In the Interest of Z.B.; Child v. Department of Family and Protective Services

Opinion issued October 7, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-25-00273-CV
———————————
IN THE INTEREST OF Z.B., A CHILD

On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2024-00792J

MEMORANDUM OPINION

A trial court terminated Z.B.’s mother’s parental rights after finding that she

failed to comply with the provisions of a court order and that termination was in

Z.B.’s best interest. The trial court appointed the Texas Department of Family and

Protective Services (“the Department”) permanent managing conservator of Z.B.

At trial, the Department, the child’s attorney ad litem, and the mother all argued
against termination of the mother’s rights. Only the court appointed child advocate

opined that termination of the mother’s parental rights was in Z.B.’s best interest.

On appeal, the mother argues that the evidence was legally and factually

insufficient to support the trial court’s findings that she failed to comply with the

provisions of a court order and that termination of her rights was in her daughter’s

best interest. She also challenges the trial court’s appointment of the Department as

permanent managing conservator of Z.B.

We agree with the mother in part. Although our analysis compels the

conclusion that evidence of the mother’s failure to strictly comply with specific

and material requirements of her family service plan is legally and factually

sufficient to support the trial court’s predicate act finding, we cannot reach the

same conclusion as to the court’s best interest finding. Because we conclude that

the evidence was factually insufficient to support the trial court’s best interest

finding, we reverse that portion of the decree that terminated the mother’s rights to

Z.B., and we remand this case to the trial court for a new trial. We affirm the

appointment of the Department as permanent managing conservator.

Background

I. Removal

About a month before her third birthday, Z.B. was living with her mother

and her mother’s boyfriend, Ernest Royal. Royal had been physically violent, so

2
the mother took Z.B. to a hotel room. But three days later, the mother and Z.B.

returned to the home they shared with Royal. The next day, the Department

intervened to investigate a report of abuse or neglect of Z.B. The Department

enlisted the assistance of several law enforcement officers, which was necessitated

by Royal’s aggressive behavior. Z.B. had bruises and burns on her forehead and

ears, her abdomen, right leg, neck, side, and back. The mother acknowledged that

Z.B. had been in Royal’s care, denied knowing that Z.B. had been burned, and

supported Royal’s explanation that the child’s injuries were caused by an

accidental fall at his friend’s tire shop. The mother acknowledged that Z.B. had not

received medical care for her injuries and burns.1

The Department brought Z.B. to Texas Children’s Hospital, where an

examination confirmed that she had suffered intentional injuries.2 The Department

contacted Z.B.’s maternal grandmother and maternal aunt. Both women indicated

that they had last seen Z.B. two months earlier, Z.B. had no bruising or burn marks

when they last saw her, and they were concerned about Royal’s criminal activities.

1
It was later determined that the child had been intentionally burned with a curling
iron. At the time of removal, Z.B. was asked who caused the injuries, and she
pointed at Royal and said, “Daddy.”
2
The removal affidavit indicates that the reporter was concerned that Royal was
physically abusing her in retaliation for the child’s unwillingness “to perform
sexual acts.” The child underwent an examination by a Sexual Assault Nurse
Examiner at Texas Children’s Hospital. The Department ruled out sexual abuse in
July 2024.

3
Both women expressed concern about Z.B.’s mother’s poor decision-making

regarding men. The maternal grandmother’s health prevented her from taking

possession of Z.B., but the aunt said she was willing to care for Z.B. if necessary.

Z.B.’s mother would not consent to Z.B.’s placement with relatives.

Finding that there was an immediate danger to the physical health or safety

of Z.B., the trial court signed an emergency temporary order appointing the

Department temporary sole managing conservator of Z.B., who was placed with

foster caregivers. The court appointed an attorney to represent the mother. On

April 8, 2024, the court ordered the mother to submit to hair follicle and urine drug

testing. The results were negative.

II. The Service Plan

After an adversarial hearing, the trial court entered an order requiring the

mother “to comply with each requirement set out in the Department’s original, or

any amended, service plan during the pendency of this suit.”3 The order notified

the mother that failure to comply with the court’s orders—including the

Department’s service plan—“may result in the restriction or termination of

parental rights.”

The mother’s May 2024 service plan indicated that she hoped for Z.B. to be

returned to her or placed with a family member. The mother’s service plan

3
The trial court terminated the parental rights of Z.B.’s father, who is incarcerated
and has an expected release date in 2032. He is not a party to this appeal.
4
included the following requirements, which were intended to help the mother meet

the goal of demonstrating that she can keep her daughter safe and protect her from

danger or harm:

• Complete a domestic violence assessment, being honest and truthful
to receive recommendations based on her needs. Follow all
recommendations from the assessment.

• Sign a release of information or HIPAA release form to allow the
Department access to necessary information.

• Provide support as required by the court, and in the absence of an
order requiring the payment of child support, provide Z.B. with
needed items like clothing and shoes.

• Refrain from criminal activity.

• Attend all court hearings, meetings, conferences, and family visits, or
notify the caseworker 24 hours in advance if she is not able to attend.

• Complete a caregiver resource form and provide it to her caseworker
directly or through her attorney “if she wishes for [her] child to be
placed with any appropriate family members.”

• Maintain stable employment and provide her caseworker with
paystubs as proof of employment.

• Maintain safe, stable, and drug-free housing for a minimum of 6
consecutive months. “She must be able to provide food, clothing, and
shelter for herself and her child. She will provide worker with a copy
of lease with her name on it as a proof. [She] will not have anyone
living in the home that has Reason to Believe CPS history, drug and
alcohol history, or criminal history that involves activities
endangering a child. [Mother] will provide accurate information
including full legal name, date of birth, social security numbers, and
driver’s license number on anyone residing in her home. She will
report any changes in the home composition to the caseworker within
a week of said change.”

5
• Complete a psychological evaluation, being honest and truthful during
assessment. Follow all recommendations from the assessment
including individual therapy, drug assessment, domestic violence
assessment, etc.

• Complete parenting education classes and submit a certificate of
completion to her caseworker.

The plan did not, however, include a random drug testing requirement.

Instead, the plan noted that the mother’s April 5, 2024 hair follicle and urine drug

tests were negative, and “[n]o further assessment/treatment is needed at this time.”

III. The Mother’s Compliance with the Plan

The mother obtained and maintained employment through the pendency of

the case. At the time of Z.B.’s removal, the mother’s only source of income was

$700 per month in food stamps or SNAP benefits, but by November 2024, she was

earning $2,884.40 per month.

A permanency report stated that the mother was “in compliance” with the

service plan’s participation requirements. She participated in visitations; however,

she was late to some of them. The child advocate recalled one visit in November

2024 that was scheduled for 9:00 a.m., but the mother did not arrive until 9:50 a.m.

The mother expressed displeasure upon seeing Z.B.’s excitement to see her foster

mother, whom she called “mom,” and who arrived promptly at 10:00 a.m. The

mother completed the caregiver resource form and provided food, toys, and

clothing for Z.B. during her visits. The Child Advocates February 20, 2020 report

6
indicated, however, that the mother “has been on time for her recent visit and

displays care for [Z.B.].”

The Department noted that the mother had not provided a certificate of

completion of parenting classes, however, the child advocate indicated in her

report that the mother provided a certificate of successful completion of her

parenting course as of June 5, 2024.

According to a February 2025 permanency report, the Department stated that

the mother had no criminal history, and the Department continued to monitor

whether the mother would be charged with a crime in connection with the abuse of

Z.B.

The mother signed the required information release, and she had a

psychosocial evaluation on April 5, 2024 with “Integrated Health Services

Division Clinical Services.” The evaluator recommended that she have 10 to 12

sessions of individual counseling with a clinician experienced in complex trauma,

participate in a parent education class, maintain stable income for a period of six

months, maintain safe, stable, and appropriate housing for herself and her child for

a period of six months, and participate in regular supervised visitation. The mother

completed a psychosocial assessment at a wellness counseling center on

January 12, 2025, and she was diagnosed with “adjustment disorder unspecified

and other stressful life events affecting family and household.” She attended

7
orientation on January 29, 2025, and, by February 14, 2025, she had participated in

three of the twelve recommended weekly therapy sessions. The mother completed

a domestic violence assessment on May 30, 2024, and she completed eight weeks

of trauma group therapy, from which she was successfully discharged.

In the February 2025 permanency report to the court, the Department noted

that the mother had been living with her stepmother since March 2024, but her

name had not been added to the stepmother’s lease. Although the mother provided

the Department with a notarized letter in which she stated she lived in the home,

the Department informed her that this was insufficient. In December 2024, the

mother presented Child Advocates’ Advocacy Coordinator with a residential lease

agreement showing the mother as the tenant and her stepmother as the landlord. In

addition, a caseworker assessed the home, but the worker became concerned when

the mother refused to identify “a strange person in the home.” In February 2025,

the mother talked about moving to her own apartment.

The mother’s service plan did not require the mother to submit to random

drug testing, but the Department’s December 30, 2024 permanency report to the

court included “random drug testing” in the section about parental progress on the

service plan. The report, which was not signed by the mother, stated:

Random Drug Testing: [Mother] will participate in random drug
testing. She will be called on the day of the test. She will have until
the facility closes to submit to the drug test (facility closing times may
vary). All no shows will be considered positive.
8
A later report, dated February 14, 2025, listed the requirement only as

“random drug testing.” The mother submitted to numerous drug tests, all of which

were negative,4 and she failed to appear several times.5 The trial court ordered the

mother to submit to hair follicle and urine drug tests on January 7, 2025. The

mother submitted to a urinalysis, which was negative for drugs, but she was unable

to submit to the hair follicle analysis because her hair was too short. The mother

submitted to drug testing on February 11, 2025, and the February permanency

report indicated that results were pending. On February 13, 2025, the mother was

ordered to complete a urinalysis and hair drug test.

IV. Z.B.’s Experience

According to the Child Advocates’ March 2025 report, Z.B. had thrived in

her foster placement. Her injuries and burns healed with proper care. She had

become potty trained, advanced to a pre-K classroom at daycare, and showed great

progress in speech therapy that began in October 2024 at the request of the foster

4
The mother tested negative for drugs on the following occasions: 4/5/2024 hair
follicle and urine; 7/15/2024 hair follicle and urine; 7/29/2024 urine; 8/14/2024
urine; 9/26/2024 urine; 10/15/2024 hair follicle and urine; 10/30/2024 urine;
12/10/2024 urine; 1/7/2025 urine; 1/29/2025 urine.
5
The Department’s February 2025 permanency report showed the following
instances when the mother did not submit to random drug testing: November
2024, when the mother said she was unable to submit to drug testing due to
training at her job; 12/23/2024 failed to submit to a urinalysis; 1/7/2025 failed to
submit to a court ordered hair follicle test because the mother did not have enough
hair; 1/15/2025 failed to submit for a urinalysis; 1/29/2025 failed to submit to
urinalysis but appeared on 1/31/2025 and urinalysis was negative, although the
mother refused to submit to hair follicle analysis.
9
parents. In addition to meeting Z.B.’s educational, medical, and personal needs, the

foster parents gave Z.B. undivided attention and took her on family outings. The

child advocate noted in her report that Z.B. is “very bonded with her foster

family,” and that the daycare director described her as “a very kind, respectful, and

curious child, who love[s] to learn new things and participate in activities with

other children.” The child advocate also reported that the director observed that

Z.B. “seems to be loved, greatly taken care of, and happy.” The Department’s

February 2025 permanency report stated that Z.B. had visited with her paternal

grandmother and sibling.

V. Developments Before Trial

Throughout the case, the Department researched relatives and friends named

by the mother and father, who was incarcerated at the time of removal and remains

incarcerated. The mother’s sister was rejected due to concerns about her ability to

care for Z.B., and the father’s mother was rejected based on her home study. The

mother’s stepmother, with whom mother lived during the case, did not provide the

information necessary to proceed, and another friend identified by the mother did

not maintain contact with the Department regarding a potential placement of Z.B.

On February 13, 2025, the mother identified Ms. Moore as a potential placement.

Moore is the mother of the mother’s half-sister.

10
In early March 2025, the Department filed a motion to retain the suit on the

court’s docket and set a new dismissal date beyond the March 24, 2025 dismissal

date, as permitted by the Texas Family Code.6

VI. Trial

A. Hearing on Motion to Extend the Dismissal Date

At trial, before evidence was presented, the Department asked the court to

extend the dismissal date to allow more time to investigate Ms. Moore as a

placement for Z.B. The Department acknowledged that Child Advocates was not in

agreement and wanted to go forward with termination, but it represented to the

court that it was not requesting termination at that time. The child advocate, who

had visited Ms. Moore’s home only once, argued in favor of termination because

she had visited Ms. Moore’s home only once and because she believed that the

mother was going to be charged with a crime in connection with Z.B.’s abuse. The

mother’s counsel interjected to clarify that no charges had been presented or

accepted. The mother’s counsel argued that the mother agrees with extension of the

case and placement of Z.B. with Ms. Moore. She said that Ms. Moore is already a

licensed foster parent, neither the Department nor the attorney ad litem for the

child had concerns with Ms. Moore as a placement, and Z.B. had visited with Ms.

Moore in her home. The child advocate responded that Ms. Moore had a “drug

6
See TEX. FAM. CODE § 263.401.
11
charge” from 2017 and that Ms. Moore was in possession of a couple of “lavish

items,” which the child advocate believed were inconsistent with her receipt of

disability benefits. The attorney ad litem for the child indicated that Ms. Moore

received deferred adjudication in 2008 from the drug charge, her daughter, who is

in the U.S. Air Force, helps her with finances, and Ms. Moore works part-time

doing odd jobs. The attorney ad litem explained that Ms. Moore was raising her

two grandchildren who were placed with her when the Department was given

permanent managing conservatorship, and Moore said she would have come

forward sooner, but she only recently learned that Z.B. was in foster care from her

daughter, who is the mother’s half-sister.

The court denied the motion to extend the disposition date, and the

termination trial proceeded.

B. The Testimony

1. The Caseworker

The caseworker testified at trial that the Department believed the mother was

still in contact with Royal. She based this on a conversation she had with the

mother in September 2024, when the mother initially answered, no, when asked if

she had any contact with Royal. The caseworker informed the mother that they had

requested telephone records from prison, and the mother’s “body language, her

demeanor, was [as] if she was nervous.” The mother conceded that she had been in

12
contact with Royal, but she said Royal had initiated the contact by calling her. The

Department never received the telephone records, and the caseworker

acknowledged that she had no proof whether the mother called Royal or he called

her. The caseworker had no knowledge of the mother visiting Royal in person.

The caseworker testified that she believed permanent managing

conservatorship to the Department would serve Z.B.’s best interest rather than

termination of the mother’s rights because it would allow the mother to continue to

have supervised visits, complete her therapy, and demonstrate proof of stable

housing.

The caseworker testified that the mother was substantially compliant with

the service plan with the exception of providing a stable home, completing “a

couple more sessions of therapy,” and one missed visitation in February. The

caseworker stated that the mother “has been late to quite a few visits; two of which

we had to cancel due to her being so late.” But the caseworker also said that the

mother attended the majority of the visitations. She testified that the Department

was not seeking termination of the mother’s rights, but it was seeking placement of

Z.B. with Ms. Moore to allow the Department to monitor the placement for

permanency for Z.B. She clarified that the Department was seeking an order of

permanent managing conservatorship to the Department and possessory

conservatorship with supervised visitation to the mother.

13
The caseworker testified that the Department remained concerned that the

mother would not protect Z.B. because the mother did not believe that people who

lived in or frequently visited her home needed a background check. She said that

the Department had asked the mother’s therapist to work with the mother to

understand the importance of her “protective capacity.”

The caseworker testified that Z.B. was in a foster placement with potential

adoptive parents, but the Department wanted to move Z.B. to Ms. Moore, whose

home study for the placement of her two young grandchildren had been completed

in December 2024. She noted that Ms. Moore has no relationship with the mother

or Z.B., aside from a single two-hour in-home visit. The Department’s plan was to

transition Z.B. with additional visits with Ms. Moore, including a weekend visit,

before moving her. She said that this was in Z.B.’s best interest because Z.B. was

already bonded to her foster parents, and “the longer she stays in that home and

that [is not a] permanent placement, it could be detrimental to her in the future.”

She testified that they had located an appropriate fictive kin placement and wanted

to move forward to see if that would be a permanent option for Z.B.

The caseworker testified that the mother was living with a relative, saying:

“I believe, it’s like her aunt.”7 The mother had informed the caseworker that she

7
The Department’s February 14, 2025 permanency report, which stated that the
mother had been living with her stepmother since March 2024. The Child
Advocates report filed February 20, 2020, stated that on February 8, 2025, during
14
was paying rent along with another bill, but the caseworker noted that mother had

not been able to provide “an actual document to reflect that she does live there, that

she has a right to live there.” The caseworker said that the mother had informed her

that she had been denied for an apartment due to past debt, which she was working

to resolve. Asked by the mother’s attorney whether the mother was in compliance

or not in compliance, the caseworker testified: “I would say that mom is in

compliance.”

The caseworker said that the mother took accountability for missing the last

visitation and apologized, but she did not provide a reason as she had done

previously when she arrived late due to traffic or similar reasons. The caseworker

testified that the mother and Z.B. “do have a bond” and that the mother is

appropriate during the visits. The caseworker also clarified that it was the mother’s

“aunt” and her boyfriend who refused to consent to a background check, and the

caseworker agreed that their refusal was “not [the mother’s] fault.”

The caseworker testified that she was not with Z.B. during her visit with Ms.

Moore, but she “was told that the visit went very well,” and there were no

concerns. After the visit, Z.B. had a potty accident that night, and the foster parents

reported that as they spoke with her about the possibility of moving, Z.B. became

a supervised visit with Z.B., the mother said that she planned to move from her
stepmother’s home in Humble, Texas to her mother’s home in Houston, Texas.
Trial was held on March 5, 2025.
15
clingier, seeking additional “cuddle[s]” at night. She agreed this was “nothing

extremely out of the ordinary” in light of Z.B.’s age.

2. The Mother

The mother testified that she reached out to her half-sister by phone to get in

contact with Moore. She said she did not know why Ms. Moore was not present at

the trial, saying: “I was told previous that they [were] supposed to send her the

link. I really don’t know what happened.” The mother testified that she was not in

contact with Royal, and she said that she last spoke with him “probably when the

investigation opened, the time when my daughter got removed.”

The mother testified that she had a nine-year-old son who lived with his

father. She said that she communicates with her son, who has a phone, after school

and on the days she does not work. She said she also communicates occasionally

with Z.B.’s father, who sometimes checks on Z.B.

The mother agreed that the Department should be named permanent

managing conservator. She said that she wanted Z.B. to be placed with Ms. Moore

“[b]ecause she’ll be with family members who love her and who care for her.” She

believed that Moore would take good care of Z.B. She also testified that placement

with Moore would serve Z.B.’s best interest because it could create additional

opportunities for connection between her and her daughter. She said:

I just feel that it is in my child’s best interest because it’s more
opportunity that I can have with my child. I miss her. Like, I have to
16
see her when I’m able to see her with CPS. And if she was with Ms.
Moore, me and Ms. Moore can make arrangements. I can spend more
time with her. I could be more involved with her. If she gets into
supports [sports] or things like that.

The mother acknowledged that if the court granted permanent managing

conservatorship to the Department, her visits with Z.B. would remain supervised.

She agreed to abide by all rules and conditions regarding visitation that the

Department may set, and she testified that if the Department offered her additional

services, she would continue to work them.

In response to a question from the court about why she waited almost a year

to reach out to Moore, the mother said that she was not in contact with her sister or

Moore, so she provided the Department with other names. When the people she

identified were not approved, the Department asked for more names, and she

reached out to her half-sister. She conceded that she could have reached out to her

half-sister sooner, but she said that she thought the other people she named would

suffice. She could not explain why she did not suggest her son’s father as a

potential placement.

3. Child Advocates

Finally, the Advocacy Coordinator (AC) for Child Advocates testified. She

testified that “Child Advocates’ recommendation is for parental rights to be

terminated and [Z.B.] to remain in her current foster home. She testified that she

saw the injuries that brought Z.B. into care, she understood that Royal was the

17
perpetrator, and she said that the mother said little about except to acknowledge

that dating Royal was “a wrong decision.”

The AC testified that in December 2024 she reached out to the father of

Z.B.’s nine-year-old half-brother. According to the AC, the father said that the

mother “does not reach out to her son, unless it’s during the holiday season.”

The AC testified that Z.B. was doing well in her current placement, which

was “an adoptive placement.” She also said that visitation between Z.B. and her

mother went “really well.”8 The court asked the AC about the foster home and why

she thought remaining there was in Z.B.’s best interest. The AC testified that

Z.B.’s current foster placement included another foster child and that the foster

parents had no biological children. As to Z.B.’s best interest, the AC testified:

I believe that [the mother] had several opportunities to bring up
potential placements for [Z.B.]. Child Advocates made a lot of efforts
to reach out to her and ask for potential placements, family members.
And she always said that she can’t think of anyone. And [Z.B.] is so
attached to her foster home. They do whatever they can to meet all her
needs medically, educationally. And we just believe it’s in the best
interest for [Z.B.] to remain there. . . . I would say the family is
amazing. They do a lot of family time: as in, they take kids certain
places. They’re always bringing them to their therapies. They have a
really close connection with their educational providers. Overall,
they’re doing everything that they can to provide and meet their
needs.

8
Q. How did visitation go with mom and our child in our case?
A. From what we’re seeing, she’s doing really well.
Q. She ever provided for the child?
A. I’m not too sure about that. Yes. Ms. Brandy says yes.
18
C. Closing Arguments

In closing argument, the Department, the mother, and the attorney ad litem

all argued in favor of an order for permanent managing conservatorship to the

Department with possessory conservatorship to the mother, an order that the

mother pay minimum-wage child support, and an order lifting the prior “no

movement” order to allow Z.B. to transition to Ms. Moore’s care. The attorney ad

litem for Z.B. argued that although the foster parents “have gone above and beyond

their capacity to take care of this child, and they love her to death,” Texas law and

policies require that, if possible, a child be placed with family “so that this child

when she turns 18 does not feel like we took her away from her family.” The

attorney ad litem for Z.B. also argued that Ms. Moore had an extra bedroom for

Z.B., and she was taking good care of the other two children under five years old

that were already in her care.

D. The Final Decree of Termination

The trial court signed a final decree terminating the mother’s parental rights

to Z.B. The court found by clear and convincing evidence only one predicate act:

the mother failed to comply with the provisions of a court order that specifically

established the actions necessary for the mother to obtain the return of Z.B. The

court also found that the mother failed to raise a defense that she was unable to

comply with the specific provisions of a court order and that she made a good faith

19
effort to comply and her failure to do so is not attributable to any fault of hers.

Finally, the court found by clear and convincing evidence that termination of the

mother’s rights is in Z.B.’s best interest. The court appointed the Department

permanent managing conservator of Z.B. The mother appealed.

Analysis

In her first two issues on appeal, the mother challenges the legal and factual

sufficiency of the evidence to support the trial court’s findings that she failed to

comply with the provisions of a court order that specifically established the actions

necessary for her to obtain the return of Z.B. and that termination of her parental

rights was in Z.B.’s best interest.9 In a third issue, she challenges the appointment

of the Department as permanent managing conservator.

I. Standards of Review

A parent’s “right to the companionship, care, custody, and management of

his or her children is an interest far more precious than any property right.”

Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (internal quotations omitted).

9
On appeal, the mother did not challenge the trial court’s finding that she failed to
raise a defense that she was unable to comply with the specific provisions of a
court order and that she made a good faith effort to comply and her failure to do so
is not attributable to any fault of hers. At trial, some evidence showed that the
mother attempted to comply with the requirement to provide a lease demonstrating
that she had stable housing by providing a lease between her and the relative with
whom she was living. Some evidence showed that the mother was unable to
comply with the requirement to provide accurate information including full legal
name, date of birth, social security numbers, and driver’s license number on
anyone residing in her home because the mother’s relative and her boyfriend
refused to cooperate.
20
“When the State initiates a parental rights termination proceeding, it seeks not

merely to infringe that fundamental liberty interest, but to end it.” Id. at 759. “A

parent’s interest in the accuracy and justice of the decision to terminate his or her

parental status is, therefore, a commanding one.” Id. (internal quotations omitted).

Thus, we strictly scrutinize termination proceedings and strictly construe the

involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d

18, 20 (Tex. 1985).

“[T]he rights of natural parents are not absolute,” however, “protection of

the child is paramount,” and “[t]he rights of parenthood are accorded only to those

fit to accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361

(Tex. 2003). Recognizing that a parent may forfeit her parental rights based on her

actions or omissions, the primary focus of a termination suit is protection of the

child’s best interests. Id.

Accordingly, “[i]n parental-rights termination cases, due process mandates a

clear and convincing evidence standard of proof.” In re N.G., 577 S.W.3d 230, 235

(Tex. 2019); see also TEX. FAM. CODE § 161.001(b). “Clear and convincing” 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 § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “This

21
heightened burden of proof affects the standard of review in an evidentiary

challenge on appeal.” In re J.W., 645 S.W.3d 726, 741 (Tex. 2022).

“To that end, in reviewing a legal-sufficiency challenge, we must determine

whether a reasonable trier of fact could have formed a firm belief or conviction

that its finding was true.” Id. (internal quotations omitted). “[W]e 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 quotations omitted). We may not,

however, “disregard undisputed facts that do not support the finding.” Id. (internal

quotations omitted).

In conducting a factual-sufficiency review in this context, we determine

whether, considering the entire record, including evidence both supporting and

contradicting the finding, a factfinder reasonably could have formed a firm belief

or conviction that the finding was true. See In re C.H., 89 S.W.3d 17, 25–26 (Tex.

2002). “If, in light of the entire record, the disputed evidence that a reasonable

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

factfinder could not reasonably have formed a firm belief or conviction, then the

evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

22
Under these standards, the factfinder remains “the sole arbiter of the

witnesses’ credibility and demeanor.” In re J.F.-G., 627 S.W.3d 304, 312 (Tex.

2021) (quoting In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009)). In a bench trial,

the trial court, as factfinder, weighs the evidence and resolves evidentiary conflicts.

In re R.J., 579 S.W.3d 97, 117 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).

II. Termination of Parental Rights

A. Legal and Factual Sufficiency of Predicate Act Finding

1. Applicable Law

Section 161.001(b) of the Family Code authorizes an “involuntary

termination of parental rights if a court finds by clear and convincing evidence

both that a parent engaged in one or more enumerated predicate grounds for

termination and that termination is in the best interest of the child.” In re M.P., 639

S.W.3d 700, 701–02 (Tex. 2022); see TEX. FAM. CODE § 161.001(b)(1)(A)–(U),

(b)(2). Under former Section 161.001(b)(1)(O), a parent’s rights to a child may be

terminated if the parent “failed to comply with the provisions of a court order that

specifically established the actions necessary for the parent to obtain the return of

the child who has been in the permanent or temporary managing conservatorship

of the Department of Family and Protective Services for not less than nine months

as a result of the child’s removal from the parent under Chapter 262 for the abuse

or neglect of the child.” Id. § 161.001(b)(1)(O). The Texas Legislature recently

23
repealed this provision, but the repeal is not retroactive, and it therefore does not

apply to this appeal. See Act of May 14, 2025, 89th Leg., R.S., ch. 211.

Subpart (O) permitted “termination if a parent fails to comply with a family

service plan, which, in lay terms, is a list of tasks the Department requires—and

the trial court orders—the parent to perform to obtain the return of a child

following removal.” Interest of R.J.G., 681 S.W.3d 370, 373 (Tex. 2023). The

Texas Supreme Court recently addressed the application of this provision by Texas

courts. See id. The Supreme Court held that strict compliance with “every aspect of

every plan requirement” is not always necessary to avoid termination of parental

rights based on the subpart (O) predicate ground. Id. at 382. The Court explained

that this was so because the statute permitted but did not require termination based

on subpart (O) and that some provisions of a family service plan, such as

“particularly those that are bureaucratic or technical—may be too trivial, in the

larger context of the plan and the parent’s overall performance, to have their

breach give rise to termination.” Id. at 381–82.

The Supreme Court clarified that to justify termination of a parent’s rights

there must be clear and convincing evidence that the parent breached requirements

that were “‘specifically established’ in the written court-ordered service plan,” and

these requirements must be material and not trivial. Id. at 373, 374–75.

24
2. Application of the Law to the Arguments and Facts

Here, the trial court’s sole basis for terminating the mother’s parental rights

was its finding that she violated subpart (O). In her brief, the mother first argues

that the evidence is insufficient to support the trial court’s subpart (O) finding

because the evidence was legally and factually insufficient evidence that Z.B. was

removed for abuse or neglect. Next, she argues that she completed “a material

portion” of her service plan, App. Br. 34, and that the Department found her in

compliance and declined to seek termination. Finally, she argues that termination

based on subpart (O) is no longer permitted due the Legislature’s recent repeal of

it.

a. Evidence of Removal for Abuse or Neglect

The evidence showed that two-year old Z.B. was removed from her mother

based on an investigation that showed the child had been intentionally burned. The

evidence admitted at trial includes the removal affidavit that details the child’s

wounds, which appeared to be at risk of infection at the time of removal. The

affidavit states that when Z.B. was asked who hurt her, she pointed to Royal and

said, “Daddy.” The affidavit also explains that although the mother had obtained

assistance to leave with Z.B. just days prior to the child’s removal, she chose to

return to the home she shared with Royal, whom she knew to be violent. The

record also includes two color photographs of Z.B.’s injuries. No evidence in the

25
record disputes that Z.B. had not been abused or neglected or that there was any

other reason for her removal. Because the evidence of Z.B.’s abuse or neglect was

undisputed, the trial court could have formed a firm belief or conviction that she

was removed for abuse or neglect as required by subpart (O). See J.W., 645 S.W.3d

at 741; C.H., 89 S.W.3d at 25–26.

b. Repeal of Subpart (O)

The mother’s argument that subpart (O) is no longer applicable is not well

founded. H.B. 116, which repealed subpart (O), took effect on September 1, 2025,

when this appeal was pending in this Court. The bill included the following

provision: “The change in law made by this Act applies to a suit affecting the

parent-child relationship that is pending in a trial court on the effective date of this

Act or that is filed on or after the effective date of this Act.” H.B. 116, Section 3.

Because this case was not pending in the “trial court” on the effective date of the

Act, the repeal of subpart (O) does not apply. We make no observation about the

applicability of this statute on remand.

c. Plan Compliance

The mother argues that the evidence is legally and factually insufficient to

support termination based on the Department’s position at trial against termination

and the fact that she materially complied with the plan’s requirements. Although

the Department did not seek termination at trial, on appeal, it vigorously defends

26
the termination of the mother’s parental rights. The Department argues that the

mother failed to comply with the service plan’s requirements to (1) complete

individual therapy, (2) maintain safe, stable housing for at least six months,

(3) participate in random drug testing, and (4) attend all visitations. We focus on

those requirements because it is undisputed that the mother complied with all other

requirements of her family service plan.

Individual therapy. First, the plan required the mother to honestly and

truthfully complete a psychological evaluation and follow all recommendations

from the assessment. The mother completed two psychosocial evaluations: one on

April 5, 2024, and a second one on January 12, 2025. She attended an orientation

on January 29, 2025, and she attended three of the twelve required weekly

counseling sessions by February 14, 2025. It is undisputed that the mother had not

finished the required counseling sessions by the time of trial. At trial, the

caseworker testified that the mother had yet to complete “a couple more sessions of

therapy.” But strict compliance is not always necessary to avoid termination of

parental rights based on subpart (O). See R.J.G., 681 S.W.3d at 373. Here, the

individual therapy sessions were material because, in part, they were to help the

mother address one of the reasons why Z.B. came into care: her failure to protect

her daughter from harm. At trial, the caseworker testified that the mother’s

therapist was working to help the mother understand the importance of protecting

27
her child. However, the mother had completed almost all of the individual

counseling sessions, and she had completed numerous other services designed to

help her be able to protect her child, including parenting education classes, a

domestic violence assessment, eight weeks of trauma group therapy, and

maintaining stable employment.

Safe, stable housing. The service plan required the mother to maintain safe,

stable, and drug-free housing for a minimum of six consecutive months. She was

required to provide the Department with a copy of a lease with her name on it, and

to prohibit anyone with a prior drug, alcohol, CPS “Reason to Believe,” or criminal

history involving activities endangering to a child from living with her. She was

also required to provide the accurate full legal name, date of birth, social security

numbers, and driver’s license number on anyone residing in her home.

The evidence showed that the mother lived with her stepmother from March

2024 until about February 2025. Her stepmother refused to add her to the lease,

and although the mother attempted to demonstrate that she had stable housing, she

did not provide the Department with a lease from the property owner that showed

that the mother had a right to live in that premises. The mother instead provided

the Department with a notarized letter that she signed, which the Department told

her was not sufficient to comply with the specific plan requirement. The mother

later provided the child advocate with a lease showing her stepmother as the

28
landlord. In February 2025, the mother told the child advocate that she intended to

move in with her mother, and the caseworker testified at trial that the mother was

living with her aunt.

The materiality of the requirement to maintain safe, stable, and drug-free

housing for a minimum of six consecutive months seems self-evident in a case like

this concerning the welfare of a young child. So too is the requirement to provide a

lease that demonstrates the mother’s right to stay in the home. Providing the

Department with a copy of the lease was closely connected to the service plan’s

stated goal of helping the mother demonstrate that she can keep Z.B. safe and

protect her from danger or harm. Unlike a purely bureaucratic requirement, like

providing a certificate of completion of a parenting course that the Department

acknowledged was completed, see R.J.G., 681 S.W.3d at 381, a lease gives its

holder the legal right to occupy a premises, see, e.g., TEX. PROP. CODE §§ 92.001–

.355 (Residential Tenancies), which supports the stated goal of stability.

The caseworker also testified that the mother did not comply with the plan

requirements because the Department was unable to do a background check on the

other people living in the house with the mother. The plan required the mother to

provide specific information about people living in the home with her. This

information—full legal name, date of birth, social security number, and driver’s

license number—would allow the Department to do a background check. This

29
requirement, too, is material because of the reasons why Z.B. came into care and

the concerns about the mother’s poor judgment about people to whom she exposed

her daughter, which the Department developed from its initial investigation.

At trial, however, the caseworker conceded that it was not the mother’s fault

that the people with whom she shared a home refused to consent to a background

check. The caseworker said that the mother’s application to lease an apartment had

been denied due to past debt, which she was working to resolve. Notably, the

caseworker regarded the mother as “in compliance” with the plan requirements.

Visitation. Like the individual counseling, the mother was nearly fully

compliant with visitations. The evidence showed that she missed one visitation in

February 2025, for which she took accountability without an explanation. She was

late for two visits that had to be cancelled. The mother did not dispute these facts.

This requirement is also material because the supervised visitations are what

allowed the mother to build and extend an appropriate bond with Z.B. However,

the evidence at trial also showed that the mother and Z.B. were bonded to each

other, the mother was appropriate and showed care to Z.B. at visitations, and the

mother provided Z.B. with food, clothing, and toys at the visits.

Random drug testing. The Department’s arguments about the mother

having failed to appear for random drug testing lacks merit because no such

requirement is in the mother’s written service plan. To the contrary, the mother’s

30
plan noted that her April 5, 2024 hair follicle and urine drug tests were negative

and that no additional drug testing or treatment were needed. Although the mother

complied with most requests for drug testing—and each test yielded a negative

result—no random drug testing requirement appears in the service plan. Because a

requirement to submit for random drug testing or have the failure to submit

considered a positive test result is not specifically established, the failure to comply

with the Department’s requests for drug testing cannot be considered as evidence

supporting termination under subpart (O). See R.J.G., 681 S.W.3d at 378.

d. Conclusion

Considering the evidence in the light most favorable to the court’s subpart

(O) finding, the trial court could have formed a firm belief or conclusion that that

the mother failed to comply with the provisions of a court order that specifically

established the actions necessary for her to obtain the return of Z.B., who has been

in the temporary managing conservatorship of the Department for not less than

nine months as a result of her removal from the mother for abuse or neglect. See

J.W., 645 S.W.3d at 741.

Because the evidence about compliance with the individual counseling,

visitation, and housing requirements is not disputed in this case, when we consider

the entire record, we reach the same conclusion. In light of the facts of this case,

the individual counseling, visitation, and housing requirements were specific and

31
material, and no evidence demonstrates that the mother fully complied with these

requirements. Considering the entire record, including evidence both supporting

and contradicting the finding, a factfinder reasonably could have formed a firm

belief or conviction that the court’s subpart (O) finding was true. See C.H., 89

S.W.3d at 25–26.

We overrule the mother’s first issue.

B. Best Interest of the Child

The mother also asserts that the evidence is legally and factually insufficient

to support the trial court’s finding that termination of her parental rights is in

Z.B.’s best interest. She relies in part on the evidence that the Department did not

seek termination at trial.

1. Applicable Law

The purpose of the State’s intervention in the parent-child relationship is to

protect the best interests of the children, not to punish parents for their conduct.

See A.V., 113 S.W.3d at 361. There is a strong presumption that the best interest of

a child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112,

116 (Tex. 2006). But there is also a presumption that the “prompt and permanent

placement of the child in a safe environment is presumed to be in the child’s best

interest.” TEX. FAM. CODE § 263.307(a); see also Interest of E.A.P., No. 01-24-

32
00934-CV, 2025 WL 1460737, at *24–25 (Tex. App.—Houston [1st Dist.] May

22, 2025, no pet.) (mem. op.).

Because of the strong presumption that maintaining the parent-child

relationship is in the child’s best interest and the due process implications of

terminating a parent’s rights without clear and convincing evidence that

termination is in the child’s best interest, “the best interest standard does not permit

termination merely because a child might be better off living elsewhere.” In re

J.G.S., 574 S.W.3d 101, 121–22 (Tex. App.—Houston [1st Dist.] 2019, pet.

denied) (cleaned up). “Termination should not be used to merely reallocate

children to better and more prosperous parents.” Id. “And in parental-termination

proceedings, the [Department’s] burden is not simply to prove that a parent should

not have custody of h[er] children; DFPS must meet the heightened burden to

prove, by clear and convincing evidence, that the parent should no longer have any

relationship with h[er] children whatsoever.” Interest of T.J.I.L., No. 01-23-00693-

CV, 2024 WL 1169526, at *11 (Tex. App.—Houston [1st Dist.] Mar. 19, 2024, no

pet.) (mem. op.).

The best-interest inquiry focuses on the child’s well-being, safety, and

development. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). A best-interest

determination is guided by several non-exclusive factors: (1) the desires of the

child; (2) the present and future physical and emotional needs of the child; (3) the

33
present and future emotional and physical danger to the child; (4) the parental

abilities of the persons seeking custody; (5) the programs available to assist those

persons seeking custody in promoting 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) acts or omissions of the parent that may indicate

the existing parent-child relationship is not appropriate; and (9) any excuse for the

parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

These factors are not exhaustive, and evidence is not required on every factor to

support a finding that termination of parental rights is in the child’s best interest.

Id. We may also consider the statutory factors set forth in Section 263.307 of the

Texas Family Code.10 TEX. FAM. CODE § 263.307; see A.C., 560 S.W.3d at 631

n.29.

10
Section 263.307 provides for the court and the Department to consider the
following factors “in determining whether the child’s parents are willing and able
to provide the child with a safe environment.”
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the
child;
(4) whether the child has been the victim of repeated harm after the
initial report and intervention by the department;
(5) whether the child is fearful of living in or returning to the child’s
home;
(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members,
or others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the
child’s family or others who have access to the child’s home;
34
Factfinders may consider circumstantial evidence, subjective factors, and the

totality of the evidence as well as direct evidence when conducting a best-interest

analysis. See E.A.P., 2025 WL 1460737, at *25. A parent’s past conduct is

probative of her future conduct when evaluating the child’s best interest. See id. A

factfinder may also infer that past conduct endangering the well-being of a child

may recur in the future if the child is returned to the parent when assessing the best

interest of the child. Id. Evidence supporting termination under one of the predicate

grounds listed in Section 161.001(b)(1) may also be considered in support of a

(8) whether there is a history of substance abuse by the child’s family or
others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out, accept,
and complete counseling services and to cooperate with and
facilitate an appropriate agency's close supervision;
(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of
time;
(12) whether the child’s family demonstrates adequate parenting skills,
including providing the child and other children under the family’s
care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with
the child’s physical and psychological development;
(C) guidance and supervision consistent with the child’s safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even though
the violence may not be directed at the child; and
(F) an understanding of the child’s needs and capabilities; and
(13) whether an adequate social support system consisting of an extended
family and friends is available to the child.

TEX. FAM. CODE § 263.307.
35
finding that termination is in the best interest of the child. See C.H., 89 S.W.3d at

28.

2. Application of the Holley Factors

a. Desires of the Child

At the time of trial, Z.B. was three years and ten months old, and no direct

evidence was presented of her desires. In general, when a child is too young to

express herself, this factor is neutral in our analysis. In re A.J.D.-J., 667 S.W.3d

813, 833 (Tex. App.—Houston [1st Dist.] 2023, no pet.). In some cases, we have

held that circumstantial evidence of a child’s bond with a foster family in the

absence of a bond with a parent may support termination. Id. In this case, Z.B.

lived with her mother until she was almost three, and she had frequent contact with

her mother, who attended all but one visitation and provided Z.B. with food,

clothing, toys, and appropriate care at those visitations. The evidence showed that

Z.B. remained bonded to both her mother and the foster mother. This factor is

neutral in our analysis. See id.

b. Present and Future Physical and Emotional Needs of
the Child; Present and Future Emotional and
Physical Danger to the Child

“While some children may have extraordinary physical and emotional needs

requiring extra care, all children have physical and emotional needs that must be

met on a daily basis.” Interest of C.G., No. 14-18-00412-CV, 2018 WL 4702403,

36
at *5 (Tex. App.—Houston [14th Dist.] Oct. 2, 2018, pet. denied) (mem. op.). The

record reflects that Z.B.’s only extraordinary need was speech therapy, and that she

was thriving and growing normally.

The evidence showed that the mother exercised poor judgment about men in

the past, specifically in leaving her daughter alone with Royal despite knowing of

his violent disposition. A reasonable factfinder could have inferred from this pre-

removal behavior that the mother may fail to protect Z.B. again in the future. See

E. A. P., 2025 WL 1460737, at *25 (noting that parent’s past conduct is probative

of future conduct for evaluation of child’s best interest).

This element weighs in favor of termination.

c. Parental Abilities of the Persons Seeking Custody and
the Stability of the Home or Proposed Placement

At trial, both the mother and the Department sought to have Ms. Moore

appointed managing conservator of Z.B. On appeal, however, the Department

takes a different position, arguing in favor of adoption of Z.B. by the foster family.

We will consider the evidence of the parental abilities of the mother, the foster

parents, and Ms. Moore along with the stability of their homes.

The Mother. As we mentioned in section I.B.2.b., above, the court as

factfinder could consider the mother’s pre-removal conduct in the best interest

evaluation. However, we agree with the Amarillo Court of Appeals, which

acknowledged the injustice of considering only pre-removal behavior when the

37
evidence shows that the parent has worked the services recommended by the

Department and ordered by the court in order to accomplish the goal of safely

reunifying with her child. See Interest of C.A.M., 633 S.W.3d 68, 75–76 (Tex.

App.—Amarillo 2021, no pet.).

We are mindful that evidence supporting one or more statutory
grounds for termination may also constitute evidence illustrating that
termination is in the child’s best interest. See In re C.H., 89 S.W.3d at
28. But such evidence does not relieve the Department of its
heightened burden of proof to show best interest by “clear and
convincing” evidence. In re B.R., 456 S.W.3d 612, 616 (Tex. App.—
San Antonio 2015, no pet.). We also acknowledge that a trier of fact
may measure a parent’s future conduct by past conduct and determine
whether termination of parental rights is in a child’s best interest. See
id. See also In re E.C.R., 402 S.W.3d 239, 249-50 (Tex. 2013).

However, if a parent’s misconduct prior to the Department’s initiation
of termination proceedings is used against that parent in order to seek
termination and that parent has complied with the family service plan
ordered and has successfully worked services toward the goal of
family reunification, then what was the purpose of the service plan in
the first place? Would it not have been in the best interests of the
children to admit up front that the ultimate end was termination
anyway? Because we understand the goal of reunification and the
rights of the parties to be of paramount interest, we believe the fact
finder must give deferential weight and consideration to the relative
success of the parent when it comes to completion of the reunification
service plan.

Since Z.B.’s removal, the mother became gainfully and steadily employed,

whereas according to her affidavit of indigency, she was not employed before

removal. The mother completed parenting classes, domestic violence screening,

trauma group therapy, and all but “a couple” of individual counseling sessions.

38
Although she was unable to strictly satisfy the service plan requirement for

maintaining stable housing with a lease in her name, she lived with her stepmother

consistently for nearly a year before moving to either her mother’s or an aunt’s

home. She told the caseworker that she was unable to obtain a lease in her own

name due to past unpaid debt, which she was working to remedy. While the

factfinder could infer from this evidence that the mother was unable to secure safe,

stable housing, it could also infer that the mother has family members willing to

help her.

No evidence showed that anyone in the home used drugs or alcohol, had

CPS history (aside from the mother’s present case), or had a criminal history

regarding endangerment or abuse of a child. We recognize that this may be due to

the mother’s failure to provide information to allow the Department to run a

background check, but the Department’s suspicion about people living with the

mother is not evidence. In addition, undisputed evidence at trial showed that the

mother was not at fault for failing to provide the required information because it

was the aunt and her boyfriend who refused to consent to a background check. This

is not clear-and-convincing evidence that the mother was trying to hide the

presence of inappropriate people in her home.

The mother attended all but one visitation, for which she took accountability,

and two others that were cancelled due to her tardiness. She remained bonded to

39
Z.B. by attending visitation and providing her with food, clothing, toys, and care at

visitations. She testified that she loved and missed her child. The mother agreed to

pay minimum wage child support and to continue working services offered by the

Department. During the pendency of this case, the mother cooperated with the

Department, including submitting herself for random drug testing that was not

specifically required by the service plan, which noted that continued drug

assessment was not needed. The mother also agreed to placement of Z.B. with Ms.

Moore with the hope of remaining a presence in Z.B.’s life while promising to

abide by the Department’s and the court’s limitations on visitation.

In its brief, the Department asserts that the mother’s failure to submit to drug

tests in this case is evidence of illicit drug use. It is not. As we explained in section

II.A.2.c., above, the mother’s service plan had no random drug testing requirement

and did not inform the mother that any failure to comply would be considered a

positive test result. We therefore do not consider a failure to appear as evidence; it

is not. The Department also asserts that mother was involved in criminal activity

with Royal and speculates that the mother may, at some point in the future, be

prosecuted for those activities or in connection with Z.B.’s abuse. The record

includes notes in a permanency progress report stating that on March 20, 2024, the

day that Z.B. was removed, Z.B.’s maternal grandmother told the caseworker that

Royal “had [the mother] doing things that could have gotten her in a lot of trouble

40
with vehicles/rentals,” and Z.B.’s maternal aunt told the caseworker that Royal

“had [the mother] renting cars for him, and it was a mess of issues that could have

gotten her in a lot of trouble . . . .” There is no evidence, however, that the mother

was involved in criminal activity. Speculation is not evidence, and it does not

satisfy the constitutional mandate that termination of parental rights be supported

by clear and convincing evidence. See N.G., 577 S.W.3d at 235.

The Foster Parents. The evidence showed that the foster parents had shown

exemplary care and love to Z.B., providing for her physical, medical, and

emotional needs, and helping her to thrive under their care. The record includes

clear-and-convincing evidence of the foster parents’ abilities to meet Z.B.’s needs

and the stability of their home.

Ms. Moore. The evidence showed that Ms. Moore, the mother of Z.B.’s

biological aunt (the mother’s half-sister), was a licensed foster parent raising two

young grandchildren, close in age to Z.B. Z.B. had a two-hour in-home visit with

Ms. Moore that went well, and the Department believed that Ms. Moore was able

to provide for her needs. In closing argument, the ad litem for Z.B. told the court

that Ms. Moore was “excited” about Z.B. and had an extra bedroom for her. We

conclude that the record includes clear-and-convincing evidence of Ms. Moore’s

parental abilities and the stability of her home.

41
The clear-and-convincing evidence relevant to these factors shows that while

the foster parents and Ms. Moore would be able to meet all of Z.B.’s needs in a

stable home, the mother was also able to meet some, if not all, of Z.B.’s physical

and emotional needs. This factor does not weigh in favor of irrevocably

terminating the mother’s rights.

d. Programs Available to Assist Those Persons Seeking
Custody in Promoting the Best Interest of the Child

We explained in section I.B.2.c., above, that the mother expressed her

willingness to abide by the court’s orders and to complete additional services

offered by the Department to promote the best interest of Z.B., including

counseling, paying child support, and attending supervised visitation. On appeal,

the Department argues that there are financial incentives for adoption of a child

from the foster care system, such as tuition waivers at state universities, that would

be available to the foster parents if they adopt Z.B. We find the Department’s

argument on this point meritless. First, the Texas Education Code provides benefits

for the student, not the parents. See TEX. EDUC. CODE § 54.366. Second, the

statutory educational benefits would apply in the absence of termination of the

mother’s rights, for example if Z.B. were placed with Ms. Moore with permanent

managing conservatorship awarded either to the Department or to Ms. Moore.

This factor does not weigh in favor of termination.

42
e. Plans for the Child by the Individuals or Agency
Seeking Custody

At trial, the Department, which was the agency seeking custody, represented

to the court that its plan was to transition Z.B. to Ms. Moore as a fictive kin

placement and to evaluate the placement for permanency. Its alternate plan was for

unrelated adoption by the foster parents. On appeal, the Department only argues in

favor of adoption by the foster parents. The evidence at trial showed that the

mother planned to continue working services offered by the Department, pay child

support, work to pay off debt and get an apartment of her own, and allow Z.B. to

be placed with her sister’s mother, Ms. Moore. We have explained that both the

foster parents and Ms. Moore are appropriate placements for Z.B., despite her

close bond to the foster parents.

This factor is neutral in our analysis.

f. Acts or Omissions of the Parent that May Indicate the
Existing Parent-Child Relationship is Not
Appropriate and Any Excuse for the Parent’s Acts or
Omissions

The mother’s pre-removal behavior of exposing Z.B. to Royal, including

returning to the home she shared with him after fleeing to a hotel, may indicate that

the existing parent-child relationship is not appropriate. The mother offered no

excuse. This factor weighs in favor of termination.

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3. Considering the Record as a Whole

In analyzing the evidence in this case, we have explained that some of the

evidence is subject to differing inferences. Considering the evidence in the light

most favorable to the court’s finding, disregarding the reasonable inferences from

the undisputed evidence that do not support the court’s finding, we conclude that a

reasonable factfinder could have formed a firm belief or conviction that

termination of the mother’s rights was in Z.B.’s best interest. This conclusion rests

primarily on the mother’s failure to secure safe, stable housing in her own name as

well as her pre-removal behavior. We conclude that the evidence is legally

sufficient to support the court’s finding.

When we consider the entire record, however, including the evidence that

cannot be credited to the trial court’s finding, we reach a different conclusion.

Considering the evidence that the mother remained drug free, employed, complied

with the service plan, cooperated with the Department, regularly visited Z.B.,

maintained a close, reciprocal bond with Z.B., continued to work on services, and

agreed to pay child support, we conclude that no reasonable factfinder could have

formed a firm belief or conviction that termination of the mother’s rights was in

Z.B.’s best interest.

The Department failed to carry its burden to demonstrate by clear and

convincing, factually sufficient evidence that termination of the mother’s rights to

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Z.B. was in Z.B.’s best interest. Because we hold that the evidence is factually

insufficient to support the trial court’s best interest finding, we reverse that part of

the trial court’s decree that terminated the mother’s rights to Z.B. We will remand

for a new trial.

III. Conservatorship Determination

In her final issue, the mother argues that the trial court abused its discretion

by appointing the Department sole managing conservator of Z.B. The Department

argues that this issue is inadequately briefed and invites us to disregard the

mother’s third issue. We decline the invitation. See Bertucci v. Watkins, 709

S.W.3d 534, 542–43 (Tex. 2025) (reaffirming general disapproval of summarily

dismissing issues based on procedural defects).

We review conservatorship decisions for an abuse of discretion. In re J.A.J.,

243 S.W.3d 611, 616 (Tex. 2007); Interest of D.L.W.W., 617 S.W.3d 64, 93–94

(Tex. App.—Houston [1st Dist.] 2020, no pet.). A finding that appointment of a

parent as managing conservator would significantly impair the child’s physical

health or emotional development need only be supported by a preponderance of the

evidence. J.A.J., 243 S.W.3d at 616.

The Department argues that the mother has not preserved this issue because

she failed to challenge the trial court’s finding that appointment of a parent as

managing conservator would not be in Z.B.’s best interest. We agree that the

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mother did not challenge these findings, making them binding on this Court. See,

e.g., Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523

(Tex. 2014) (“We defer to unchallenged findings of fact that are supported by

some evidence.”). And, in light of the finding that appointment of a parent as

managing conservator would not be in Z.B.’s best interest, we hold that the court

did not abuse its discretion by failing to appoint the mother managing conservator

of Z.B. See J.A.J., 243 S.W.3d at 616.

We overrule this issue.

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Conclusion

We affirm that portion of the trial court’s decree that appoints the

Department as Z.B.’s sole managing conservator. We reverse that portion of the

trial court’s decree that terminates the mother’s rights to Z.B., and we remand this

case to the trial court for a new trial.11

Susanna Dokupil
Justice

Panel consists of Chief Justice Adams, and Justices Morgan and Dokupil.

11
On remand, the court may enter orders in the best interest of Z.B. Cf. Interest of
H.M.Q., No. 01-24-00817-CV, 2025 WL 1033755, at *14 (Tex. App.—Houston
[1st Dist.] Apr. 8, 2025, pet. denied) (mem. op.) (holding that evidence was legally
insufficient to support sole predicate ground for termination and noting that, on
remand, court must deny termination petition or render order in best interest of
child). We offer no guidance on these matters, which are not properly before us.
See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000)
(“Under article II, section 1 of the Texas Constitution, courts have no jurisdiction
to issue advisory opinions.”). Moreover, “circumstances concerning the child or
parent may have changed since the trial court rendered its order of termination, a
matter that requires a factfinder.” Colbert v. Dep’t of Family & Protective Servs.,
227 S.W.3d 799, 816 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
47