Appellant F.L. ("Mother") appeals the trial court's final order terminating her parental rights to her children L.C.L. ("Lorenzo") and M.E.M. ("Melissa"). The trial court terminated Mother's parental rights on predicate grounds of endangerment and failure to comply with the service plan for reunification. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), and (O). The trial court further found that termination of Mother's parental rights was in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(2).

Lorenzo and Melissa are pseudonyms. Pursuant to Texas Rule of Appellate Procedure 9.8, we use fictitious names to identify the minors and other family members involved in this case. See Tex. R. App. P. 9.8.

On appeal, Mother asserts six issues, most of which are duplicated in each section of her brief. Mother's issues can be summarized as follows: (1) the trial court erred in failing to file findings of fact and conclusions of law; (2) the trial court violated Mother's constitutional rights to (a) due process and due course of law by failing to give her a family services plan in Spanish (the language she understands), and (b) equal protection; (3) the evidence presented at trial was legally and factually insufficient to support the trial court's findings (a) of endangerment, (b) of failure to follow a family service plan, and (c) that termination is in the best interest of the children; and (4) the trial court erred by admitting illegally obtained evidence. A panel of this court affirmed the trial court's final order. Mother filed a motion for en banc reconsideration, a majority of this court voted to reconsider this case, and the en banc court heard oral argument. After analyzing the evidence presented at trial and in concluding there is not clear and convincing evidence that termination was in the best interest of the children, we reverse the portions of the trial court's final order terminating Mother's parental rights, we affirm the remaining challenged portions of the trial court's final order, and we remand this case to the trial court for further proceedings limited to Texas Family Code section 161.001(b)(2).

BACKGROUND

On March 22, 2016, the Department of Family and Protective Services (the "Department") received a referral alleging neglectful supervision of Lorenzo, Melissa, and A.M. (another child in the home, age 15). Specifically, the referral alleged that the children were often left home alone, that there was no electricity in the home, and that the children were very thin.

After preliminary research into the case, Alexis Wilson, the Department caseworker, visited Mother and the children in their home on May 25, 2016. The caseworker did not observe any marks or bruises on either Lorenzo or Melissa and noted that they both appeared clean, healthy, and developmentally on target. She also noted the home appeared to look appropriate, had all working utilities, and had no safety hazards. Additionally, she noted there was plenty of leftover food in the freezer. A.M. informed the caseworker that there was no drug or alcohol use in the home, that she watches her siblings when her mother leaves the house, and that her mother had never left home for days at a time.

The caseworker then asked Mother to take a drug test, which she agreed to do. The result of the initial urine drug test was negative; the results from the hair test showed positive for marijuana and cocaine. The children were subsequently removed from Mother's care on June 23, 2016. On June 24, 2016, the Department filed an Original Petition for Protection of a Child for Conservatorship and for Termination in Suit Affecting the Parent-Child Relationship based upon Mother's positive drug test and Mother's alleged inability to provide appropriate caregivers for the children. Initially, the children were placed in separate foster homes. On October 20, 2016, Lorenzo and Melissa were moved together to a foster home and stayed together even when they were moved to several other foster homes over the course of the proceedings. A bench trial was initially called on December 11, 2017, recessed, and continued multiple times over the next year (on March 5, 2018, April 23, 2018, May 2, 2018, October 30, 2018, and November 27, 2018). The trial court signed a Decree for Termination ("final order") on December 31, 2018, in which the trial court (among other things) terminated the parent-child relationship between Mother and her children, Lorenzo and Melissa.

STANDARD OF REVIEW

The involuntary termination of parental rights implicates fundamental constitutional rights. Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985) ; In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Because of the severity and permanency of terminating the parental relationship, Texas requires clear and convincing evidence to support such an order. See generally Tex. Fam. Code Ann. § 161.001 ; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002).

On appeal, Mother challenges the legal and factual sufficiency of the evidence supporting the trial court's order terminating her parental rights pursuant to Texas Family Code section 161.001(b). Section 161.001(b) permits the termination of a parent-child relationship if the trial court finds by clear and convincing evidence that (1) one or more predicate acts enumerated in section 161.001(b)(1) was committed, and (2) termination is in the best interest of the child. In re C.H. , 89 S.W.3d 17, 23 (Tex. 2002). "Clear and convincing evidence" means "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 ; In re J.F.C. , 96 S.W.3d at 264.

Reviewing Mother's legal sufficiency challenge under the clear and convincing evidentiary standard, we "should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.O.A. , 283 S.W.3d 336, 344 (Tex. 2009). We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved. In re G.M.G. , 444 S.W.3d 46, 52 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

In reviewing termination findings for factual sufficiency of the evidence, we consider and weigh all the evidence, including disputed or conflicting evidence. In re J.O.A. , 283 S.W.3d at 345. "If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. We give due deference to the factfinder's findings and we do not substitute our judgment for that of the factfinder. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).

ANALYSIS

We address Mother's issues out of order, determining rendition issues before remand issues because rendition affords Mother the greatest relief. Accordingly, we begin by analyzing Mother's third issue, within which she raises several different arguments we address in turn.

See Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co. , 995 S.W.2d 675, 677 (Tex. 1999) (per curiam) ("Generally, when a party presents multiple grounds for reversal of a judgment on appeal, the appellate court should first address those points that would afford the party the greatest relief.").

I. Endangerment Findings

Mother challenges the legal and factual sufficiency of the evidence to support the trial court's endangerment findings under Texas Family Code section 161.001(b)(1)(D) and (E).

Courts are authorized to terminate parental rights if the parent has "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child" or "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). The sole basis for termination of Mother's rights was that she tested positive for drugs both initially and throughout the proceedings. However, there was no evidence adduced at trial connecting Mother's positive drug tests to any activity that endangered her children. A plain language reading of the statute requires a causal connection between Mother's drug use and the alleged endangerment.

In many cases, competent evidence is introduced at trial to prove that a parent's drug use rises to the level that it endangers the children. In this case, however, no such proof exists in the record. The caseworker testified that she "believe[s] testing positive for drugs is endangering children"; this was the only "evidence" presented at trial that Mother's drug use endangered her children. The caseworker did not identify any behavior endangering the children. When pressed by Mother's trial counsel, the caseworker answered that she was not able to assert a specific act that placed the children in danger because of the Mother's use of drugs. The caseworker's conclusory statement was the only support for the allegation that Mother's drug use endangered her children. Further, there was no evidence of criminal charges related to Mother's drug use nor was there proof of threat of incarceration due to alleged drug use. Simply put, there was legally insufficient evidence at trial to support an endangerment finding.

Conclusory statements are not evidence. See In re A.H. , 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.) ("[C]onclusory testimony, such as the caseworker's, even if uncontradicted, does not amount to more than a scintilla of evidence."). The caseworker's conclusory statements that a parent's drug use de facto endangers their children is insufficient to support the trial court's finding by clear and convincing evidence that the standards for termination have been met under Texas Family Code section 161.001(b)(1)(D) and (E). See In re B.R. , 456 S.W.3d 612, 617 (Tex. App.—San Antonio 2015, no pet.) ("[Texas Department of Family and Protective Services supervisor]’s agreement that it was in the children's best interest to terminate appellant's parental rights and it was in their interest to ‘move on’ was conclusory."); In re A.H. , 414 S.W.3d at 807 (caseworker's conclusory testimony regarding children's best interest constitutes insufficient evidence); see also Vazquez v. Vazquez , 292 S.W.3d 80, 85 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding that, in review of divorce decree, wife's statements that she had signed the decree and thought conservatorship was in the best interest of the children were conclusory and did not rise to the level of competent evidence trial court could use to determine best interest of children). Therefore, the Department failed to prove a causal link between Mother's drug use and the alleged endangerment.

Our court has previously held that (1) endangering acts need not be directed at the child or cause actual injury or threat of injury to the child, and (2) this predicate finding of endangerment does not require a causal connection between the parent's misconduct and actual harm to the child resulting from that misconduct. In re S.M.L. , 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ; In re U.P. , 105 S.W.3d 222, 233 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). However, a plain reading of the statute itself does not support this interpretation. The Family Code expressly contemplates use of a controlled substance by a parent "in a manner that endangered the health and safety of the child." See Tex. Fam. Code Ann. § 161.001(b)(1)(P)(i) and (ii).

Somewhere along the way, our court conflated drug use with child endangerment such that mere drug use alone became conclusive evidence that a child was endangered. Sections (D) and (E) are "catch-all" provisions to protect children whose parents have been proven to endanger their children or to put their children in circumstances that endanger them, but we are tasked with reading the statute as the legislature intended. See Tex. Gov't Code Ann. § 311.021(2) ("In enacting a statute, it is presumed that ... the entire statute is intended to be effective."). We do that not by expanding the reasons why parents can lose their rights to their children (and children can lose their constitutional rights to their relationship with their parents) but by making sure that the true intent of the legislature — that is, to keep families together if at all possible — is protected by reading the statute narrowly and as enacted by the legislature. Under the statute, and viewing the evidence in the light most favorable to the trial court's finding, we conclude a reasonable factfinder could not have formed a firm belief or conviction that Mother violated Texas Family Code section 161.001(b)(1)(D) and (E) through drug use alone. The dissent's interpretation of the Texas Supreme Court's reasoning in J.O.A. leads to the absurd conclusion that a parent's drug use alone, without proof of any causal connection to endangering their children's welfare, is enough to justify terminating a parent-child relationship. We will not presume the supreme court intended that result. Accordingly, we hold the evidence is legally insufficient to support termination of Mother's parental rights under section 161.001(b)(1)(D) and (E), and we sustain Mother's third issue in that regard.

To the extent this court's opinions have erroneously interpreted Texas Family Code section 161.001(b)(1)(D) and (E) to allow termination of the parent-child relationship based solely on a finding that a parent used a controlled substance (as defined by Chapter 481 of the Health and Safety Code) without the additional elements required by Texas Family Code section 161.001(b)(P) ("in a manner that endangered the health or safety of the child, and: (i) failed to complete a court-ordered substance abuse treatment program; or (ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance"), those opinions are overruled.

II. Family Service Plan

To the extent Mother also challenges the trial court's predicate finding that she failed to follow her family service plan on sufficiency grounds and asserts the evidence is legally and factually insufficient to support this predicate finding, we reject her assertion.

Mother testified that she failed to show up for all scheduled drug tests, failed to attend individual therapy, and failed to attend domestic violence counseling. When viewed in the light most favorable to the trial court's finding, the evidence is legally sufficient to support the trial court's determination that Mother failed to follow her family service plan.

Reviewing all of the evidence in the light most favorable to the trial court's findings, we conclude that a reasonable factfinder could have formed a firm belief or conviction as to the truth of the findings under subsection (O). See In re J.F.C. , 96 S.W.3d at 266. In light of the entire record, we also conclude that the factfinder could have reasonably formed a firm belief that the evidence is factually sufficient. See In re H.R.M. , 209 S.W.3d at 108.

Therefore, we hold the evidence presented at trial is both legally and factually sufficient to support the trial court's predicate finding under Subsection (O) by clear and convincing evidence. Thus, we overrule Mother's third issue with respect to her sufficiency challenge. Even so, termination of parental rights under section 161.001(O) must be in the children's best interest as we discuss below.

Despite our conclusion, we are compelled to note our deep concern that Mother did not receive a family service plan in a language she understands because her lack of understanding the requirements and details of the plan would have an impact on her ability to successfully complete it. However, because she has not properly preserved a complaint in that regard, we conclude based on the record before us that the evidence is both legally and factually sufficient to support the finding that Mother failed to comply with her family service plan.

III. Best Interest of the Children

Mother challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of her parental rights is in the children's best interest.

Although prompt and permanent placement in a safe environment is presumed to be in the children's best interest, Tex. Fam. Code Ann. § 263.307(a), courts apply a strong presumption that the best interest of the children is served by keeping the children with their natural parents; the burden is on the Department to rebut that presumption. In re D.R.A., 374 S.W.3d at 531. In determining the best interest of the children, the factfinder may consider the nine Holley factors. Holley v. Adams , 544 S.W.2d 367, 371-72 (Tex. 1976). The Holley factors include: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the 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 parents’ acts or omissions. Id.

In this case, no evidence was presented regarding the following five factors: the present and future emotional and physical danger to the children; the parental abilities of the persons seeking custody; the programs available to assist those persons seeking custody in promoting the best interest of the children; and acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate. Additionally, there is no evidence of acts or omissions by the Mother and no evidence of excuses for any acts or omissions as considered in factor nine.

Further, the record contains only minimal evidence of factors six and seven — the plans for the children by the individuals or agency seeking custody, and the stability of the home or proposed placement. In fact, the caseworker only stated that the foster placement was intended to be permanent. Also, the only evidence adduced at trial regarding factor one — the children's wishes — was the caseworker's testimony that the children had expressed desires to be adopted.

Specifically, the caseworker testified: "The children are currently in a home that is meeting all of their needs. Both of the children have expressed desires to stay and expressed desires of adoption. I believe this home could meet their long term needs." The evidence shows, however, that although the children had been removed from Mother's care for almost eighteen months at that point, the children had only been in this foster home for 25 days at the time of the caseworker's testimony.

The dissent makes several unwarranted complaints regarding our best interest analysis. First, it suggests Mother's failure to complete certain parts of her court-ordered family service plan shows potential physical danger to the children. Specifically, the dissent points to Mother's failed drug tests and no-shows as evidence that she failed to demonstrate a willingness to effect positive environmental and personal changes within a reasonable amount of time. However, the drug screenings and services for substance abuse treatment were contemplated as part of Mother's family service plan; and it has not been proven that she understood the plan (see infra Section IV).

Further, the dissent recites from the permanency report several listed disorders and intellectual and learning disabilities of the children diagnosed by the Children's Crisis Care Center. The dissent concludes: "The record reflects that at the time of removal the children were not in a safe stable home. Like Lorenzo, Melissa was experiencing adjustment disorder...." Seemingly, the dissent implies that the purported presence of disorders and disabilities constitutes sufficient evidence that Mother is unable to provide for present and future physical and emotional needs of the children. However, there was no testimony regarding the evaluations made by the Children's Crisis Care Center as to Lorenzo or Melissa that present a laundry list of diagnoses for each of them. The basis for the listed diagnoses is a "Psychological/Psychiatric Evaluation" given by the "Children's Crisis Care Center" on July 25, 2016, and August 11, 2016, respectively. In Lorenzo's case, at age 5, this evaluation diagnosed him with "Child Neglect, Suspected; Intellectual Disability, Mild; Specific Learning Disorder with Impairment in Reading, written expression, and mathematics; Adjustment Disorder with Mixed Anxiety and Depressed Mood; Insomnia Disorder; Enuresis [bedwetting], Nocturnal Only." Melissa, at age 4, was similarly diagnosed with "Adjustment Disorder with Mood Conduct; Unspecified Communication Disorder; Child Neglect; Upbringing away from parents; Disruption of family by separation or divorce; Encounter for Mental Health Services for Victim of Child Neglect."

These diagnoses do not constitute proof of endangerment by Mother or proof of instability in the home. First, there is no evidence in the record regarding the qualifications of any person or persons who actually performed the evaluations or made the diagnoses. Second, these evaluations were made more than a month after the children had been separated from their Mother and each other. Third, there is no evidence or testimony as to whether any of the disorders or disabilities were present before the children's removal from Mother's care, or if they were instead caused by the traumatic separations from Mother and each other. Melissa and Lorenzo were removed from their Mother's home on June 23, 2016 (at the ages of 4 and 5, respectively) and kept in separate housing apart from each other until October 20, 2016, when they were placed together. The guardian ad litem testified at trial that, "The one thing that I do believe is very important to the children as well as in their best interest is to remain together; that's paramount, I believe to their wellbeing. They are very, very bonded." It would have been unreasonable for the trial court to rely upon the evaluations as proof that these issues existed prior to the removal of Lorenzo and Melissa from Mother's home because there was no testimony or other evidence in the record that supports such a reliance.

Contrary to the dissent's assertion, having the listed disorders and disabilities does not constitute evidence of an unstable or unsafe home. Nor does the existence of the disorders and disabilities constitute evidence of Mother's inability to provide for the children's emotional or physical needs. Even assuming the children's removal from their Mother and each other was not the cause of the listed diagnoses, there was no proof that Mother did not provide for the children's physical and emotional needs, or that she is unable to provide for their needs in the future.

We also note that the dissent fundamentally misstates evidence in the record. For instance, the dissent relies upon and presumes that the caseworker who testified at trial is correct regarding Lorenzo not being enrolled in school at the time of removal when, in fact, there is evidence in the Department's initial evaluation that Lorenzo was enrolled in a school. Notably, there is also no evidence that Mother was not homeschooling Lorenzo (an act specifically carved out of reasons for termination in the best interest of a child, Tex. Fam. Code Ann. § 161.001(c)(1) ).

The dissent opines that this is a matter of credibility that we must leave to the factfinder; however, the record is clear that the caseworker who testified at trial gave testimony contradicting the affidavit of the only caseworker with first-hand knowledge (the one who did the initial investigation and determined that Lorenzo was, in fact, enrolled in school).

After viewing the evidence in the light most favorable to the trial court's finding, we conclude the trial court could have formed a firm belief or conviction that termination of Mother's parental rights was in the best interest of the children. We therefore hold the evidence is legally sufficient to support the trial court's finding that termination of Mother's parental rights was in the best interest of the children.

However, viewing the evidence in a neutral light and weighing all the evidence, we conclude the majority of the Holley factors substantially weigh against the best interest finding in this case. Cognizant of the (1) constitutional concerns related to parental termination, (2) clear instructions from the Texas Supreme Court to strictly scrutinize termination proceedings and strictly construe involuntary termination statutes, (3) strong presumption that preservation of the parent-child relationship is in the children's best interest, (4) obligation under a factual sufficiency review to consider all evidence equally, and (5) the reports submitted by other caseworkers which conflict with the conclusory statements and misstatements in the caseworker's testimony, we conclude based on the record before us that a reasonable factfinder could not have formed a sufficiently firm belief or conviction that termination of Mother's parental rights would be in the children's best interest. See In re D.D.M. , No. 01-18-01033-CV, 2019 WL 2939259, at *8 (Tex. App.—Houston [1st Dist.] July 9, 2019, no pet.) (mem. op.). Accordingly, we sustain Mother's third issue that the evidence is factually insufficient to support a finding that termination is in the children's best interest.

A Holley factor weighing in favor of the best interest finding is the children's desire. According to the caseworker's testimony, the children expressed a desire to be adopted. Although there is only minimal evidence of the plans for the children by the agency seeking custody and the stability of the home or proposed placement, these two factors (even if weak) could be weighed in favor of the best interest finding by the factfinder.

IV. Constitutional Rights Violation

In her second issue, Mother alleges the trial court violated her constitutional rights under the United States and Texas Constitutions. We address her contentions below.

A. Right to Due Process and Due Course of Law

Mother challenges termination of her parental rights for failure to comply with the family service plan for reunification under Texas Family Code section 161.001(O) because the plan was not in her native Spanish language in violation of her due process and due course of law rights.

See Tex. Fam. Code Ann. § 161.001(O).

The Family Code requires that a service plan "be in writing in a language that the parents understand, or made otherwise available." Tex. Fam. Code Ann. § 263.102(a)(2). In addition, the Family Code requires that the service plan must be written "in a manner that is clear and understandable to the parent in order to facilitate the parent's ability to follow the requirements of the service plan." Id. § 263.102(d).

It is uncontroverted that Mother was not provided with a written service plan in a language that she understands. The dissent opines that, because the trial court instructed Mother her parental rights could be terminated if she did not successfully complete a family service plan, she understood exactly what she was supposed to do under the service plan. The record contains no evidence of the trial court reading the requirements of the family service plan into the record in the Mother's presence or at any time such that Mother would have had it translated in its entirety by the Spanish language translator provided at the hearings.

Despite the Department's uncontroverted failure to provide Mother with a service plan in Spanish, Mother failed to follow the requirements of Texas Rule of Appellate Procedure 33.1(a) to preserve her complaint for appellate review. See Tex. R. App. P. 33.1(a) ; In re B.L.D. , 113 S.W.3d 340, 350 (Tex. 2003) (complaint based on constitutional error must be preserved in the trial court). Were this a criminal case, we would not stop at a Rule 33.1(a) analysis and would instead analyze this issue under Marin v. State , 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (en banc), in which the Court of Criminal Appeals outlined the three classifications of rules contained in the Texas criminal adjudicatory system: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request. However, the Texas Supreme Court has so far declined to follow the Court of Criminal Appeals’ Marin analysis in parental rights termination cases (even though it does so in juvenile justice cases). See In re B.L.D. , 113 S.W.3d at 351. Therefore, we are unable to examine Mother's due process and due course of law challenge and accordingly overrule her second issue in that regard.

B. Right to Equal Protection

Mother also claims the trial court violated her rights to equal protection under the Fourteenth Amendment to the United States Constitution when it allowed a caseworker to testify that "a parent would be unfit if the parents’ country of origin was not the United States."

However, the record is devoid of any references to Mother's country of origin. Moreover, Mother's trial counsel neither mentioned any specific issues concerning national origin nor did counsel assert an equal protection violation. Furthermore, the majority of examples Mother cites in her brief are of caseworker testimony concerning the children's fathers, both of whom were (at the time of trial) residents of countries other than the United States. Because Mother failed to assert her equal protection complaint in the trial court, we do not examine it here and accordingly overrule her second issue. See Tex. R. App. P. 33.1(a) ; Dreyer v. Greene , 871 S.W.2d 697, 698 (Tex. 1993) ("As a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal.").

CONCLUSION

We hold the evidence is legally insufficient to support termination of Mother's parental rights under Texas Family Code section 161.001(b)(1)(D) and (E). We further hold there is (1) legally and factually sufficient evidence to support termination of Mother's parental rights under Texas Family Code section 161.001(b)(1)(O), and (2) legally sufficient evidence to support a finding that termination of Mother's parental rights is in the best interest of the children. But we hold there is factually insufficient evidence to support a finding that termination of Mother's parental rights is in the children's best interest. Therefore, we reverse the portion of the final order regarding the findings under Texas Family Code section 161.001(b)(1)(D) and (E) and render judgment deleting these findings. We reverse the portion of the final order regarding the finding under Texas Family Code section 161.001(b)(2) and remand the case to the trial court for further proceedings limited to Texas Family Code section 161.001(b)(2). See Tex. R. App. P. 43.2(d). We affirm the remaining challenged portions of the final order.

In light of our disposition, we need not address Mother's remaining issues, none of which is a rendition issue necessary to the disposition of the appeal. See Tex. R. App. P. 47.1.

DISSENTING OPINION

Ken Wise, Justice, dissenting.

We dissent from the majority's analysis and conclusions regarding the trial court's endangerment and best-interest findings. In concluding the evidence is legally insufficient to support the trial court's findings of endangerment, the majority fails to follow binding high court authority. In overruling the precedent of this court, the majority creates a conflict between this court and the other 13 courts of appeals in Texas. And, in concluding the evidence is factually insufficient to support the trial court's best-interest finding, the majority fails to fulfill the constitutional role of an appellate court to give due deference to the factfinder's credibility determinations. This court should affirm, not reverse, the trial court's judgment.

BACKGROUND

The Department filed an original petition to terminate Mother's parental rights based on suspected neglect of the children and Mother's illegal drug use. The children were initially removed based on reports of suspected child neglect and Mother's positive drug test. Trial began one and a half years later. Mother was present for the first day of trial and the court noted on the record that Mother had the benefit of a Spanish language interpreter for trial. Mother's attorney spoke Spanish as did the attorney ad litem appointed to represent the children. Each time the children's ad litem spoke with Mother, they spoke in Spanish. The Department requested that trial begin that day and asked the trial court to recess for the parties to return to mediation. The Department also requested a permanency hearing. No party objected to the proposed recess and permanency hearing.

Victoria Palmer, the caseworker, testified that the children were placed in foster care that was meeting their physical and emotional needs. At the beginning of Palmer's testimony the trial court admitted a permanency report without objection. Palmer prepared the report for purposes of the permanency hearing.

The permanency report stated that the Department had completed family service plans for Mother, three fathers, and an unknown father. As to Mother, the report noted that Mother had completed the tasks of signing a release of confidential information to permit providers to obtain past medical and mental health information. The report further noted that Mother was living with her older child and had provided proof of residence. Mother also had provided proof of employment. Mother had avoided criminal activity.

Mother's Failure to Complete Psychosocial Assessments, Evaluator Recommendations, and Parenting Classes

With regard to other requirements of the service plan the report noted that Mother was required to complete a psychosocial assessment conducted by the Children's Crisis Care Center and follow all recommendations made by the evaluator. Mother was referred to the Children's Crisis Care Center on July 8, 2016, and to a facility called "All Things Matter Inc." on October 5, 2017. Mother had not completed this requirement. As to required parenting classes Mother had been referred to five facilities. At the time of the report Mother had not completed parenting classes.

Mother's Failure to Complete Substance-Abuse Services and Her Positive Test Results from Random Drug Screenings

The service plan also required Mother to demonstrate an understanding of the adverse effects of substance abuse on herself and her children and she was referred to substance abuse services and counselors. Mother was referred to an individual counselor on October 17, 2016, and was referred to the Wellness Counseling Center on October 21, 2017, and again on November 8, 2017. Mother failed to appear for a scheduled appointment at the Wellness Counseling Center on October 21, 2017. No other appointment was noted in the permanency report. Mother was also referred to Hope Recovery Services. No appointments were listed for Hope Recovery Services. The service plan also required Mother to submit to random drug screenings throughout the case. Mother did not attend all of the required drug screenings.

The permanency report admitted into evidence on the first day of trial also listed the following drug screenings and the results for Mother:

• 10/7/16 – (Facility Closed early)

• 10/19/16 – (Computers crashed at facility) [Mother] was also late and therefore results in a POSITIVE.

• 11/4/16 – Hair – POSITIVE; Cocaine 915mg; Marijuana 1 mg

• 11/9/ 16 – Urine – POSITIVE; No Show

• 11/29/16 – Hair – POSITIVE; No Show

• 12/9/16 – Hair – POSITIVE; No Show

• 12/21/16- Urine – POSITIVE; No Show

• 1/13/17 – Hair – POSITIVE; No Show

• 1/31/17 – Urine – [no notation in document]

• 2/ 16/17 – Hair – POSITIVE; No show

• 2/28/17 – Urine – POSITIVE; No show

• 3/10/17 – Urine – POSITIVE; No show

• 3/24/17 – Hair – POSITIVE; No show

• 4/6/17 – Hair – POSITIVE; No show

• 4/26/17 – Hair – POSITIVE; No show

• 5/6/17 – Hair – POSITIVE; No Show

• 7/12/17 – Hair – POSITIVE; No show

• 8/10/17 – Hair/UA – POSITIVE; No Show

• 9/18/17 - Hair/UA – POSITIVE; No Show

• 10/5/17 – Hair/UA – POSITIVE; No Show - Court Ordered

• 10/27/17 – Hair/UA – Facility closed.

• 11/1/17 – Hair – POSITIVE, Cocaine 3378 Marijuana .3

• 11/8/17 – UA, NEGATIVE

• 11/8/17 – Hair, PENDING

The report noted that Mother "understands that if she fails to submit a specimen for testing on that day, [t]he Department will determine the result is POSITIVE." The report further noted Mother "understands failure to submit random urine specimens when requested, positive urine samples, or altered/diluted samples can result in suspension of visitation with her child[ren]."

At the end of the hearing the Department requested that Mother submit to a drug screening that day. The trial court ensured that Mother understood the importance of cooperation with drug testing and compliance with the family service plan. The trial court explained that failure to comply with testing and the plan could result in restriction or termination of Mother's parental rights. Mother stated on the record that she understood the importance of the plan and that she knew how to contact her caseworker and her lawyer if she needed assistance with compliance.

Palmer testified that Mother had been "very infrequent" with drug testing and had failed to submit to several requests for random drug screening. The Department stopped Mother's visitation with the children in May 2018 because she continued to test positive for cocaine and marijuana. According to Palmer Mother had been unable to show that she could provide the children with a safe and stable environment.

Palmer further testified that Mother had five positive tests over the course of the termination proceeding, not including failures to appear. To Palmer's knowledge, Mother never participated in treatment for drug addiction. Palmer testified that Mother had a history of drug use and that Palmer explained to Mother the importance of her participation in drug addiction treatment. Mother's usage of cocaine and marijuana, as measured by the positive drug tests, fluctuated, sometimes going up and other times going down. The results did not show a steady decline. Mother had at least two negative drug tests but tested positive on subsequent tests. In Palmer's opinion Mother's drug use placed the children in conditions that endangered their safety and their physical and emotional wellbeing. Palmer testified that the endangerment caused by Mother's drug use was reflected in the condition in which the children were found when they came into care.

Mother's Failure to Attend Permanency Conferences, Court Hearings, and Family Visits

The report noted that Mother was required to actively participate in all permanency conferences, court hearings, family visits, and activities for her children. Mother had not complied with this requirement because she had not attended all permanency conferences or court hearings. Mother did not attend family visits. Mother was further required to visit her children at the Department's office twice per month. Mother had missed two visits with her children.

Children's Diagnoses of Suspected Child Neglect, Disorders, and Impairments

The permanency report contained results of psychological and psychiatric evaluations performed on the children shortly after their removal. The evaluation of Lorenzo revealed diagnoses of suspected child neglect, mild intellectual disability, specific learning disorders with impairments in reading, written expression, and mathematics, adjustment disorder with mixed anxiety and depressed mood, insomnia disorder, and nighttime bed-wetting. Recommendations for Lorenzo included individual therapy, a bedwetting alarm kit, continued Medicaid, and meeting with the school guidance counselor to assess progress and intellectual disability.

The evaluation of Melissa revealed diagnoses of adjustment disorder with mood conduct, communication disorder, child neglect, upbringing away from parents, disruption of family by separation or divorce, and encounter with mental health services for a victim of child neglect. Recommendations for Melissa included keeping her in a stable, predictable, and nurturing environment, thorough speech and language evaluation, encouragement by a caregiver to develop language skills and engage her in developmental activities, closely monitor behavioral and emotional functioning, and regular medical and dental exams with updated immunizations. The report also encouraged continuation with the Department's visitation agreement.

Children's Foster-Care Placement

Palmer testified that both children were living in a foster home together. Lorenzo had behavior issues when first moving into the foster home, but after being reunited with his sister his behavior improved. Both children's academic performance improved while in foster care. Palmer testified that the foster home met all of the children's physical and emotional needs. The long-term goal for the children was adoption. The Department requested recess of trial at that time so the parties could return to mediation in an attempt to reach an equitable settlement.

Trial was recessed and did not resume until May 2, 2018. The testimony on that date centered on the Department's efforts to locate and serve the fathers of the children. Mother testified, giving information about the fathers’ whereabouts. Mother testified that she had given the information to the caseworker at the beginning of the case. According to the fathers’ attorneys this information was new, and a recess was granted to allow location of the fathers and service of the termination petition on them. Trial resumed on October 30, 2018, with a Harris County Police investigator's testimony about his unsuccessful attempts to locate and serve one of the fathers. When trial resumed after a lengthy break, the trial court admitted several documents into evidence without objection. Those documents included a permanency hearing report dated October 6, 2017. In that report the trial court found that the Department needed to review the family service plan with Mother and her attorney before a final order could be rendered. Also admitted were several drug screening reports for Mother, which included positive results for cocaine and marijuana in Mother's hair collected May 26, 2016 but negative results in a urine analysis. Also admitted was a document from the National Screening Center reporting that on October 6, 2017, Mother was ordered to submit to hair and urine drug screening but walked out of the facility before a sample could be taken.

Palmer resumed her testimony and reported that the children had been moved to another foster home, which was an adoptive placement. The children moved to that foster home October 5, 2018, 25 days before trial resumed. Although the children had been living in the foster home for only 25 days at the time of the October hearing, they had gone on "a few transition visits" before moving to the foster home. The children were "fully transitioned" into the foster home. The foster home was meeting all of the children's needs, and both children expressed desires to stay in the home and be adopted by the foster parents. Palmer testified that permanency was important for the children and having them in foster care rather than a permanent home for the previous two years was not in their best interest.

Children's Circumstances under Mother's Care

Palmer testified that at the time the children came into the Department's care they had been left alone for three days with no food or water found in the home. Lorenzo, six years old at the time, was not enrolled in school. After coming into the Department's care Lorenzo had to repeat first grade twice, and at the time of trial, was still "very behind" in school. Mother contradicted Palmer's testimony about why the children came into the Department's care, testifying, "That's all a lie." Mother testified there was food in her home at the time the children were removed, and she had never lost electricity in her home.

Mother's Failure to Maintain Contact with the Children

Palmer testified that Mother had not maintained significant contact with the children. From October 10, 2016 through May 2018, Mother visited the children monthly, missing two visits during that time period. Mother testified that she missed one visit because she did not have transportation and missed another visit because she was not notified in time to ask for time off from work. Mother testified she had been trying to visit her children since May 2018 by writing to Palmer. Mother admitted that Palmer told her she could not visit the children because of her positive drug tests.

Mother's Ongoing Failure to Meet Service Plan Requirements

Palmer testified that Mother had completed a substance abuse assessment on November 9, 2017 and a psychosocial evaluation on February 2, 2018 as well as parenting classes. But Mother failed to satisfy key components of the service plan. Palmer explained to Mother the importance of complying with the service plan and referred Mother to service providers to aid in completion of the plan. Palmer testified that Mother told her she understood the importance of the plan, but Palmer testified she did not think Mother fully understood the consequences of non-compliance. Mother failed to maintain stable housing or stable employment, attend domestic violence classes, or complete the recommendations from her psychosocial evaluation. The recommendations from the substance-abuse assessment included individual and group substance-abuse counseling. Despite the Department's efforts to arrange service providers, Mother did not attend individual therapy or substance-abuse counseling.

When asked about Mother's housing Palmer testified that at one home visit the children did not have proper bedding. The home had only two mattresses; one for Mother and one for the oldest daughter, who lived in the home at that time. There was no place for the younger children to sleep. Mother failed to provide Palmer with a copy of a lease agreement as required by the family service plan. Palmer testified that every time she visited Mother's apartment there was electricity.

Mother's Ongoing Substance Abuse

Palmer testified that it was her personal and professional opinion that a parent's consumption of illegal drugs was not good for the health or welfare of the children. Palmer acknowledged that she had not observed any instance in which Mother used illegal drugs in the children's presence and she could point to no "specific act where the children were specifically placed in danger because of the use of drugs by [Mother]."

Mother admitted she tested positive for cocaine and marijuana but denied use of those illegal drugs at the time she tested positive. Contradicting her own testimony, Mother also testified that the test results were accurate. Mother admitted using cocaine five or six months before trial and testified that she had never used marijuana. Mother testified that any positive test results for marijuana were false. Mother acknowledged a positive hair test for cocaine and marijuana on November 1, 2017, and a positive hair test for cocaine on November 8, 2017. Mother admitted not appearing for drug screenings on June 7, 2018, July 17, 2018, and September 5, 2018. Each of those missed tests was scheduled during the time that Mother's visitation with her children was suspended due to a positive drug test in May 2018. Mother testified that she did not appear for the September 5, 2018 drug test because she had lost her passport. Mother did not explain why the loss of her passport caused her to miss the drug screening test nor did she explain the reason she missed the June and July tests.

Despite a positive test for cocaine in May 2018, Mother denied using cocaine at that time or in the two months before that test. Mother admitted there had been several times she was asked to submit to drug tests, but she did not appear.

Mother explained her positive drug tests in 2016 and 2017 were a result of depression because she had moved and did not have her children. Since that time Mother testified she had started working, obtained stable housing, started going to school and church and was "staying away from drugs." Mother admitted she had not provided information about her school attendance to Palmer because she had been going to school for only one month. Mother denied being a regular cocaine user, explaining she used "once per month, sometimes once every two months." Mother denied using cocaine in front of her children. Despite her claims of not being a regular user, Mother agreed that she would benefit from outpatient treatment for cocaine use. Mother testified that no one with the Department ever explained treatment options to her.

When trial resumed on November 27, 2018, Mother admitted she began using drugs two years earlier. Mother initially denied using cocaine and testified that she did not know what drugs were. Mother admitted taking pills "that came out on the test showing that I have cocaine." Contradicting her earlier testimony, Mother testified that her "sober date" was October 2017. Mother also admitted she had testified earlier that she used cocaine as late as 2018. Mother testified that she had used pills containing cocaine in 2018. Mother agreed that it was "harmful to raise children when you are using or taking pills that have cocaine in them." Mother testified that she began attending drug treatment classes on November 14, 2018, almost a year after trial began, and two weeks before trial concluded.

ANALYSIS

I. Endangerment Finding

Evidence that a parent used illegal drugs during an ongoing termination suit, when she knows she is at risk of losing her children, is legally sufficient to support an endangerment finding under section 161.001(b)(1)(E) of the Family Code. In re J.O.A. , 283 S.W.3d 336, 345 (Tex. 2009) ; see also In re G.C. , No. 14-18-01114-CV, 2019 WL 2063038, at *7 (Tex. App.—Houston [14th Dist.] May 9, 2019, pet. denied) (mem. op.).

In holding the evidence in this case is legally insufficient to support the trial court's finding of endangerment, the majority ignores binding precedent from the Supreme Court of Texas, overrules almost a decade of authority from this court, and creates a conflict with every other intermediate court of appeals in Texas.

In re J.O.A. , 283 S.W.3d at 345.

See Tex. R. App. P. 47.4 ; In re Columbia Medical Center of Las Colinas, Subsidiary, L.P. , 290 S.W.3d 204, 211 (Tex. 2009) ; Gonzalez v. McAllen Medical Center, Inc. , 195 S.W.3d 680, 681 (Tex. 2006) (per curiam).

In re K.J.B. , No. 14-19-00473-CV, 2019 WL 5704317, at *7 (Tex. App.—Houston [14th Dist.] Nov. 5, 2019, no pet. h.) (mem. op.); In re B.G.G. , No. 14-19-00278-CV, 2019 WL 2536634, at *8 (Tex. App.—Houston [14th Dist.] June 20, 2019, no pet.) (mem. op.); In re A.G. , No. 14-18-01089-CV, 2019 WL 2385723, at *4 (Tex. App.—Houston [14th Dist.] June 6, 2019, pet. denied) ; In re A.D.M. , No. 14-18-01088-CV, 2019 WL 2097922, at *6 (Tex. App.—Houston [14th Dist.] May 14, 2019, pet. denied) (mem. op.); In re G.C. , 2019 WL 2063038, at *7 ; In re J.J.L. , 578 S.W.3d 601, 611 (Tex. App.—Houston [14th Dist.] 2019, no pet.) ; In re A.R.G. , No. 14-18-00952-CV, 2019 WL 1716262, at *7 (Tex. App.—Houston [14th Dist.] Apr. 18, 2019, no pet.) (mem. op.); In re M.M. , No. 14-18-00881-CV, 2019 WL 1387964, at *7 (Tex. App.—Houston [14th Dist.] Mar. 28, 2019, no pet.) (mem. op.); In re Z.J.B. , No. 14-18-00759-CV, 2019 WL 347474, at *5 (Tex. App.—Houston [14th Dist.] Jan. 29, 2019, pet. denied) (mem. op.); In re D.I.L.-M. , No. 14-18-00526-CV, 2018 WL 6318422, at *5 (Tex. App.—Houston [14th Dist.] Dec. 4, 2018, pet. denied) (mem. op.); In re C.W. , No. 14-18-00427-CV, 2018 WL 5914556, at *6 (Tex. App.—Houston [14th Dist.] Nov. 13, 2018, no pet.) (mem. op.); In re C.D.G. , No. 14-17-00261-CV, 2017 WL 4320176, at *6 (Tex. App.—Houston [14th Dist.] Sept. 28, 2017, pet. denied) (mem. op.); In re E.R.W. , 528 S.W.3d 251, 264 (Tex. App.—Houston [14th Dist.] 2017, no pet.) ; In re C.A.L.H. , No. 14-16-00899-CV, 2017 WL 830495, at *5 (Tex. App.—Houston [14th Dist.] Feb. 28, 2017, pet. denied) (mem. op.); In re D.M.M. , No. 14-16-00664-CV, 2017 WL 61847, at *5 (Tex. App.—Houston [14th Dist.] Jan. 5, 2017, pet. denied) (mem. op.); In re M.G. , No. 14-15-00644-CV, 2015 WL 9241300, at *8 (Tex. App.—Houston [14th Dist.] Dec. 15, 2015, no pet.) (mem. op.); In re L.E.R. , No. 14-15-00205-CV, 2015 WL 3918062, at *6 (Tex. App.—Houston [14th Dist.] June 25, 2015, no pet.) (mem. op.); In re J.J.G. , No. 14-15-00094-CV, 2015 WL 3524371, at *5 (Tex. App.—Houston [14th Dist.] June 4, 2015, no pet.) (mem. op.); In re T.R.M. , No. 14-14-00773-CV, 2015 WL 1062171, at *9 (Tex. App.—Houston [14th Dist.] Mar. 10, 2015, no pet.) (mem. op.); In re S.R. , 452 S.W.3d 351, 362 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) ; In re R.E.T.R. , No. 14-13-00640-CV, 2013 WL 6506689, at *4 (Tex. App.—Houston [14th Dist.] Dec. 10, 2013, no pet.) (mem. op.); In re C.J.S. , 383 S.W.3d 682, 689 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ; In re A.H.A. , No. 14-12-00022-CV, 2012 WL 1474414, at *7 (Tex. App.—Houston [14th Dist.] Apr. 26, 2012, no pet.) (mem. op.).

See In re Columbia Medical Center of Las Colinas, Subsidiary, L.P. , 290 S.W.3d at 211.

See, e.g., In re C.H. , No. 09-19-00170-CV, 2019 WL 5243162, at *5 (Tex. App.—Beaumont Oct. 17, 2019, pet. denied) (mem. op.); In re L.C. , No. 12-19-00137-CV, 2019 WL 4727826, at *4 (Tex. App.—Tyler Sept. 27, 2019, no pet.) (mem. op.); In re C.D.L.R. , No. 13-19-00008-CV, 2019 WL 2608776, at *6 (Tex. App.—Corpus Christi June 26, 2019, no pet.) (mem. op.); A. C. v. Texas Dep't of Family & Protective Services , 577 S.W.3d 689, 699 (Tex. App.—Austin 2019, pet. denied) ; In re N.J.H. , 575 S.W.3d 822, 832 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) ; In re M.D.P. , No. 11-18-00146-CV, 2018 WL 6053931, at *2 (Tex. App.—Eastland Nov. 20, 2018, no pet.) (mem. op.); In re T.B. , No. 10-18-00247-CV, 2018 WL 5049062, at *2 (Tex. App.—Waco Oct. 17, 2018, no pet.) (mem. op.); In re J.L.C. , 582 S.W.3d 421, 433 (Tex. App.—Amarillo 2018, pet. ref'd) ; In re K-A.B.M. , 551 S.W.3d 275, 285 (Tex. App.—El Paso 2018, no pet.) ; In re K.B. , No. 05-17-00428-CV, 2017 WL 4081815, at *4 (Tex. App.—Dallas Sept. 15, 2017, no pet.) (mem. op.); In re M.C. , 482 S.W.3d 675, 685 (Tex. App.—Texarkana 2016, pet. denied) ; In re G.C.D. , No. 04-14-00769-CV, 2015 WL 1938435, at *3 (Tex. App.—San Antonio Apr. 29, 2015, no pet.) (mem. op.); In re M.D. , No. 02-14-00305-CV, 2015 WL 729506, at *4 (Tex. App.—Fort Worth Feb. 19, 2015, no pet.) (mem. op.); In re M.E.-M.N. , 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied) ; In re S.N. , 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.).

See Tex. R. App. P. 47.4 ; Gonzalez , 195 S.W.3d at 681.

The evidence detailed above reflects credible evidence from which the trial court reasonably could conclude that Mother's cocaine and marijuana use was more than an isolated act and instead was voluntary, deliberate, and a conscious course of conduct.

II. Family Service Plan

In section IV of its opinion, the en banc majority addresses an issue neither party raised at trial or on appeal: the Department's failure to comply with Family Code section 263.102. Section IV of the en banc majority is advisory and confusing. Mother did not raise the issue of compliance with section 263.102 in the trial court; therefore, Mother waived this issue for appellate review. See Thota v. Young , 366 S.W.3d 678, 679 (Tex. 2012) ; Tex. R. App. P. 33.1. Moreover, Mother did not assign error on appeal to the Department's failure to give her a service plan in a language she understands. We are therefore prohibited from addressing this issue. See Texas Nat'l Bank v. Karnes , 717 S.W.2d 901, 903 (Tex. 1986) (holding that "the court of appeals may not reverse a trial court's judgment in the absence of properly assigned error").

III. Best Interest of the Children

The majority correctly concludes that the evidence is legally sufficient to support the predicate finding that Mother failed to comply with the family service plan for reunification under section 161.001(b)(1)(O) of the Family Code. The majority also correctly concludes the evidence is legally sufficient to support the trial court's finding that terminating Mother's rights is in the children's best interest. The majority correctly recites the standard of review under the clear-and-convincing evidentiary standard. However, in an effort to reach its desired result, the majority fails to give due deference to the trial court's fact-finding function.

In announcing the clear-and-convincing evidentiary standard, the supreme court stated, "We emphasize that, as appellate courts apply the standard we announce today, they must maintain the respective constitutional roles of juries and appellate courts." In re C.H. , 89 S.W.3d 17, 26 (Tex. 2002). The court further noted, "An appellate court's review must not be so rigorous that the only factfindings that could withstand review are those established beyond a reasonable doubt." Id.

When reversing a termination of parental rights on factual insufficiency grounds, the reviewing court must detail the evidence relevant to the issue of parental termination and clearly state why the evidence is insufficient to support a termination finding by clear and convincing evidence. In re C.H. , 89 S.W.3d at 28–29. In its factual sufficiency review, the majority fails to do so.

The Holley best interest factors are: (i) the children's desires, (ii) the children's needs now and in the future, (iii) danger to the children now and in the future, (iv) the parent's parental abilities, (v) the programs available to assist the parent promote the children's best interest, (vi) the plans for the children by the parent or the agency seeking custody, (vii) the stability of the home or proposed placement, (viii) the parent's conduct indicating that the relationship is not a proper one, (ix) any excuse for the parent's conduct, and (x) any other relevant consideration. Holley v. Adams , 544 S.W.2d 367, 372 (Tex. 1976).

The Family Code also identifies factors the court may consider in evaluating a parent's willingness and ability to provide the child with a safe environment. Tex. Fam. Code Ann. § 263.307(b). Evidence supporting the statutory predicate of termination is relevant to the best-interest analysis. In re E.R. , 555 S.W.3d 796, 809 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

The majority finds no evidence of the following six Holley factors: the present and future emotional and physical danger to the children; the parental abilities of the persons seeking custody; the programs available to assist those persons seeking custody in promoting the best interest of the children; and acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate. The majority ignores evidence of acts or omissions by the Mother and, thus, concludes there is no evidence of an excuse for any acts or omissions as considered in factor nine. Finally, the majority determines the record contains only minimal evidence of factors six and seven — the plans for the children by the individuals or agency seeking custody, and the stability of the home or proposed placement. The majority concludes that the record contains minimal evidence to support certain factors, but the majority fails to weigh the evidence both in favor of and against the best interest of the children. The majority does not address the statutory best-interest factors.

A finding in support of best interest does not require proof of any unique set of factors, nor does it limit proof to any specific factors. See Holley, 544 S.W.2d. at 371–72. The best-interest inquiry is child-centered and focuses on the child's wellbeing, safety, and development. In re A.C. , 560 S.W.3d 624, 631 (Tex. 2018). Keeping this child-centered focus in mind, we address the applicable factors in turn looking at the evidence that supports the trial court's finding in addition to evidence that does not support the finding.

A. Desires of the Children

The children were eight and six years old at the time of trial. Palmer testified that both children were in the same foster home and the foster parents were meeting all of the children's physical and emotional needs. The foster parents were willing to adopt both children. According to Palmer both children wanted to stay in the foster home and had expressed desires to be adopted by their foster parents.

The majority dismisses this factor because it does not achieve the desired result, noting that Palmer's testimony is "the only evidence adduced at trial regarding factor one." While this may be the only evidence of the children's desires, it is probative evidence that must be considered in a factual sufficiency review. This court cannot ignore evidence the trial court heard simply because it is the only evidence of a factor. See In re C.H. , 89 S.W.3d at 28–29. The majority has not identified evidence of the children's desires that contradicts Palmer's testimony or the trial court's finding.

B. Present and Future Physical and Emotional Needs of the Children

This court's analysis of the present and future physical and emotional needs of the children must focus on the children's innate need for permanence. See In re D.R.A. , 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

All children have physical and emotional needs that must be met on a daily basis. Some, like Lorenzo, may have needs requiring extra care. Lorenzo suffers from adjustment disorder with mixed anxiety and depressed mood, insomnia disorder, and nighttime bed-wetting. He has been diagnosed with mild intellectual disability and learning disorders. The evidence showed that while in his Mother's care, Lorenzo had impairments in reading, written expression, and mathematics. He was not enrolled in school at the time he was removed from Mother's home. Lorenzo was so behind academically that he had to repeat first grade twice.

The majority accuses us of "fundamentally misstat[ing] evidence in the record" by presuming the caseworker's testimony was "correct regarding Lorenzo not being enrolled in school at the time of the removal, when, in fact, there is evidence in the Department's initial evaluation that Lorenzo was enrolled in a school." In engaging in the constitutional role of an appellate court, we do not engage in credibility determinations or weigh evidence or the lack of evidence in considering whether the evidence supports the trial court's findings. It is not a misstatement of evidence to presume that a witness's testimony is accurate.

In re J.F.C. , 96 S.W.3d 256, 266–67 (Tex. 2002).

The record reflects that at the time of removal the children were not in a safe stable home. Like Lorenzo, Melissa was experiencing adjustment disorder. She had been diagnosed with mood conduct and an unspecified communication disorder. The children's special needs make them more vulnerable and magnify the need for a safe environment.

A pattern of illegal drug use by the parent suggests that the parent is "not willing and able to provide the child with a safe environment—a primary consideration in determining the child's best interest." In re A.C. , 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.) ; see In re E.R.W. , 528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.) ("A parent's drug use supports a finding that termination is in the best interest of the child."). Mother's history of illegal drug use and her unwillingness to seek treatment is relevant to physical danger to the children. See Holley , 544 S.W.2d at 372 (listing current and future physical danger to child as factors relevant to best-interest determination); In re E.R.W. , 528 S.W.3d at 266 ("Mother's history of drug abuse bespeaks a course of conduct that the fact finder reasonably could conclude endangers [the child's] wellbeing."); see also Tex. Fam. Code Ann. § 263.307(b)(8) (considering whether children's family has history of substance abuse).

This is not a case where the parent has experienced positive drug tests but has expressed a desire to seek treatment for drug abuse. In this case Mother's story of drug use changed every time she was asked about it at trial. Mother admitted drug use at times but also denied it at times. Over the course of two years, knowing she must submit to drug testing and complete her service plan to obtain the return of her children, Mother continually failed to appear for scheduled drug screenings. Mother failed to visit her children after testing positive for illegal drugs in May 2018. Mother knew she could visit the children if she submitted to drug screening and tested negative, but Mother chose not to submit to drug testing while the termination case was pending. Mother chose to continue using drugs rather than to seek help for her drug use, fully understanding she risked losing her children if she made that choice.

Mother contends that she was "never given a ‘family service plan’, that none of the ‘family service plans’ were actually signed by her or show a date upon which they were given to her and none were in the Spanish language." Even accepting this statement as true, the record reflects that on December 11, 2017, over a year before the final order of termination, the trial court instructed Mother on the record:

[P]lease continue to be aware that in a case like this, if a parent doesn't successfully complete a family service plan, the consequences could include the State; lawyers for children; guardians for children coming back and asking the Court to consider continuing to restrict a parent's rights, that's happened in this case on a temporary basis, or in a proper case terminating a parent's rights.

The trial court asked Mother whether she understood its instruction and Mother replied, "yes." This evidence is clear and direct. There is no question that Mother understood exactly what she was supposed to do.

This evidence also weighs against Mother under the eighth, eleventh, and twelfth statutory factors, which consider whether Mother has a history of substance abuse, whether Mother is willing and able to effect positive environmental and personal changes within a reasonable period of time, and whether Mother demonstrates adequate parenting skills. Tex. Fam. Code Ann. § 263.307(8), (11), (12).

C. Acts or Omissions of the Parent that May Indicate the Existing Parent-Child Relationship is Not Appropriate Mother's inability to provide a safe home or enroll Lorenzo in school, especially given the child's learning disabilities and special needs, also supports the trial court's best-interest determination. See In re M.R. , 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) ; see also In re S.R. , 452 S.W.3d at 366 (the fact finder may infer from past conduct endangering the children's well-being that similar conduct will recur if the children are returned to the parent).

The record shows that Mother tested positive on several drug tests and failed to complete at least 16 scheduled drug screenings during the pendency of the underlying suit to terminate parental rights. Additionally, Mother did not take advantage of opportunities and services provided by the Department to treat her substance abuse. A court may consider whether a parent demonstrated willingness to effect positive environmental and personal changes within a reasonable amount of time. See Tex. Fam. Code Ann. § 263.307(b)(11). Mother failed to demonstrate such a willingness.

D. Parental Abilities of Those Seeking Custody, and Stability of the Home or Proposed Placement

The factors concerning the parental abilities of those seeking custody, and the stability of the home or proposed placement compare the Department's plans and proposed placement of the children with the plans and home of the parent seeking to avoid termination. See In re D.R.A. , 374 S.W.3d at 535.

Palmer testified that both children were in the same foster home with parents that were meeting their physical and emotional needs. The foster parents were willing to adopt both children and the children expressed desires to stay with the foster parents and be adopted by them.

On the other hand, the record contains no evidence suggesting that Mother would be able to provide a long-term safe and stable environment. Nor does the record show that Mother has an appreciation for the children's noted disorders and disabilities or that Mother understands how those conditions impact her children's growth and development. No evidence suggests Mother recognizes the importance of addressing her children's special needs or the consequences of not getting them the help they need. The record evidence does not show that Mother has met the children's special needs in the past, that Mother would be able to provide for the children's special needs in the future, or that Mother would take the necessary action to seek services to address the children's needs for treatment, therapy, and other support. See In re J.S. , No. 14-18-00709-CV, 2019 WL 438821, at *8 (Tex. App.—Houston [14th Dist.] Feb. 5, 2019, pet. denied) (mem. op.).

Mother's long-term and ongoing drug use and its effect on her ability to parent qualifies as an endangering course of conduct and supports a finding that termination of parental rights is in the best interest of the children. See In re Q.M. , No. 14-17-00018-CV, 2017 WL 1957746, at *11 (Tex. App.—Houston [14th Dist.] May 11, 2017, pet. denied) (mem. op.); In re A.C. , 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

E. Programs available to assist in promoting the children's best interest

In determining the best interest of the children in proceedings for termination of parental rights, the trial court properly may consider that the parent did not comply with the court-ordered service plan for reunification with the child. See In re E.C.R. , 402 S.W.3d 239, 249 (Tex. 2013). The majority finds legally and factually sufficient evidence to support the trial court's finding that Mother failed to comply with the court-ordered family service plan.

Mother acknowledged on the first day of trial that she had been provided a family service plan to obtain the return of her children. Mother further acknowledged that those requirements included abstaining from using illegal drugs. The record reflects that Mother understood the conditions of her family service plan. The record reflects, however, that Mother did not complete the services in her plan including remaining drug-free, maintaining significant contact with her children, and complying with recommendations from the substance-abuse assessment.

To be sure, Mother testified that she had a stable home and had lived there for several months. She presented evidence in the form of pictures of her apartment at the time of trial showing that there was enough room for the children. Mother obtained psychosocial and substance-abuse assessments and had regular employment. During one of the trial recesses, almost a year after trial began, Mother began attending drug treatment classes. The factfinder may conclude, however, that a parent's changes shortly before trial are too late to have an impact on the best-interest determination. See In re T.R.M. , No. 14-14-00773-CV, 2015 WL 1062171, at *9 (Tex. App.—Houston [14th Dist.] Mar. 10, 2015, no pet.) (mem. op.); In re Z.C. , 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied).

Mother repeatedly contradicted her own testimony about drug use. At one point she admitted using cocaine and marijuana. At another point she denied ever using marijuana and testified she took pills containing cocaine. Other than attend classes during trial Mother expressed little desire to seek treatment for illegal drug use. The evidence shows a pattern of Mother failing and refusing to seek treatment for her substance abuse. When faced with the choice of getting tested for drug use so that she could see her children or forfeiting visitation with them if she refused, Mother refused to be tested and opted to forgo seeing her children rather than take actions to address her substance abuse.

The trial judge observed the witnesses, including Mother and caseworker Palmer; we did not. We are not able to discern critical nonverbal factors that are essential to credibility determinations, but the trial judge did. It was both the trial judge's prerogative and the trial judge's duty to assess the credibility and demeanor of the witnesses, weigh all the evidence, and make the dispositive best-interest determination. "Sympathy for a parent's self-inflicted plight, however, is no basis for abandoning our duties as detached arbiters of whether there is sufficient evidence supporting a factfinder's determinations where the contrary evidence depends on credibility determinations—the factfinder's exclusive domain." In re C.V.L. , 591 S.W.3d 734, 765–66 (Tex. App.—Dallas 2019, no pet. h.) (Whitehill, J., dissenting). The evidence recited above is both legally and factually sufficient to support the trial court's best-interest finding.

CONCLUSION

The trial court heard evidence of Mother's conduct that led to the Department's intervention as well as evidence of Mother's failure and refusal to seek help for drug use or engage in services to aid in the return of her children. Because Mother continued to use illegal drugs after her children were removed and while this case was pending, high-court authority calls us to conclude the evidence is legally sufficient to support the trial court's finding of endangerment. See In re J.O.A. , 283 S.W.3d at 345. An appellate court cannot reweigh the evidence on appeal, nor can it substitute its judgment of the children's best interest for the considered judgment of the trial court that decided the matter. In overturning the trial court's best-interest determination, the majority violates both of these principles. The Legislature has safeguarded the parent's fundamental interest by limiting the circumstances in which the State's interest can overcome the parent's interest. See Tex. Fam. Code Ann. § 161.001. The Supreme Court of Texas further safeguarded the parent's interest by requiring courts of appeals to conduct an exacting review of the entire record when a parent challenges a termination order for insufficient evidence. See In re C.H. , 89 S.W.3d at 19. Based on the totality of the evidence, a reasonable fact finder could form a firm conviction or belief that termination of Mother's parental rights is in the children's best interest. Moreover, the evidence contrary to the trial court's finding that termination is in the best interest of the children is not so objectively overwhelming that the trial court could not reasonably decide that the Department met its burden of proof.

EN BANC DISSENTING OPINION

Kem Thompson Frost, Chief Justice, dissenting.

In deciding this case members of the en banc court reach different views of the facts and the law that inform today's judgment. But the en banc majority and dissenting opinions tell a larger story about the role of process in appellate decision-making and how failure to adhere to settled rules can skew appellate outcomes and compromise appellate justice.

The en banc majority violates the requirement that the court detail the evidence in its opinion and explain why it has concluded that the evidence is factually insufficient to support the best-interest-of-the-child findings.

Through the Texas Rules of Appellate Procedure and case law, the Supreme Court of Texas calls courts of appeals to show their work when they analyze whether the trial evidence is legally or factually sufficient to support a fact finding.¹ The high court "require[s] appellate courts to explain by written opinion their analyses and conclusions as to the issues necessary for final disposition of an appeal."² In keeping with this principle, the rules of appellate procedure require a court of appeals to write an opinion that advises the parties not only of the court's decision but also the basic reasons for that decision.³

After a bench trial, the trial court found that terminating Mother's parental rights would serve each of the children's best interest. On appeal, Mother argues that the trial evidence is legally and factually insufficient to support these findings. The en banc court concludes that the trial evidence is legally sufficient to support the best-interest findings but factually insufficient to support them.

In a factual-sufficiency review in a parental-rights-termination case, a court of appeals must give due consideration to evidence that the factfinder reasonably could have found to be clear and convincing. ⁴ The court of appeals must inquire as to "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." This means the reviewing court should consider whether the disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the finding. 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.

Id. (internal quotations omitted).

Id.

The law demands a heightened degree of specificity in explaining the reasons for the court of appeals's decision if the court concludes the evidence is factually insufficient to support a finding. If, as today, a reviewing court concludes the evidence is factually insufficient to support a parental-rights-termination finding, the court must detail the evidence in its opinion and explain why the court has concluded that a reasonable factfinder could not have credited the disputed evidence in favor of the finding. The en banc majority's treatment of the factual-sufficiency challenge contains no details, no explanations, and no analysis of the evidence. It is not a factual-sufficiency review; it is a factual-sufficiency conclusion.

See Windrum v. Kareh , 581 S.W.3d 761, 781–82 (Tex. 2019) ; Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761–62 (Tex. 2003) ; Pool v. Ford Motor Co. , 715 S.W.2d 629, 634–35 (Tex. 1986).

See Windrum , 581 S.W.3d at 781–82 ; In re J.F.C. , 96 S.W.3d at 266–67.

The legal standard for determining that the evidence is factually insufficient to support a finding presents a high hurdle, one seldom cleared in the best-interest-of-the-child context. The standard requires a thorough and particularized analysis of all the facts. Yet, the en banc majority denounces the factual sufficiency of the evidence without doing any of the following tasks crucial to the process:

See Windrum , 581 S.W.3d at 781–82 ; Golden Eagle Archery, Inc. , 116 S.W.3d at 761–62 ; In re J.F.C. , 96 S.W.3d at 266–67 ; Pool , 715 S.W.2d at 634–35.

See Windrum , 581 S.W.3d at 781–82 ; In re J.F.C. , 96 S.W.3d at 266–67.

• identifying the disputed evidence;

• explaining why the en banc majority has concluded that a reasonable factfinder could not have credited the disputed evidence in favor of the best-interest findings; and

• explaining why the en banc majority has concluded that the disputed evidence that a reasonable factfinder could not have credited in favor of the best-interest findings is so significant that a factfinder could not reasonably have formed a firm belief or conviction that termination of Mother's parental rights is in each of the children's best interest.

See In re J.F.C. , 96 S.W.3d at 266–67.

The en banc majority bypasses the process the law requires. The en banc majority's individual failures to identify, unpack, and analyze all the record evidence violates binding supreme-court precedent. And, those failures rob the parties, the trial court, and the public of the intended benefits of the appellate process.

See Windrum , 581 S.W.3d at 781–82 ; In re J.F.C. , 96 S.W.3d at 266–67 ; In re C.H. , 89 S.W.3d 17, 25–29 (Tex. 2002) ; Bocquet v. Herring , 972 S.W.2d 19, 21 (Tex. 1998).

Process matters.

Requiring courts to show their work by reducing their reasons to writing serves several functions. First, it operates as a check on the decision-makers’ analytical process and faithfulness to the record. It helps to ensure that they consider the evidence and conduct the sufficiency review in accordance with applicable legal standards so that their conclusions amount to more than judicial ipse dixit. The contemplated end product — a written opinion with reasons — undergirds a second purpose, which is to give the parties and the trial court the assurance of proper appellate review. In this way, a properly conducted sufficiency review provides that essential measure of transparency that is so vital to our rule-of-law system. When a court of appeals concludes that the trial evidence is factually insufficient to support a fact finding, the requirement that the court detail the evidence and explain its analysis allows the supreme court to review the opinion to make sure that the court of appeals applied the proper legal standard and that the court of appeals did not substitute its judgment on the facts for that of the factfinder.

See Windrum , 581 S.W.3d at 781 ; Pool , 715 S.W.2d at 635.

Appellate justice impacts more than the particular litigants in the case before the court. Because published appellate opinions become part of the law, giving detailed reasons in a sufficiency review serves a third function of developing the jurisprudence. When a reviewing court does not give reasons for its holding, neither the public, nor the bench, nor the bar has a basis for knowing what the law is or how it will be applied in the future. Giving reasons illumines the court's thinking, so that in keeping with stare decisis, others may apply the same rationale in like cases. Detailed analysis thus serves a fourth function of promoting uniformity and predictability in the law. By failing to show its work, the en banc court serves none of these important functions today.

In re Interest of L.C.L.

Summary

Opinion

EN BANC MAJORITY OPINION

BACKGROUND

STANDARD OF REVIEW

ANALYSIS

I. Endangerment Findings

II. Family Service Plan

III. Best Interest of the Children

IV. Constitutional Rights Violation

A. Right to Due Process and Due Course of Law

B. Right to Equal Protection

CONCLUSION

DISSENTING OPINION

BACKGROUND

Mother's Failure to Complete Psychosocial Assessments, Evaluator Recommendations, and Parenting Classes

Mother's Failure to Complete Substance-Abuse Services and Her Positive Test Results from Random Drug Screenings

Mother's Failure to Attend Permanency Conferences, Court Hearings, and Family Visits

Children's Diagnoses of Suspected Child Neglect, Disorders, and Impairments

Children's Foster-Care Placement

Children's Circumstances under Mother's Care

Mother's Failure to Maintain Contact with the Children

Mother's Ongoing Failure to Meet Service Plan Requirements

Mother's Ongoing Substance Abuse

ANALYSIS

I. Endangerment Finding

II. Family Service Plan

III. Best Interest of the Children

A. Desires of the Children

B. Present and Future Physical and Emotional Needs of the Children

D. Parental Abilities of Those Seeking Custody, and Stability of the Home or Proposed Placement

E. Programs available to assist in promoting the children's best interest

CONCLUSION

EN BANC DISSENTING OPINION

The en banc majority violates the requirement that the court detail the evidence in its opinion and explain why it has concluded that the evidence is factually insufficient to support the best-interest-of-the-child findings.

Process matters.

In re Interest of L.C.L.

In re Interest of L.C.L.

Case Details

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