In the Interest C.S. Jr. and Z.S., Children v. the State of Texas

Opinion filed December 12, 2024

In The

Eleventh Court of Appeals
__________

No. 11-24-00186-CV
__________

IN THE INTEREST OF C.S. JR. AND Z.S., CHILDREN

On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 11002-CX

MEMORANDUM OPINION
This is an accelerated appeal from an order in which the trial court terminated
the parental rights of the mother and father of C.S. Jr. and Z.S. 1 Only the mother
has appealed. 2 In three issue on appeal, Appellant challenges the sufficiency of the
evidence to support the trial court’s findings that she committed the alleged acts as
grounds for termination of her parental rights, and that termination of her parental

1
We use initials to refer to the children and their family members. See TEX. R. APP. P. 9.8(b).
2
The children’s father began serving a seven-year prison sentence in October 2022, and has been
incarcerated throughout the duration of this case.
rights is in the children’s best interest. In two additional issues, Appellant contests
the trial court’s jurisdiction to issue its termination order, arguing that this case was
automatically dismissed prior to the trial court’s rulings. We affirm the trial court’s
order of termination.
I. Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2024). To terminate
one’s parental rights, it must be shown by clear and convincing evidence that the
parent has committed one of the acts listed in Section 161.001(b)(1)(A)–(V), and
that termination is in the best interest of the child. Id. § 161.001(b)(2). Clear and
convincing evidence is “the measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the truth of the allegations sought
to be established.” FAM. § 101.007 (West 2019).
In this case, the trial court found that clear and convincing evidence
established that Appellant committed at least one of the acts listed in
Section 161.001(b)(1)—specifically, that Appellant: (1) knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that
endangered the physical or emotional well-being of the children; (2) engaged in
conduct or knowingly placed the children with persons who engaged in conduct that
endangered the physical or emotional well-being of the children; and (3) failed to
comply with the provisions of a court order that specifically established the actions
necessary for Appellant to obtain the return of the children who had been in the
permanent or temporary managing conservatorship of the Department of Family and
Protective Services (the Department) for not less than nine months as a result of the
children’s removal under Chapter 262 because of Appellant’s abuse or neglect of the
children. See id. § 161.001(b)(1)(D), (E), (O). The trial court further found,

2
pursuant to Section 161.001(b)(2), that termination of Appellant’s parental rights
was in the children’s best interest. See id. § 161.001(b)(2).
In her third, fourth, and fifth issues on appeal, Appellant challenges the trial
court’s findings under subsections (D), (E), and (O), and its best-interest finding as
being unsupported by legally or factually sufficient evidence.
In reviewing a legal sufficiency challenge, we must decide whether “a
reasonable trier of fact could have formed a firm belief or conviction that its finding
was true.” In re J.W., 645 S.W.3d 726, 741 (Tex. 2022). Cognizant of the required
appellate deference to the factfinder, “we look at all the evidence in the light most
favorable to the finding, assume that the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could do so, and disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible.” Id.
(internal quotation marks omitted). “However, we may not disregard ‘undisputed
facts that do not support the finding,’” and the factfinder is “the sole arbiter of the
witnesses’ credibility and demeanor.” Id. (quoting In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002) (then quoting In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021)). As such,
when considering the credibility of the evidence presented, we may not substitute
our judgment for that of the factfinder. J.F.-G., 627 S.W.3d at 316.
In assessing whether the evidence is factually sufficient, we weigh the
disputed evidence that is contrary to the finding against all the evidence that favors
the finding. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). We give due deference
to the finding and determine whether, on the entire record, a factfinder could
reasonably form a firm belief or conviction about the truth of the allegations against
the parent. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002); In re L.C.C., 667 S.W.3d 510, 512 (Tex. App.—Eastland
2023, pet. denied).

3
With respect to the best interest of a child, no unique set of factors need be
proved. L.C.C., 667 S.W.3d at 513; In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—
Eastland 2010, pet. denied). Further, the best interest determination does not restrict
the proof to any specific factor or factors. In re D.M., 58 S.W.3d 801, 814 (Tex.
App.—Fort Worth 2001, no pet.). However, courts may use the non-exhaustive
Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976). These include, but are not limited to: (1) the desires of the child; (2) the
emotional and physical needs of the child now and in the future; (3) the emotional
and physical danger to the child now and in the future; (4) the parental abilities of
the individuals seeking custody; (5) the programs available to assist these individuals
to promote the best interest of the child; (6) the plans for the child by these
individuals or by the agency seeking custody; (7) the stability of the home or
proposed placement; (8) the acts or omissions of the parent that may indicate the
existing parent-child relationship is not a proper one; and (9) any excuse for the acts
or omissions of the parent. Id.
To support a best interest finding, the Department is not required to prove
each Holley factor; in some circumstances, evidence of the presence of only one
factor will suffice. C.H., 89 S.W.3d at 27; In re D.M., 452 S.W.3d 462, 473 (Tex.
App.—San Antonio 2014, no pet.). Additionally, the same evidence that proves one
or more statutory grounds for termination may also constitute sufficient, probative
evidence illustrating that termination is in the child’s best interest. C.H., 89 S.W.3d
at 28; C.J.O., 325 S.W.3d at 266.
The absence of evidence of some Holley considerations does not preclude the
factfinder from reasonably inferring or forming a strong conviction or belief that
termination is in the children’s best interest, particularly if the evidence indicates
that the parent-child relationship and the parent’s conduct has endangered the safety
and well-being of the children. C.H., 89 S.W.3d at 27. This is so because the best
4
interest analysis evaluates the best interest of the children, not the parent. In re
E.C.R., 638 S.W.3d 755, 767 (Tex. App.—Amarillo 2021, pet. denied) (citing In re
B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.)).
In this regard, the factfinder may measure a parent’s future conduct by her
past conduct and determine whether termination is in the children’s best interest. In
re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied); In re
D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.). The factfinder
may infer that a parent’s past conduct that endangered the safety and well-being of
the children may recur in the future if the children are returned to the possession of
the parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014,
no pet.); May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi–Edinburg
1992, writ denied). Additionally, the factfinder may infer from a parent’s past
inability to meet the children’s physical and emotional needs an inability or
unwillingness by the parent to meet the children’s physical and emotional needs in
the future. J.D., 436 S.W.3d at 118; see also In re A.S., No. 11-16-00293-CV, 2017
WL 1275614, at *3 (Tex. App.—Eastland Mar. 31, 2017, no pet.) (mem. op.).
II. Factual and Procedural Background
The Department intervened after Appellant committed the offense of
aggravated assault with a deadly weapon in the presence of her children, C.S. Jr. and
Z.S., who were four and two years old at the time. See TEX. PENAL CODE ANN.
§ 22.02(a)(2) (West Supp. 2024). On February 2, 2023, Appellant and her children
accompanied Appellant’s boyfriend, D’Martja Wellons, to pick up his toddler-age
son from his ex-girlfriend, Evelyn Henry. As Henry was getting her son out of the
car, Appellant “storm[ed] at [Henry],” and “[they] just started fighting.” After they
were separated, Appellant “ran to [Wellons]’s car and pulled out a gun on [Henry].”
While pointing the gun at Henry, Appellant told her to “back up,” and “was saying
she was going to shoot [her].” Henry “didn’t know what [Appellant] was capable”
5
of, and feared for her son, who was still outside with her. Appellant was charged
with aggravated assault with a deadly weapon, and her criminal case was still
pending at the time of the final hearing.
Megan Rucker, a Department family-based safety services worker, visited
Appellant’s apartment on February 22 and smelled the “[p]ungent . . . strong and
very, very noticeable” odor of marihuana. Rucker smelled the odor of marihuana
again when she returned the following day. Initially, Appellant denied marihuana
use but later “admitted to using mari[h]uana in the prior months,” including “right
around Christmas 2022.”
On February 28, the Department requested hair follicle samples for drug
testing from Appellant, Wellons, and the children. Everyone, including the children,
tested positive for marihuana. When Rucker confronted Appellant with the
children’s positive drug test results, Appellant displayed “[a] disregard for the
concern,” said she “[didn’t] f-----g have time for this,” and that the children “were
basically negative.” The Department sought and was granted temporary managing
conservatorship of C.S. Jr. and Z.S. on March 6, 2023. The children were placed
with their paternal grandmother, A.H., and remained there until the final hearing.
On March 26, 2023, the trial court advised “all attorneys and pro se litigants”
in its scheduling order that the final hearing was set for February 12, 2024, and—in
bold, capitalized letters—that the dismissal date was March 11, 2024. See FAM.
§ 263.401(a).
In April 2023, the Department created a family plan of service for Appellant,
which required “[a]nyone in a relationship with [Appellant] or liv[ing] in the
home . . . and anticipates a relationship with [C.S. Jr.] and [Z.S.] shall participate in
services.” It further prohibited Appellant from “associat[ing] with those that are
engaged in illegal activity or the use of illegal substances.” Appellant denied
communicating with Wellons or “[being] in his presence,” even “when they tested
6
positive relatively around the same time frame for cocaine.” Although Appellant
completed most of her service plan requirements before the December 5 permanency
hearing, she submitted to urinalysis drug testing on November 28 that was positive
for marihuana. The trial court’s order that was issued after the permanency hearing,
which was signed by Appellant’s trial counsel, reiterated the March 11, 2024
dismissal date in conspicuous bold and underlined letters.
Appellant’s hair follicle drug test was submitted on January 18, 2024, which
yielded positive results for marihuana and cocaine. Wellons tested positive for
marihuana on February 7 and 14, 2024, and tested positive for cocaine on
February 16. The Department also learned that Appellant and Wellons continued
their relationship while the case was pending, but Appellant nevertheless denied
having contact.
During a pretrial hearing on January 26, 2024, Appellant’s trial counsel
“advocate[d] for an extension” of the automatic dismissal date because Appellant
has “really been working the service plan, and . . . is testing negative.” Additionally,
trial counsel’s vacation plans conflicted with the February 12 trial setting. The trial
court set another pretrial hearing for February 23, 2024, and the reset the final
hearing for March 4.
The Department and the attorney ad litem appeared at the February 23 pretrial
hearing. Appellant’s trial counsel “fully intended to appear” after a scheduled non-
emergency procedure, but “realized that [she] was not able to make it” shortly before
the hearing commenced. The Department communicated with Appellant’s trial
counsel throughout the hearing in order to accommodate her schedule, and the
parties ultimately determined that the presentation of evidence would take at least “a
half day.” The trial court noted, again, that the automatic dismissal date was

7
March 11, 2024, but based on the volume of cases on its docket and the limitations
for securing a court reporter, 3 the trial court stated:
I don’t have anywhere to put a half day that works with everyone’s
schedules before March the 11th, so I think I have to grant an extension
and we can pick a date . . . during trial week in April.
Appellant’s trial counsel informed the Department via text message that she was
available “any day except Monday [April 8].” Again, recognizing that it “[had] to
grant an extension,” the trial court set the final hearing for April 12, and directed the
Department to draft “that extension order before March 11th.” While the order was
not circulated until April, the trial court took notes during the hearing, and the
following notation appears next to Appellant’s case:

The court coordinator made a similar notation regarding Appellant’s case on her
printout list for the cases to be set that day, and both documents were subsequently
electronically filed.4
Appellant filed a motion to dismiss on April 4, and the trial court held a
hearing on the motion on April 12. At the hearing, the trial court reiterated that
“because [the] docket is so busy,” April 12 was the earliest available date for the
final hearing, then addressed Appellant’s trial counsel:
THE COURT: Okay. But, just for the record, I mean, [trial
counsel], you’re familiar with the Court’s pre-trial practice of routinely
granting extension[s] without a written motion at pre-trial, right?

3
The hearing was not conducted in the presence of a court reporter—due to funding, “court
reporter[s] are provided on an as-needed basis by the county”—but was recorded and subsequently
transcribed.
4
The trial court stated that “ext” means that it granted an extension.
8
[TRIAL COUNSEL]: Yes.
THE COURT: And it would not be a surprise to you if I
scheduled something past the dismissal date that I granted an extension
of?
[TRIAL COUNSEL]: Right.
THE COURT: And, so, from the Court’s [perspective], it feels
like you agreed to the [extension] because we all know that that’s the
Court’s practice . . . and you agreed to a date beyond your client’s
dismissal date. Can you appreciate how that appears to the Court?
[TRIAL COUNSEL]: I can appreciate how it appears, Your
Honor.
Appellant’s trial counsel added that she was “under the influence of quite a few
medications” when she agreed to the April 12 final hearing setting and did not realize
that she was agreeing to extend the automatic dismissal date.
When the parties reconvened on April 19 for the final hearing, Appellant’s
trial counsel agreed that she and Appellant were aware of the initial February 12
final hearing setting and the March 11 dismissal date since the trial court issued its
scheduling order in March 2023. Trial counsel conceded that she signed subsequent
orders, “all of which had that dismissal date,” and nevertheless planned a vacation
for the week of February 12, 2024. The trial court reminded counsel that trials are
scheduled “a year in advance” due to “only hav[ing] a court reporter one week out
of every month.”
The trial court then asked Appellant’s trial counsel “to be clear on the record”
regarding her knowledge of the April 12 final hearing setting. Trial counsel
explained that “after [she] recovered from the February 23rd procedure, [she] then
checked the Court’s docket on the 27th . . . of February” and confirmed the April 12
final hearing date. The trial court noted that Appellant and her trial counsel had
taken steps to prepare for the April 12 final hearing setting after the initial dismissal
deadline date had passed. For example, trial counsel filed a subpoena return on
9
March 13 “for business records that [Appellant] had gone and paid for,” and
affidavits for those business records were filed on March 28.
Finally, Appellant’s trial counsel candidly rationalized the strategic decision
to delay moving for a dismissal until after March 11:
[TRIAL COUNSEL]: In February, [Appellant] likely would
have wanted an extension in order to be able to demonstrate to the Court
that she has learned what she has needed to learn in order to get a
monitored return. . . . That’s still her goal and she would still like to
have time to demonstrate to the Court. . . . But it makes no logical sense
in my mind, anyway, that we would . . . object prior to the [dismissal]
date in order for them to cure the issue when we have the chance at an
automatic dismissal and an opportunity to get [her] kid[s] back. That’s
. . . why we wouldn’t have done it before the date to give the opportunity
for the Department to cure the issue.
THE COURT: That feels like a game of gotcha.
[TRIAL COUNSEL]: Kind of. It . . . sadly, I hate that that might
be it.
THE COURT: Which is not the intent of that legislation.
[TRIAL COUNSEL]: No . . . it is not at all . . . I apologize to the
Court if that is how it comes across, but . . . my advocacy for my client
is for her to have her children back and not to have her rights
terminated.
The trial court denied Appellant’s motion to dismiss, signed the extension order with
the requisite findings, and the parties proceeded to present evidence. The trial court
heard the details of the aggravated assault from both Henry and Appellant, and that
C.S. Jr. and Z.S. tested positive for marihuana prior to their removal. Cindy Hall,
the 2INgage permanency case manager, testified that Appellant completed most of
the required tasks in her service plan aside from her continued contact with Wellons
and her positive drug tests. According to Hall, Appellant “[misled] the Department”
because she denied her “ongoing contact with [Wellons] who engages in criminal
activity by testing positive for cocaine and mari[h]uana.”

10
Between the April and June trial proceedings, Appellant’s hair follicle drug
test from May 1, 2024 was positive for marihuana. Appellant testified that she was
honest about Wellons—that “[they] haven’t been in a relationship, but [that they]
have been around each other.” Appellant “[didn’t] classify [it] as being in a
relationship,” and instead “call[ed] it friends with benefits.” Appellant subsequently
justified concealing her contact with Wellons when she testified: “I said that to really
just be on the safe side because I didn’t want to risk losing my kids.” However,
according to Appellant, Wellons has “never been a danger or threat to [her] kids.”
When asked about Wellons’s positive drug test results, Appellant testified:
[APPELLANT]: Positive for what?
[THE DEPARTMENT]: Mari[h]uana.
[APPELLANT]: Is the cocaine still in there?
[THE DEPARTMENT]: . . . [I]f his most recent hair test was
positive for mari[h]uana only, would that be okay with you?
[APPELLANT]: I’m not saying it’s okay. But, what I’m saying
is the cocaine situation is the whole reason why y’all didn’t want my
kids around or want me around him. If the cocaine is not in his hair,
then, I don’t see it being an issue.
Appellant denied that Wellons has been around C.S. Jr. and Z.S. “[d]uring the course
of this particular case,” and said she is still seeing him because she has not had
possession of her children. She asked for “the opportunity to actually have [her]
kids and show them that [Wellons is] not going to be around.”
Appellant also admitted to a “slight altercation” between her and her mother
in 2018 or 2019 that “got kind of violent.” According to Appellant, her mother was
arrested for aggravated assault after striking Appellant in the head with a vase.
Appellant was initially cooperative, but subsequently wanted the case dismissed
because “it wasn’t really as violent as the cops thought it was.”

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The trial court terminated Appellant’s parental rights under
Section 161.001(b)(1)(D), (E), and (O), and found termination to be in the best
interest of the children. This appeal followed.
III. Analysis
A. The Trial Court’s Jurisdiction and Automatic Dismissal
Appellant contends in her first and second issues that the trial court
automatically lost jurisdiction after the initial dismissal date of March 11, 2024 had
passed, thus rendering its order of termination void. Specifically, she argues that the
trial court’s oral pronouncement extending the dismissal date was ineffective
because: (1) it was not a rendition of the trial court’s ruling pursuant to Section
101.026; and (2) the trial court failed to expressly make the findings required by
Section 263.401(b). See FAM. §§ 101.026, 263.401.
1. The Trial Court Retained Jurisdiction
In a parental termination proceeding, a trial on the merits must commence by
“the first Monday after the first anniversary of the date the court rendered a
temporary order appointing the department as temporary managing conservator,”
otherwise the trial court is deprived of jurisdiction over the suit and the suit is
automatically dismissed. Id. § 263.401(a). The legislature enacted Section 263.401
to encourage the prompt resolution of suits in which the Department requests
termination of the parent-child relationship. In re G.X.H., 627 S.W.3d 288, 292
(Tex. 2021). Subsection (b) provides:
Unless the [trial] court has commenced the trial on the merits, the [trial]
court may not retain the suit on the [trial] court’s docket after the time
described by Subsection (a) unless the [trial] court finds that
extraordinary circumstances necessitate the child remaining in the
temporary managing conservatorship of the department and that
continuing the appointment of the department as temporary managing
conservator is in the best interest of the child.

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Id. § 263.401(b). Subsection (b) permits the trial court to retain the suit on its docket
“for a period not to exceed 180 days,” and requires the trial court to render an order
that (1) schedules the new dismissal date on a date that does not to exceed a period
of 180 days, (2) sets the new final hearing date, and (3) makes any further temporary
orders for the safety and welfare of the children as are necessary to avoid further
delay in resolving the suit. Id. However, “there is no requirement in the statute that
this order be rendered before the initial dismissal date.” G.X.H., 627 S.W.3d at 300.
The trial court need only “timely extend the automatic dismissal date before that date
passes—through a docket-sheet notation or otherwise” to retain jurisdiction. Id. at
301.
Here, the trial court retained jurisdiction over this case when, on February 23,
it made (1) its oral pronouncement in open court, and (2) its simultaneous
handwritten notation that extended the dismissal date and set the new final hearing
date. See id. at 300–01. Importantly, Appellant and her trial counsel, with
knowledge of the March 11 dismissal deadline, agreed to the April 12 final hearing
setting and also took affirmative steps to prepare for trial. Under these
circumstances, we conclude that the trial court properly extended the automatic
dismissal date prior to the date passing, and its failure to expressly predicate the
extension upon the required statutory findings did not divest it of jurisdiction over
the suit. See id. at 301; see also In re J.S., 670 S.W.3d 591, 606 (Tex. 2023) (“[A]
trial court’s failure to make the mandatory ‘extraordinary circumstances’ and ‘best
interest’ findings prior to the initial automatic dismissal deadline is a non-
jurisdictional error.”). Thus, because the trial court had jurisdiction over the case
when it issued its final order of termination, the order is not void.
2. Lack of Findings: Waiver
For purposes of extending the dismissal deadline, Appellant complains that
the trial court did not make the necessary “extraordinary circumstances” and “best
13
interest” findings before the automatic dismissal date passed. First, Appellant’s
argument that the subsection (b) findings are jurisdictional has been considered and
rejected by the Texas Supreme Court. See J.S., 670 S.W.3d at 605. Second, and as
discussed in more detail below, Appellant’s motion to dismiss—that was filed after
the initial dismissal date had passed—was insufficient to preserve her complaint
regarding the lack of findings. See TEX. R. APP. P. 33.1.
Although the required “extraordinary circumstances” and “best interest”
findings are a prerequisite for extending the dismissal date, “a trial court’s failure to
make the mandatory Section 263.401(b) findings expressly does not affect the
separate jurisdictional inquiry.” J.S., 670 S.W.3d at 602; see G.X.H., 627 S.W.3d at
297. Thus, “complaints regarding the trial court’s compliance with the requirements
of subsection (b) must be preserved for appellate review.” G.X.H., 627 S.W.3d at
301. To view the statutory prerequisites as jurisdictional without clear legislative
intent undermines the importance of ensuring a judgment’s finality, which “‘is even
more pronounced’ in cases involving child custody and parental rights.” J.S., 670
S.W.3d at 605 (quoting In re D.S., 602 S.W.3d 504, 520 (Tex. 2020) (Lehrmann, J.,
concurring)). This is so because children and parents alike are harmed by the
uncertainty in permitting the relitigation of parental rights terminations years after
judgments are signed. Id.
To preserve a complaint for appellate review, a party must present to the trial
court a timely request, objection, or motion that states the specific grounds for the
relief sought and obtain a ruling. TEX. R. APP. P. 33.1. For an objection to be
considered timely, it “generally must be made at the earliest possible opportunity,
thereby allowing the trial court an opportunity to cure the error.” Gabel v. Gabel-
Koehne, 649 S.W.3d 590, 596 (Tex. App.—Houston [1st Dist.] 2022, no pet.). With
respect to the trial court’s failure to make the “extraordinary circumstances” and

14
“best interest” findings, “the parent generally must object before the initial automatic
dismissal deadline passes.” J.S., 670 S.W.3d at 593.
In termination cases especially, “adhering to our preservation rules isn’t a
mere technical nicety; the interests at stake are too important to relax rules that serve
a critical purpose.” In re L.M.I., 119 S.W.3d 707, 708 (Tex. 2003); In re D.K., 696
S.W.3d 787, 793 (Tex. App.—Eastland 2024, no pet.). “[A]llowing appellate review
of unpreserved error would undermine the Legislature’s intent that cases terminating
parental rights be expeditiously resolved” to “ensure that children’s lives are not kept
in limbo while judicial processes crawl forward.” L.M.I., 119 S.W.3d at 711; In re
B.L.D., 113 S.W.3d 340, 353 (Tex. 2003).
Despite Appellant’s contention that the trial court “simply did not provide her
attorney a reasonable opportunity to object” to the extension, Appellant’s first
opportunity to complain arose on February 27, at the latest. However, instead of
objecting, Appellant strategically concealed alleged issues with the hope of
obtaining a dismissal. In fact, her trial counsel admitted to playing “a game of
gotcha.” Nevertheless, Appellant blames the Department and the trial court for
“fail[ing] to use best[]practices,” and claims that “she was under no obligation to . .
. assist them in terminating her parent-child relationship.” Be that as it may, our
holding today simply has the effect of requiring parents to achieve reunification
through proper means. With the best interest of the children in mind, we will not
reward Appellant for “playing fast and loose with the judicial system for [her] own
benefit.” George Fleming and Fleming & Assoc., L.L.P. v. Wilson, 694 S.W.3d 186,
192 (Tex. 2024) (quoting Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d
642, 643 (Tex. 2009) (discussing the doctrine of judicial estoppel)). 5 Permitting

Appellant notes that the court in J.S. declined to decide whether a parent who opposes an extension
5

must object before the automatic dismissal date passes. See J.S., 670 S.W.3d at 605 n.16. Because the
evidence shows that Appellant was in favor of and agreed to an extension, we, too, need not address this
issue.
15
Appellant’s “wait and see” approach invites gamesmanship, discounts the best
interest of the children, and thwarts the legislature’s clear intent to promote the
expeditious resolution of termination suits. See In re A.S., No. 07-20-00350-CV,
2021 WL 1774102, at *1 (Tex. App.—Amarillo May 3, 2021, no pet.) (mem. op.)
(citing Ward v. Lamar Univ., 484 S.W.3d 440, 450 (Tex. App.—Houston [14th
Dist.] 2016, no pet.) (“no litigant should feel free to gamble on obtaining a favorable
ruling on the merits while concealing alleged issues in the event of a loss”)); cf.
Estate of Aguero, 692 S.W.3d 622, 627 (Tex. App.—Corpus Christi–Edinburg 2023,
pet. denied).
Because Appellant chose not to object to the trial court’s oversight to issue
subsection (b) findings before March 11, she has abandoned her chance to complain
about it on appeal. See J.S., 670 S.W.3d at 593; G.X.H., 627 S.W.3d at 299; M.P. v.
Tex. Dep’t Family & Protective Servs., No. 03-22-00163-CV, 2022 WL 4281617, at
*5 (Tex. App.—Austin Sept. 16, 2022, pet. denied) (mem. op.).
Finally, even had Appellant timely objected to the lack of subsection (b)
findings, the trial court cured its error prior to the commencement of the final
hearing, and Appellant has failed to show any resulting harm. To show harm,
Appellant must have demonstrated that the error “probably caused the rendition of
an improper judgment” or “prevented [her] from properly presenting the case to the
court of appeals.” See TEX. R. APP. P. 44.1(a); In re J.N., 670 S.W.3d 614, 619 (Tex.
2023).
On this record, we can discern that Appellant had no intention of proceeding
to trial before the automatic dismissal date passed. In January 2024, she requested
additional time to “work[] the service plan” and prove that she could continue
“testing negative.” Her trial counsel, despite being aware of the date of the final
hearing, also planned a vacation that directly conflicted with the February 12 final
hearing setting. On February 23, Appellant’s trial counsel agreed to reset the final
16
hearing to April 12, and she and Appellant thereafter took clear, affirmative steps to
prepare for trial. Even after trial commenced, Appellant moved for a continuance
“to go to mediation . . . in hopes that [the parties] could come up with some sort of
settlement option.” Appellant’s actions and her trial counsel’s admissions reveal
that they never opposed the extension, and deferred challenging the extension’s
validity until they believed that it would result in a dismissal. Consequently, there
is no indication that the trial court’s failure to expressly make the “extraordinary
circumstances” and “best interest” findings probably caused the rendition of an
improper judgment or prevented Appellant from properly presenting her case to this
court. See TEX. R. APP. P. 44.1(a).
Accordingly, we overrule Appellant’s first and second issues.
B. Termination under Subsections (D) and (E) – Endangerment
Appellant contends in her third issue that the evidence is legally and factually
insufficient to establish endangerment under grounds (D) and (E) because: (1) “there
was no testimony at trial that the children were even present during the altercation”
with Henry; (2) “this single incident” was not “an endangering pattern of conduct”;
(3) “there was just a single positive test for each child” showing low levels of
marihuana; and (4) “there is a growing recognition by the State that cannabis
presents a lower level of risk to children.”
Although only one statutory ground is necessary to support termination,
appellate courts must address a parent’s challenges to a trial court’s findings under
subsections (D) or (E), as they may have implications for the parent’s rights to other
children. See FAM. § 161.001(b)(1); In re N.G., 577 S.W.3d 230, 234–35 (Tex.
2019) (addressing due process and due course of law considerations with respect to
appellate review of grounds (D) and (E) and holding that an appellate court must
provide a detailed analysis if affirming the termination on either ground). Thus, if
we conclude that the evidence is legally and factually sufficient to uphold the trial
17
court’s finding as to either subsection (D) or (E), we need not address whether the
evidence supports termination under subsection (O). See FAM. § 161.001(b)(1);
TEX. R. APP. P. 47.1. And when the evidence pertaining to both subsections (D) and
(E) is interrelated, as it is here, we may conduct a consolidated review of the trial
court’s endangerment findings. See In re A.L.S., 660 S.W.3d 257, 263–64 (Tex.
App.—San Antonio 2022, pet. denied); In re J.D., 436 S.W.3d 105, 114 (Tex.
App.—Houston [14th Dist.] 2014, no pet.); In re M.R.J.M., 280 S.W.3d 494, 503
(Tex. App.—Fort Worth 2009, no pet.).
The statutory endangerment grounds require clear and convincing proof that
the parent has: “(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of
the child,” or “(E) 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.” FAM. § 161.001(b)(1)(D), (E); In re S.M.R., 434 S.W.3d 576, 585 (Tex.
2014). “[E]ndangerment encompasses a larger array of conduct that ‘expose[s a
child] to loss or injury’ or ‘jeopardize[s]’ the child.” In re R.R.A., 687 S.W.3d 269,
277 (Tex. 2024) (quoting Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987)). The term means “more than a threat of metaphysical injury or potential
ill effects of a less-than-ideal family environment,” but “does not require actual
harm.” Id.; see also In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012).
To terminate a parent’s rights for endangerment under subsections (D) or (E),
the “parent’s endangering conduct need not ‘be directed at the child, nor must the
child actually suffer injury.’” R.R.A., 687 S.W.3d at 277 (quoting Boyd, 727 S.W.2d
at 533); In re C.E., 687 S.W.3d 304, 310 (Tex. 2024). “[T]ermination under
[subsection] (D) requires that the child’s environment is a source of endangerment,
and the parent’s conduct may create that dangerous environment.” C.E., 687 S.W.3d
at 310. Endangerment under subsection (E), in contrast, focuses on the parent’s
18
conduct, and whether the endangerment of the child’s well-being was the direct
result of the parent’s acts, omissions, or failures to act. In re J.S., 687 S.W.3d 541,
550 (Tex. App.—Eastland 2024, no pet.). “A parent’s drug use, violence, or other
abuse may make the child’s environment endangering to the child.” In re J.S., 675
S.W.3d 120, 128 (Tex. App.—Dallas 2023, no pet.). “A parent acts ‘knowingly’
when the parent is aware that the environment creates a potential danger to the child
but the parent disregards that risk.” Id. Because conditions or surroundings cannot
endanger a child unless that child is exposed to them, the relevant time frame for
evaluating subsection (D) is before the child’s removal. J.W., 645 S.W.3d at 749.
Termination under subsection (E) must be based on more than a single act or
omission; a voluntary, deliberate, and conscious course of conduct by the parent is
required. J.S., 687 S.W.3d at 550; In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort
Worth 2000, pet. denied). “A factfinder may infer endangerment from ‘a course of
conduct’ that presents substantial risks to the child’s physical or emotional well-
being.” R.R.A., 687 S.W.3d at 277. A parent’s actions prior to and after the
children’s removal may show an endangering course of conduct. See J.S., 687
S.W.3d at 550 (“endangering conduct may include a parent’s actions before the
child’s birth and may relate to the parent’s actions while the parent had possession
of other children”). “Even evidence of criminal conduct, convictions, and
imprisonment prior to the birth of a child will support a finding that a parent engaged
in a course of conduct that endangered the child’s well-being.” In re A.J.M., 375
S.W.3d 599, 606 (Tex. App.—Fort Worth 2012, pet. denied); Walker v. Tex. Dep’t
of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.]
2009, pet. denied) (illegal drug use and offenses that occurred before the child’s birth
may be considered as part of a course of conduct that endangers a child).
Drug use and its effects on the parent’s life and ability to parent may also
demonstrate an endangering course of conduct. J.O.A., 283 S.W.3d at 345; In re
19
A.A.M., 464 S.W.3d 421, 426 (Tex. App.—Houston [1st Dist.] 2015, no pet.)
(“Illegal drug use creates the possibility that the parent will be impaired or
imprisoned and incapable of parenting.”). “While illegal drug use alone may not be
sufficient to show endangerment, a pattern of drug use accompanied by
circumstances that indicate related dangers to the child can establish a substantial
risk of harm.” R.R.A., 687 S.W.3d at 278 (emphasis added). “A reviewing court
should not evaluate drug-use evidence in isolation; rather, it should consider
additional evidence that a factfinder could reasonably credit that demonstrates that
illegal drug use presents a risk to the parent’s ‘ability to parent.’” Id. (quoting J.O.A.,
283 S.W.3d at 345). Thus, under certain circumstances, such as the ones that are
present in this case, “any drug activity may render the parent incapable of parenting.”
J.S., 687 S.W.3d at 554 (citing R.R.A., 687 S.W.3d at 278).
Appellant flatly misrepresents that there is no proof her children were present
when she threatened to shoot Henry. To the contrary, Appellant’s testimony
established that the reason for removal was “[her] kids being present” during the
“fight that [she] had with [Henry].” Appellant also “denies that her children were
endangered” when she “retreat[ed] to her vehicle to retrieve a weapon” “after
[Henry] threatened continued violence.” Appellant’s understated portrayal of the
events distorts the nature of her reprehensible conduct. The evidence showed that
she and her children went with Wellons to pick up his son, and Appellant
aggressively exited the vehicle to charge at Henry. Henry did not “even know [they]
were going to fight,” so she did not participate other than “defending [herself].”
When the two were separated, Appellant returned to the vehicle—presumably where
her children were—to retrieve a gun, point it at Henry, and threaten to shoot her. In
this regard, the trial court could properly consider Appellant’s unapologetic and
violent criminal conduct—when she brandished and threatened to use a deadly
weapon—in finding that she knowingly endangered the physical and emotional well-
20
being of her children. See In re N.J.H., 575 S.W.3d 822, 832 (Tex. App.—Houston
[1st Dist.] 2018, pet. denied) (“[A]busive and violent criminal conduct by a parent
can also produce an environment that endangers a child’s well-being, and evidence
that a person has engaged in such conduct in the past permits an inference that the
person will continue [to engage in] violent behavior in the future.”).
We likewise observe that Appellant mischaracterizes the aggravated assault
that she committed against Henry as being her “single incident” of violent conduct,
and again ignores her admission concerning the domestic violence that occurred
between her and her mother. Nevertheless, Appellant’s past violent behavior aside,
the trial court could certainly infer endangerment based on Appellant’s commission
of a violent felony offense—aggravated assault with a deadly weapon—with three
young children in the immediate vicinity. See J.F.-G., 627 S.W.3d at 315–17 (a
parent’s criminal conduct that may result in incarceration is relevant to the
endangerment analysis); In re E.J., No. 14-23-00387-CV, 2023 WL 8043686, at *9
(Tex. App.—Houston [14th Dist.] Nov. 21, 2023, no pet.) (mem. op.) (inappropriate,
abusive, or unlawful conduct by a parent can create an environment that endangers
the physical and emotional well-being of children under subsection (D)); In re M.J.,
No. 02-23-00026-CV, 2023 WL 3643673, at *11 (Tex. App.—Fort Worth May 25,
2023, no pet.) (mem. op.) (“Father’s lack of desire to stop using mari[h]uana could
continue to endanger” the child, and “carrying a loaded gun around his other children
. . . created both emotional and physical risks for” the child); see also In re A.J.A.D.,
No. 01-22-00521-CV, 2022 WL 17813763, at *8–11 (Tex. App.—Houston [1st
Dist.] Dec. 20, 2022, pet. denied) (mem. op.) (considering the mother’s drug use,
criminal convictions, and indifference as evidence of endangerment).
The trial court also properly considered Appellant’s ongoing drug use and the
children’s exposure to drugs. See N.J.H., 575 S.W.3d at 831–32 (“drug activity can
constitute endangerment even if it transpires outside the child’s presence”). The
21
children’s positive drug tests permit the strong inference that they were exposed to
marihuana through Appellant’s illegal drug use, which creates and is indicative of
an endangering environment. See In re N.T., No. 02-24-00067-CV, 2024 WL
2066375, at *5 (Tex. App.—Fort Worth May 9, 2024, no pet.) (mem. op.) (affirming
a conduct-based endangerment finding based in part on the children testing positive
for marihuana and cocaine upon removal). Despite Appellant’s denials of her drug
use, the Department noted that her apartment had a strong odor of marihuana when
it opened its investigation, and Appellant consistently tested positive for marihuana
and cocaine throughout the pendency of this case. As such, the trial court was
permitted to disbelieve Appellant’s testimony and form a firm conviction or belief
that Appellant used illegal drugs before and after the children’s removal. See In re
D.J.W., 394 S.W.3d 210, 222 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)
(post-removal drug use increases the risk that the parent-child relationship will be
permanently severed, thus endangering the emotional well-being of the child).
Moreover, Appellant repeatedly disregarded the Department’s concerns that
Wellons posed a danger to the children. Wellons tested positive for marihuana and
cocaine, was suspected of distributing cocaine, and was placed on deferred
adjudication community supervision for assaulting Henry in August 2021.
According to Hall, Wellons’s “biggest areas of noncompliance” with his own family
plan of service were “[o]ngoing substance abuse,” “misrepresent[ing] day-to-day
interactions,” and “just lying.” Here, the trial court was permitted to consider
Appellant’s unwillingness to recognize the potential danger to her children in
determining whether she engaged in an endangering course of conduct. See FAM.
§ 161.001(b)(1)(E); C.E., 687 S.W.3d at 314 (circumstantial evidence, “taken
together,” was legally sufficient to support the finding of endangerment under
subsection (E)); In re S.V., No. 02-23-00188-CV, 2023 WL 5967890, at *9 (Tex.
App.—Fort Worth Sept. 14, 2023, no pet.) (mem. op.) (affirming a conduct-based
22
endangerment finding based in part on evidence that “both drugs and drug users were
finding their way into the children’s home”); M.C. v. Tex. Dep’t of Fam. &
Protective Servs., No. 03-17-00104-CV, 2017 WL 3379114, at *5 (Tex. App.—
Austin Aug. 1, 2017, no pet.) (mem. op.) (considering a parent’s continued
association with “people who smoke marihuana all the time” as evidence of
endangerment).
Rather than showing a modicum of remorse for her children’s positive drug
tests, Appellant submits that exposing her children to marihuana is relatively benign
and of no consequence, and thus should not have resulted in the termination of her
parental rights. She looks to Section 161.001(c)(4), which prohibits terminating a
parent-child relationship based on a parent “provid[ing] or administer[ing] low-THC
cannabis to a child for whom the low-THC cannabis was prescribed under Chapter
169, Occupations Code.” See FAM. § 161.001(c)(4) (emphasis added); TEX. OCC.
CODE ANN. §§ 169.001–.005 (West 2022) (Authority to Prescribe Low-THC
Cannabis to Certain Patients for Compassionate Use). However, her argument fails
because there is no evidence that her children were prescribed low-THC cannabis
by the proper authority. The unlawful use of any form of cannabis in the presence
of one’s children, regardless of the amount, and the children’s resulting exposure to
it, is not tantamount to the cannabis being prescribed to them for their benefit. Thus,
Section 161.001(c)(4) is inapplicable here, and we decline to construe this statute
beyond its plain and unambiguous meaning. See Cadena Commercial USA Corp. v.
Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318, 338, 326 (Tex. 2017) (reviewing
courts “take statutes as we find them and refrain from rewriting the Legislature’s
text”).
Furthermore, we reject Appellant’s argument that exposing her children to
marihuana through her own illegal use is excusable. It is unlikely that a rational trier
of fact would accept Appellant’s suggestion that parents may illegally expose their
23
young children to controlled substances without consequences. Appellant’s
contention reinforces, rather than undermines, the trial court’s finding of
endangerment. So, too, does her assertion that the children’s “low” levels of
marihuana exposure should render her beyond reproach. Appellant’s brazen
indifference to the substantial risks that her behavior posed to her children support a
rational inference that she would continue this behavior if the children were returned
to her care. See N.J.H., 575 S.W.3d at 831–32 (“A child is endangered if his [or her]
environment creates a potential for danger that the parent disregards.”); In re E.P.C.,
381 S.W.3d 670, 683–84 (Tex. App.—Fort Worth 2012, no pet.) (the parent’s failure
to provide proper nutrition, leaving the child alone, and his lack of remorse for doing
so was evidence of endangerment). And, despite Appellant’s lack of concern,
“test[ing] positive for mari[h]uana shortly before the final hearing commence[s]”
permits a reasonable factfinder to find that endangerment exists by clear and
convincing evidence. R.R.A., 687 S.W.3d at 277–78 (quoting J.O.A., 283 S.W.3d at
346).
Here, Appellant’s voluntary, deliberate, and conscious acts constitute more
than a single instance of conduct. The trial court could have rationally formed a
strong conviction or belief that Appellant’s actions created “conditions or
surroundings which endangered [the children]’s physical or emotional well-being.”
FAM. § 161.001(b)(1)(D); see A.L.S., 660 S.W.3d at 264. Thus, we conclude that
the evidence is legally and factually sufficient to establish that Appellant was aware
of the children’s endangering environment prior to their removal and in turn
consciously disregarded it. See FAM. § 161.001(b)(1)(D). We likewise conclude
that the evidence is legally and factually sufficient to support the trial court’s finding
that Appellant engaged in a continuing course of conduct that endangered the
physical or emotional well-being of C.S. Jr. and Z.S. See id. § 161.001(b)(1)(E).

24
Accordingly, we overrule Appellant’s third issue. In light of our holding, we
need not address Appellant’s fourth issue in which she challenges the trial court’s
finding under subsection (O). See TEX. R. APP. P. 47.1; J.S., 687 S.W.3d at 551.
C. The Best Interest of the Child Determination
In Appellant’s fifth issue, she challenges the legal and factual sufficiency of
the evidence to support the trial court’s finding that termination of her parental rights
is in the best interest of C.S. Jr. and Z.S.
First, we reiterate that evidence of each Holley factor is not required to support
a best interest finding. In re S.R., 452 S.W.3d 351, 366 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied); In re S.O., No. 05-22-01019-CV, 2023 WL 2237084, at
*11 (Tex. App.—Dallas Feb. 27, 2023, no pet.) (mem. op.). Put differently, the
absence of evidence on some of these factors does not preclude a best interest
finding, “particularly if [the] undisputed evidence shows the parental relationship
endangered the child’s safety.” In re N.T., 474 S.W.3d 465, 477 (Tex. App.—Dallas
2015, no pet.). Indeed, “evidence relating to one single factor may be adequate in a
particular situation to support a finding that termination is in the best interests of the
child.” In re K.S., 420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.).
“‘[B]est interest’ is a term of art encompassing a much broader, facts-and-
circumstances based evaluation that is accorded significant discretion.” In re Lee,
411 S.W.3d 445, 460 (Tex. 2013).
The trial court, as the trier of fact, is the sole judge of the witnesses’
credibility. J.F.-G., 627 S.W.3d at 312. We are not at liberty to disturb the
determinations of the trier of fact so long as those determinations are not
unreasonable. Id. at 311–12; In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
Affording due deference to the trial court, as we must, we hold that, based on the
evidence in the record and the application of the Holley factors, the trial court could
have reasonably formed a firm belief or conviction that termination of Appellant’s
25
parental rights was in the best interest of C.S. Jr. and Z.S. See Holley, 544 S.W.2d
at 371–72.
As we have said, in its best interest determination, a trial court, as the
factfinder, may infer that a parent’s past endangering conduct may recur if the child
is returned to the parent. See In re L.N.C., 573 S.W.3d 309, 318 (Tex. App.—
Houston [14th Dist.] 2019, pet. denied); J.D., 436 S.W.3d at 118; see also In re T.B.,
No. 09-20-00172-CV, 2020 WL 6787523, at *8 (Tex. App.—Beaumont Nov. 19,
2020, no pet.) (mem. op.) (“The factfinder may consider prior CPS history of
neglect, drug abuse, or lack of care for the children.”). Evidence that is relevant to
Section 161.001(b)(1) termination grounds may also be relevant to the determination
of the child’s best interest. In re C.V.L., 591 S.W.3d 734, 753 (Tex. App.—Dallas
2019, pet. denied). And evidence that supports termination under the grounds listed
in Section 161.001(b)(1) can be considered by the trial court in its best-interest
analysis. See C.H., 89 S.W.3d at 28; C.J.O., 325 S.W.3d at 266. Therefore, the trial
court could properly consider Appellant’s endangering conduct in determining
whether the termination of her parental rights was in the best interest of C.S. Jr. and
Z.S. See C.H., 89 S.W.3d at 28; C.J.O., 325 S.W.3d at 266.
As discussed above, Appellant exposed her children to drug use and violent
behavior. Appellant’s marihuana use not only affected her parenting abilities—her
children tested positive for marihuana prior to their removal. See C.H., 89 S.W.3d
at 27–28 (past performance as a parent “could certainly have a bearing on [a
parent’s] fitness to provide for” her child). Appellant continued testing positive for
illegal substances after the children were removed from her care. At the time of the
final hearing, she was still subject to prosecution for the second-degree felony
offense—aggravated assault with a deadly weapon—that she committed in the
presence of her children. See PENAL § 22.02(a)(2), (b). Such conduct undoubtedly
“exposes the children to the possibility that [Appellant] may be impaired or
26
imprisoned,” which weighs in favor of finding that termination of Appellant’s
parental rights was in C.S. Jr.’s and Z.S.’s best interest. See J.S., 687 S.W.3d at 551;
In re Z.J.B., No. 14-18-00759-CV, 2019 WL 347474, at *5, 7 (Tex. App.—Houston
[14th Dist.] Jan. 29, 2019, pet. denied) (mem. op.) (a parent’s single positive drug
screen and his failure to submit to three additional drug screenings suggested
continued illegal drug use by him and weighed in favor of the trial court’s best-
interest finding); see also In re J.M.T., 519 S.W.3d 258, 269 (Tex. App.—Houston
[1st Dist.] 2017, pet. denied) (“Parental drug abuse reflects poor judgment and may
be a factor to consider in determining a child’s best interest.”).
Although “[e]vidence about placement plans and adoption are, of course,
relevant to best interest,” a “lack of evidence about definitive plans for permanent
placement and adoption cannot be the dispositive factor.” C.H., 89 S.W.3d at 28.
Otherwise, terminations would regularly be subject to reversal on the sole ground
that “an adoptive family has yet to be located.” Id. Hall testified that despite certain
issues with A.H. as a caregiver, the Department is willing to continue working with
her. Furthermore, A.H. is willing to adopt the children, but the Department has
“backup plans” for placement. See Holley, 544 S.W.2d at 371–72.
Appellant, on the other hand, has not demonstrated the ability to provide her
children with a safe, drug-free home environment. The record supports the trial
court’s implied finding that Appellant failed to adequately address her drug issues
based on her positive drug tests that coincided with the final hearing. See J.O.A.,
283 S.W.3d at 346 (“evidence of improved conduct, especially of short-duration,
does not conclusively negate . . . a long history of drug use and irresponsible
choices”). We thus conclude that the lack of a permanent adoption plan does not
weigh against a best-interest finding and the termination of Appellant’s parental
rights. See C.H., 89 S.W.3d at 28; In re F.M.E.A.F., 572 S.W.3d 716, 732 (Tex.
App.—Houston [14th Dist.] 2019, pet. denied); see also In re A.J.W., No. 04-19-
27
00346-CV, 2019 WL 6333468, at *6 (Tex. App.—San Antonio Nov. 27, 2019, no
pet.) (mem. op.) (“The [trial] court could have rationally concluded that [the mother]
is unable to protect her children or to provide them a safe and stable environment
because she minimizes her drug problem.”); In re A.E., No. 05-14-01340-CV, 2015
WL 1184179, at *7 (Tex. App.—Dallas Mar. 16, 2015, pet. denied) (mem. op.) (The
mother’s “choice to minimize her past drug use” was a factor of “particular
significance” in the best-interest analysis.).
The trial court was likewise permitted to consider that Appellant refused to
dispense with her drug-related conduct by continuing to associate with and surround
herself with others who used drugs. See, e.g., In re M.R., 243 S.W.3d 807, 820 (Tex.
App.—Fort Worth 2007, no pet.). Appellant’s empty commitment to “keep
[Wellons] separated from [her] kids” if they were returned to her was properly
disregarded—a parent must address the reasons for removal and demonstrate the
capability to provide the children with a safe and stable environment before
the children are returned. See FAM. § 263.102 (Service Plan; Contents),
§ 263.306(a–1)(6) (“At each permanency hearing . . . the court shall . . . determine
whether to return the child . . . if the child’s parents are willing and able to provide
the child with a safe environment.”). Hall communicated to Appellant the need to
“change her behavior” to achieve reunification. She explained that Appellant was
“offered services . . . for over a year,” “underst[ood] the expectations” of the
Department and the trial court, but was only “willing to comply with things that
[were] not related to interrupting her relationship with [Wellons].” See E.C.R., 638
S.W.3d at 769 (“A trial court is permitted to consider a parent’s . . . failure to comply
with a family plan of service in its best interest determination.”).
In addition to misrepresenting the status of her relationship with Wellons,
Appellant attributed her positive drug test results to being “around people . . . that’s
smoking or whatever . . . weed smoke is going to get in my hair.” Appellant
28
exhibited nothing but apathy and nonchalance about her own drug abuse and her
children’s positive drug tests. For example, she expressed at the final hearing that
testing positive for marihuana is not “a big issue.” Appellant maintains on appeal
that her “youth and inexperience” “led her to resolve her differences with [Henry]
inappropriately,” and to “fail[] to fully consider the consequences of using a widely
accepted but still illegal substance to relax at the end of stressful days.” Illegal or
not, Appellant was prohibited from using marihuana, associating with others who
engaged in drug use, or any form of criminal activity. As such, Appellant’s
substantial compliance with her service plan does not justify her deceit and pattern
of conduct that could lead to “a life of uncertainty and instability” for C.S. Jr. and
Z.S. See In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet.
denied). The trial court, as the factfinder, was permitted to determine that Appellant
was not excused from her acts and omissions. See In re A.J.D.-J., 667 S.W.3d 813,
823 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (A parent’s “failure to provide
valid excuses for her behavior weighs in favor of the trial court’s finding that
termination of her parental rights is in the child’s best interest.”).
Appellant emphasizes the children’s desires to return to her care. A child’s
desire to reside with a parent “is an important consideration in determining the best
interest of the child,” but it will “not override or outweigh evidence of danger to the
child.” J.S., 687 S.W.3d at 553; F.M.E.A.F., 572 S.W.3d at 732. While we do not
ignore a child’s desires, it is not binding on the trial court; it is only one factor that
the trial court considers in its best-interest analysis. See FAM. § 153.009(c); Holley,
544 S.W.3d at 372; see also Hart v. Kozik, 242 S.W.3d 102, 109 (Tex. App.—
Eastland 2007, no pet.); cf. F.M.E.A.F., 572 S.W.3d at 732 (“A child’s love for a
parent cannot be ignored as a reflection of the parent’s ability to provide for the
child’s emotional needs.”). Here, given Appellant’s violent behavior, drug use, the
exposure of the children to marihuana and other illegal substances, and persistent
29
dishonesty with the Department and the trial court, this factor does not weigh against
a finding of termination. See Hart, 242 S.W.3d at 109. The trial court could have
rationally concluded based on Appellant’s endangerment of her children that
relinquishing the children to Appellant’s care would pose a substantial risk of harm
to the children. See In re Z.G., No. 02-23-00038-CV, 2023 WL 3521848, *5 (Tex.
App.—Fort Worth May 18, 2023, pet. denied) (mem. op.) (the parent’s denials and
refusal to acknowledge the pervasive “drug use of the family unit” weighed in favor
of terminating his parental rights).
Finally, Appellant contends that her status as a “young twenty-five-year-old”
“struggling to raise two children as a single parent” further mitigates her conduct
before and after the children’s removal. Although we are sympathetic to the
struggles of young single parents, it is the best interest of the children that “shall
always be the primary consideration” in these cases. See FAM. § 153.002 (West
2014); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003); see also In re R.M.C., No. 04-
18-00706-CV, 2019 WL 1370367, at *3 (Tex. App.—San Antonio Mar. 27, 2019,
pet. denied) (mem. op.) (“Although we are sympathetic to the parents’ efforts to
regain custody . . . termination of . . . parental rights is in [the child’s] best interest.”).
The State honored the constitutionally-protected parent-child relationship until
Appellant made it clear that she prioritized her own interests over protecting her
children. See In re A.V., 113 S.W.3d 355, 361 (Tex. 2003); see also A.J.D.-J., 667
S.W.3d at 823 (“[S]ignificant evidence of parental indifference weighs heavily in
favor of a factfinder’s finding that termination is in a child’s best interest.”). Upon
considering the record as it relates to Appellant’s actions and inactions, the
emotional and physical danger to C.S. Jr. and Z.S. now and in the future, Appellant’s
parental abilities, and Appellant’s history with the Department, we hold that the
evidence is legally and factually sufficient to support the trial court’s finding that

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termination of Appellant’s parental rights is in the best interest of C.S. Jr. and Z.S.
See J.W., 645 S.W.3d at 741; Holley, 544 S.W.2d at 371–72.
Accordingly, we overrule Appellant’s fifth issue.
IV. This Court’s Ruling
We affirm the order of the trial court.

W. STACY TROTTER
JUSTICE

December 12, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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