In the Interest of L. S. R. and C. W. R., Children v. the State of Texas

NUMBER 13-25-00012-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF L.S.R. AND C.W.R., CHILDREN

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 5
OF NUECES COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Cron
Memorandum Opinion by Justice West

Appellant M.R. (Father) appeals a judgment terminating his parental rights to his

children, L.S.R. and C.W.R. 1 Father argues that the evidence is insufficient to support

(1) the statutory termination grounds, and (2) that termination was in the children’s best

interest. We affirm.

1 To protect the identity of minor children in an appeal from an order terminating parental rights,

parents and children are referred to by their initials or an alias. See TEX. FAM. CODE ANN. § 109.002(d).
I. BACKGROUND

A. Pretrial Proceedings

On March 23, 2023, the Department of Family and Protective Services (the

Department) filed its original petition for conservatorship and requested termination of

C.B. (Mother) and Father’s parental rights to L.S.R. and C.W.R., who were five and three

years old at the time of removal, respectively. The petition was accompanied by an

affidavit in support of removal alleging neglectful supervision and physical abuse by

Mother and Father. The affidavit alleged that the Department received reports from the

children’s school that L.S.R. was observed to be “dirty” with a “foul body odor” and had

“roaches in her backpack [and] feces on her school folder.” L.S.R. made comments to her

teachers “about sleeping outside,” about being hungry, and “that she goes into a[n

unhoused] encampment in the woods in Flour Bluff” with her mother. The reports also

indicated that L.S.R. had been observed “with strange bruising around her hips and cuts

around her mouth,” “bruises on her face, which were black and purple in color,” and

“unexplained bruising to her legs.” Likewise, C.W.R. had been “observed dirty and

hungry, often without shoes.”

It was further reported that Father “was observed sitting on a bus bench drinking

a 40[-]ounce bottle of alcohol with [C.W.R.] sitting beside him” and was “often seen

carrying alcohol while [C.W.R.] [wa]s in his care.” Mother was reportedly using

methamphetamines and “ha[d] been observed under the influence of illicit substances

when at school events or dropping [L.S.R.] off at school.” The children had also “been

seen walking around Flour Bluff, with their parents, in the middle of the night.”

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Both children were interviewed at the Children’s Advocacy Center (CAC) on March

22, 2023. The affidavit alleged that L.S.R. told the CAC interviewer that “she has stayed

with her mom in her mom’s tent, and ‘there were other things her parents told her she

was not supposed to talk about.’” C.W.R. “stated her dad was mean and hurts her” and

“described and demonstrated being forced to lay on her stomach and having her hands

tied behind her back by a man, but then requested to end the interview.”

The affidavit included the Department’s previous involvement with both parents.

Mother had three prior cases which resulted in removal of three of her children, and a

fourth case involving Father that resulted in another child being removed. The Department

also received reports involving L.S.R. and C.W.R. in September 2018, October 2020,

March 2021, and September 2022. These reports included allegations that L.S.R.

sustained physical injuries from Mother, Mother and Father were using

methamphetamines, and Father “would drink to the point of intoxication and drive with

[L.S.R.] and [C.W.R.] in the vehicle.”

The trial court awarded the Department temporary managing conservatorship of

L.S.R. and C.W.R. on March 27, 2023. The dismissal date for the case was set for April

4, 2024, however, the trial court extended the deadline to October 1, 2024, pursuant to

Texas Family Code § 263.401. The case proceeded to a bench trial and continued for

four days on September 16, 2024, November 7, 2024, December 4, 2024, and December

6, 2024.

B. Trial Record

Michael Gilby, a caseworker for the Department, was assigned to this case in

February 2024. Gilby testified that his communication with Father had been “sporadic.”

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Gilby said he met with Father in person twice, but Father generally would not respond to

his text messages for “up to two weeks, maybe longer,” and when he did respond, Father

would not address his questions on “when and where [they] could meet.” Gilby testified

that Father is unemployed, receives “100 percent” disability, is currently incarcerated in

the Nueces County Jail, and does not have a permanent residence. He testified that

Mother is “living in a tent on the beach in Flour Bluff,” but he “ha[s] not been able to locate

her” since he started on the case.

Gilby explained that the Department’s original goal was family reunification, but the

recommendation changed to termination because the parents did not comply with their

family service plans. Gilby testified that Mother failed to complete all of her assigned

services except “some drug testing at the beginning” of the case. Father’s family plan of

service included “a drug and alcohol assessment, psychological assessment, parenting

classes, substance abuse classes, random drug testing, . . . individual [substance abuse]

counseling,” a “30-day inpatient treatment program” at “Cenikor,” and domestic violence

prevention classes. Testimony revealed that Father completed the assessments, but did

not complete the parenting classes, the domestic violence classes, the substance abuse

counseling, and the Cenikor inpatient treatment program. Gilby testified that Father

attempted to complete the Cenikor program in May 2024 and stayed there for over two

weeks; however, he was “unsuccessfully discharged for having an unauthorized cell

phone.” Father also voluntarily completed two separate week-long “detox” programs at

Cenikor in November 2023 and August 2024.

As to the randomized drug testing, Gilby testified that Father had two negative UA

screenings early in the case, but at those same screenings, Father refused to do the

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required hair follicle tests. The record indicates that out of the remaining eleven ordered

tests from 2023 to 2024, Father did not complete eight and three came back positive for

marijuana, amphetamine, methamphetamine, and/or cocaine.

Taite Bowers, the Department’s conservatorship supervisor, testified that the

Department’s main concerns at the time of the children’s removal were Mother’s and

Father’s substance abuse. Bowers explained that Father last visited the children on

September 11, 2023, and his visits were suspended on September 18, 2023, because he

had not “initiated services.” For visitation to resume, Bowers testified that Father would

have to “reengage in services and complete drug testing.” After the Department learned

that Father was living in a sober living facility in February 2024, and Father resumed drug

testing in April and June 2024, Bowers explained that it intended to recommend Father

resume visitation with the children. She also explained that because Father was engaging

in services again, the trial court extended the case’s dismissal date to October 1, 2024.

However, the Department did not recommend that visitation resume because Father was

later incarcerated. Evidence showed that Father was arrested, but not charged, for

“fail[ure] to ID” or intent to give false information in April 2023 and for criminal trespass in

September 2023 and August 2024. Father was also arrested on December 8, 2023, and

later incarcerated for the offense on October 18, 2024. 2

Bowers testified that Father loves his children and acknowledged that Father

attempted to address the Department’s concerns. For example, Father completed some

substance abuse counseling sessions and completed his required assessments. She also

2 It is unclear from the record why Father was incarcerated at the time of trial.

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recognized that any time Father contacted the Department, he “always ask[ed] how the

children were doing,” and his visits with the children were generally positive because he

often brought snacks and activities for them. She maintained, however, that despite

Father’s progress and his love for his children, she was concerned that she had seen “no

behavior changes.”

Court Appointed Special Advocate (CASA) Elizabeth Martin was the CASA

guardian ad litem for L.S.R and C.W.R. and assigned to this case in August of 2023.

Martin testified that she was unable to contact Father until March 2024. At that point, she

and Father communicated “a lot,” and he engaged in services. However, she explained

that throughout the course of the case, Father would periodically go “MIA,” and his

communication with her was overall inconsistent.

Martin testified that she “was in agreement” when the court suspended Father’s

visitation with the children. She stated that throughout the case, there was never a point

where she felt like it “was going to be psychologically beneficial for the children” to resume

visitation with either parent because they “were not doing the drug tests or were not

moving forward with that rehabilitation consistently.” Martin said she did not support

reunification because she did not see either parent “moving forward in their progress.”

When asked what her “biggest concern” with Father was, she responded:

My biggest concern with [Father] is that [Father] can talk a lot about what
he wants to do or what he knows to do, but holding himself accountable to
those actions so that he, himself, is in a healthy, safe, and secure
environment is very difficult. I have not seen that come to fruition . . . .

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On cross examination, she stated that over the eight months she spent communicating

with Father, “besides [his] words, there is not anything that has caused me to believe that

the girls could be returned.”

The children were placed with a foster family shortly after removal and then

transferred to live with their current foster family on June 3, 2024. Gilby stated that the

children “are doing great” and “have adjusted very, very well.” Likewise, Bowers said the

children were “doing really well” and “thriving” with the current foster family (“Mr. and Mrs.

P”). She explained that “with the changes and the counseling that they’ve had, [the

children] are exhibiting childlike behaviors . . . verses adult-like behaviors at their age.”

Gilby, Bowers, and Martin recommended that the children remain with Mr. and Mrs. P

and that parental rights be terminated.

By the last day of trial, Father had been incarcerated in the Nueces County Jail for

over a month. Father admitted that throughout the case, he had “[m]ore setbacks than

successes.” He admitted that some communication issues between him and the

Department had to do with his “difficultly hanging on to cell phones” because he had

bought sixteen cell phones in the last year and a half, and his number had changed at

least two or three times over the course of the case. However, he maintained that Gulf

Coast Services and the Department would give him contradictory answers as to what

classes he needed to complete or had completed. He also testified that he had “a lot of

trouble getting in touch with the original caseworker [before Gilby] to get services set up,”

and Gulf Coast was not forthcoming with what classes it offered. He maintained that these

communication issues hindered his ability to complete his service plan. However, he also

testified that he knew and understood all the services he needed to complete, he had the

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Department’s and CASA coordinator’s phone number, he had the ability to reach out to

the Department to ask questions about services, and he knew where the Department’s

office was located.

Father maintained that he had completed all his required services except for the

inpatient or “residential” program at Cenikor and admitted that he continued to test

positive for methamphetamines during the pendency of the case. He testified that he first

went to Cenikor in October or November 2023, and he took a variety of classes that were

similar to the classes that the Department had assigned for him, including parenting

classes and relapse prevention classes. However, later into the program, he began

experiencing pain in his back. Doctors found a cyst on one of his kidneys, and he stayed

in the hospital for about a month. He testified that his hospitalization caused him to lose

his place at Cenikor, lose his apartment, and use all his savings. The day after he was

discharged from the hospital, he was arrested and spent over a month in jail. After his

release, Father testified that he stayed in at least three different temporary living facilities.

Father testified that the required classes and assessments under his service plan “were

no big deal,” but his physical health and the communication with the Department were his

biggest hurdles.

Father testified that he was an excellent father, and he had no issues raising the

children prior to their removal. He maintained that he was only previously involved with

the Department because of Mother’s actions, and he did not leave the children alone with

her anymore. While Father acknowledged that he was currently incarcerated, he stated

that he has an apartment available to him upon release, he intends to resume L.S.R.’s

and C.W.R.’s counseling, and he eventually wants to “move back home to southern

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Illinois, Kentucky area where [his] other children are” located. He explained that he has

nine biological children aged five to thirty-five. He acknowledged that he never raised any

of his children from the time they were born until they were eighteen.

Father called two witnesses at trial. M.S., Father’s former landlord, testified that

Father reached out to her about “taking placement of the children involved in [this] case.”

M.S. operated “a sober living community” where Father lived for about a year. M.S. said

that she did not consider Father a friend but explained that she wanted to help him like

any of her other former tenants. She explained that “[h]aving worked with people in

recovery for a very long time, . . . recovery is not something that you can go into rehab

for 30 days and come out cured.” She stated that it “takes time” to recover, and she “h[as]

seen an awful lot of people recover, but not in one year.” She intended to take care of the

children long-term so that Father could “get his life together.” M.S. testified that she has

only met L.S.R. briefly, and she has never met C.W.R. She testified that she had not seen

L.S.R. in a long time, and she has not had any contact with the children during the

pendency of the case.

M.S. was approved as a potential placement for the children around February

2024. Father explained that he wanted the children to be placed with M.S. because of

“her general attitude towards family and community,” and she shares his same faith.

Father also believed M.S. would allow his eldest son to have a relationship with the

children. Bowers testified that the Department ultimately did not place the children with

M.S. because there was no previously established relationship between M.S. and the

children, and the children had already bonded with their foster placement. She also

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explained that the children were doing well in counseling, and the Department did not

want to hinder the children’s progress by placing them with someone new.

Carl, Father’s eldest son, testified that he lived with Father and the children in the

past and has seen him be “a great father to these girls.” Carl testified that Father left Carl’s

mother when he was young because his “mother’s family didn’t want him in the picture,”

but he had no issues with Father growing up. The two reconnected when Carl was an

adult, and Father helped him “get off the streets.” Carl recommended Father’s parental

rights not be terminated, but that Father be “placed under court ordered rehab” before

reuniting with the children.

The trial court signed an order terminating Father’s parental rights pursuant to

Texas Family Code § 161.001(b)(1)(N), (O), and (P). See TEX. FAM. CODE ANN.

§§ 161.001(b)(1)(N), (O), (P). The trial court further found that termination of Father’s

parental rights was in the children’s best interest. See id. § 161.001(b)(2). This appeal

ensued. See TEX. R. APP. P. 28.4.

II. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review & Applicable Law

To terminate parental rights, a court must find two elements by clear and

convincing evidence: (1) that the parent committed one of the statutory grounds for

termination found in § 161.001(b)(1) of the family code; and (2) that termination is in the

child’s best interest. TEX. FAM. CODE ANN. § 161.001(b); In re E.N.C., 384 S.W.3d 796,

803 (Tex. 2012). 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.” TEX. FAM. CODE ANN. § 101.007; see also In re

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J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “To affirm a termination judgment on appeal, a

court need uphold only one termination ground—in addition to upholding a challenged

best interest finding—even if the trial court based the termination on more than one

ground.” In re N.G., 577 S.W.3d 230, 232–33 (Tex. 2019) (per curiam).

“Because the natural right between a parent and his child is one of constitutional

dimensions, Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985), termination proceedings

must be strictly scrutinized.” In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In parental

termination cases, our legal and factual sufficiency standards honor this elevated burden

of proof while respecting the factfinder’s role. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018)

(citing In re J.F.C., 96 S.W.3d at 264).

“The distinction between legal and factual sufficiency lies in the extent to which

disputed evidence contrary to a finding may be considered.” Id. In a legal sufficiency

review, we “cannot ignore undisputed evidence contrary to the finding, but must otherwise

assume the factfinder resolved disputed facts in favor of the finding.” Id. at 630–31 (citing

In re J.F.C., 96 S.W.3d at 266). We must also consider undisputed evidence, if any, that

does not support the finding. In re K.M.L., 443 S.W.3d at 113; see In re J.F.C., 96 S.W.3d

at 266 (“Disregarding undisputed facts that do not support the finding could skew the

analysis of whether there is clear and convincing evidence.”). Thus, “[e]vidence is legally

sufficient if, viewing all the evidence in the light most favorable to the fact-finding and

considering undisputed contrary evidence, a reasonable factfinder could form a firm belief

or conviction that the finding was true.” In re A.C., 560 S.W.3d at 631 (citing In re J.F.C.,

96 S.W.3d at 266).

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Factual sufficiency, on the other hand, requires us to weigh disputed evidence

contrary to the finding against all the evidence favoring the finding. Id. We “must consider

whether disputed evidence is such that a reasonable factfinder could not have resolved

it in favor of the finding.” Id. (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per

curiam)). We defer to the trier of fact’s determinations on the credibility of the witnesses

“so long as those determinations are not themselves unreasonable.” In re J.P.B., 180

S.W.3d 570, 573 (Tex. 2005) (per curiam); see In re H.R.M., 209 S.W.3d at 108; see also

In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“A standard that focuses on whether a

reasonable jury could form a firm conviction or belief retains the deference an appellate

court must have for the factfinder’s role.”).Therefore, “[e]vidence is factually insufficient if,

in light of the entire record, the disputed evidence a reasonable factfinder could not have

credited in favor of a finding is so significant that the factfinder could not have formed a

firm belief or conviction that the finding was true.” In re A.C., 560 S.W.3d at 631 (citing In

re J.F.C., 96 S.W.3d at 266).

B. Termination Grounds

In his first issue, Father argues there is legally and factually insufficient evidence

supporting each termination ground.

1. Predicate Finding Under Subsection (N)

Subsection (N) provides for the termination of the parent-child relationship on

grounds of constructive abandonment. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N). To

prove constructive abandonment by clear and convincing evidence, the Department must

establish four elements: (1) the child has been in the custody of the Department for at

least six months; (2) the Department made reasonable efforts to return the child to the

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parent; (3) the parent has not regularly visited or maintained significant contact with the

child; and (4) the parent has demonstrated an inability to provide the child with a safe

environment. See id.

i. In the Department’s Care for Longer than Six Months

The trial court awarded the Department temporary managing conservatorship of

L.S.R. and C.W.R. on March 27, 2023. The children were still in the Department’s care at

the start of trial on September 16, 2024. Thus, L.S.R. and C.W.R were in the Department’s

care for longer than six months. See id.

ii. Reasonable Efforts to Return the Child to the Parent

“Returning the child to the parent, per [§] 161.001(1)(N)(i), does not necessarily

mean that the child has to be physically delivered” to the parent. In re D.S.A., 113 S.W.3d

567, 573 (Tex. App.—Amarillo 2003, no pet.). Instead, we consider whether the record

reflects reasonable efforts by the Department to return the children back to their father.

See In re F.E.N., 542 S.W.3d 752, 767 (Tex. App.—Houston [14th Dist.] 2018, pet.

denied) (“[T]he question is whether the Department made reasonable efforts, not ideal

efforts.”).

The Department’s preparation and administration of a service plan, aimed at family

reunification, satisfies this element. See In re G.P., 503 S.W.3d 531, 533 (Tex. App.—

Waco 2016, pet. denied) (providing that preparation and administration of service plans

by the Department are reasonable efforts to reunite a parent and a child); In re A.Q.W.,

395 S.W.3d 285, 288 (Tex. App.—San Antonio 2013, no pet.) (same); In re K.G., 350

S.W.3d 338, 354 (Tex. App.—Fort Worth 2011, pet. denied) (same).

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The trial court heard evidence of the Department’s reunification service plan for

Father. Father did not complete the inpatient treatment program at Cenikor, domestic

violence prevention classes, individual substance abuse counseling sessions, or maintain

negative drug tests. Gilby and Martin testified that communication with Father was

inconsistent because Father would disappear for weeks at a time. As Martin described:

We would talk about where he was with things and then he would lose his
phone or his phone number or something would happen and then I would
be the one providing attorney contact information, [the Department] contact
information, and we would kind of hop back on the train again with some
new things he was going to go try or do or, you know, how we’re going to
follow the plan and—but that cycle would continue.

Gilby testified that he attempted to reach Father at four different addresses provided to

him, but he could not locate Father at any of the addresses. Father admitted that a lack

of communication with CASA and the Department was at least partially his fault because

he had issues “hanging on to cell phones,” and his number changed at least two or three

times over the course of the case. He also admitted that throughout the case and despite

the communication issues with Gulf Coast, he understood what his service plan required,

he had the ability to contact the Department, and Gilby and Martin were available to him.

Therefore, a reasonable factfinder could have formed a firm conviction that the

Department made reasonable efforts to return the children to Father through its

uncontroverted preparation and attempted execution of the reunification service plan. See

A.D. v. Tex. Dep’t of Fam. & Protective Servs., 673 S.W.3d 704, 714 (Tex. App.—Austin

2023, no pet.) (holding that the Department made reasonable efforts to return the child to

the parent because of the existence of a service plan and testimony by the Department

caseworker that he made repeated attempts to communicate with the parent); see also

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In re F.L.B., No. 13-19-00319-CV, 2019 WL 6606159, at *8 (Tex. App.—Corpus Christi–

Edinburg Dec. 5, 2019, no pet.) (mem. op.).

iii. Failure to Regularly Visit Child or Maintain Significant Contact

By the start of trial, Father had not seen his children in a year. Father impliedly

argues that his absence was based on his incarceration alone which does not constitute

“abandonment” of a child for purposes of termination of parental rights. In re D.T., 34

S.W.3d 625, 633 (Tex. App.—Fort Worth 2000, pet. denied) (“It has long been settled that

imprisonment, standing alone, does not constitute ‘abandonment’ of a child for purposes

of termination of parental rights.” (citations omitted)).

It is not clear from the record how long Father was incarcerated during the

pendency of this case. For example, evidence indicates that Father was arrested on April

20, 2023, September 25, 2023, December 8, 2023, and August 5, 2024, but the evidence

does not show when he was released. The record is clear, however, that Father was not

incarcerated throughout the entire case, and the trial court extended the original dismissal

date because Father appeared to be reengaging in services around February 2024. From

February onward, evidence showed that Father’s communication with the Department

and CASA was sporadic and inconsistent, he failed to maintain negative drug tests, and

he twice failed to complete the Cenikor program. Thus, there is no indication from the

record that incarceration alone prevented Father from visiting the children. See id.

Moreover, Father admitted that he did not complete the inpatient program at

Cenikor, and he tested positive for methamphetamine multiple times throughout the case.

Thus, a reasonable factfinder could have formed a firm conviction or belief that it was

within Father’s ability to resume visitation and that his failure to do so was of his own

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accord. See In re M.R.J.M., 280 S.W.3d 494, 505–06 (Tex. App.—Fort Worth 2009, no

pet.) (holding that there was factually sufficient evidence that father had not regularly

visited or maintained significant contact with the child despite his complaints that he could

not visit the child more regularly due to financial and transportation issues); see also In re

K.P., No. 11-20-00001-CV, 2020 WL 4038858, at *2–3 (Tex. App.—Eastland July 15,

2020, no pet.) (mem. op.) (collecting cases in which the court held the parent was not

prevented from regularly visiting or maintaining significant contract with the child where

failure to submit to drug testing in order to regain visits was within the parent’s control).

iv. Inability to Provide Child with a Safe Environment

There was extensive evidence shown at trial of Father’s inability to retain steady

housing, to complete the in-patient treatment at Cenikor, and maintain consistent negative

drug tests, and evidence of his multiple arrests throughout the duration of the case.

Further at trial, Father admitted that he could not provide for the children because he was

currently incarcerated, and he did not know when he was getting released.

Viewing all the evidence in the light most favorable to the trial court’s (N) findings,

we conclude that the trial court could have formed a firm belief that Father constructively

abandoned L.S.R. and C.W.R., and the disputed evidence is not so significant that a

reasonable factfinder could not form a firm belief of this finding. See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(N); In re A.C., 560 S.W.3d at 634.

2. Predicate Finding Under Subsection (O) and (P)

Because the evidence is legally and factually sufficient to support the predicate

grounds under subsection (N), we need not address the sufficiency of the evidence

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supporting the remaining grounds. See In re N.G., 577 S.W.3d at 232–33; see also In re

F.L.B., 2019 WL 6606159, at *10. We overrule Father’s first issue.

C. Best Interest Finding

In Father’s second issue, he argues there is legally and factually insufficient

evidence supporting the trial court’s best interest finding.

1. Holley Factors

There is a strong, though rebuttable, presumption that keeping a child with a parent

is in the child’s best interest. TEX. FAM. CODE ANN. § 153.131(b); In re R.R., 209 S.W.3d

112, 116 (Tex. 2006). In reviewing a best interest finding, we consider, among other

evidence, the non-exclusive Holley factors. In re E.N.C., 384 S.W.3d at 807 (citing Holley

v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)). These factors include: (1) the child’s

desires; (2) the child’s emotional and physical needs now and in the future; (3) any

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 the individuals

seeking custody to promote the best interest of the child; (6) the plans for the child by the

individuals or agency seeking custody; (7) the stability of the home or proposed

placement; (8) the parent’s acts or omissions which may indicate that the existing parent-

child relationship is improper; and (9) any excuse for the parent’s acts or omissions. Id.

The party seeking termination is not required to prove all nine Holley factors, and the

absence of evidence regarding some of the factors does not preclude a factfinder from

reasonably forming a strong conviction or belief that termination is in the child’s best

interest. In re C.H., 89 S.W.3d at 25, 27.

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2. Analysis

As to the first Holley factor, the factfinder may consider whether the child has

bonded with the foster family, is well cared for by them, and has spent minimal time with

her biological parent. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th

Dist.] 2014, no pet.); see also In re F.L.B., 2019 WL 6606159, at *10. Martin testified that

the children were bonding with their foster family, they were doing extremely well in their

care, and she did not believe L.S.R. and C.W.R. had an emotional connection to Father.

She also stated that “the girls, from the very beginning, have communicated that they

know where they are is safe,” and they understand Father and Mother are “their biological

parents, but [they are] not who they look to for safety.” Mrs. P also testified at trial and

spoke about her family’s connection with the children. She believed that L.S.R. and

C.W.R. had bonded with her, her husband, and their two biological children. Lastly, Father

had not seen the children in a year prior to trial. See In re J.D., 436 S.W.3d at 111.

As to the second and third Holley factors, Gilby, Bowers, and Martin testified that

the children’s emotional and physical needs are being met with their foster family and

there were no concerns that the foster family presented a current or future risk of

emotional or physical damage to the children. Bowers testified that the children have

exhibited specific emotional or psychological needs, and L.S.R in particular “exhibits

[certain] behaviors due to her trauma.” Bowers explained that the children were doing well

in their counseling while living with Mr. and Mrs. P, and she explained that the Department

was concerned that moving the children to be with M.S. would cause them to regress.

Father admitted that he could not care for the children at this time because he was

currently incarcerated. Moreover, the trial court could have concluded that Father’s drug

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use, criminal conduct, and past abuse and neglect of the children were indicative of a

present or future risk of emotional or physical damage to them. See In re A.H., 679 S.W.3d

817, 833 (Tex. App.—El Paso 2023, pet. denied) (“The circumstances that led to the

child’s removal may be considered as part of the parent’s past neglect or inability to meet

the child’s needs.”); In re J.D., 436 S.W.3d at 118; A.S. v. Tex. Dep’t of Fam. & Protective

Servs., 394 S.W.3d 703, 714, 715 (Tex. App.—El Paso 2012, no pet.) (providing that

evidence of a parent’s past misconduct or neglect and the parent’s current and future

incarceration at the time of trial are relevant to the second and third Holley factors); In re

K.C., 219 S.W.3d 924, 927 (Tex. App.–Dallas 2007, no pet.) (noting that the factfinder

can give “great weight” to the “significant factor” of drug-related conduct by a parent).

Similarly, in evaluating the fourth Holley factor, the trial court could have evaluated

Father’s parenting abilities by looking at his past neglect or inability to meet the children’s

physical or emotional needs. See In re A.H., 679 S.W.3d at 833 (“A parent’s past neglect

or inability to meet the child’s physical or emotional needs may be considered when

analyzing her parenting ability.”). Father testified that he was an excellent father, that he

had no issues raising the children prior to their removal. However, prior to removal, the

children were periodically living unhoused with Mother, were observed at school hungry

and dirty, and had reported potential abuse to CAC interviewers. Father had a previous

case with the Department that resulted in the removal of his child, and he acknowledged

that he never raised any of his other children from birth to adulthood.

Regarding the fifth, sixth, and seventh factors, the Department presented evidence

that the foster placement was a stable and loving environment. Though M.S. was

approved as a potential placement for the children, Bowers explained that the Department

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did not recommend that the children be placed with M.S. because she did not have any

prior relationship with the children, the children were doing well in counseling, and the

children had already bonded with their foster placement. Father testified that after his

release from incarceration, he planned to resume the children’s counseling, had an

apartment available, and eventually wanted to move back to his hometown to be closer

to family. However, as mentioned supra, there was extensive evidence of Father’s

inability to retain steady housing, his difficultly completing the in-patient treatment at

Cenikor, his difficultly maintaining consistent negative drug tests, and evidence that he

was arrested multiple times throughout the duration of the case.

The eighth Holley factor was addressed with the evidence and testimony regarding

Father’s substance abuse, Department history, criminal history, current incarceration, and

housing instability; and the ninth factor was addressed with Father’s testimony about his

health issues and his difficultly communicating with the Department.

Ultimately, the factfinder is the sole judge of the credibility of witnesses and the

weight to be given to their testimony. In re S.L., 188 S.W.3d 388, 394 (Tex. App.—Dallas

2006, no pet.) (citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.

2003)). Here, the trial court could reasonably conclude that despite Father’s contentions,

he is unable to protect the children from current and future emotional and physical danger

and he lacks key parenting abilities and stability. See In re G.A.C., 499 S.W.3d 138, 141

(Tex. App.—Amarillo 2016, pet. denied) (“Additionally, a child’s need for permanence

through the establishment of a ‘stable, permanent home’ has been recognized as the

paramount consideration in determining best interest.”); see also TEX. FAM. CODE ANN.

§ 263.307(a) (providing that, in considering whether parents are willing and able to

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provide a safe environment, “the prompt and permanent placement of the child in a safe

environment is presumed to be in the child’s best interest”).

Looking at all of the evidence in the light most favorable to the trial court’s finding,

we conclude a reasonable trier of fact could have formed a firm belief or conviction that

termination was in L.S.R.’s and C.W.R.’s best interest. See TEX. FAM. CODE ANN.

§ 161.001(b)(2); In re A.C., 560 S.W.3d at 630. Further, the evidence to the contrary was

not so significant as to preclude such a finding. See id. at 631. We overrule Father’s

second issue.

III. CONCLUSION

The trial court’s judgment is affirmed.

JON WEST
Justice

Delivered and filed on the
5th day of June, 2025.

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