Opinion issued December 18, 2018




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00393-CV
                            ———————————
                  IN THE INTEREST OF S. A. S., A CHILD



                    On Appeal from the 314th District Court
                            Harris County, Texas
                      Trial Court Case No. 2017-02192J


                          MEMORANDUM OPINION

      In this accelerated appeal, see TEX. R. APP. P. 28.1, 28.4; TEX. FAM. CODE

ANN. § 109.002(a–1), appellant, P.S. (“Father”) challenges the trial court’s decree

terminating his parental rights to his minor child, S.A.S. (“Sally”) and appointing

the Department of Family and Protective Services as Sally’s sole managing

conservator. In his first three issues, Father contends that the evidence is legally
and factually insufficient to support the trial court’s findings under Section

161.001 of the Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E),

(O), (b)(2). In his fourth issue, Father contends that the trial court abused its

discretion in appointing the Department as Sally’s sole managing conservator. We

affirm.

                                    Background

      A.P. (“Mother”) has three children: I.P. (“Ian”), Sally, and M.S. (“Mitzi”).

Ian is not Father’s son, but Sally and Mitzi are Father’s daughters. Although Sally

is the subject of this suit, to provide context, we begin by discussing Ian.

      Ian was born in July 2007. Between 2010 and 2015, the Department

received at least five referrals concerning Ian. In June 2010, the Department

received a referral alleging that two-year-old Ian had been sexually abused by an

unknown predator. The Department ruled out the allegation. In February 2013,

when Ian was five years old, the Department received another referral alleging

sexual abuse by an unknown alleged predator. The Department was unable to

determine the allegation. In November 2013, the Department received a referral

alleging that Mother had physically abused six-year-old Ian. The Department was

unable to determine the allegation. In January 2015, the Department received a

referral alleging that Mother had medically neglected Ian. The Department found

that there was reason to believe the allegation. And, in November 2015, the


                                           2
Department received a referral alleging that Mother had physically abused Ian.1

The Department found that there was reason to believe this allegation as well.

      The Department further investigated the referrals received in 2015 and

eventually filed a petition to terminate Mother’s parental rights to Ian. The trial

court appointed the Department as Ian’s temporary managing conservator, and Ian

was placed in foster care. The trial court then signed an order approving and

requiring Mother to follow a family service plan prepared for her by the

Department. Mother did not comply with the terms of the plan. In the following

months, Mother tested positive for methamphetamine and marijuana, and she

failed to participate in court-ordered services.

      During the pendency of Ian’s case, in late November 2016, Mother gave

birth to Sally. About six weeks later, in January 2017, the Department received a

referral accusing Mother of neglectful supervision. After conducting a preliminary

investigation, the Department filed a petition to terminate Mother’s and Father’s

parental rights to Sally and requested that it be appointed Sally’s temporary

managing conservator. In an affidavit, the Department’s investigator stated that a

temporary conservatorship was necessary because Mother had endangered her first

child, Ian. Mother had an extensive history of drug use, which included the use of

1
      Specifically, the referral alleged that Mother had appeared disoriented and under
      the influence of unknown substances while providing care for Ian and that Ian had
      been exposed to domestic violence involving weapons.

                                           3
methamphetamine and marijuana. Mother’s hair had tested positive for marijuana a

month after Sally’s birth, which proved that Mother had used drugs while pregnant

with Sally. And, Mother had failed to submit to drug testing or complete other

services in her other case involving Ian.

          On April 20, 2017, the trial court signed an emergency order, which

appointed the Department temporary managing conservator of Sally. At the time,

Father was living in Florida. When Father learned what had happened, he returned

to Texas and moved in with Mother.

          On June 8, 2017, the trial court signed an order that suspended visitation

because Mother and Father had tested positive for marijuana. The order also

approved and required Mother and Father to follow the family service plans

prepared for them by the Department.

          Among other things, Father’s family service plan required him to undergo a

psychological evaluation and follow all recommendations; undergo a substance

abuse assessment and follow all recommendations; maintain contact with the

caseworker; participate in parenting classes; and submit to random drug tests, with

the understanding that failure to do so would be treated as an automatic positive

result.

          The plan included the statutorily-required admonishment that failure to

comply could result in the termination of Father’s parental rights. See TEX. FAM.


                                            4
CODE ANN. § 263.102(b). Father signed the plan, and the trial court found that

Father had reviewed it and understood its terms.

      On July 27, 2017, the trial court in Ian’s case signed a decree that terminated

Mother’s parental rights. The trial court found that termination was in Ian’s best

interest and justified on grounds of endangerment, abandonment, and violation of

court orders.

      In December 2017, when Sally’s case was still pending, Mother gave birth

to another girl, Mitzi.

      In April 2018, Sally’s case was tried to the bench. At the time of trial, Sally

was 16 months old and living with foster parents who intended to adopt her. Mitzi

was still living with Mother and Father.

      The Department presented a number of exhibits, including the results of

Mother’s and Father’s drug tests and Father’s psychological evaluation. The

Department also presented testimony from a number of witnesses, including the

caseworker, a court-appointed investigator, and a child advocates volunteer.

      The Department’s evidence established that, in the 10 months that followed

the trial court’s order suspending visitation and approving the family service plans

in Sally’s case, Mother and Father consistently failed (or failed to appear for)

random drug tests, and, as a result, never regained visitation. The evidence further

established that Father failed to comply with other provisions of his family service


                                           5
plan. Specifically, Father failed to take parenting classes, despite being afforded

three opportunities to do so. Father did not complete a substance abuse assessment

on time, and once he did undergo an assessment, he failed to attended NA

meetings as recommended. He failed to maintain contact with his caseworker, who

testified that Father often appeared to be deliberately ignoring her. Finally, the

Department’s evidence established that Sally was thriving in her foster-to-adopt

placement.

      After the hearing, the trial court terminated Mother’s and Father’s parental

rights to Sally. In its termination decree, the trial court found that termination of

Mother’s parental rights was in Sally’s best interest and justified on grounds of

endangerment. The trial court found that termination of Father’s parental rights

was in Sally’s best interest and justified on grounds of endangerment and failure to

comply with court orders. The trial court appointed the Department as Sally’s sole

managing conservator. Father appeals.2

                              Sufficiency of Evidence

      In his first three issues, Father contends that the evidence is legally and

factually insufficient to support the trial court’s findings that (1) termination was

justified on grounds of endangerment, (2) termination was justified on grounds of

failure to comply with court orders, and (3) termination was in Sally’s best interest.


2
      Mother has not filed an appeal.
                                          6
A.    Applicable law and standard of review

      Under Section 161.001 of the Family Code, the Department may petition a

trial court to terminate a parent-child relationship. The trial court may grant the

petition if the Department proves, by clear and convincing evidence, that (1) the

parent committed one or more of the enumerated acts or omissions justifying

termination and (2) termination is in the child’s best interest. TEX. FAM. CODE

ANN. § 161.001(b). Clear and convincing evidence is “the measure or degree of

proof that will produce in the mind of the trier of fact a firm belief or conviction as

to the truth of the allegations sought to be established.” Id. § 101.007; see also In

re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).

      Section 161.001 lists 21 acts and omissions justifying termination of the

parent-child relationship. TEX. FAM. CODE ANN. § 161.001(b)(1). “Only one

predicate finding under section 161.001(b)(1) is necessary to support a judgment of

termination when there is also a finding that termination is in the child’s best

interest.” In re A.M., 495 S.W.3d 573, 579 (Tex. App.—Houston [1st Dist.] 2016,

pet. denied) (internal quotations omitted) (quoting In re A.V., 113 S.W.3d 355, 362

(Tex. 2003)).

      In determining whether termination is in the child’s best interest, courts

consider the nine nonexclusive factors listed by the Texas Supreme Court in Holley

v. Adams: (1) the desires of the child, (2) the emotional and physical needs of the


                                          7
child now and in the future, (3) the emotional and physical danger to the child now

and in the future, (4) the parental abilities of the individuals seeking

custody, (5) the programs available to assist these individuals to promote the best

interest of the child, (6) the plans for the child by these individuals or by the

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

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

child relationship is not a proper one, and (9) any excuse for the parent’s acts or

omissions. 544 S.W.2d 367, 372 (Tex. 1976).

      Further, “the same evidence of acts or omissions used to establish grounds

for termination under section 161.001(1) may be probative in determining the best

interests of the child.” In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st

Dist.] 2003, no pet.).

      In a legal-sufficiency review in a parental-rights-termination case, we 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.F.C., 96 S.W.3d at 266. We assume that the factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder could do so,

disregarding all evidence that a reasonable factfinder could have disbelieved or

found incredible. Id.

      In a factual-sufficiency review in a parental-rights-termination case, we


                                          8
determine whether the evidence is such that a factfinder could reasonably form a

firm belief or conviction about the truth of the Department’s allegations. In re

C.H., 89 S.W.3d 17, 25 (Tex. 2002). By focusing on whether a reasonable

factfinder could form a firm conviction or belief, the appellate court maintains the

required deference for the factfinder’s role. Id. at 26. “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. We should consider whether

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

disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “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.

B.     Failure to comply with court order

       We begin by considering Father’s second issue, in which he contends that

there is legally and factually insufficient evidence to support the trial court’s

finding that termination was justified under Section 161.001(b)(1)(O). TEX. FAM.

CODE ANN. § 161.001(b)(1)(O). Termination is justified under subsection (O) if the

trial court finds that 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

                                          9
      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.

      Father’s family service plan was “a court order that specifically established

the actions necessary for [Father] to obtain [Sally’s] return.” See id. The evidence

presented at the termination hearing shows that Father failed to comply with a

number of the plan’s provisions.

      Parenting classes. Father failed to complete parenting classes. Father’s

family service plan required him to complete parenting classes, provide a

certificate of completion to his caseworker, and then demonstrate the skills he

learned at visitations with Sally. The plan required that Father begin parenting

classes by August 1, 2017. The caseworker testified that Father did not complete or

even register for parenting classes, even though he was afforded at least three

opportunities to do so. The caseworker explained that, during the pendency of the

suit, Father received notifications of the dates and times of three different parenting

classes, but Father never signed up for any of the classes.

      At the termination hearing, Father testified that he never registered for

parenting classes because the classes would have caused him to miss too much




                                          10
work and possibly lose his job.3 However, Father also testified that he only worked

part-time. And he failed to present evidence that the schedules for any of the

parenting classes conflicted with his schedule for work.

      Psychological evaluation. Although Father completed a psychological

evaluation, he did not “participate fully” in the evaluation, as required by his

family service plan. In her report, the psychologist stated that Father “was

extremely resistant to the evaluation process.” She described him as “combative,”

“defensive,” and “noncompliant.” She therefore concluded that her diagnosis might

not have been a “true reflection of [Father’s] emotional functioning” and explained

that her diagnosis might have “changed had [Father] been more forthcoming.”

      Further, Father failed to follow the psychologist’s recommendations. Among

other things, the psychologist recommended that Father complete parenting

classes, participate in individual therapy to address Father’s difficulty with

interpersonal relationships, and submit to random drug testing. Father did not

follow any of these recommendations.

      Substance abuse assessment. Father did not complete a substance abuse

assessment on time and did not follow all of the provider’s recommendations.

Father’s family service plan required that he attend, participate in, and successfully

3
      In his brief, Father contends that he completed parenting classes. But as evidence,
      Father cites to a certificate of completion for a substance abuse treatment program,
      not parenting classes. Thus, Father’s contention is unfounded.

                                           11
complete a substance abuse assessment by July 1, 2017. The plan further required

that he follow all the provider’s recommendations. The plan specifically referred

him to Denise Bradley. Father did not complete a substance abuse assessment with

Bradley. Bradley scheduled several appointments with Father, but Father never

appeared for any of them and never actually met Bradley in person. On August 17,

2017, Bradley terminated services due to Father’s lack of attendance.

      After Bradley terminated services, the Department referred Father to another

provider, the Wellness Center. Father completed a substance abuse assessment

with the Wellness Center on November 15, 2017. The assessment diagnosed Father

with marijuana use disorder. It recommended that Father complete individual and

group outpatient substance abuse therapy. It also recommended that Father attend

in NA meetings. Two weeks before the termination hearing, Father completed

group outpatient therapy. However, he never began attending NA meetings.

      Random drug testing. Father failed to submit to random drug testing and to

remain drug free. Father’s family service plan required that he “maintain a drug-

free lifestyle” and that he complete random drug tests within 24 hours of

notification.

      Throughout the pendency of the suit, Father was notified that he had to

complete random testing on 11 separate occasions. Father appeared for testing four

times. And each time, he tested positive for marijuana, marijuana metabolites, or


                                        12
synthetic marijuana. Specifically, on May 1, 2017, Father’s hair and urine tested

positive for marijuana metabolites; on September 14, 2017, Father’s hair tested

positive for marijuana and marijuana metabolites, and his urine tested positive for

marijuana and synthetic cannabinoids; on December 7, 2017, Father’s hair tested

positive for marijuana metabolites; and on January 9, 2018, Father’s hair tested

positive for marijuana and marijuana metabolites. Father did not appear for testing

and was thus presumed to have tested positive on April 20, 2017; May 27, 2017;

May 31, 2017; June 8, 2017; June 30, 2017; July 28, 2017; and October 26, 2017.

      In his brief, Father admits that he “consistently test[ed] positive for

marijuana during the case.” He further admits that “he no-showed for testing on

more than one occasion.”

      At the termination hearing, Father initially testified that he missed so many

drug tests because he was out of town and the caseworker could not reach him.

But, he later admitted that the caseworker had his contact information. And, the

caseworker, in turn, testified that Father had “a pattern of not responding

throughout this case.” As an example, the caseworker testified that, in October

2017, she notified Father via text message that he had to submit to random drug

testing, and Father responded that he could not make it because he was working in

Austin. The caseworker then asked Father where he was specifically so she could

find him a nearby Austin provider, but Father stopped responding to her texts.


                                        13
      Maintain contact. Father failed to maintain contact with his caseworker.

Father’s family service plan required Father to maintain biweekly contact with the

caseworker by leaving messages on her cell phone or office phone. The caseworker

testified that he did not maintain biweekly contact throughout the entire case:

“Some months he did, some months he didn’t.”

      Father argues that the evidence is insufficient because he completed some of

his family service plan.4 We disagree. “The Family Code does not provide for

substantial compliance with a family services plan.” In re M.C.G., 329 S.W.3d

674, 675 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); see In re J.M.T.,

519 S.W.3d 258, 267 (Tex. App.—Houston [1st Dist.] 2017, pet. denied)

(“[S]ubstantial or partial compliance with a court-ordered family service plan is

insufficient to avoid termination.”). And even if it did, Father did not substantially

complete his family service plan; he failed to comply with significant and material

provisions.

      We hold that there is legally and factually sufficient evidence to support the

trial court’s finding that termination was justified under subsection (O). Therefore,

we overrule Father’s second issue. Father’s first issue challenges the sufficiency of

the evidence for the alternative predicate findings—that termination was justified

on grounds of endangerment under subsections (D) and (E). See TEX. FAM. CODE

4
      Father does not contend that Section 161.001(d) applies. See TEX. FAM. CODE
      ANN. § 161.001(d).
                                         14
ANN. § 161.001(b)(1)(D), (E). However, because we have found that the evidence

is both legally and factually sufficient to support the predicate finding of failure to

comply with a court order, we need not address the father’s first issue. See In re

A.M., 495 S.W.3d at 580.

C.    Sufficiency of best-interest finding

      In his third issue, Father contends that the evidence is legally and factually

insufficient to support the trial court’s finding that termination of his parental

rights was in Sally’s best interest. We consider the evidence supporting each of the

nine non-exhaustive Holley factors.

      First factor: Sally’s desires. Sally was 16 months old at the time of trial.

Because of her age, she could not testify, and there is no direct evidence of her

desires. There is, however, indirect evidence that Sally would have desired to stay

with her foster parents. Sally never knew Father, and, by the time of trial, was no

longer familiar with Mother. Due to the Parents’ positive drug tests, the trial court

suspended their visits with Sally toward the beginning of termination suit, on June

8, 2017. The Parents never tested negative and therefore never regained visitation.

Thus, the last time Sally saw the Parents was when she was six months old. The

child advocate testified that Sally had bonded with her foster parents. She further

testified that Sally’s foster parents loved Sally and intended to adopt her. Father

admits that he “missed the opportunity to bond” with Sally “during the pendency


                                          15
of the case” and that Sally is “presumed bonded to her foster parents.” From this

evidence, a reasonable factfinder could conclude that Sally desired to remain with

her foster parents.

      Second factor: Sally’s present and future emotional and physical needs.

Father recognizes that Sally “is doing well in her foster-to-adopt placement.” But,

he contends that Sally would do “just as well” with the Parents, as evidenced by

the adequate care they were providing their newborn, Mitzi, at the time of trial. In

her report, the Department investigator wrote that Sally appeared healthy and clean

during her initial visit with Mother (when Father was still in Florida). And, the

caseworker testified that she had no concerns about Mitzi and that the Parents

appeared to be providing her adequate care.

      However, other evidence shows that, while the Parents were capable of

satisfying Sally’s present and future emotional and physical needs, it was unlikely

that they actually would. The Parents continued to use marijuana and synthetic

marijuana throughout the pendency of the termination suit, fully aware that doing

so would result in the termination of their parental rights to Sally. Throughout the

case, Father consistently failed (or failed to appear for) his drug tests, and the

caseworker provided testimony suggesting that on at least one occasion Father

deliberately ignored her when she notified him that he needed to submit to drug

testing. After his substance abuse assessment, Father was diagnosed with


                                        16
marijuana use disorder. As treatment, the provider recommended that he attend NA

meetings, but Father failed to do so, even though it was a requirement of his family

service plan. Mother, for her part, had a long history of drug abuse, including the

abuse of not only marijuana, but methamphetamine. Like Father, she tested

positive for marijuana and related substances throughout the entire case.

      At the termination hearing, Father testified that he stopped smoking

marijuana shortly after the Department was appointed Sally’s conservator, and he

denied ever having tried synthetic marijuana. Father’s testimony contradicted the

results of his drug tests, indicating that Father’s testimony was false.

      The Parents’ failure to remain drug free and complete their family service

plans raises concerns about their ability to satisfy Sally’s present and future needs,

as does Father’s avoidance of the caseworker and false testimony. From this

evidence, a reasonable factfinder could conclude that the Parents lack the

discipline and self-control necessary to provide Sally with adequate care on a

sustained basis.

      Third and eighth factors: the present and future emotional and physical

danger to Sally and acts or omissions indicating improper parent-child

relationship. As discussed, both Parents tested positive for drugs throughout the

entire case. The trial court appointed the Department as Sally’s conservator in part

because Mother had tested positive for drugs. Then, the trial court suspended


                                          17
visitation because Mother and Father tested positive for drugs. And, Mother and

Father never regained visitation because they continued to test positive for drugs.

Father was not honest about his drug use, and he did not attend NA meetings,

which was a requirement of his family service plan. From this evidence, a

reasonable factfinder could conclude that Mother and Father are either unwilling or

unable to stop using drugs, indicating that they would pose a danger to Sally’s

emotional and physical well-being if Sally were returned to them.

      Further, in determining the best interest of a child, a factfinder may consider

evidence of a parent’s past behavior that endangered the well-being of the child

and infer that the conduct may recur in the future if the child is returned to the

parent. See, e.g., Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.—Houston

[1st Dist.] 2010, pet. denied). The evidence shows that Mother has a long history

of drug abuse and CPS referrals and that she lost custody of her oldest child, Ian,

because she was unable to stop using drugs and failed to complete (or even attempt

to complete) her court-ordered services. The evidence further shows that Mother

used drugs while pregnant with Sally and Mitzi and that Father lived with Mother

during the latter pregnancy. Father emphasizes that he has no criminal record and

had not been involved with CPS before the instant suit. Even so, a reasonable

factfinder could infer that Sally would be subjected to endangering conduct in the




                                         18
future if she were returned to Father by virtue of his continuing relationship with

Mother.

      In contrast, Sally’s foster parents, as Father concedes, were providing her

with a safe, stable, and nurturing environment. Sally had bonded with them. And,

as of the termination hearing, Sally had lived with them longer than she had lived

with Mother. From the record, it appears that Sally has only met Father once,

during the Parents’ first (and only) visitation in this case.

      Fourth factor: the parental abilities of the individuals seeking custody.

Mother and Father appeared to be adequately caring for Mitzi, which is evidence

that they could adequately care for Sally as well. However, Father did not complete

(or even register for) parenting classes. And, even if he had completed the classes,

he would not have been able to demonstrate what he learned, as the trial court

suspended and never reinstated visitation due to his continued drug use.

      In contrast, it was undisputed that Sally’s foster parents provided a loving,

stable, and safe environment for her. They successfully completed the training,

study, and other requirements necessary to become licensed foster parents. See,

e.g., TEX. FAM. CODE ANN. § 101.017 (defining “licensed child placing agency”);

TEX. HUM. RES. CODE ANN. §§ 42.001 et seq. (licensing scheme for facilities,

homes and agencies that provide child-care services). The caseworker testified that

the foster parents were meeting Sally’s need and that she had no concerns with the


                                           19
placement. The court-appointed investigator testified that Sally’s foster parents

were loving, nurturing, and engaging. The child advocate recommended that Sally

remain with her foster parents.

      Fifth factor: the programs available to assist these individuals to

promote the best interest of the child. In his brief, Father states: “Presumably,

the parents would be given a modified [family service plan] upon restoration of

their parental rights.” He does not identify the programs that would be offered

under such a plan. Nor does he claim that he would actually participate in such

programs. From Father’s past behavior, a reasonable factfinder could infer that

Father would not avail himself of the programs made available to him.

      In contrast, Sally’s foster parents were licensed, which meant they had

completed various training and study requirements. If adopted, Sally will likely

enjoy additional benefits provided by the State for the assistance of adopted

children. See, e.g., TEX. FAM. CODE ANN. §§ 162.304 (adoption financial assistance

program), .306 (permitting post-adoption services to adoptees and adoptive

families), .603 (requiring child-placing agency to provide adoptive parents

information about community resources and services).

      Sixth and seventh factors: the plans for the child by these individuals or

by the agency seeking custody and the stability of the home or proposed

placement. The evidence shows that the Parents were raising Mitzi in a one-


                                       20
bedroom apartment. Father testified that if Sally were returned to him, he would be

able to buy or lease a larger residence. Father testified that he wanted his children

to go to college and “have everything.”

      The evidence shows that Sally’s foster parents were providing her excellent

care and planned to adopt her. The caseworker, court-appointed investigator, and

child advocate testified that the foster parents provided a safe, stable, and nurturing

environment. In his brief, Father recognizes that Sally’s “foster-to-adopt placement

reportedly is safe, stable, protective and meeting all of [Sally]’s needs.” With her

foster parents, Sally was “happy and healthy.” Sally had visibly bonded with her

foster parents; she became excited whenever she saw them. The foster parents sent

Sally to a special daycare where she was learning English, Spanish, and sign

language.5

      From this evidence, a reasonable factfinder could conclude that, while Sally

would receive love in either home, she would have more permanence and stability

with her foster parents.

      Considering the Holley factors and reviewing all of the evidence in the light

most favorable to the trial court’s finding, we conclude that a reasonable trier of

fact could have formed a firm belief or conviction that termination of Father’s

parental rights was in the best interest of Sally. Moreover, none of the disputed


5
      The record does not indicate whether Sally is hearing impaired.
                                          21
evidence was so significant that the factfinder could not have formed such a firm

belief or conviction. We therefore conclude that the evidence was both legally and

factually sufficient to support termination of Father’s parental rights to Sally. We

overruled Father’s third issue.

                         Sole Managing Conservatorship

      In his fourth issue, Father contends that the trial court abused its discretion

in appointing the Department sole managing conservator of Sally.

      A managing conservator is authorized to determine the child’s primary

residence. See Phillips v. Beaber, 995 S.W.2d 655, 660 (Tex. 1999); In re

C.A.M.M., 243 S.W.3d 211, 215 n.7 (Tex. App.—Houston [14th Dist.] 2007, pet.

denied); see also TEX. FAM. CODE ANN. § 153.132 (listing “rights and duties” of

parent appointed sole managing conservator), § 153.371 (listing “rights and duties”

of non-parent appointed as sole managing conservator). The managing conservator

has nearly sole authority to make decisions for the child. See TEX. FAM. CODE

ANN. §§ 153.132, 153.371; see also In re R.L., No. 01-16-00851-CV, 2017 WL

1496955, at *13 (Tex. App.—Houston [1st Dist.] Apr. 21, 2017, no pet.) (mem.

op.); In re N.L.D., 412 S.W.3d 810, 816 (Tex. App.—Texarkana 2013, no pet.)

(“Conservatorship of a child includes the day-to-day management of the child.”).

      The termination of parental rights and the appointment of a non-parent as

sole managing conservator are two distinct issues, requiring different elements,


                                         22
different standards of proof, and different standards of review. Compare TEX. FAM.

CODE ANN. § 161.001 with id. § 153.131(a); see In re J.A.J., 243 S.W.3d 611, 615–

17 (Tex. 2007); Earvin v. Dep’t of Family & Protective Servs., 229 S.W.3d 345,

351 (Tex. App.—Houston [1st Dist.] 2007, no pet.). The primary consideration in

conservatorship determinations should always be the child’s “best interest.” TEX.

FAM. CODE ANN. § 153.002; In re A.C., 394 S.W.3d 633, 644 (Tex. App.—

Houston [1st Dist.] 2012, no pet.). Under Section 153.131, a trial court may

appoint a non-parent, such as the Department, as sole managing conservator if it

“finds that appointment of the parent or parents would not be in the best interest of

the child because the appointment would significantly impair the child’s physical

health or emotional development.” TEX. FAM. CODE ANN. § 153.131(a). In

determining the child’s best interest for the appointment of a managing

conservator, the court must consider both the Section 263.307 factors and the

Holley factors described above. In re A.C., 394 S.W.3d at 644; see TEX. FAM.

CODE ANN. § 263.307(b) (listing 13 factors).

      We have already held that legally and factually sufficient evidence supports

the trial court’s findings that termination was in Sally’s best interest. It follows that

the trial court’s finding that appointment of Mother and Father as conservator

would not be in Sally’s best interest is also supported by legally and factually

sufficient evidence. We hold that the trial court did not abuse its discretion in


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appointing the Department sole managing conservator of Sally. Therefore, we

overrule Father’s fourth issue.

                                   Conclusion

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Brown and Caughey.




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