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March 26, 2026 Get Citation Alerts Download PDF Add Note

In the Interest of M.L. and E.L., Children v. the State of Texas

Texas Court of Appeals, 11th District (Eastland)

• Citations: None known
• Docket Number: 11-25-00287-CV
• Nature of Suit: Termination of parental rights or conservatorship - accelerated

• Disposition: Affirmed/ Reversed & Remanded

• Opinion

• Authorities (31)

• Cited By (0)

• Summaries (0)

• Similar Cases (73K)

• PDF

Disposition

Affirmed/ Reversed & Remanded

Lead Opinion

Opinion filed March 26, 2026

In The

Eleventh Court of Appeals

No. 11-25-00287-CV

IN THE INTEREST OF M.L. AND E.L., CHILDREN

On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 11095-CX

MEMORANDUM OPINION
This is an accelerated appeal from the trial court’s order terminating the
parental rights of the mother and father of their children, M.L. and E.L. 1 See TEX.
FAM. CODE ANN. § 161.001(b) (West Supp. 2025). Only the mother appealed. In
five issues, Appellant challenges the sufficiency of the evidence to support the trial
court’s findings under Section 161.001(b)(1)(D), (E), (M), and (Q) 2 of the Texas

1
We use initials to refer to the children. See TEX. R. APP. P. 9.8(b).
2
We note that the legislature has amended Section 161.001(b)(1), which resulted in the renumbering
of several provisions. See Act of May 16, 2025, 89th Leg. R.S. ch. 211, § 2, 2025 Tex. Sess. Law Serv.
573, 574–75. The amendments only apply to suits affecting the parent-child relationship that are pending
on or after the effective date of the amendments; thus, we apply the law in effect at the time the suit was
pending below. Id. § 3.
Family Code, and that termination of her parental rights is in the children’s best
interest. See id. § 161.001(b)(1)(D), (E), (M), (Q), (b)(2). Appellant further
contends that the Department should have been estopped from seeking to terminate
her parental rights. We affirm in part, and we reverse and remand in part.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. FAM. § 161.001(b). To terminate one’s parental rights, it must be shown
by clear and convincing evidence that the parent has committed one of the acts listed
in Section 161.001(b)(1), and that termination is in the best interest of the children.
Id. 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 (West 2019).
In this case, the trial court found that clear and convincing evidence
established that Appellant:
(D) knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endangered the physical or emotional well-
being of the children;
(E) engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangered the physical or emotional well-being
of the children;
(M) had her parent-child relationship terminated with respect to another child
based on a finding that her conduct was in violation of subsections or
(E) one year or less before the Department of Family and Protective Services
(the Department) was granted managing conservatorship of the children; and
(Q) was the cause of the children being born addicted to alcohol or a controlled
substance, other than a controlled substance legally obtained by prescription.
See id. § 161.001(b)(1)(D), (E), (M), (Q), (d-1). The trial court further found that
termination of Appellant’s parental rights was in the children’s best interest. See id.
§ 161.001(b)(2).

2
In reviewing a legal sufficiency challenge, we must decide whether “a
reasonable trier of fact could have formed a firm belief or conviction that its finding
was true.” In re J.W., 645 S.W.3d 726, 741 (Tex. 2022). Cognizant of the required
appellate deference to the factfinder, “we look at all the evidence in the light most
favorable to the finding, assume that the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could do so, and disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible.” Id.
(internal quotation marks omitted). “However, we may not disregard ‘undisputed
facts that do not support the finding,’” and the factfinder is “the sole arbiter of the
witnesses’ credibility and demeanor.” Id. (first quoting In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002); and then quoting In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021)).
As such, when considering the credibility of the evidence presented, we may not
substitute our judgment for that of the factfinder. J.F.-G., 627 S.W.3d at 316.
In assessing whether the evidence is factually sufficient, we weigh the
disputed evidence that is contrary to the finding against all the evidence that favors
the finding. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). We give due deference
to the finding and determine whether, on the entire record, a factfinder could
reasonably form a firm belief or conviction about the truth of the allegations against
the parent. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002); In re L.C.C., 667 S.W.3d 510, 512 (Tex. App.—Eastland
2023, pet. denied).
With respect to the best interest of the children, no unique set of factors need
be proved. L.C.C., 667 S.W.3d at 513; In re C.J.O., 325 S.W.3d 261, 266 (Tex.
App.—Eastland 2010, pet. denied). Further, the best interest determination does not
restrict the proof to any specific factor or factors. In re J.S., 687 S.W.3d 541, 547
(Tex. App.—Eastland 2024, no pet.). However, courts may use the non-exhaustive
Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371–72
3
(Tex. 1976). These include, but are not limited to: (1) the desires of the children;
(2) the emotional and physical needs of the children now and in the future; (3) the
emotional and physical danger to the children 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 children; (6) the plans for the children
by these individuals or by the agency seeking custody; (7) the stability of the home
or proposed placement; (8) the acts or omissions of the parent that may indicate the
existing parent-child relationship is not a proper one; and (9) any excuse for the acts
or omissions of the parent. Id.
To support a best interest finding, the Department is not required to prove
each Holley factor; in some circumstances, evidence of the presence of only one
factor will suffice. C.H., 89 S.W.3d at 27; In re D.M., 452 S.W.3d 462, 473 (Tex.
App.—San Antonio 2014, no pet.). Additionally, the same evidence that proves one
or more statutory grounds for termination may also constitute sufficient, probative
evidence illustrating that termination is in the children’s best interest. C.H., 89
S.W.3d at 28; C.J.O., 325 S.W.3d at 266.
The absence of evidence of some Holley considerations does not preclude the
factfinder from reasonably inferring or forming a strong conviction or belief that
termination is in the children’s best interest, particularly if the evidence indicates
that the parent-child relationship and the parent’s conduct has endangered the safety
and well-being of the children. C.H., 89 S.W.3d at 27. This is so because the best
interest analysis evaluates the best interest of the children, not the parent. J.S., 687
S.W.3d at 548; In re E.C.R., 638 S.W.3d 755, 767 (Tex. App.—Amarillo 2021, pet.
denied) (citing In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no
pet.)).
In this regard, the factfinder may measure a parent’s future conduct by their
past conduct in determining whether termination of a parent’s parental rights is in
4
the children’s best interest. J.S., 687 S.W.3d at 548; In re Z.R.M., 665 S.W.3d 825,
829 (Tex. App.—San Antonio 2023, pet. denied); In re D.S., 333 S.W.3d 379, 384
(Tex. App.—Amarillo 2011, no pet.). The factfinder may infer that a parent’s past
conduct that endangered the safety and well-being of the children may recur in the
future if the children are returned to the possession of the parent. In re J.D., 436
S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.); May v. May, 829
S.W.2d 373, 377 (Tex. App.—Corpus Christi–Edinburg 1992, writ denied).
Additionally, the factfinder may infer from a parent’s past inability to meet the
children’s physical and emotional needs an inability or unwillingness by the parent
to meet the children’s physical and emotional needs in the future. J.D., 436 S.W.3d
at 118; see also In re A.S., No. 11-16-00293-CV, 2017 WL 1275614, at *3 (Tex.
App.—Eastland Mar. 31, 2017, no pet.) (mem. op.).
The Evidence Presented at Trial
The Department received a report in February 2023 that Appellant was
“getting high on ecstasy, cocaine, and methamphetamine” while caring for M.L.,
who was almost nine months old at that time. Department caseworker Marissa Black
spoke to Appellant, who admitted to recent cocaine use. The father was incarcerated.
Appellant submitted to a drug screen on February 9, 2023, and tested positive for
cocaine, opiates, and oxycodone.
Appellant began participating in family-based safety services (FBSS). 3 In
June 2023, while Appellant was pregnant with E.L., Appellant and M.L. tested
positive for cocaine. The Department was granted temporary managing

3
“Family-based safety services are protective services provided to a family whose children are not
in the conservatorship of the Department.” 40 TEX. ADMIN. CODE pt. 19 ch. 700 subch. G div. 2 § 710
(2021). The Department’s Child Protective Services Division provides family-based safety services to
families and children “to: (1) protect the children from abuse and neglect; (2) help the family reduce the
risk of future abuse or neglect; and (3) prevent the removal of the children from their home.” Id.
5
conservatorship of M.L. on June 26, 2023. Appellant gave birth to E.L. on July 10,
2023, and the Department was granted temporary managing conservatorship of E.L.
The Department created a family plan of service for Appellant that the trial
court modified, approved, and adopted as an order of the court in September 2023.
Appellant tested positive for cocaine in October 2023 and again in June 2024 while
she was pregnant with her third child, Z.F. She lived with Z.F.’s father, J.F., while
the case involving M.L. and E.L. was pending. Under a separate cause number, the
Department was granted temporary managing conservatorship of Z.F. after she was
born in July 2024.
Following Z.F.’s removal, Appellant participated in individual counseling and
followed the recommendations of her psychological assessment. She was also
prescribed medication to improve her mental health and address her anxiety. She
also completed an intensive outpatient substance abuse treatment program. Since
her positive drug test in June 2024, Appellant regularly submitted to drug screens
and tested negative for illegal substances.
Appellant was granted a transition to monitored return of the children in
February 2025 due to consistent negative drug tests and compliance with her service
plan. See FAM. § 263.403. However, after J.F. tested positive for marihuana
metabolite in May 2025, the Department moved to terminate the transition to
monitored return. Despite Appellant and the children testing negative for illegal
substances, J.F. moving out of Appellant’s home, Appellant leaving her employment
to be home with the children full time, and offering to have a family member move
in with her and the children, the trial court ended the monitored return. M.L. and
E.L. were placed with their paternal grandmother, M.G.
On May 30, one week after the hearing on the monitored return, the parties
convened for a pretrial hearing. The attorney for the Department informed
Appellant’s counsel and the trial court that “[e]xactly what [the] request is going to
6
be” at the upcoming final hearing “is still a little unclear . . . given all the recent
changes, but the Department . . . is not intending to seek termination.” However, on
June 9, Appellant’s and J.F.’s parental rights to Z.F. were terminated after a final
hearing.
The parties convened on July 1, 2025 for the final hearing regarding
Appellant’s and the father’s parental rights to M.L. and E.L. The father, who had
since been released from incarceration and re-arrested, was again incarcerated and
was not present for the final hearing. Prior to the presentation of evidence,
Appellant’s counsel moved for a continuance and informed the trial court:
The Department announced at pretrials that they would not be
seeking termination . . . and informed me this morning that that is not
the case. And while I understand and realize that their petition seeks
termination . . . my client had expectations based on announcements
that were made, and I don’t believe that [the Department] [is] engaging
in fair dealing.
The trial court denied the motion for continuance given the impending dismissal date
and the availability of counsel and witnesses, and the final hearing commenced.
Regarding the children’s best interest, Kristian Castro, the permanency case
manager, testified that termination would “give them permanency[,]” and that
“parental rights were also terminated for [Z.F.].” Although Appellant’s drug use
was the primary concern that led to the removal of each child, Castro agreed that
Appellant worked to achieve sobriety, and that there were no additional concerns
other than her current lack of income and inability to pay for housing.
M.G. testified that, based on her discussions with a Department supervisor,
she “was under the impression” that she would be appointed permanent managing
conservator until Appellant or the father could care for the children. It was not until
the day of the final hearing that she “learned that [the Department] [was] looking at
terminating” the parents’ rights to M.L. and E.L. M.G. expressed her willingness to
be a long-term placement for the children, who were doing great in her home.
7
At the conclusion of the hearing, the trial court discussed possible outcomes
with the attorneys. The attorney ad litem ultimately agreed that, based on M.G.’s
willingness to act as permanent managing conservator indefinitely, termination of
the parents’ parental rights may not be in the children’s best interest.
Notwithstanding, on September 25, 2025, the trial court issued its order terminating
Appellant’s parental rights to the children under Sections 161.001(b)(1)(D), (E),
(M), and (Q), and found termination to be in the children’s best interest. See FAM.
§ 161.001(b)(1)(D), (E), (M), (Q), (b)(2), (d-1). This appeal followed.
Section 161.001(b)(1)(D) and (E) – Endangerment
In her fifth issue, Appellant challenges the trial court’s findings that she
endangered her children. See id. § 161.001(b)(1)(D), (E). Because of our resolution
of Appellant’s first issue, we need only address the legal sufficiency challenge to the
trial court’s findings under Section 161.001(b)(1), which could potentially result in
a rendition rather than a remand. See J.F.C., 96 S.W.3d at 266; In re J.B., 11-22-
00305-CV, 2023 WL 3213089, at *5–6 (Tex. App.—Eastland May 3, 2023, no pet.)
(mem. op.).
The statutory endangerment grounds require clear and convincing proof that
the parent has: “(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of
the child,” or “(E) engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or emotional well-being of
the child.” FAM. § 161.001(b)(1)(D), (E); In re S.M.R., 434 S.W.3d 576, 585 (Tex.
2014). “[E]ndangerment encompasses a larger array of conduct that ‘expose[s a
child] to loss or injury’ or ‘jeopardize[s]’ the child.” In re R.R.A., 687 S.W.3d 269,
277 (Tex. 2024) (quoting Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987)). The term means “more than a threat of metaphysical injury or potential
ill effects of a less-than-ideal family environment,” In re E.N.C., 384 S.W.3d 796,
8
803 (Tex. 2012), but “does not require actual harm,” R.R.A., 687 S.W.3d at 277
(citing Boyd, 727 S.W.2d at 533).
To terminate a parent’s rights for endangerment under subsections (D) or (E),
the “parent’s endangering conduct need not ‘be directed at the child,’” nor must “the
child actually suffer[] injury.” R.R.A., 687 S.W.3d at 277 (quoting Boyd, 727
S.W.2d at 533); In re C.E., 687 S.W.3d 304, 310 (Tex. 2024). “[T]ermination under
subsection requires that the child’s environment is a source of endangerment,
and the parent’s conduct may create that dangerous environment.” C.E., 687 S.W.3d
at 310. “A parent’s drug use, violence, or other abuse may make the child’s
environment endangering to the child.” In re J.S., 675 S.W.3d 120, 128 (Tex.
App.—Dallas 2023, no pet.). “A parent acts ‘knowingly’ when the parent is aware
that the environment creates a potential danger to the child but the parent disregards
that risk.” Id. Because conditions or surroundings cannot endanger a child unless
the child is exposed thereto, the relevant time frame for evaluating subsection (D) is
before the child’s removal. J.W., 645 S.W.3d at 749.
Endangerment under subsection (E), in contrast, focuses on the parent’s
conduct, and whether the endangerment of the child’s well-being was the direct
result of the parent’s acts, omissions, or failures to act. In re J.S., 687 S.W.3d 541,
550 (Tex. App.—Eastland 2024, no pet.). Termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and
conscious course of conduct by the parent is required. Id.; In re D.T., 34 S.W.3d
625, 634 (Tex. App.—Fort Worth 2000, pet. denied). “A factfinder may infer
endangerment from ‘a course of conduct’ that presents substantial risks to the child’s
physical or emotional well-being.” R.R.A., 687 S.W.3d at 277. A parent’s actions
prior to and after the child’s removal may show an endangering course of conduct.
See J.S., 687 S.W.3d at 550 (“[E]ndangering conduct may include the parent’s
actions before the child’s birth and may relate to the parent’s actions while the parent
9
had possession of other children.”). “Even evidence of criminal conduct,
convictions, and imprisonment prior to the birth of a child will support a finding that
a parent engaged in a course of conduct that endangered the child’s well-being.” In
re A.J.M., 375 S.W.3d 599, 606 (Tex. App.—Fort Worth 2012, pet. denied);
Walker v. Tex. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608, 617 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied) (Illegal drug use and offenses that
occurred before the child’s birth may be considered as part of a course of conduct
that endangers a child.).
The evidence established that the Department’s involvement began due to
Appellant’s illegal drug use while caring for M.L., which continued during
Appellant’s pregnancies with E.L. and Z.F. The evidence likewise demonstrated
that the children tested positive for cocaine. “Drug use during pregnancy supports a
finding of direct injury to the child.” In re A.V., 697 S.W.3d 657, 659 (Tex. 2024).
And it is undisputed that “a parent’s decision to engage in illegal drug use during the
pendency of a termination suit, when the parent is at risk of losing a child, may
support a finding that the parent engaged in conduct that endangered the child’s
physical or emotional well-being.” J.S., 687 S.W.3d at 551 (quoting In re A.M., 495
S.W.3d 573, 580 (Tex. App.—Houston [1st Dist.] 2016, pet. denied)); see also In re
A.R.D., 694 S.W.3d 829, 840 (Tex. App.—Houston [14th Dist.] 2024, pet. denied)
(affirming endangerment finding based in part on the mother’s treatment of her other
children and history with the Department that “included neglect, drug abuse, and
criminal activity”).
Viewing the evidence in the light most favorable to the trial court’s finding
under subsection (E), we hold that a rational trier of fact could have formed a firm
belief or conviction that Appellant engaged in conduct that endangered the physical
or emotional well-being of the children. FAM. § 161.001(b)(1)(E); In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005). Accordingly, we overrule Appellant’s fifth issue to
10
the extent that it relates to the legal sufficiency of the evidence to support the trial
court’s finding under Section 161.001(b)(1)(E). Because only one statutory ground
is necessary to support termination, we need not address Appellant’s second and
fourth issues in which Appellant challenges the trial court’s termination findings
under subsections (D), (M), and (Q).4 See FAM. § 161.001(b)(1); In re N.G., 577
S.W.3d 230, 234–35 (Tex. 2019); see also TEX. R. APP. P. 47.1.
The Best Interest of the Children
In her first issue, Appellant challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination of her parental rights is
in the best interest of the children. “‘[B]est interest’ is a term of art encompassing a
much broader, facts-and-circumstances based evaluation that is accorded significant
discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013) (quoting Holley, 544
S.W.2d at 371–72). We reiterate that the trial court, as the trier of fact, is the sole
judge of the witnesses’ credibility. J.F.-G., 627 S.W.3d at 312. Generally, we are
not at liberty to disturb the determinations of the factfinder so long as those
determinations are not unreasonable. Id. at 311–12; J.P.B., 180 S.W.3d at 573.
Evidence of each Holley factor is not required to support a best interest
finding. In re S.R., 452 S.W.3d 351, 366 (Tex. App.—Houston [14th Dist.] 2014,
pet. denied); In re S.O., No. 05-22-01019-CV, 2023 WL 2237084, at *11 (Tex.
App.—Dallas Feb. 27, 2023, no pet.) (mem. op.). In other words, the absence of
evidence regarding some of these factors does not preclude a best interest finding,
“particularly if [the] undisputed evidence shows the parental relationship
endangered the child’s safety.” In re N.T., 474 S.W.3d 465, 477 (Tex. App.—Dallas

4
However, we not that the State concedes that there was no evidence presented that either child was
born addicted to alcohol or a controlled substance. See FAM. § 161.001(b)(1)(Q). Additionally, Appellant
timely appealed the order terminating her parental rights to Z.F., which is what the Department introduced
to support the finding under subsection (M). In December 2025, this court reversed the trial court’s
termination order in that case. See In re Z.F., No. 11-25-00187-CV, 2025 WL 3672304, at *1–5 (Tex.
App.—Eastland Dec. 18, 2025, Rule 53.7(f) motion granted) (mem. op.) (reversing termination order for
the trial court’s and Department’s failure to strictly adhere to the Indian Child Welfare Act).
11
2015, no pet.) (quoting In re A.E., No. 05-14-01340-CV, 2015 WL 1184179, at *6
(Tex. App.—Dallas Mar. 16, 2015, pet. denied) (mem. op.)). Consequently,
“evidence relating to one single factor may be adequate in a particular situation to
support a finding that termination is in the best interest[] of the child.” J.S., 687
S.W.3d at 552 (quoting In re K.S., 420 S.W.3d 852, 855 (Tex. App.—Texarkana
2014, no pet.)). Further, evidence that is relevant to Section 161.001(b)(1)
termination grounds may be probative of a child’s best interest determination. See
In re E.C.R., 402 S.W.3d 239, 249–50 (Tex. 2013) (citing C.H., 89 S.W.3d at 28).
It is undisputed that Appellant’s drug use endangered her children and,
considered in isolation, weighs in favor of termination. However, as established,
Appellant tested negative for the year prior to the final hearing and complied with
her service plan requirements such that the Department agreed to a monitored return.
Castro agreed that Appellant had worked to achieve sobriety, Appellant did not pose
a danger to the children, and there were no concerns about Appellant’s parental
abilities while the children were in her care during the monitored return. Even after
the monitored return ended, the Department intended to request the appointment of
M.G. as permanent managing conservator without terminating Appellant’s parental
rights. The only development between May, when the Department advised that it
did not intend to seek termination, and the final hearing in July was that Appellant’s
rights to Z.F. had been terminated.
Castro was the only witness to testify that terminating Appellant’s parental
rights was in the children’s best interest. She explained that termination would “give
them permanency” and “was in line with . . . receiving termination in [Z.F.’s] case.”
It is true that a parent’s history with the Department and treatment of other children
are relevant considerations. See R.R.A., 687 S.W.3d at 279; In re T.B., No. 09-20-
00172-CV, 2020 WL 6787523, at *8 (Tex. App.—Beaumont Nov. 19, 2020, no pet.)
(mem. op.) (“factfinder may consider prior CPS history of neglect, drug abuse, or
12
lack of care for the children”). But aside from Appellant’s endangering conduct that
led to the removal of her children, there was no additional evidence that the
termination of Appellant’s parental rights to Z.F. is favored in this case. The
Department’s case involving Z.F. began a year after E.L. was removed. Z.F. was
placed in an adoptive home whereas M.L. and E.L. lived with M.G., who was
prepared to care for the children without terminating Appellant’s and the father’s
parental rights. In that regard, Castro acknowledged that M.L. and E.L. would have
contact with Z.F. regardless of whether Appellant’s parental rights were terminated,
and Castro conceded that M.G.’s willingness to be the children’s permanent
managing conservator “is considered permanency.” Therefore, Castro’s testimony
that termination would give M.L. and E.L. “permanency” is conclusory and
unfounded. Such conclusory testimony does not amount to more than a scintilla of
evidence; in fact, “it is no evidence at all.” In re M.A.J., 612 S.W.3d 398, 410 (Tex.
App.—Houston [1st Dist.] 2020, pet. denied); In re A.H., 414 S.W.3d 802, 807 (Tex.
App.—San Antonio 2013, no pet.).
M.G. testified that, regardless of the Department’s recommendation, she
hoped that the parents can prove their ability to care for the children in the future.
She said that the children “belong in a safe environment with their parents.” Even
the attorney ad litem eventually agreed that “it is always in the realm of possibility”
that Appellant could demonstrate her ability to parent her children, and that M.G.’s
willingness to care for the children long-term supports retaining the parents’ rights
rather than terminating. Thus, we have found nothing in the record to indicate that
the termination of Appellant’s rights to Z.F. has any bearing on M.L.’s and E.L.’s
best interest. See In re B.R., 456 S.W.3d 612, 616–18 (Tex. App.—San Antonio
2015, no pet.) (conclusory testimony was insufficient evidence to support best
interest finding).

13
At the time of the final hearing, M.L. was three years old and E.L. was almost
two. When children are too young to express their desires, the factfinder may
consider whether the children have bonded with their caregivers, are well-cared for
by them, and whether the children have spent minimal time with a parent. In re
E.J.M., 673 S.W.3d 310, 334 (Tex. App.—San Antonio 2023, no pet.). There is no
evidence of the children’s desires, but they spent nights and weekends with
Appellant while they were transitioning to a monitored return for a few months prior
to the final hearing. As established, the sparse record permits the inference that
Appellant demonstrated her ability and willingness to prioritize her children’s well-
being and to provide them with a safe, drug-free home environment. For instance,
Appellant attempted to continue the monitored return after J.F.’s positive drug test
by leaving her employment and having J.F. move out of the home. Appellant was
still unemployed by July 2025 but was applying to jobs. She rescheduled parent-
child visitation for a job interview. Appellant also had transportation issues that
interfered with her visitation, but once those were resolved, she attended
most scheduled visits and engaged with her children. Just as “an uninterested parent
poses an emotional and physical danger to the child” now and in the future, In re
A.J.D.-J., 667 S.W.3d 813, 823 (Tex. App.—Houston [1st Dist.] 2023, no pet.),
evidence of a parent’s willingness and commitment to meet the child’s emotional
and physical needs now and in the future favors the preservation of the parent-child
relationship. See Holley, 544 S.W.2d at 371–72. Notably, Castro testified that aside
from Appellant’s lack of income and resulting inability to pay for housing, “there
would [not] be any” concerns. When asked whether the Department would still
recommend termination if Appellant could pay for her housing, Castro replied, “I’m
not sure.”
There was limited evidence regarding the children’s physical and emotional
well-being. Castro testified that M.L. has had difficulty adjusting in the past but has
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gone through services and is doing well. He “appear[ed] to be a little bit behind”
developmentally but was not receiving services at the time of the final hearing. E.L.
was not receiving services, was developmentally on track, and was also doing well.
Importantly, the children’s safety and well-being under M.G.’s care does not, by
itself, show that the children’s best interest is served by terminating Appellant’s
parental rights altogether. See In re T.S.W., No. 11-21-00231-CV, 2022 WL 969526,
at *4 (Tex. App.—Eastland Mar. 31, 2022, no pet.) (mem. op.). Here, the trial court
was presented with viable, realistic alternatives to terminating Appellant’s parental
rights. See In re J.J.R.S., 627 S.W.3d 211, 223 (Tex. 2021) (The Family Code “does
not require termination when a severe restriction or limitation on access can also be
in the best interest of the child while preserving the possibility that the parent and
child may continue to have a relationship in the future.”); see also In re W.C., 98
S.W.3d 753, 766 (Tex. App.—Fort Worth 2003, no pet.) (“Although [a parent’s]
behavior may reasonably suggest that a child would be better off with a new family,
the best interest standard does not permit termination merely because a child might
be better off living elsewhere.”). The stability of M.G.’s home when measured
against Appellant’s sustained period of sobriety and improvement in her ability to
adequately parent her children does not support the trial court’s best interest
determination.
The evidence viewed in the light most favorable to the trial court’s best
interest finding is legally sufficient to support the trial court’s determination that
termination of Appellant’s parental rights is in the children’s best interest. See J.W.,
645 S.W.3d at 741. However, we cannot conclude that the trial court’s determination
is supported by factually sufficient evidence. See M.A.J., 612 S.W.3d at 410.
Considering all the evidence as it relates to Appellant’s actions and inactions, the
absence of evidence indicating emotional and physical danger to the children now
and in the future, Appellant’s ability to meet the emotional and physical needs of the
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children now and in the future, and Appellant’s efforts and improved parental
abilities and stability, we hold that the evidence is insufficient to support the trial
court’s finding that termination of Appellant’s parental rights is in the children’s best
interest. See J.W., 645 S.W.3d at 741; Holley, 544 S.W.2d at 371–72; see also In re
T.M., No. 11-25-00273-CV, 2026 WL 770620, *8–9 (Tex. App.—Eastland Mar. 19,
2026, no pet. h.) (mem. op.) (holding, for the same or similar reasons, that
insufficient evidence existed to support the trial court’s best interest finding); J.B.,
2023 WL 3213089, at *5–6 (same); In re A.O., No. 11-22-00290-CV, 2023 WL
2799132, at *3–5 (Tex. App.—Eastland Apr. 6, 2023, pet. denied) (mem. op.)
(same); T.S.W., 2022 WL 969526, at *4–5 (same).
Accordingly, we sustain Appellant’s first issue.
Judicial Estoppel
Appellant contends in her third issue that the Department was judicially
estopped from seeking to terminate her parental rights to M.L. and E.L. based on a
previous representation that it did not intend to seek termination. “Judicial estoppel
precludes a party who successfully maintains a position in one proceeding from
afterwards adopting a clearly inconsistent position in another proceeding to obtain
an unfair advantage.” Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642,
643 (Tex. 2009). Judicial estoppel only applies “if the successful representation
arose in a different case or, at most, ‘in another phase’ of the same case.” George
Fleming and Fleming & Assoc., L.L.P. v. Wilson, 694 S.W.3d 186, 192 (Tex. 2024)
(quoting New Hampshire v. Maine, 532 U.S. 742, 750 (2001)). The doctrine of
judicial estoppel is not invoked where, as here, the contradictory positions are taken
in the same proceeding. See id. Accordingly, we overrule Appellant’s third issue.
This Court’s Ruling
We reverse the order of the trial court insofar as it terminated the parental
rights of Appellant to M.L. and E.L., and we remand this cause to the trial court for
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further proceedings consistent with this opinion.5 See TEX. R. APP. P. 44.1(b). We
affirm the order of the trial court in all other respects.
Any proceeding on remand must be commenced within 180 days of this
court’s mandate. TEX. R. APP. P. 28.4(c).

W. BRUCE WILLIAMS
JUSTICE

March 26, 2026
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

Our holdings do not alter or affect the trial court’s appointment of the Department as the children’s
5

managing conservator. See In re J.A.J., 243 S.W.3d 611, 615–17 (Tex. 2007).
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