E. L. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-26-00445-CV E. L., Appellant v. Texas Department of Family and Protective Services, Appellee FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY NO. DCFL-24-310 THE HONORABLE THOMAS NATHANIEL STUCKEY, JUDGE PRESIDING MEMORANDUM OPINION The trial court terminated E.L.’s (Esperanza) parental rights to K.E. (Kendra), Z.M. (Zander), and S.M. (Sophie).1 By three issues, Esperanza contends that the trial court erred by terminating her rights because the evidence was insufficient to establish: (1–2) termination was appropriate under (D) and (E) grounds; and (3) termination was in the children’s best interests. We affirm. 1 To protect the children’s privacy, we refer to them and their caregivers by pseudonyms. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8(b), cmt.  I. BACKGROUND The Department of Family and Protective Services filed a petition to terminate Esperanza’s parental rights on October 14, 2024. On March 31, 2026, a bench trial commenced.2 Hailey Nidey, a Department caseworker, testified that this case initially began as a family-based safety services case in 2024. The Department’s concerns at the time were based on reports that Kendra “was having outbursts towards staff members and towards other children” at her school and that Sophie had been born testing positive for marijuana. In May 2024, Esperanza submitted to a drug test, which yielded a positive result for marijuana and methamphetamine. When Nidey informed Esperanza of this positive result and suggested that Esperanza submit to a drug and alcohol assessment, Esperanza “was very upset” and “stated that [Nidey] better get out of her face before she lights me up and that she will lay hands on me.” Nidey explained that the Department implemented a safety plan to address the positive drug test results. Another individual came to live with Esperanza for two months to monitor her behavior. Nidey explained that in July 2024, Esperanza again tested positive for marijuana but not for any other drugs. The safety plan was lifted at that point. Later that same month, Esperanza again tested positive for marijuana and methamphetamine. When confronted with the results of this second July drug test, Esperanza denied using methamphetamine. The Department implemented another safety plan, and this time two individuals, including Esperanza’s sister, began living with and monitoring Esperanza’s behavior. In September, the Department lifted the safety plan after Esperanza did not agree to 2 On September 30, 2025, the trial court signed an order retaining the case on its docket. See Tex. Fam. Code § 263.401(b). 2 extend it. However, Nidey testified that on October 9, 2024, Esperanza tested positive for marijuana, methamphetamine, and cocaine. She further testified that after Nidey informed Esperanza of this result, Esperanza “stated that if [Nidey] pull[ed] up [she] would get shot, so please don’t pull up. She also stated to Google David Koresh because that was what [was] going to happen if [Nidey] came and took her children.” A series of text messages exchanged on October 14 between Nidey and Esperanza were admitted into evidence. In them, Nidey notified Esperanza that she was at Esperanza’s home for a scheduled visit. Esperanza replied that because it was a holiday, she forgot about the visit. She stated, “I got sick kids have too deal with you guys WHATS the EMERGENCY THE KIDS ARE FINE! What do you need too meet with me for I just seen your worker last week.”3 Nidey responded that she would “be back over there shortly,” to which Esperanza responded, “No you want be here shortly, DONT FUCKING COME DOWN HERE FUCKING WITH ME” and “MY LAWYER JUST MADE A STATEMENT TOO ME, DONT GET SHOT SO PLEASE DONT PULL UP!” Nidey agreed that this type of exchange was “typical” for the communications she had with Esperanza. Esperanza also agreed that her behavior towards Nidey was aggressive and that she had threatened Nidey. However, she denied ever threatening to shoot her. Nidey testified that despite the ongoing positive drug results during this time, Esperanza was meeting the children’s various needs. In May 2024, the Department observed the children at home and had “no concerns.” In June, Esperanza took Sophie to the hospital after an infection, and Nidey acknowledged that this demonstrated Esperanza was meeting the children’s 3 For ease of readability, we have left the spelling and grammatical errors in this exhibit as they appear in the text messages. 3 medical needs. Nidey testified that from July through October, the children’s daycare stated that there were no concerns with either the children or the family as a whole. Nidey testified that, following the October drug test result, the Department proposed another safety plan to keep the children with Esperanza. However, Esperanza would not agree to follow the safety plan. Thus, according to Nidey, on October 14, the Department submitted an affidavit for removal and the underlying termination case began. The children were moved frequently throughout the course of this case. According to Candy Pratt, a Department caseworker, at the beginning of the case, they were placed with Esperanza’s family friend. But the children were removed “[a]bout a day and a half” later, because the Department received a report from the children’s daycare that the family friend was allowing Esperanza to have unauthorized access to the children. The children were then placed with another individual who, after a day, “called and just said they couldn’t do it. They wanted the kids to be picked up.” Then, the children were placed with one of Esperanza’s family members. But after the Department conducted a home study, the children were again removed and placed with C.M. (Caleb), Zander and Sophie’s father, in November 2024.4 Pratt testified that in March 2025, Caleb contacted the Department and “said that he needed the Department to come pick up the kids because he had had an altercation with [Esperanza] and he felt like his life was in danger.” Caleb further reported that he and Esperanza “had an argument and that she attempted to run him over with her car.” After this incident, the Department removed the children and placed them with P.J. (Patty), a relative of Esperanza’s. 4 Caleb’s parental rights were terminated in the same judgment as Esperanza’s. Caleb does not appeal from the termination of his rights. 4  By all accounts, the placement with Patty was fraught. Pratt testified that Esperanza and Patty argued over Patty applying to receive food stamps on the children’s behalf during this time, and that Esperanza called the police on Patty after Kendra made an outcry that Patty “whooped them with a belt.”5 E.H. (Eva), the children’s current placement, also testified that the children relayed that they received “whoopings with the belt” while at Patty’s house. In April 2025, Patty contacted the Department and asked them to take the children. It was at this time that the children were placed with Eva. Eva testified that the children had been with her since April 9, 2025. Eva explained that she had previously worked as a special ed paraprofessional in Kendra’s classes at school and had also worked at the daycare that Zander and Sophie attended. Eva testified that when the children were initially placed, Kendra, who was four years old at the time, “was pretty quiet, very reserved,” but then after she started to become more comfortable, “she became, like, combative and aggressive, very opinionated.” Eva explained that Kendra “has kicked and hit [Eva] several times,” but that she is “not normally as aggressive with anybody else.” Eva described Kendra as “still very opinionated, but [they] have overcome a lot of battles.” She explained that the physical aggression was “almost every day” after immediately coming to live with them, but that it was now “maybe once or twice a week, if that.” Eva also noticed that during the first “month and a half or two months,” Kendra displayed certain inappropriate behaviors. For instance, Eva observed that Kendra frequently masturbated. Kendra relayed to Eva “that somebody, a female in her life—she didn’t say who— taught her to do that or told her to do that.” Eva testified that Kendra “implied that it was a 5 According to Esperanza, the Department ruled out the allegations that Patty had abused the children. 5 mom” who taught her, but Eva clarified that Kendra “calls [lots] of people Moms.” Eva also clarified that Kendra did not say the word “Mom” when discussing who taught her to masturbate. Eva explained that Kendra “worries about everything.” Kendra was initially afraid to go to the bathroom by herself. She was also worried “that CPS was going to come in and gather their things or [Zander] and [Sophie] were going to get taken while she was in the bathroom.” Kendra would also portion her food to make sure her siblings had more food than she did. Eva testified that Kendra has sensory issues that affect her mood and that Kendra receives certain therapeutic services at her school. Eva testified that Kendra had “possible” diagnoses of “ADHD, PTSD, [and] ODD.” Eva explained that she had scheduled an appointment with Kendra’s primary care physician for the week after the final hearing to attempt to address these issues. Eva described Zander, who was three years old at the time he came into her care, as “a very affectionate guy” and “definitely an empath.” Eva explained that Zander was afraid of the dark and had started lying because Kendra had, too, but that he generally did not have any behavioral issues. Eva testified that when Zander first came into her care, he had “bags under his eyes” and was “quite small.” Eva explained that Sophie, who was thirteen months old when she was placed, would sometimes “provoke[] her older siblings.” Eva relayed that Sophie “would cry and she would cover her face” when the siblings would “get on to her.” According to Eva, Kendra explained that Sophie would cover her face “because she used to get popped in the mouth for crying because she was too loud.” Eva did not know who had “popped” Sophie in the mouth. Eva also explained that Sophie went through a period when she would “pull out her eyelashes” before she went to sleep. Eva testified that Kendra told her that at a prior placement, the children 6 “would get hit and sometimes she had to sleep outside or she had to eat food out of a gallon-size baggy, things like that.” Eva explained that the children “get really upset” before visits with Esperanza, but that they all “love hanging out with” Esperanza and “[t]hey never have anything negative to say about her.” However, Eva testified that Kendra “likes to act out” and is “very angry” after the visits are over. Eva testified that she was between jobs and that she lived with her mom and two siblings, who helped care for Kendra, Zander, and Sophie. Eva explained that the children played together “outside all the time” and that their educational and medical needs were all being met. Eva explained that she “would love to adopt” the children and that she “absolutely adore[d] them.” Eva believed that the children deserved “consistency” and “all the opportunities that are given.” Esperanza testified that she had concerns about the way the children were currently being cared for. Esperanza explained that at the most recent visit, Zayden “had an accident on himself” and told Kendra to “[t]ouch [his] wiener.” Esperanza also observed what she believed to be ringworm on Zander. She also noticed that Sophie was “bit up by ants and stuff” and had “a headful of lice.” Esperanza also testified that Kendra’s “head is never combed.” Esperanza testified that she wanted her children placed with another relative who had previously cared for the children in this case for about a month and a half. However, Pratt explained that this relative had not passed a home study based on her financial circumstances. Nidey described Esperanza as generally uncooperative with the Department throughout the course of this case. Pratt explained that two major concerns in this case were Esperanza’s behavior and drug use, neither of which were adequately addressed. For instance, 7 though Esperanza completed a psychological evaluation, she did not successfully complete therapy, parenting classes, or anger management classes. Pratt explained that the ability to stay level-headed was especially important in this case, as Kendra is “a handful” and “it would take a cool, calm disposition to handle some of [her] behaviors.” According to Pratt, multiple therapists treated Esperanza but expressed concerns that Esperanza was not taking the treatment seriously. Esperanza’s first counselor reported to Pratt “that there was [sic] times when [Esperanza] would be in the car with somebody else,” which Esperanza’s counselor did not feel was “a conducive setting for therapy.” According to Esperanza, her second counselor unsuccessfully discharged her after she missed an appointment for a court hearing. Pratt also testified that Esperanza missed multiple drug tests, including three drug tests in February, three in March, two in April, two in May, two in June, one in July, three in August, two in October, one in November, and two in December 2025. Then, in 2026, Esperanza missed two in January, two in February, and two in March. Esperanza acknowledged missing at least four drug tests but explained that the tests generally interfered with her work schedule. In addition to the no-shows, Esperanza’s drug results reflect that in April 2025, she tested positive for methamphetamine, cocaine, and marijuana, and in November 2025, she tested positive for cocaine and marijuana. Esperanza testified that the last time she used marijuana was in September 2025 but denied ever using cocaine or methamphetamine. Esperanza felt that the Department was tampering with her drug tests and blamed “[t]he system” for any positive cocaine test result. Pratt acknowledged that she had previously misreported certain drug results. For instance, on April 4, 2025, Pratt reported that Esperanza tested positive for amphetamines, 8 cocaine, benzodiazepines, marijuana, and methamphetamine. Pratt acknowledged that the results of the drug test actually revealed that Esperanza did not test positive for amphetamines, and that she tested positive for cocaine, marijuana, and methamphetamine at much lower levels than what Pratt reported. Nidey expressed that Esperanza did not take accountability for the actions she took that led to the Department’s involvement. Esperanza testified that she had no idea why the case was ongoing. She believed that the reason the cases were opened was her behavior towards the Department’s caseworkers, not her positive drug tests. Esperanza explained that she “[c]an’t stand” Pratt and “hate[d] her.” She also described Pratt as “looking for a fight.” Esperanza acknowledged that she was “rude” to Pratt, but she ultimately felt that Pratt’s end goal was not to help reunify her family but to take her children away. Esperanza agreed that in September 2025, this case was extended so that she would have additional time to work her services. However, she acknowledged that in October 2025, she was arrested for aggravated assault. Michael Perez, an officer with the Kyle Police Department patrol division, testified that he responded to an assault allegation on October 2, 2025. Officer Perez explained that, after this incident, Esperanza was charged with “aggravated assault with a weapon, family violence, causing serious bodily injury.” Fernando Ordonez, also an officer employed with the Kyle Police Department, testified that on that day, he spoke with Caleb who stated that Esperanza “threw a plastic bottle filled with water and struck him on the eye.” Caleb returned to the apartment where he was staying. He “was falling asleep” when Esperanza “threw a Twisted Tea can to him and struck him.” Caleb relayed to Officer Ordonez that he “was kind of ignoring her” after this, when “he suddenly got struck on the top of his head with something.” Again, Caleb ignored this, “[b]ut 9 then he got struck . . . on his back” with what he realized “was a football helmet.” Officer Ordonez observed that Caleb’s left eye socket was “swollen” and “very red, almost shut.” Caleb reported “that he was losing vision [i]n his eye.” Officer Ordonez also felt “a knot on the top of his head” and observed “bruising on . . . his back.” Officer Ordonez testified that Caleb “stated that he was scared for that night” and “feared for his life.” Esperanza testified that she believed she was “going to beat the case” that arose as a result of this incident and explained that the charges had already been reduced to a single misdemeanor. Nidey explained that this was not Esperanza’s first time receiving services from the Department. Nidey recounted that in 2015, there were concerns that Esperanza “was using substances,” namely, cocaine, “while being the caregiver to the children.”6 Nidey explained that Esperanza submitted to a drug test which yielded a positive result, but that she generally refused to test. Another case began in 2020 over concerns about Esperanza’s marijuana-usage. Nidey explained that Esperanza complied with the Department’s requests for drug testing and completing a service plan and the case was eventually dismissed. In August 2023, another case commenced after Kendra made an outcry of sexual abuse that was later substantiated by the Department. Nidey testified that Esperanza “did not take [Kendra] to receive medical care right away” based on Esperanza’s distrust of the Department. Instead, a relative brought Kendra to the hospital to receive care. According to Nidey, Esperanza did not want to talk about what happened to Kendra “because it brought up emotions.” Esperanza could not recall whether she had reported the outcry to the police, but she believed that a relative of hers did. Nidey did not specify which children Esperanza was caring for at this time, but “the 6 children” referenced here by Nidey could not have included Kendra, Zander, and Sophie, who were not yet born. 10  In December 2023, another investigation commenced. According to Nidey, Kendra “was having outbursts towards staff members and towards other children” at her school. Nidey noted that Esperanza “was very angry towards the staff as well.” Nidey testified that Esperanza was pregnant with Sophie during this time and was smoking “either marijuana or Delta 8.” Additionally, two judgments from prior Department cases were admitted into evidence. The first judgment, signed on May 25, 2017, reflects that Esperanza’s parental rights to two other children were terminated on the basis that she engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children, that she constructively abandoned the children for not less than six months, and that she failed to comply with certain provisions of a court order that specifically established the actions necessary for her to obtain the return of her children. The second judgment, signed on August 1, 2019, reflects that Esperanza’s rights to another child were terminated on the basis that she knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the child’s physical or emotional well-being, that she engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child’s physical or emotional well-being, that she had previously had her parent-child relationship terminated with respect to another child under (E) grounds, that she had constructively abandoned the child for not less than six months, and that she failed to comply with certain provisions of a court order that specifically established the actions necessary for her to obtain the return of her child. Pratt testified that this case began because the child in question was born testing positive for marijuana and cocaine. Pratt testified 11 that Esperanza’s rights to a fourth child were also terminated after that child was born testing positive for cocaine and marijuana. At the conclusion of trial in the instant case, the court took the matter under advisement. On April 22, 2026, the trial court signed a judgment terminating Esperanza’s parental rights to Kendra, Zander, and Sophie on the basis that she knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being, that she engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical or emotional well-being, and that termination was in the children’s best interest. See Tex. Fam. Code § 161.001(b)(1)(D), (b)(1)(E), (b)(2). This appeal followed. II. STANDARD OF REVIEW A parent’s “right to guide and direct their children’s upbringing, and simply to be with their children, is unique among all other claims in our civil legal system.” D.V. v. Texas Dep’t of Fam. & Protective Servs., 722 S.W.3d 854, 858 (Tex. 2025). To terminate that right, the State must meet a clear-and-convincing burden of proof at trial. In re J.W., 645 S.W.3d 726, 740 (Tex. 2022); see Tex. Fam. Code §§ 101.007, 161.001(b). “‘Clear and convincing evidence’ means a ‘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.’” In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam) (quoting Tex. Fam. Code § 101.007); see Santosky v. Kramer, 455 U.S. 745, 769 (1982) (holding that the clear and convincing standard “conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process”). 12  Given this higher burden of proof at trial, there is also a heightened standard of review on an appeal from an order terminating the parent-child relationship. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). In determining the sufficiency of the evidence to support such an order, we “must undertake ‘an exacting review of the entire record with a healthy regard for the constitutional interests at stake.’” Id. at 503 (quoting In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)). In our legal sufficiency review, we look at all the evidence in the light most favorable to the trial court’s 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.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). “Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding against all the evidence favoring the finding.” In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). “Evidence is factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true.” Id. III. STATUTORY GROUNDS FOR TERMINATION The trial court terminated Esperanza’s rights on (D) and (E) grounds. Esperanza contends that the evidence was legally and factually insufficient under both grounds. Because it is dispositive, we address whether the evidence was legally and factually sufficient under subsection (E). See A.C. v. Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 698–99 & n.2 (Tex. App.—Austin June 6, 2019, pet. denied). A. Applicable Law 13  Subsection (E) “applies when a parent has ‘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.’” In re N.L.S., 715 S.W.3d 760, 764 (Tex. 2025) (quoting Tex. Fam. Code § 161.001(b)(1)(E)). “‘Endanger’ in this context means to ‘expose to loss or injury; to jeopardize.’” Id. (quoting Texas Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). It is not necessary that the parent’s conduct be directed towards the child or that the child suffer injury. Id. “The relevant inquiry under subsection (E) is whether evidence exists that the endangerment of the child’s well-being ‘was the direct result of Appellant’s conduct, including acts, omissions, or failures to act.’” M.R. v. Texas Dep’t of Fam. & Protective Servs., No. 03-24-00511-CV, 2025 WL 420215, at *4 (Tex. App.—Austin Feb. 7, 2025, pet. denied) (mem. op.) (quoting In re M.E.-M.N., 342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet. denied)). “Additionally, termination under subsection (E) must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent.” Id. (quoting In re M.E.-M.N., 342 S.W.3d at 262). B. Analysis Esperanza’s parental rights to at least two children had previously been terminated after they were born testing positive for drugs. Despite this, Esperanza either tested positive for certain drugs, including methamphetamine and cocaine, or failed to show up for her required drug tests. “[A] parent’s use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct.” In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). “Although a finding of endangerment based on drug use alone is not automatic, a parent’s positive tests during the pendency of a termination case support a finding that 14 the parent’s illegal drug use is an ongoing habit that created an endangering environment for the child.” R.F. v. Texas Dep’t of Fam. & Protective Servs., No. 03-25-00736-CV, 2026 WL 784329, at *3 (Tex. App.—Austin Mar. 20, 2026, pet. denied) (mem. op.) (citing D.H. v. Texas Dep’t of Fam. & Protective Servs., 652 S.W.3d 54, 61 (Tex. App.—Austin 2021, no pet.)). When, as here, the record contains evidence that a parent continued using drugs, even after the Department became involved as a result of drug use and the parent knows she is at risk of losing her children, such evidence has been found legally sufficient to support a finding of endangerment under subsection (E). See J.B. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00325-CV, 2021 WL 5456653, at *5 (Tex. App.—Austin Nov. 17, 2021, pet. denied) (mem. op.). Additionally, “[c]onduct that subjects a child to a life of uncertainty and instability endangers the child’s physical and emotional well-being.” Pruitt v. Texas Dep’t of Fam. & Protective Servs., No. 03-10-00089-CV, 2010 WL 5463861, at *4 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.). For instance, “[p]hysical violence in the home leads to an unstable and unpredictable environment for children.” In re U.H.R., No. 07-18-00318-CV, 2019 WL 81874, at *5 (Tex. App.—Amarillo Jan. 2, 2019, no pet.) (mem. op.). And “Texas courts routinely consider evidence of parent-on-parent physical abuse in termination cases without specifically requiring evidence that the conduct resulted in a criminal conviction.” M.D. v. Texas Dep’t of Fam. & Protective Servs., No. 03-26-00238-CR, 2026 WL 2614187, at *7 (Tex. App.—Austin Sep. 4, 2026, no pet. h.) (mem. op.) (quoting In re V.V., 349 S.W.3d 548, 556 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)). The record reflects that Esperanza was physically violent towards Caleb and threatened physical violence towards the Department’s workers. Although Esperanza denied the violence involving Caleb, the trial court was entitled to 15 credit the evidence suggesting the violence had occurred, such as Officer Ordonez’s and Pratt’s testimonies to that effect. See In re C.E., 687 S.W.3d 304, 314 (Tex. 2024) (per curiam) (factfinders are “entitled to choose to believe one witness and disbelieve another with respect to the disputed facts of th[e] case”). Critically, it was because Esperanza attempted to run Caleb over with her vehicle that he contacted the Department and asked that they be placed elsewhere, demonstrating that the children also needed protection from exposure to Esperanza’s violence towards Caleb. Esperanza’s continued drug use, combined with her physical violence towards Caleb and her threats of physical violence towards the Department’s caseworkers, demonstrates that she has engaged in conduct that endangers the children’s physical and emotional well-being. Accordingly, we conclude that the evidence is legally and factually sufficient to support a finding that termination was appropriate under subsection (E). See Tex. Fam. Code § 161.001(b)(1)(E). We overrule Esperanza’s first two issues.7 IV. BEST INTEREST By her final issue, Esperanza contends that the evidence was insufficient to demonstrate that termination of her parental rights was in the children’s best interest. A. Applicable Law The party seeking termination bears the burden to prove that termination is in the best interest of the child. R.R. v. Texas Dep’t of Fam. & Protective Servs., No. 03-23-00856-CV, 7 Because we have concluded that the evidence was sufficient under subsection (E), it is not necessary for us to address whether it was also sufficient under subsection (D). See A.C. v. Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 698–99 & n.2 (Tex. App.—Austin June 6, 2019, pet. denied). 16 2024 WL 2335682, at *4 (Tex. App.—Austin May 23, 2024, no pet.) (mem. op.). “The best-interest prong of the termination inquiry ‘is child-centered and focuses on the child’s well- being, safety, and development.’” In re J.W., 645 S.W.3d at 746 (quoting In re A.C., 560 S.W.3d at 63). “[T]here is a strong presumption that the best interest of a child is served by keeping the child with a parent.” In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). But “[j]ust as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d at 26. Courts consider a non-exhaustive list of factors when reviewing a best-interest finding, including: (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child’s best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent’s acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuses therefor. In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013). “No one factor is controlling, evidence on each factor is not required, and evidence presented to satisfy the predicate-ground finding may also be probative of the child’s best interest.” A.W. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00324-CV, 2021 WL 5911975, at *5 (Tex. App.—Austin Dec. 15, 2021, no pet.) (mem. op.); see In re C.H., 89 S.W.3d at 28. However, “[t]he presence of scant evidence relevant to each factor will generally not support a finding that termination of parental rights is in the children’s best interest.” In re M.A.J., 612 S.W.3d 398, 410 (Tex. App.—Houston [1st Dist.] 2020, pet. denied). Additionally, “it is 17 well settled that stability and permanence are paramount considerations in evaluating the needs of a child.” S.B. v. Texas Dep’t of Fam. & Protective Servs., 654 S.W.3d 246, 255 (Tex. App.— Austin 2022, pet. denied) (first citing In re J.D., 436 S.W.3d 105, 120 (Tex. App.—Houston [1st Dist.] 2014, no pet.); and then citing Rios v. Texas Dep’t of Fam. & Protective Servs., No. 03-11-00565-CV, 2012 WL 2989237, at *9 (Tex. App.—Austin July 11, 2012, no pet.) (mem. op.)). B. Analysis Kendra, Zander, and Sophie were five, four, and two years old, respectively, at the time of trial. The evidence does not reflect that the children expressed any preference regarding where they wanted to live. Even if they had, “a child’s preference should not be considered absent a showing of sufficient maturity.” In re D.W., 445 S.W.3d 913, 926 (Tex. App.—Dallas Oct. 10, 2014, pet. denied); see S.S. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00695-CV, 2022 WL 2542007, at *8 n.2 (Tex. App.—Austin July 8, 2022, pet. denied) (mem. op.). Additionally, although the children expressed that they enjoyed spending time with Esperanza, “evidence that a child loves a parent and enjoys visits is only marginally relevant to a best interest finding.” In re D.W., 445 S.W.3d 913, 926 (Tex. App.—Dallas 2014, pet. denied). Importantly, thus far, these children have lived turbulent lives. Prior to this case, Kendra was sexually abused and Sophie was born testing positive for marijuana. During this case, the children were moved frequently, and as their placement with Patty suggests, they did not always receive adequate care. Thus, the children’s need for stability and permanence is paramount in this case. However, the evidence does not reflect that Esperanza has the ability to 18 consistently provide this much-needed stability. Though Nidey testified that Esperanza was able to meet the children’s needs despite her positive drug tests, this evidence is not undisputed. When Kendra was sexually abused, it was a relative, not Esperanza, that initially sought treatment for Kendra. Even when the children were removed from Esperanza’s care, her actions still resulted in more instability for the children. For instance, Esperanza’s violence towards the children’s father resulted in them being removed from his care and placed with Patty. Additionally, the record reflects that Esperanza has used drugs consistently and directly to the detriment of her relationship with her children for over a decade. Despite this, Esperanza continued to test positive for drugs such as cocaine and methamphetamine during the pendency of this case. See S.S., 2022 WL 2542007, at *8 (evidence of mother’s “extensive history of substance abuse and . . . how her drug use led to the Department’s intervention and the children’s removal multiple times before the present case” was relevant to best-interest finding). The trial court was not required to credit Esperanza’s testimony that she did not use cocaine or methamphetamine, especially in light of the documentary evidence indicating that she did. Even though Esperanza made certain steps towards improvement, such as testing positive for fewer drugs over time, “evidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of drug use and irresponsible choices.” See In re J.O.A., 283 S.W.3d at 346. Both Eva and Pratt expressed that Kendra had behavioral problems that required special care and attention. When evaluating the children’s needs, we must take into consideration “the children’s ages and any particular physical or mental vulnerabilities of the children.” In re M.A.A., No. 01-20-00709-CV, 2021 WL 1134308, at *24 (Tex. App.—Houston [1st Dist.] Mar. 25, 2021, no pet.) (mem. op.). Esperanza failed to complete the services that 19 Pratt believed would help her deal with these special behavioral issues and that would help her adequately care for her children in general. Esperanza also expressed that she did not understand why her parental rights were in jeopardy, indicating that she was unlikely to take steps to improve her parenting abilities in the future. Eva expressed that she wished to adopt the children. Esperanza wanted her children to be placed with another relative of hers who had previously cared for the children for about a month and a half but had subsequently failed the required home study. Esperanza raises fair concerns about why her proposed placement was rejected based on her finances, but Eva was not. Specifically, Pratt testified that Esperanza’s proposed placement was rejected because she relied too heavily on her relatives for financial assistance. However, the Department did not have the same concern with Eva, who is unemployed and relies on her mother for housing. Nevertheless, it was not unreasonable for the trial court to conclude that it was not in these children’s best interest to be removed, yet again, and placed with a different individual all in the hopes that Esperanza would eventually address the issues that brought the children into care in the first place. Viewing the totality of the evidence in the light most favorable to the trial court’s best-interest finding, we conclude that a reasonable factfinder could form a firm belief or conviction that terminating Esperanza’s parental rights was in the best interest of the children. Accordingly, the evidence is legally sufficient to support the finding. We also conclude that the disputed evidence contrary to the best-interest finding is not so significant that the factfinder could not have formed a firm belief or conviction that the finding was true. Thus, the evidence is also factually sufficient to support the best-interest finding. We over