issues, Father challenges the sufficiency

of   the   evidence     to   support    the   trial   court’s   findings   under   section

161.001(b)(1)(D), (E), and (2) and argues that the trial court improperly took

judicial notice of the permanency-hearing orders. See Tex. Fam. Code Ann.

§ 161.001(b)(1)(D), (E), (2) (West Supp. 2017).                 In nine issues, Mother

challenges the sufficiency of the evidence to support the trial court’s findings

under section 161.001(b)(1)(D), (E), (O), and (2) and the trial court’s decisions to

deny various motions, to admit testimony about a prior termination, and to take

judicial notice of allegedly unadjudicated facts. See id. § 161.001(b)(1)(D), (E),

(O), (2). Because we hold that sufficient evidence supports the unchallenged

subsection (M) findings and the best-interest findings as to both parents, we will

affirm the trial court’s judgment terminating Father’s and Mother’s parental rights

to Gail and to Grant.

                              II. FACTUAL BACKGROUND4

                                       A. Overview

      Father and Mother are not married and do not live together, but they have

“been together” for more than eleven years and have had four children together.

Father’s and Mother’s parental rights to their first two children—twins Ginny and

      3
       See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to
minors in an appeal from a judgment terminating parental rights). Aliases are
used for all children referenced in this opinion.
      4
       Because both Father and Mother challenge the sufficiency of the evidence
to support the termination order, we set forth a detailed factual background.

                                              2
Gavin—were terminated in 2014 based on family code section 161.001(b)(1)(D)

and (E)—endangering environment and endangering conduct based on Father’s

and Mother’s drug use.5 Gail was born in September 2015. When Grant was

born in July 2016, the Department received a referral alleging neglectful

supervision because Grant had tested positive for cocaine at birth. After Mother

violated the safety plan set up by Family Based Safety Services (FBSS), the

Department removed Gail and Grant and gave Father and Mother service plans.

Father and Mother did not make the changes the Department requested of them,

which resulted in the termination of their parental rights to Gail and to Grant.

                   B. Gail’s Birth and Mother’s Care of Gail

      Mother testified that she had learned her lesson when her parental rights

to her twins were terminated. So when she became pregnant with Gail, she “got

[her] life together.” Mother worked throughout her pregnancy with Gail. Both

Mother and Gail tested negative for drugs when Gail was born in September

2015. Mother stayed home with Gail for the first year after she was born. During

that time, Mother’s aunt supported her financially, and her sister gave her rides to

doctor appointments. When Mother returned to work, her sister cared for Gail.




      5
       The order terminating Father’s and Mother’s parental rights to Ginny and
to Gavin was admitted during the underlying termination trial.

                                          3
         C. Grant’s Birth, CPS’s Initial Contact with Gail and Grant,
                        and Case Opened with FBSS

      Grant was born in July 2016 at thirty-four weeks’ gestation. CPS received

a referral alleging neglectful supervision of Grant because he had tested positive

for cocaine at birth and because Mother’s midwife had reported that Mother had

tested positive for cocaine during her pregnancy with Grant at her February 2016

and March 2016 appointments.        Mother admitted to CPS investigator Valerie

Robertson that she had used cocaine in September 2014 when her parental

rights to the twins were terminated, but Mother denied cocaine use while she was

pregnant with Grant.      Robertson spoke with Mother’s midwife, who said that

Mother had disclosed at her March 2016 appointment that she was taking

antianxiety medication.     Mother told Robertson that the medication was not

antianxiety medication but was instead hydrocodone that she had taken from her

uncle. Robertson was concerned. She asked Mother to take a hair-follicle drug

test, and she opened a case with FBSS requiring Mother to live at her sister’s

house with Gail and Grant and prohibiting Mother’s unsupervised contact with

Gail and Grant.

      When Robertson asked Mother about the children’s father, Mother

explained that Father was Gail and Grant’s father but said that he did not have

any contact with them and was not their caregiver. Mother said that a previous

CPS worker had told her to not allow Father to have contact with the children.

When Robertson asked if that restriction was due to Father’s drug use, Mother


                                        4
would not confirm that Father used drugs. Mother said that she did not have any

contact information for Father.

      On August 1, 2016, Robertson and Mother’s FBSS caseworker met with

Mother to talk about the results of her July 2016 hair-follicle drug test. It was

positive for cocaine. At this point, Mother admitted that, contrary to her denial of

drug use while pregnant with Grant, she had, in fact, “slipped up” and had used

cocaine in December 2015.

      Robertson expressed concern that Mother had used cocaine after Gail’s

birth because drug use impairs a parent’s ability to properly care for her children.

Robertson disposed of the allegations against Mother as reason to believe for

neglectful supervision of Grant due to the positive drug test results during

pregnancy and as reason to believe for neglectful supervision of Gail because

Mother was her primary caretaker.

         D. Violation of the FBSS Safety Plan Results in a CPS Case

      About two months later, on October 19, 2016, the Department received a

referral alleging neglectful supervision of Gail by Mother. Mother had been in a

car accident and had left Gail with an acquaintance, who ultimately took Gail to

the police station.

      CPS Investigator Britni Wortham spoke with Mother while Mother was in

an ambulance being checked out by paramedics for a possible head injury

following the accident. When Wortham told Mother that she was aware of the

open FBSS case that required Mother not to have unsupervised contact with her

                                         5
children, Mother said that she was not unsupervised because her sister was

following behind her in a car prior to the accident.6 Mother then took off the

diagnostic medical equipment that was attached to her, said that she no longer

needed medical attention, and exited the ambulance. While Wortham was on the

phone with her supervisor, Mother walked away.        Mother’s sister, who was

present, went to find Mother.

      When Mother’s sister returned with Mother, Mother explained to Wortham

that after the accident, she had left Gail with a woman she knew “from the club”7

while she (Mother) received medical attention in the ambulance.        Wortham

expressed concern that Mother had left Gail with a stranger, and Mother said, “I

know I messed up.” The unnamed woman left with Gail without telling Mother

where she was going, and Mother called the police to report Gail missing.

Wortham told Mother that Gail and Grant needed to be placed outside the home

because Mother had violated the FBSS safety plan by leaving Gail with a

stranger and because Mother’s sister had violated the FBSS safety plan by

failing to supervise Mother’s contact with Gail. Mother provided the names of

several individuals—including Father, for whom she had said she did not have a

phone number or address—to serve as possible placements for the children.

      6
        Mother explained that her sister had a doctor appointment and could not
fit both children in her car, so her sister had asked her brother to follow her.
Mother and Gail rode with Mother’s brother, and Grant rode with Mother’s sister.
Mother said that her brother lost control of the car and hit a wall.
      7
       Mother did not know the woman’s name.

                                       6
CPS did not deem any of the named individuals to be adequate placement

options for the children, so Wortham decided to place the children in foster care.

      Wortham went to the police station and spoke with the woman who had

brought Gail to the police station. The woman told Wortham that she did not

know Mother’s name but knew her from “the club scene.” The woman said that

she was having lunch at Golden Chick when Mother ran in, said that she was not

supposed to have her children, and asked her to watch Gail while she went to the

ambulance to be checked out. The woman took Gail home and cleaned her up

and then took her to the police station where she learned that Gail had been

reported missing.

      Wortham found Father’s phone number in a computer database and

contacted him the following day. Father told Wortham that Mother had called

and had informed him that Gail and Grant were in foster care. Wortham invited

Father to come to the courthouse that afternoon for a hearing on the

Department’s removal petition. Father responded that he would not attend the

hearing because after CPS performed a background check on him, drug tested

him, and instructed him to attend classes, he would not get custody of Gail and

Grant.

      Following the hearing on the State’s petition, the trial court granted the

Department temporary managing conservatorship of Gail and Grant.               The

Department thereafter created service plans for Father and Mother.



                                         7
                  E. Father’s Services and His Compliance

      Father’s initial service plan required him to notify his caseworker within

forty-eight hours of any involvement with law enforcement; to attend all

scheduled visitations with his children; to maintain steady and legal employment;

to maintain safe, stable, and appropriate housing; to submit to a drug

assessment and to follow through with all recommendations; to maintain contact

with his caseworker; to actively engage in and complete STEP parenting classes;

and to submit to random drug and alcohol tests within twenty-four hours of his

caseworker’s request. On December 7, 2017, the trial court added a requirement

to Father’s service plan requiring him to attend the FOCUS for Fathers class.

      Initially, Father did not want to work his services or to be involved in the

case. Father ultimately began working his services around July 2017.

      Crystal Lewinson, who served as the children’s conservatorship worker,

received the case in November 2017 and had a conversation with Father via text

message on December 19, 2017, in which she asked about his progress on his

service plan.    Father informed Lewinson that he had completed a drug

assessment but not the recommendations made as a result of the drug

assessment, which included attending drug-therapy classes. Father said that he

had attended a few of the drug classes but had stopped when he was arrested

for possession of a controlled substance and unlawful possession of a firearm on

September 24, 2017, and had not resumed attendance after his release from jail

in October 2017. Father claimed that he was not attending drug therapy because

                                        8
he did not have transportation; but when Lewinson offered Father bus passes,

Father said he would not ride the bus. Father refused to provide Lewinson with

his “sober date”—the date he last used illegal drugs—and told Lewinson that

although Gail and Grant were important, he was focused on maintaining his

freedom because he would not be able to help his children from jail.

      According to Lewinson, Father had attended the majority of the visits with

his children, and his interactions with them were positive.     Father’s housing

situation was unknown at the time of the termination trial. Although Father told

Lewinson he had his own apartment, he refused to provide an address or details.

With regard to Father’s service plan, Lewinson testified that Father had

completed STEP parenting classes and a drug assessment, had attended

parent-child visits, and had kept in contact with her. Father had not participated

in group outpatient drug treatment three times per week as recommended by the

drug assessment; had not taken two requested drug tests; had tested positive for

cocaine on his June 1, 2017 urinalysis and his August 4, 2017 urinalysis; and

had not completed the FOCUS for Fathers class.         Lewinson concluded that

Father had not been fully compliant with the services requested of him to

demonstrate change.

                  F. Mother’s Services and Her Compliance

      Mother’s service plan required her to maintain contact with her

caseworker; to notify her caseworker within forty-eight hours of any involvement

with law enforcement; to maintain steady and legal employment; to attend all

                                        9
scheduled visitations with her children; to maintain safe, stable, and appropriate

housing; to participate in individual counseling; to undergo a psychiatric

evaluation at MHMR; to submit to random drug testing; and to fully participate in

and complete outpatient drug treatment at CATS.        The evidence concerning

Mother’s compliance with these requisites is set forth below.

                        1. Contact with Caseworker and
                      Involvement with Law Enforcement

      The record does not indicate that Mother ever failed to maintain contact

with her caseworker, nor does it show that Mother had any involvement with law

enforcement while the termination case was pending.

                                2. Employment

      Mother had been employed at Denny’s for four or five years, minus the

time she was on leave for her pregnancies with Gail and with Grant. Mother

usually worked on Sundays from 2 p.m. to 10 p.m., on Mondays and Tuesdays

from 6 a.m. to 6 p.m., and on Wednesdays and Thursdays from 6 p.m. to 6 a.m.

Mother testified that her boss would modify Mother’s work schedule to

accommodate her children if the trial court returned them to her. Mother had

been saving money to provide for Gail and Grant in the event the trial court

allowed them to be returned to her care.

                                    3. Visits

      The initial service plan for each of the children notes that both Gail and

Grant have “a significant relationship with” and appear to be “very bonded” with


                                        10
Mother. Mother continued that bond by attending weekly visits with her children.

Lewinson testified that Mother was loving and supportive at the visits with her

children. Lewinson further testified that Mother’s interactions with her children

were positive during all of her visits.

                                     4. Housing

       While the case was pending, Mother lived at her sister’s house, at her

sister-in-law’s house, and in her own efficiency apartment before moving to a

two-bedroom apartment to accommodate her children. Mother testified that she

had lived in her two-bedroom apartment for six or seven months prior to the

termination trial.

                             5. Individual Counseling

       Christopher Hooker, Mother’s counselor with Merit Family Services,

interviewed Mother in May 2017. Hooker testified that Mother indicated some

past suicidal ideation, a considerable level of depression, some anxiety, and

some anger behavior. At her July 24, 2017 appointment, Mother presented with

noticeable fatigue, which Hooker attributed to possible illegal substance abuse

but which Mother attributed to her work schedule.8 Mother told Hooker that she

had resumed taking her prescribed psychotropic medications. Hooker testified

that it was concerning that Mother had not taken her medication consistently. At

her September 22, 2017 appointment, Mother presented with indications of


       8
       Hooker did not recall the type of job Mother worked.

                                          11
depression, anxiety, and symptoms of a thought disorder. On October 31, 2017,

Hooker observed that Mother exhibited slurred speech and fatigue; she said that

she had been in bed for the previous twelve hours. Hooker explained to Mother

that spending the majority of her day off in bed was not a positive indication of

her overall mood and mood management for the future. During the November 7,

2017 appointment, Mother presented in an agitated mood; she cried a lot, had a

conversation with herself without any interaction from Hooker, and used rapid

speech. On November 28, 2017, Mother reported to Hooker that she was no

longer spending her days off in bed and that she was able to complete tasks.

Hooker instructed Mother to continue to take her psychotropic medications as

prescribed, but Mother said that she did not want to be dependent on her

medication and that she wanted to manage her mood without medication.

Hooker testified that this concerned him because given her history of mood-

related issues, not continuing on her medication for a period of time “could

potentially be clinically risky for her.”

       Mother did not return for future counseling sessions with Hooker following

November 28, 2017, so Hooker did not discharge her for successfully completing

individual counseling. On cross-examination, Hooker agreed that Mother may

have been upset or shown signs of depression during her sessions because she

did not have her children. Hooker testified that there was a lot of fluctuation

during the course of Mother’s treatment, which consisted of sixteen sessions



                                            12
over a six-month period; he said that there were periods of improvement followed

by periods of clinical regression.

      When Lewinson talked to Mother on January 18, 2018, about individual

counseling, Mother said that she had not contacted Merit to schedule her

counseling appointments but that she was going to request a new counselor

when she returned to counseling because Hooker was non-emotional and was

not as supportive as her prior counselor had been.       Lewinson testified that

Mother returned to counseling at Merit after she spoke with her in January 2018.

                                     6. MHMR

      Although the record does not disclose whether Mother underwent a

psychiatric evaluation at MHMR, Mother had obtained her own peer counselor

through MHMR.

          7. Random Drug Testing and Outpatient Drug Treatment

      During the CPS case, Mother tested positive for cocaine on three

urinalysis tests: February 24, 2017; March 2, 2017; and July 25, 2017. When

asked during cross-examination whether Mother had tested negative on

urinalysis tests from September 2017 through February 2018, Lewinson said that

she did not have the results of those tests in front of her but that CPS had

received “some negative UA tests” from Mother.9


      9
       The last progress report that was completed by the conservatorship
worker on November 7, 2017, mentioned that the September 15, 2017 and
October 23, 2017 urinalysis tests were negative. Mother also tested negative on
urinalysis tests on March 22, 2017; April 25, 2017; and May 16, 2017.

                                       13
      Mother’s hair-follicle test results during the CPS case are as follows:

             January 27, 2017     Cocaine >20,000 pc/mg
             July 25, 2017        Cocaine 11,219 pc/mg
             October 24, 2017     Cocaine 1,163 pc/mg
             January 24, 2018     Cocaine 7,829 pc/mg
             February 18, 2018    Cocaine 926 pc/mg10


      After Mother’s January 24, 2018 hair-follicle drug test showed an increase

in the level of cocaine, Mother requested to pay for her own hair-follicle drug test

because she believed the test results were incorrect and because she wanted to

prove that she was not using drugs. Mother then paid for a hair-follicle drug test

that Lewinson agreed was the same type of hair-follicle drug test that CPS

utilized. Mother gave Lewinson a copy of her February 18, 2018 hair-follicle drug

test results, which reflected that the level of cocaine had decreased almost 7,000

picograms per milligram in less than three weeks.

      Prior to the termination trial, Mother filed a “Motion For Extension Of

Dismissal Date And Motion For Continuance Of Trial Setting” and a “Motion For

Appointment Of Testifying Forensics Expert,” requesting a toxicology expert to

explain the decrease between Mother’s January 2018 and February 2018 hair-

follicle drug test results.   The trial court heard argument on the motion for

continuance prior to the start of the trial.    After hearing argument from the




      10
       Mother paid for this test herself because she did not believe that the
January 24, 2018 hair-follicle test results were accurate.

                                        14
attorneys, the trial court denied the motion for continuance and implicitly denied

Mother’s request for the appointment of a toxicology expert.

           8. Summary of Mother’s Compliance with Service Plan

      Lewinson testified regarding Mother’s compliance with her service plan.

Mother had been successfully discharged from CATS drug-treatment therapy,

had regularly attended her parent-child visits, had obtained a two-bedroom

apartment, and had maintained employment as an assistant manager at

Denny’s. According to Lewinson, Mother had not been successfully discharged

from individual counseling, had not successfully completed anger-management

classes,11 and had not remained drug free while the case was pending.

                   G. The Children’s Status in Foster Care

      Gail’s service plan describes her as a “happy and joyful child” who “enjoys

being around others and loves to play” and who has no special needs or high risk

behaviors. Grant’s service plan describes him as a “happy and alert infant” who

“enjoys being around others and watches them closely” and who “is playful and

loves doing tummy time.” Grant’s service plan further states that he has been

diagnosed with gastroesophageal reflux disease (GERD) but that it is managed


      11
        The record does not reflect that the trial court ever ordered Mother to
complete anger-management classes; Mother enrolled in them on her own. The
record further reflects that Mother did not complete the course because she was
required to admit to drug use for CPS to pay for the program or to pay $300 out
of pocket for it; Mother told Lewinson that she would not admit to using drugs
when she was clean. Mother testified that she had been successfully discharged
from one anger-management program.

                                       15
with the use of Alimentum formula. He has no other special needs and no high-

risk behaviors.

      Lewinson testified that Gail and Grant had been in two foster homes 12 and

were “doing really well” and were flourishing in their environment.     Lewinson

testified that Gail and Grant were currently in an adoption-motivated foster home

and that CPS would pursue having the children adopted if the trial court

terminated Father’s and Mother’s parental rights to Gail and to Grant. Lewinson

said that the foster parents were “great with the kids.” Lewinson noted that Gail

and Grant love their foster parents and seek help and comfort from them.

Lewinson testified that the foster parents provide a safe and stable home for Gail

and Grant. Lewinson said that the programs available to help the foster parents

include financial assistance through a postadoption subsidy; counseling services;

case management; college tuition; and Medicaid coverage, if the children qualify.




      12
       The record reflects that the children were moved to a new foster
placement on August 8, 2017. The children’s service plans that were completed
on May 9, 2017, state that they are very bonded with their foster parents and that
they recognize the foster parents as their caregivers, but these service plans
were completed prior to the children being moved to another foster home.

                                       16
                   H. The Department’s Recommendations13

      Lewinson testified that CPS’s goal changed from reunification to

termination and adoption in January 2018 based on the results of Mother’s hair-

follicle drug test, which showed an increase in the level of cocaine from the prior

hair-follicle drug test and thus showed that Mother had not demonstrated

“changed behavior.”

      Lewinson testified that Father cannot meet the physical and emotional

needs of the children now and in the future because he has a history of drug use,

he supports Mother’s claims that she is not using drugs and believes that her

positive drug tests are invalid, and he has a pattern of neglect and the inability to

be protective of his children as demonstrated by the termination of his parental

rights to his twins. Lewinson also testified that Father cannot protect the children

from emotional and physical danger now and in the future based on his history of

drug use, his pending criminal cases, his support of Mother’s drug use, his

pattern of neglect and inability to be protective of his children, and his failure to

complete his service plan. Lewinson opined that it was in the children’s best

interest for the trial court to terminate Father’s parental rights to Gail and to Grant

because Father had stated at the outset that he did not want to be involved in


      13
        The record does not contain a recommendation from the children’s
guardian ad litem. And though the record mentions a Court-Appointed Special
Advocate, it appears that he was assigned and served only during the FBSS
case because the record does not contain any reports or recommendations from
him, nor did he appear for trial.

                                          17
their lives, he was not compliant with his service plan, he had a history of drug

use, and he had not presented CPS with any certificates saying that he had

completed drug therapy.

      Lewinson opined that Mother could not meet Gail’s and Grant’s emotional

and physical needs now and in the future because Mother’s drug use impaired

her ability to supervise and to protect Gail and Grant, her cocaine relapse

indicates that she placed her needs above her children’s needs, she had not

demonstrated changed behavior as reflected by her continued drug use, and she

had not taken her psychotropic medication as prescribed.            Lewinson further

opined that it was in Gail’s and Grant’s best interest for the trial court to terminate

Mother’s parental rights because she had admitted to using cocaine after Gail

was born in 2015; Mother had continued to deny drug use despite numerous

positive tests, including testing positive while pregnant with Grant; she had

admitted to taking hydrocodone that was not prescribed to her; she had

unsupervised contact with the children in violation of the FBSS safety plan; she

gave Gail to a stranger following a car accident; and she had not consistently

taken her prescribed psychotropic medications.

                             I. Mother’s Case in Chief

                              1. Mother’s Testimony

      Mother testified that she knew she was in violation of the FBSS safety plan

on the day of the car accident because she had Gail in her care without her sister

supervising her. Mother testified that the police told her to leave Gail with her

                                          18
friend—whom Mother described as an old friend that she had not had contact

with in a few years—while Mother went to check on her brother. Mother’s friend

provided Mother with her cell phone number, but Mother misplaced the number.

Because Mother’s friend had no way to contact Mother, Mother “put out an

Amber Alert” for Gail. Mother’s friend then took Gail to the police station.

      Mother said that she made a one-time mistake when she used drugs in

December 2015. She testified that she is dedicated to staying off drugs. Mother

said that she disagreed with the last hair-follicle drug test that she took for CPS

and that she paid almost $400 from her savings to have another hair-follicle drug

test performed. On cross-examination, Mother maintained that she had not used

cocaine in over two years.

      Mother testified that she had seen a difference in herself since her parental

rights were terminated to her twins. She testified that she is “[w]ay more stable”

than she was in 2014. She had maintained a job, she had obtained a car and a

two-bedroom apartment to accommodate her children, she had taken classes for

her children, and she had support from her large extended family to help her with

her children. Mother explained that the behavior fluctuations that Hooker noted

during her counseling sessions were due to missing Gail and Grant and to

working long hours.

      Mother testified that she had found someone to keep the children while

she worked. Mother explained that when the children become school age, she

does not want to send them to public school because she felt like “it’s too much

                                         19
going on.”       So Mother had made arrangements for the children to be

homeschooled by one of their foster mothers. Mother testified that she and the

foster mother had a great connection and had developed a relationship while Gail

and Grant were in her home and that Gail loved the foster mother’s children.

      The trial court asked Mother if Father had done anything to support Gail

and Grant, and she said that if she needed help with “anything, diapers, wipes,

help with a bill, he did come through.” Mother said that Father also regularly

came to see Gail and Grant when they were born to check on them and on

Mother.

                            2. Mother’s Supporters

      Marie Brown Vaquerfernandez, who had worked at Denny’s with Mother

for three years, testified that Mother had requested to work the day shift because

it would be a better schedule for having her children back with her.

Vaquerfernandez testified that Mother’s ability to manage a restaurant is

excellent and that she works long hours and goes “above and beyond.”

      Mother’s younger sister testified that Mother had tried harder to work her

service plan with this case than she did in her twins’ case. Mother’s younger

sister further testified that she would feel comfortable leaving her children in

Mother’s care.

      Stephanie Hill, Mother’s long-time best friend, testified that she would be

willing to help Mother. Hill said that she “[o]ne hundred percent” thinks Mother is

appropriate to watch Hill’s son and that her son would be safe in Mother’s care.

                                        20
                                       J. Outcome

      After hearing the above testimony and reviewing the evidence admitted at

trial, the trial court found by clear and convincing evidence that Father had

violated subsections (M) and (O) of section 161.001(b)(1) and that termination of

his parental rights was in Gail’s and in Grant’s best interest. The trial court also

found by clear and convincing evidence that Mother had violated subsections

(D), (E), (M), and (O) of section 161.001(b)(1) and that termination of her

parental rights was in Gail’s and in Grant’s best interest.           Following the

termination trial, Mother filed a second amended motion for new trial, which the

trial court heard and denied. Father and Mother each perfected an appeal from

the trial court’s termination order.

                 III. BURDEN OF PROOF AND STANDARDS OF REVIEW

      In a termination case, the State seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except the child’s

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West Supp. 2017); Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to

sever permanently the relationship between a parent and a child, it must first

observe fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex.

2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–

92 (1982)). We strictly scrutinize termination proceedings and strictly construe



                                           21
involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d

796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.

      Termination decisions must be supported by clear and convincing

evidence.   See Tex. Fam. Code Ann. §§ 161.001(b), 161.206(a); E.N.C., 384

S.W.3d at 802. Due process demands this heightened standard because “[a]

parental rights termination proceeding encumbers a value ‘far more precious

than any property right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S.

at 758–59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see

also E.N.C., 384 S.W.3d at 802.        Evidence is clear and convincing if it “will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West

2014); E.N.C., 384 S.W.3d at 802.

      For a trial court to terminate a parent-child relationship, the Department

must establish by clear and convincing evidence that the parent’s actions satisfy

one ground listed in family code section 161.001(b)(1) and that termination is in

the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384

S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must

be established; termination may not be based solely on the best interest of the

child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—

Fort Worth 2012, no pet.).



                                          22
      In evaluating the evidence for legal sufficiency in parental-termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the Department proved the

challenged ground for termination.     In re J.P.B., 180 S.W.3d 570, 573 (Tex.

2005). We review all the evidence in the light most favorable to the finding and

judgment.    Id.   We resolve any disputed facts in favor of the finding if a

reasonable factfinder could have done so. Id. We disregard all evidence that a

reasonable factfinder could have disbelieved.       Id.   We consider undisputed

evidence even if it is contrary to the finding. Id. That is, we consider evidence

favorable to termination if a reasonable factfinder could, and we disregard

contrary evidence unless a reasonable factfinder could not. See id. We cannot

weigh witness credibility issues that depend on the appearance and demeanor of

the witnesses because that is the factfinder’s province. Id. at 573–74. And even

when credibility issues appear in the appellate record, we defer to the factfinder’s

determinations as long as they are not unreasonable. Id. at 573.

      We are required to perform “an exacting review of the entire record” in

determining whether the evidence is factually sufficient to support the termination

of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In

reviewing the evidence for factual sufficiency, we give due deference to the

factfinder’s findings and do not supplant the judgment with our own.          In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record, a factfinder could reasonably form a firm conviction or belief that the

                                        23
parent violated one of the provisions of section 161.001(b)(1) and that

termination of the parent-child relationship would be in the best interest of the

child. See Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re C.H., 89 S.W.3d 17,

28 (Tex. 2002). 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 in the truth of its finding, then the evidence is factually insufficient.

H.R.M., 209 S.W.3d at 108.

                       IV. SECTION 161.001(B)(1) GROUND

                   A. Father’s Challenge to (b)(1) Grounds

      In his first issue, Father argues that the evidence is legally and factually

insufficient to support the trial court’s judgment under section 161.001(b)(1)(D)

and (E). The trial court, however, did not terminate Father’s parental rights to

Gail and to Grant under subsections (D) and (E) but instead terminated Father’s

parental rights under subsections (M)14 and (O). Father’s counsel concedes in

his brief that the Department “proved element (M) of the petition in that the prior


      14
         Section 161.001(b)(1)(M) states that the trial court may order termination
of the parent-child relationship if the court finds by clear and convincing evidence
that the parent has “had his or her parent-child relationship terminated with
respect to another child based on a finding that the parent’s conduct was in
violation of Paragraph (D) or (E) or substantially equivalent provisions of the law
of another state[.]” Tex. Fam. Code Ann. § 161.001(b)(1)(M). The subsection
(D) and (E) grounds mentioned in subsection (M) thus relate to the parent’s
conduct toward another child in a prior termination suit—not to the parent’s
conduct in the present case. See id.

                                        24
termination was proved by clear and convincing evidence.” Because the record

contains sufficient evidence to support Father’s concession regarding the trial

court’s subsection (M) finding—the prior termination order that was admitted at

trial showing that Father’s parental rights to another child were previously

terminated based on a finding under subsection (D) or (E)—and because only

one ground under section (b)(1) is necessary to support termination, we overrule

Father’s first issue. See In re N.J.D., No. 14-17-00711-CV, 2018 WL 650450, at

*5 (Tex. App.—Houston [14th Dist.] Feb. 1, 2018, pet. denied) (mem. op.)

(stating that unchallenged fact finding is binding unless it is unsupported by

evidence and holding evidence sufficient to support termination finding under

subsection (O), which mother conceded on appeal); In re K.C., 23 S.W.3d 604,

607 (Tex. App.—Beaumont 2000, no pet.) (“Were we to hold the record contains

insufficient evidence to support the trial court’s finding that [father] engaged in

conduct which endangered [the child], the decree of termination would be

supported by the unchallenged findings.”).15




      15
        Because, along with a best-interest finding, a finding of only one ground
alleged under section 161.001(b)(1) is necessary to support a judgment of
termination, we need not address Father’s second issue challenging the
evidence the trial court judicially noticed to support its finding under subsection
(O) of section 161.001(b)(1). See Tex. R. App. P. 47.1; see also In re E.M.N.,
221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.); In re S.B., 207
S.W.3d 877, 886 (Tex. App.—Fort Worth 2006, no pet.).

                                        25
                    B. Mother’s Challenge to (b)(1) Grounds

      In her first, second, and third issues, Mother argues that the evidence is

factually insufficient to support the trial court’s subsection (D), (E), and (O)

findings. Mother, however, specifically states in her brief that “[t]he finding of the

trial court in regard to § 161.001(b)(1)(M), prior termination of parental rights

pursuant to § 161.001(b)(1)(D) and (E), is not disputed.” Because the record

contains sufficient evidence to support the trial court’s unchallenged subsection

(M) finding—the prior termination order that was admitted at trial showing that

Mother’s parental rights to another child were previously terminated based on a

finding under subsection (D) or (E)—and because only one ground under section

(b)(1) is necessary to support termination, we overrule Mother’s first, second, and

third issues.16 See N.J.D., 2018 WL 650450, at *5 ; K.C., 23 S.W.3d at 607.




      16
         In her fourth issue, Mother argues that the trial court erred by denying her
motion requesting that a toxicology expert be appointed to examine the results of
the drug tests Mother took because it prevented her “from fully defending [t]he
Department’s request to terminate her parental rights pursuant to [section]
161.001(b)(1)(D) and (E)”; in her fifth issue, Mother argues that the trial court
erred by denying her motion for new trial on the grounds alleged in her fourth
issue. In her eighth issue, Mother argues that the trial court erred by taking
judicial notice of several orders that adopted service plans. Because these
issues attack the trial court’s subsection (D), (E), and (O) findings, and because
we hold that the trial court’s termination order can be upheld solely based on the
subsection (M) finding, we need not address Mother’s fourth, fifth, and eighth
issues. See Tex. R. App. P. 47.1; see also E.M.N., 221 S.W.3d at 821; S.B., 207
S.W.3d at 886.

                                         26
      In her sixth and seventh issues,17 Mother argues that the trial court abused

its discretion by admitting testimony regarding facts that formed the basis of a

previous order terminating her parental rights to her twins, that the evidence was

irrelevant to the instant case, that it was unfairly prejudicial, and that the trial

court erred by denying her motion for new trial alleging these same arguments.

Mother contends that testimony regarding her prior drug use and being

discharged from an inpatient-treatment program at a Volunteers of America

facility was irrelevant to prove any fact of the current case and was more

prejudicial than probative. Mother admitted in her second amended motion for

new trial that “[n]o objection to such inquiries was made” by her trial counsel.

Because Mother did not object to the complained-of evidence, her complaints are

not preserved for our review. See Tex. R. App. P. 33.1(a); Bushell v. Dean, 803

S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).

      Even if Mother’s trial counsel had objected to the complained-of testimony

during the trial, any relevancy or more-prejudicial-than-probative objections most

likely would not have kept out the complained-of testimony.          In addition to

supporting the subsection (M) ground, the testimony about Mother’s prior drug

abuse and her unsuccessful discharge from the Volunteers of America inpatient

program was relevant both to the endangering conduct finding under subsection

      17
         To the extent that Mother’s sixth and seventh issues conflict with her
concession by challenging the evidence supporting the subsection (M) finding,
we address them. See Tex. R. App. P. 38.9 (requiring briefs to be construed
liberally).

                                        27
(E) and to the best-interest analysis. See Tex. R. Evid. 401; Tex. Fam. Code

Ann. § 263.307(b)(8), (11) (West Supp. 2017) (setting forth factors court can

consider in determining whether child’s parents are willing and able to provide

the child with a safe environment, including whether there is a history of

substance abuse by the child’s family and the willingness and ability of the child’s

family to effect positive environmental and personal changes within a reasonable

period of time); Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.—Houston

[1st Dist.] 2010, pet. denied) (stating that evidence as to how a parent has

treated another child is relevant regarding whether a course of endangering

conduct has been established).      Moreover, Mother’s blanket statement—that

“[s]uch testimony only served to prejudice the court against [her]”—does not

meet her burden of showing how the complained-of testimony was unfairly

prejudicial. See Tex. R. Evid. 403; In re M.G.N., 491 S.W.3d 386, 403 (Tex.

App.—San Antonio 2016, pet. denied) (stating that the opponent of the proffered

evidence has the burden to show why the evidence is prejudicial and how the

prejudicial attributes “substantially outweigh the probative value of the

evidence”); Murray v. Tex. Dep’t of Family & Protective Servs., 294 S.W.3d 360,

369 (Tex. App.—Austin 2009, no pet.) (stating that mother did not explain on

appeal how the evidence was unfairly prejudicial). Accordingly, we hold that the

trial court did not abuse its discretion by admitting the complained-of testimony or

by overruling Mother’s motion for new trial based on such testimony, and we

overrule Mother’s sixth and seventh issues.

                                        28
                        V. SECTION 161.001(B)(2) GROUND

      In Father’s third issue, he argues that the evidence is factually insufficient

to support the trial court’s best-interest finding.   In Mother’s ninth issue, she

argues that the evidence is legally and factually insufficient to support the trial

court’s best-interest finding.18 We analyze the best-interest finding as to each

parent below.

                            A. Best-Interest Factors

      There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

      We review the entire record to determine the child’s best interest. In re

E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative

of both the subsection (1) ground and best interest. Id. at 249; C.H., 89 S.W.3d

at 28. Nonexclusive factors that the trier of fact in a termination case may also

use in determining the best interest of the child include the following: (A) the

desires of the child; (B) the emotional and physical needs of the child now and in

the future; (C) the emotional and physical danger to the child now and in the

future; (D) the parental abilities of the individuals seeking custody; (E) the

      18
        Although Mother’s ninth issue references only a factual sufficiency
challenge to the evidence supporting the trial court’s best-interest finding, the
argument and analysis sections of her brief include a legal sufficiency challenge.
We therefore broadly construe Mother’s ninth issue as challenging both the legal
and factual sufficiency of the evidence to support the trial court’s best-interest
finding. See Tex. R. App. P. 38.1(f) (“The statement of an issue or point will be
treated as covering every subsidiary question that is fairly included.”); see also
Tex. R. App. P. 38.9 (requiring briefing rules to be construed liberally).

                                        29
programs available to assist these individuals to promote the best interest of the

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

custody; (G) the stability of the home or proposed placement; (H) the acts or

omissions of the parent which may indicate that the existing parent-child

relationship is not a proper one; and (I) any excuse for the acts or omissions of

the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R.,

402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we consider,

among other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807. These

factors are not exhaustive, and some listed factors may be inapplicable to some

cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one

factor may be sufficient in a particular case to support a finding that termination is

in the best interest of the child. Id. On the other hand, the presence of scant

evidence relevant to each factor will not support such a finding. Id.

                      B. Father’s Best-Interest Challenge

      With regard to the children’s desires, neither child testified at trial; they

were both under four years old, and there is no evidence in the record about the

children’s desires regarding placement. The record reflects that the children love

their foster parents and seek help and comfort from them. Although there is

evidence that Father had positive interactions with the children during the visits

he attended, his involvement in their lives was minimal prior to the CPS case,

and he waited nine months after the children were removed to begin visiting

regularly with the children. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—

                                         30
Houston [14th Dist.] 2014, no pet.) (stating that when a child is too young to

express his or her desires, the factfinder may consider whether the child has

bonded with his or her current caregiver, is well-cared for, and whether the child

has spent minimal time with the parent). The trial court was entitled to find that

this factor weighed in favor of terminating Father’s parental rights to Gail and to

Grant.

      With regard to the children’s emotional and physical needs now and in the

future, Gail does not have any special needs, but Grant has been diagnosed with

GERD. The children’s basic needs include food, shelter, and clothing; routine

medical and dental care; a safe, stimulating, and nurturing home environment;

and friendships and recreational activities appropriate to their ages. The record

reflects that Father provided for some of the children’s physical needs when

Mother sought assistance from him, but he did not live with or act as a caretaker

for the children and did not provide details regarding whether his home was

suitable for the children.   The trial court was entitled to find that this factor

weighed in favor of terminating Father’s parental rights to Gail and to Grant.

      With regard to the emotional and physical danger to the children now and

in the future, the evidence demonstrates that Father had been arrested while the

CPS case was pending and that he had not completed the recommendations

from his drug assessment and would not provide his sober date. The trial court

was entitled to find that this factor weighed in favor of terminating Father’s

parental rights to Gail and to Grant.

                                        31
      With regard to Father’s parental abilities, the record demonstrates that

Father had completed parenting classes but that he had not completed the

FOCUS for Fathers class. Father had never lived with the children or been their

caretaker; his interactions with the children were limited to checking on them

after they were born and to seeing them at the one-hour weekly visits that he

attended after the children were removed from Mother. Moreover, a factfinder

could reasonably form a firm conviction or belief that Father was still using drugs

because he had not provided his caseworker with a sober date, had tested

positive on two urinalysis drug tests, and had failed to take two requested drug

tests. The trial court was entitled to find that this factor weighed in favor of

terminating Father’s parental rights to Gail and to Grant.

      With regard to the programs available to assist Father and the foster

parents to promote the best interest of the children, the record reveals that

Father had not completed the services that CPS had offered him. The foster

parents could obtain financial assistance through a postadoption subsidy;

counseling services; case management; college tuition; and Medicaid coverage,

if the children qualify. The trial court was entitled to find that this factor weighed

in favor of terminating Father’s parental rights to Gail and to Grant.

      With regard to the plans for the children by the individuals seeking custody

and the stability of the home or proposed placement, Father wanted his children

to grow up to be happy and healthy, but he expressed to Lewinson that he was

focused on maintaining his freedom by staying out of jail and never provided

                                         32
details when asked about the apartment where he lived. Although the children

had been in two foster homes during the case, the children had been in their

second foster home for almost seven months at the time of the trial, and the

Department planned for the children to be adopted by their foster parents. The

trial court was entitled to find that this factor weighed in favor of terminating

Father’s parental rights to Gail and to Grant.

       With regard to the acts or omissions of Father that may indicate the

existing parent-child relationship is not a proper one, the analysis set forth

above—which details Father’s criminal history, his failure to address his drug

abuse, and the termination of his parental rights to his twins—reveals that the

existing parent-child relationship between Father and the children is not a proper

parent-child relationship.   The trial court was entitled to find that this factor

weighed in favor of terminating Father’s parental rights to Gail and to Grant.

      As for any excuse for the acts or omissions of the parent, Father’s excuse

for not finishing his drug classes was that he had gone to jail and had not

resumed his drug classes upon his release because he did not have

transportation and would not ride the bus. Father contends in his brief that he

was not at fault for the children’s removal, which was based on Mother’s

shortcomings. The trial court was entitled to find that this factor weighed in favor

of terminating Father’s parental rights to Gail and to Grant.

      Reviewing all the evidence with appropriate deference to the factfinder, we

hold that the trial court could have reasonably formed a firm conviction or belief

                                         33
that termination of the parent-child relationship between Father and Gail and

Grant was in the children’s best interest, and we therefore hold the evidence

factually sufficient to support the trial court’s best-interest finding. See Tex. Fam.

Code Ann. § 161.001(b)(2); Jordan, 325 S.W.3d at 733 (holding evidence

factually sufficient to support the trial court’s best-interest finding when most of

the best-interest factors weighed in favor of termination); In re T.R.M., No. 14-14-

00773-CV, 2015 WL 1062171, at *11–12 (Tex. App.—Houston [14th Dist.] Mar.

10, 2015, no pet.) (mem. op.) (holding evidence factually sufficient to support

best-interest finding based on mother’s lack of a safe, stable home environment;

noncompliance with services; and drug use). We overrule Father’s third issue.

                      C. Mother’s Best-Interest Challenge

      With regard to the children’s desires, as mentioned above, both children

were too young to testify at trial, so there is no evidence in the record about the

children’s desires regarding placement. The record contains evidence that the

children were very bonded with Mother when they came into foster care and that

Mother’s interactions with the children were all positive during their weekly visits.

The record also reflects that the children love their foster parents and seek help

and comfort from them. This factor weighs neither for nor against terminating

Mother’s parental rights to Gail and to Grant.

      With regard to the children’s physical needs now and in the future,

Mother—who was employed full time and had a two-bedroom apartment—was

able to provide for the children’s physical needs regarding food, clothing, and

                                         34
housing. Concerning Mother’s ability to provide for Gail and Grant’s emotional

needs, the evidence demonstrates Mother’s continued struggle with cocaine

use.19 Although Mother testified that she had not used cocaine for over two

years prior to the termination trial that started on February 27, 2018, she had

tested positive for cocaine in both February 2016 and March 2016 when she was

pregnant with Grant (Grant was born in July 2016); had tested positive for

cocaine on all five of her hair-follicle drug tests that were performed in 2017 and

2018; and had also submitted three urine specimens that were positive for

cocaine on February 24, 2017; on March 2, 2017; and on July 25, 2017. The trial

court was entitled to find that this factor weighed in favor of terminating Mother’s

parental rights to Gail and to Grant.

      With regard to the emotional and physical danger to the children now and

in the future, the Department expressed concern over Mother’s failure to take her

prescribed psychotropic medications, her drug use while she was the children’s

sole caretaker, and her failure to successfully complete individual counseling.

Although Mother had begun taking her prescribed psychotropic medications, she

told her counselor that she wanted to manage her mood without medication,


      19
         Mother asserts that the results of the January 24, 2018 hair-follicle drug
test of 7,829 pc/mg and the February 18, 2018 hair-follicle drug test of 926 pc/mg
are incompatible. We agree. But the tests were not performed by the same lab,
and Mother’s February 18, 2018 hair-follicle drug test was not confirmed by a
second lab, as were the hair-follicle drug tests paid for by CPS. Moreover, even
Mother’s February 18, 2018 hair-follicle drug test shows that she tested positive
for cocaine.

                                        35
which concerned her counselor because discontinuing her medication for a

period of time “could potentially be clinically risky for her.” And although Mother

had completed drug treatment, she tested positive for cocaine on five hair-follicle

drug tests and three urinalysis drug tests while the case was pending. The trial

court was entitled to find that this factor weighed in favor of terminating Mother’s

parental rights to Gail and to Grant.

      With regard to Mother’s parental abilities, the record demonstrates that

Mother’s interactions with her children at the weekly visits were always positive

and that she had completed parenting classes while the case was pending. The

record demonstrates that Mother had used drugs while she was pregnant with

Grant, which endangered him in utero and which also endangered Gail, for whom

she was the sole caretaker.      Mother had also continued to test positive for

cocaine during the CPS case. Moreover, during the FBSS case, Mother left Gail

with a woman she barely knew. The trial court was entitled to find that this factor

weighed in favor of terminating Mother’s parental rights to Gail and to Grant.

      With regard to the programs available to assist Mother and the foster

parents to promote the best interest of the children, the record reveals that

Mother knowingly violated the FBSS safety plan by having unsupervised contact

with Gail and then trying to conceal her violation by leaving Gail with an unnamed

woman whom Mother knew from the club scene.          Mother had not completed all

of her CPS services; she was not successfully discharged from individual

counseling and had not remained drug free while the case was pending. The

                                        36
foster parents could obtain financial assistance through a postadoption subsidy;

counseling services; case management; college tuition; and Medicaid coverage,

if the children qualify. The trial court was entitled to find that this factor weighed

in favor of terminating Mother’s parental rights to Gail and to Grant.

      With regard to the plans for the children by the individuals seeking custody

and the stability of the home or proposed placement, Mother had made plans for

the children’s return by renting a two-bedroom apartment approximately seven

months prior to trial, purchasing a car, starting a savings account, securing child

care for when she was at work, and arranging for the children to be

homeschooled when they become school age. The children had been in two

foster homes while in the Department’s care—with their second placement

occurring approximately seven months prior to trial, and the Department planned

for the children to be adopted by their current foster parents. This factor weighs

neither for nor against terminating Mother’s parental rights to Gail and to Grant.

       With regard to the acts or omissions of Mother that may indicate the

existing parent-child relationship is not a proper one, the analysis set forth

above—which reflects that Mother left Gail with an unnamed woman, that Mother

did not successfully complete individual counseling, and that she used drugs

while pregnant with Grant and continued to test positive for cocaine throughout

the pendency of the case—reflects that the existing parent-child relationship

between Mother and the children is not a proper parent-child relationship. The



                                         37
trial court was entitled to find that this factor weighed in favor of terminating

Mother’s parental rights to Gail and to Grant.

      As for any excuse for the acts or omissions of the parent, Mother admitted

that she had “slipped up” or had “messed up” when she used cocaine in

December 2015. Mother also admitted that she had “messed up” by leaving Gail

with a friend after the accident and explained why Gail was in the car with her

instead of in the car with her sister and Grant. This factor weighs neither for nor

against terminating Mother’s parental rights to Gail and to Grant.

      After reviewing the entire record, it reflects that Mother has made

numerous positive changes in her life.           In conducting a legal and factual

sufficiency review of the evidence to support the trial court’s best-interest finding,

however, our focus is on whether clear and convincing evidence exists

supporting termination based on the (b)(2) best-interest ground, not only on the

positive progress made by Mother to better herself and her situation. Our review

of the evidence must also give due deference to the factfinder’s credibility

determinations; we are not allowed to supplant them with our own to reach the

opposite result. H.R.M., 209 S.W.3d at 108. Here, constrained by the standard

of review and the required deference to the factfinder’s credibility determinations,

and after reviewing all the evidence and applying these standards, we hold that

the trial court could have reasonably formed a firm conviction or belief that

termination of the parent-child relationship between Mother and Gail and Grant

was in the children’s best interest. We therefore hold that the evidence is legally

                                         38
and factually sufficient to support the trial court’s best-interest finding. See Tex.

Fam. Code Ann. § 161.001(b)(2); Jordan, 325 S.W.3d at 733 (holding evidence

legally and factually sufficient to support the trial court’s best-interest finding

when most of the best-interest factors weighed in favor of termination); S.B., 207

S.W.3d at 887–88 (“A parent’s drug use . . . and failure to comply with [a] family

service plan support a finding that termination is in the best interest of the child.”).

Accordingly, we overrule Mother’s ninth issue.

                                   VI. CONCLUSION

      Having overruled Father’s first and third issues, which are dispositive of his

appeal, we affirm the trial court’s judgment terminating his parental rights to Gail

and to Grant. Having overruled Mother’s first, second, third, sixth, seventh, and

ninth issues, which are dispositive of her appeal, we affirm the trial court’s

judgment terminating her parental rights to Gail and to Grant.



                                                      /s/ Sue Walker
                                                      SUE WALKER
                                                      JUSTICE


PANEL: WALKER, KERR, and PITTMAN, JJ.

DELIVERED: August 16, 2018




                                          39
