Full Opinion

Fourth Court of Appeals San Antonio, Texas OPINION No. 04-26-00388-CV IN THE INTEREST OF J.B.L., a Child From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2025-PA-00260 Honorable Charles E. Montemayor, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Irene Rios, Justice Lori Massey Brissette, Justice H. Todd McCray, Justice Delivered and Filed: November 4, 2026 AFFIRMED AS MODIFIED Appellant Mother appeals the trial court’s order terminating her parental rights to her child, J.B.L. 1 In her first issue, Mother challenges the sufficiency of the evidence supporting the trial court’s statutory ground (E) finding. In her second issue, Mother challenges the sufficiency of the evidence supporting the trial court’s finding that termination of her parental rights is in the child’s best interest. We affirm the trial court’s best interest finding and reverse the trial court’s finding under statutory ground (E). Because Mother did not challenge the trial court’s findings that 1 To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to the parents as “Mother” and “Father” and we refer to the child by the child’s initials or as “the child.” See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-26-00388-CV termination is justified under statutory grounds (N) and (O), we affirm termination on those unchallenged grounds. BACKGROUND The Department first got involved because it received a referral containing concerns of neglectful supervision and that Mother may be using methamphetamines. On February 12, 2025, the Department filed a petition seeking termination of Mother’s parental rights to J.B.L. The trial court held a bench trial on April 28, 2026. The trial court heard testimony from Crystal Pierce, the Department’s caseworker; Mother; and J.B.L.’s foster mother (“Foster Mother”). On May 7, 2026, the trial court signed an order terminating Mother’s parental rights to J.B.L. The trial court terminated Mother’s parental rights based on statutory grounds (E), (N), and (O) in subsection 161.001(b)(1) of the Texas Family Code. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(E), (N), (O). The trial court also found it was in the child’s best interest to terminate Mother’s parental rights. See id. § 161.001(b)(2). Mother appeals. STATUTORY REQUIREMENTS AND STANDARD OF REVIEW To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department has the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b). Clear and convincing evidence requires “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. When reviewing the sufficiency of the evidence, we apply well-established standards of review. See id. §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) -2- 04-26-00388-CV (conducting a factual sufficiency review); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (conducting a legal sufficiency review). “In reviewing the legal sufficiency of the evidence to support the termination of parental rights, we must ‘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.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *2 (Tex. App.—San Antonio Nov. 1, 2017, pet. denied) (mem. op.) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). “[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” J.F.C., 96 S.W.3d at 266. “A corollary to this requirement is that a [reviewing] court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.” Id. “In reviewing the factual sufficiency of the evidence to support the termination of parental rights, we ‘must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.’” J.L.B., 2017 WL 4942855, at *2 (quoting J.F.C., 96 S.W.3d at 266). “A [reviewing court] should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding.” J.F.C., 96 S.W.3d at 266. “The [reviewing] court must hold the evidence to be factually insufficient if, in light of the entire record, the disputed evidence contrary to the judgment is so significant that a reasonable factfinder could not have resolved that disputed evidence in favor of the ultimate finding.” In re M.T.C., No. 04-16-00548-CV, 2017 WL 603634, at *2 (Tex. App.—San Antonio Feb. 15, 2017, no pet.) (mem. op.). Further, in a bench trial, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. In re J.F.-G., 627 S.W.3d 304, 312, 317 (Tex. 2021). This -3- 04-26-00388-CV is because “the trial judge is best able to observe and assess the witnesses’ demeanor and credibility, and to sense the ‘forces, powers, and influences’ that may not be apparent from merely reading the record on appeal.” Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.— Austin 2014, no pet.) (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.)). We, therefore, defer to the trial court’s factual determinations and judgment regarding credibility. J.F.-G., 627 S.W.3d at 312; see also In re R.R.A., 687 S.W.3d 269, 279 n.50 (Tex. 2024) (“Reviewing courts, however, must defer to the factfinder’s judgment as to the credibility of the witnesses and the weight to give their testimony, including reasonable and logical inferences from the evidence.”). STATUTORY GROUNDS FOR TERMINATION In her first issue, Mother argues the evidence is insufficient to support the trial court’s finding that termination of her parental rights is justified under statutory ground (E). Only one predicate ground finding under subsection 161.001(b)(1) is necessary to support a termination judgment when there is also a finding that termination is in the child’s best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Therefore, our analysis is usually complete if we conclude that the evidence is sufficient to support any single predicate ground. Because the findings under subsections 161.001(b)(1)(D) and (E) have consequences for termination of parental rights as to other children, termination on these grounds implicates significant due process concerns for the parents. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (E), (M); In re N.G., 577 S.W.3d 230, 234 (Tex. 2019). Here, due process requires us to review the trial court’s finding under subsection 161.001(b)(1)(E) of the Texas Family Code. See In re C.W., 586 S.W.3d 405, 407 (Tex. 2019) (“[W]hen a trial court makes a finding to terminate parental rights under section -4- 04-26-00388-CV 161.001(b)(1)(D) or (E) and the parent challenges that finding on appeal, due process requires the appellate court to review that finding and detail its analysis.”). Subsection (E) permits termination if the 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.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). To endanger a child under subsection (E) means to expose the child to loss or injury or to jeopardize the child’s emotional or physical health. See J.W., 645 S.W.3d at 748; In re S.R., 452 S.W.3d 351, 360 (Tex. App.— Houston [14th Dist.] 2014, pet. denied). “Although endanger means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it does not require that there be conduct directed at the child or that the child actually suffer injury.” J.W., 645 S.W.3d at 748 (internal quotation marks and alterations omitted). The trial court must determine “whether evidence exists that the endangerment of the child’s physical well-being was the direct result of [the parent’s] conduct, including acts, omissions, or failures to act.” In re M.E.- M.N., 342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet. denied). The cause of the endangerment must be the parent’s conduct and must be the result of a conscious course of conduct rather than a single act or omission. Id. “It is not necessary that the parent’s conduct be directed at the child or that the child actually be injured; rather, a child is endangered when . . . the parent’s course of conduct creates a potential for danger which the parent is aware of but disregards.” In re R.S.-T., 522 S.W.3d 92, 110 (Tex. App.—San Antonio 2017, no pet.); see also In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“[E]ndangering conduct is not limited to actions directed towards the child.”). “Courts may further consider parental conduct that did not occur in the child’s presence, including conduct before the child’s birth or after he was removed from a parent’s care.” In re A.B.R., No. 04-19- -5- 04-26-00388-CV 00631-CV, 2020 WL 1159043, at *3 (Tex. App.—San Antonio Mar. 11, 2020, pet. denied) (mem. op.). “Conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child.” In re D.F.S., No. 04-20-00441-CV, 2021 WL 603364, at *4 (Tex. App.—San Antonio Feb. 17, 2021, pet denied) (mem. op.). The supreme court has repeatedly held “that a parent’s use of [drug]s and its effect on his or her ability to parent may qualify as an endangering course of conduct.” J.O.A., 283 S.W.3d at 345; R.R.A., 687 S.W.3d at 278 (“A reviewing court should not evaluate drug-use evidence in isolation; rather, it should consider additional evidence that a factfinder could reasonably credit that demonstrates that illegal drug use presents a risk to the parent’s ‘ability to parent.’”). “Of course, the use of illegal drugs may properly be considered in a termination proceeding because drug use may constitute endangering conduct and involve endangering conditions.” In re K.N., 741 S.W.3d 165, 187 (Tex. 2026). However, there are two reasons why the Department failed to meet its burden to prove by clear and convincing evidence that Mother engaged in a course of conduct that endangered J.B.L. First, while the Department presented some evidence that Mother used drugs years before J.B.L. was born, there was no evidence that Mother used drugs while she was pregnant with J.B.L or while J.B.L. was in her care. Nor was there evidence that her drug use affected her ability to parent J.B.L. or otherwise endangered him while he was in her care. Second, the supreme court has “cast doubt on the extent to which post-removal conduct informs the Paragraph (D) and (E) endangerment predicates.” K.N., 741 S.W.3d at 186 n.5. There was evidence at trial that Mother used drugs after J.B.L. was removed, and we properly rely on that evidence in our analysis affirming the trial court’s finding that termination of Mother’s parental rights to J.B.L. is in the child’s best interest. However, in K.N., the supreme court reversed statutory ground (E) findings -6- 04-26-00388-CV when the evidence presented at trial showed the drug use in question only “occurred months after the children were removed . . . .” See id. at 186. Here, the Department presented no evidence at trial that Mother was using drugs when she was pregnant, while she was caring for J.B.L., or when he was removed. See id. at 187 (holding evidence was insufficient to support a finding under statutory ground (E) when the Department did not present evidence that the parent used drugs “while he was with the children” or “exhibited a course of drug use while parenting”). Instead, the caseworker testified that the child was removed because there were concerns of neglectful supervision and methamphetamine use by Mother. The caseworker did not explain the concerns or even testify if those concerns were substantiated or whether there was reason to believe those concerns. The record is devoid of evidence of the circumstances that led to the Department’s concerns or any steps the Department took to investigate those concerns. The record contains some evidence that Mother may have used methamphetamines in a prior termination case involving other children. But those prior termination cases dated back years before J.B.L. was born. And, the Department also failed to present evidence regarding the circumstances of drug use in those cases except to say Mother’s rights to those children were either terminated or relinquished and the issue in that case was methamphetamine use. Again, the Department did not present any evidence that Mother used drugs while she was with those older children or while parenting those children. The caseworker could not even definitively say whether Mother’s rights to those older children were terminated or relinquished. Further, the Department in the case at bar failed to present any evidence that Mother’s drug use created “related dangers to the child” or that she “used illegal drugs in a manner that created a substantial risk of harm to” the child. Id. (quoting R.R.A., 687 S.W.3d at 272, 278). In R.R.A., the -7- 04-26-00388-CV supreme court emphasized that the factfinder could have reasonably and logically inferred that the homelessness the children experienced before removal was attributable to the parent’s drug use. See R.R.A., 687 S.W.3d at 279 (“Father’s homelessness and employment difficulties have a close temporal relationship with his drug use, and a factfinder could reasonably infer Father’s difficulties in providing shelter and support for his three very young children were related to drug use.”). Therefore, the R.R.A. court held the parent’s drug use constituted endangering conduct. See id. at 278 (“While illegal drug use alone may not be sufficient to show endangerment, a pattern of drug use accompanied by circumstances that indicate related dangers to the child can establish a substantial risk of harm.”). In the case at bar, however, the Department presented no evidence regarding the child’s circumstances or Mother’s conduct before removal. Notably, when specifically addressing statutory grounds (D) and (E), the supreme court in R.R.A. stated “[t]he court of appeals should not have ignored the aggregate weight of Father’s ongoing drug use, homelessness, employment instability, and near-complete abandonment of his children for the six months preceding trial.” Id. at 281. The supreme court clearly states reviewing courts should not ignore post-removal conduct. However, as mentioned above, the supreme court has since called into question the extent to which we can rely on post-removal conduct to support endangering grounds. See K.N., 741 S.W.3d at 186 n.5. In K.N., the supreme court dismissed different evidence relied on by the Department to support the endangerment grounds by referring to the evidence as conduct that occurred “months after the children were removed.” Id. at 185, 186, 186 n.5. In footnote five, the K.N. majority states: The police chase, arrest, methamphetamine possession, and amphetamine test all occurred months after the children had been removed from Father, when they lived in a different [s]tate. Our precedents have cast doubt on the extent to which post-removal conduct informs the Paragraph (D) and (E) endangerment predicates. -8- 04-26-00388-CV See, e.g., J.W., 645 S.W.3d at 749 (observing that “typically, a parent whose child has been removed and who has only supervised visitation has no control over the child’s environment, and the parent’s conduct during that time will thus be unrelated to Paragraph (D)”); In re C.E., 687 S.W.3d 304, 307 (Tex. 2024) (identifying the “relevant timeframe” for endangering conduct under Paragraph (E) as the time when the parent was the child’s caregiver, before the child was removed). Our Court has never declared conclusively that post-removal conduct is categorically irrelevant to the Paragraph (D) and (E) predicates, and we do not so hold today. Whatever the answer to that question may be, it is sufficient to resolve this case to say that the Department has failed to show the endangering “voluntary course of conduct” necessary to justify the civil death penalty. E.N.C., 384 S.W.3d at 805. Id. at 186 n.5 (alterations omitted). We struggle to reconcile the tension we perceive between the supreme court’s reliance on post-removal conduct when upholding a statutory ground (E) finding in R.R.A. and the supreme court’s holding discounting the Department’s reliance on post-removal conduct supporting statutory ground (E) in K.N. One distinction between the cases we see is that in R.R.A. there was evidence of drug use before removal that the factfinder could reasonably infer contributed to pre- removal homelessness and instability experienced by the children. R.R.A., 687 S.W.3d at 272. The drug use there was a course of conduct that began before removal and involved “related dangers” such as homelessness which sufficiently established “a substantial risk of harm” to the children. Id. at 272, 278. The father continued to engage in this conduct throughout the post- removal pendency of the case. Id. at 279. It appears the R.R.A. court looked at both the pre- removal drug use and temporally related harm in conjunction with continued post-removal drug use and temporally related harmful conduct when it held there was sufficient evidence to support the endangerment findings. Id. at 277–79, 281. In K.N., at least according to the majority, the endangering conduct relied on by the Department all occurred “months after removal.” K.N., 741 S.W.3d at 185, 186, 186 n.5. But see K.N., 741 S.W.3d at 192–94 (Bland, J., dissenting) (outlining evidence showing Father was complicit in pre-removal child abuse). -9- 04-26-00388-CV We are cognizant of our role as an intermediate appellate court and our obligation to follow Texas Supreme Court precedent. See Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022) (“[L]ower courts must follow the precedents of all higher courts . . . .”). To the extent there is unresolved tension between R.R.A. and K.N., we believe the most prudent approach is to attribute greater weight to K.N. because the case at bar more closely aligns with the facts of that case. Further, K.N. is more recent and, from our perspective, may reflect a shift in precedent. Here, the evidence focuses almost exclusively on Mother’s post-removal deficits. Just as in K.N., there was no evidence connecting Mother’s drug use in this case to a “substantial risk of harm” to J.B.L. before he was removed. And, the trial court received no evidence of the causal connection between Mother’s drug use and the “related dangers,” such as homelessness or instability, that would allow the trial court to infer her alleged pre-removal drug use endangered J.B.L. The absence of this causal link precludes an inference that Mother’s post-removal drug use posed related dangers to J.B.L. To be sure, there was sufficient evidence of Mother’s drug use and instability post-removal. While such evidence is certainly probative in a best interest analysis, and remains relevant when reviewing an endangerment ground, we cannot ignore the supreme court’s indication that such post-removal evidence, standing alone, is insufficient to support an endangerment ground. See K.N., 741 S.W.3d at 185–87, 186 n.5. Although the trial court heard testimony that the child was removed because the Department was concerned Mother was engaged in illegal drug use, the record lacks evidence expounding on any pre-removal, endangering circumstances allegedly caused by Mother’s drug use. We are bound by the evidence admitted at trial. Based on our review of facts in the clerk’s record—facts that were not presented by the Department as trial evidence—the Department could - 10 - 04-26-00388-CV have presented more evidence supporting its request for termination. For example, the removal affidavit contains assertions that Mother was engaged in methamphetamine use while she was caring for J.B.L. and that the child was likely exposed to dangers related to Mother’s drug use. However, our review is limited to whether the evidence presented at trial hurdles the clear and convincing burden of proof. Those assertions in the removal affidavit were not presented at trial. “The things left unsaid at trial do not become part of the evidence the trial court or this court can consider when rendering judgment.” In re P.H.S., No. 04-25-00838-CV, 2026 WL 1828577, at *12 (Tex. App.—San Antonio June 24, 2026, pet. denied) (mem. op.). As we have previously warned, “the Department should not rest on its laurels thinking ‘good enough’ will always be sufficient because the supreme court and this court have made clear that the record must be developed in a manner that is commensurate with the importance of the rights that are at stake.” Id. The evidence in the trial record presented here is legally insufficient to terminate Mother’s parental rights under subsection (E), and we delete the trial court’s finding under subsection 161.001(b)(1)(E) from the termination order. Nevertheless, Mother has failed to challenge the other grounds for termination. “To be successful on appeal, an appellant must challenge all the predicate grounds upon which a trial court based its termination order.” In re I.E.P., No. 04-24-00255-CV, 2024 WL 3802517, at *2 (Tex. App.—San Antonio Aug. 14, 2024, no pet.) (mem. op.). “When an appellant does not challenge all the grounds that may support an order of termination, we typically do not address the sufficiency of the evidence of any of the predicate grounds for termination.” Id. (citing A.V., 113 S.W.3d at 361–62). “Instead, we must accept the validity of the unchallenged grounds and affirm the termination order.” I.E.P., 2024 WL 3802517, at *2 (citing A.V., 113 S.W.3d at 361– 62). - 11 - 04-26-00388-CV Because Mother does not challenge the trial court’s findings under statutory grounds (N) and (O), we must accept the validity of those unchallenged grounds and affirm the termination on those statutory grounds. 2 See I.E.P., 2024 WL 3802517, at *2 (citing A.V., 113 S.W.3d at 361– 62). BEST INTEREST In Mother’s second issue, she argues the evidence is legally and factually insufficient to support a finding that termination of her parental rights is in the child’s best interest. In a best interest analysis in a termination appeal, “the inquiry is whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that termination of the parental rights would be in the child’s best interest . . . .” C.H., 89 S.W.3d at 28. When reviewing a trial court’s best interest finding, we consider the Holley factors. 3 See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors are not exhaustive. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). “The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child’s best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child.” Id. In analyzing these factors, we must focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep’t of Protective & Regul. Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). 2 The supreme court has declined to extend the fundamental-error doctrine to parental termination cases that would permit appellate review of unassigned error. See In re B.L.D., 113 S.W.3d 340, 350–51 (Tex. 2003) (“In sum, we have not previously extended the fundamental-error doctrine to [parental termination cases], and we are not persuaded to do so here.”). 3 These factors include: (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 excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013). - 12 - 04-26-00388-CV We recognize the existence of a strong presumption that the child’s best interest is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, we also presume that prompt and permanent placement of the child in a safe environment is in the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a). In determining whether a parent is willing and able to provide the child with a safe environment, we consider the factors set forth in section 263.307(b) of the Texas Family Code. 4 See id. § 263.307(b). Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child’s best interest. C.H., 89 S.W.3d at 28 (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). “A best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence.” See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). “A trier of fact may measure a parent’s future conduct by his past conduct and determine whether termination of parental rights is in the child’s best interest.” Id. 4 These factors include: (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out-of- home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the department; (5) whether the child is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological, or developmental evaluations of the child [or] the child’s parents . . . ; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child’s family demonstrates adequate parenting skills . . . ; and (13) whether an adequate social support system . . . is available to the child. TEX. FAM. CODE ANN. § 263.307(b). - 13 - 04-26-00388-CV Although there was other evidence supporting the trial court’s best interest finding, the trial court expressly stated it was particularly concerned with Mother’s drug abuse and Mother’s instability. (1) Substance Abuse “Parental drug abuse reflects poor judgment and may be a factor to consider in determining a child’s best interest.” In re A.S.S.-P., No. 04-23-00312-CV, 2023 WL 4921547, at *3 (Tex. App.—San Antonio Aug. 2, 2023, no pet.) (mem. op.). “A parent’s exercise of poor judgment currently and in the past demonstrates an inability to provide adequate care for the child.” In re N.J.H., 575 S.W.3d 822, 835 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). “A parent’s use of illegal drugs can destabilize the home and expose the child[] to physical and emotional harm if not resolved.” In re Z.R.M., 665 S.W.3d 825, 831 (Tex. App.—San Antonio 2023, pet. denied). “A factfinder may afford great weight to the significant factor of drug-related conduct.” N.J.H., 575 S.W.3d at 834. Mother admitted she was smoking marijuana at the beginning of the case, and she admitted she tested positive for methamphetamines during the case. The trial court also heard evidence that Mother’s methamphetamine use dates back to at least 2020 or 2021 when her older children were removed in a prior case. Mother admitted at trial that her methamphetamine use affected her ability to parent those older children. Mother’s parental rights to those older children were ultimately terminated in that prior case. This evidence is sufficient for the trial court to find that Mother has had a long multi-year history of methamphetamine abuse. See TEX. FAM. CODE ANN. § 263.307(b)(8) (stating the trial court should consider whether the parent has a history of substance abuse when determining whether the parent is willing and able to provide the child with a safe environment in a best interest determination). - 14 - 04-26-00388-CV Here, the child was removed in February 2025 because the Department was concerned with Mother’s methamphetamine use and its effect on her ability to parent the child. Mother successfully completed inpatient drug treatment in April 2025, but then she subsequently tested positive for methamphetamines on a hair follicle drug test in August 2025. However, Mother claims she tested negative on four urinalysis drug tests after she got out of jail in August 2025. Mother reconciled this conflict in the evidence by arguing the drug use identified by her positive hair follicle test occurred in April 2025, before she was sober. Thus, she argues the hair follicle test was sensitive to drugs that were in her system long before she achieved sobriety. But the Department gave Mother the opportunity to prove her contention and show her sobriety by referring her to additional hair follicles tests in January and February 2026. 5 When Mother did not take those drug tests, the trial court ordered her to take a nail-bed drug test in March 2026 following a permanency hearing. 6 Mother did not take that test either, despite her admission at trial that she heard the trial court order her to take a nail-bed drug test during the permanency review hearing. The trial commenced a month later in April 2026. When Mother was referred to take the hair follicle test in January 2026, she went to the drug testing facility but was told there would be issues with the results because she had recently dyed her hair. Nevertheless, the testing facility still offered to administer the test; however, Mother left without taking the test. Even if this missed test was excusable, Mother was sent to take another 5 To be clear, it is the Department’s burden to prove best interest by clear and convincing evidence. However, Mother’s positive drug test substantiated the Department’s concern that Mother was engaged in illegal drug use. Mother was given the opportunity to show that she was sober, as she claimed, by taking additional drug tests. But Mother refused to take those drug tests, and the trial court could reasonably infer those missed drug tests would have been positive. See In re E.A.R., 672 S.W.3d 716, 723 (Tex. App.—San Antonio 2023, pet. denied). Thus, Mother’s failure to take her drug tests supports the Department’s concern that Mother will be unable to appropriately parent the child because she is abusing illegal drugs. “A parent’s illegal drug use supports a finding that termination of the parent-child relationship is in the best interest of the child.” In re A.M.O., No. 04-17-00798-CV, 2018 WL 2222207, at *2 (Tex. App.—San Antonio May 16, 2018, no pet.) (mem. op.). 6 The trial court’s written order to take the nail-bed drug test is in the clerk’s record. - 15 - 04-26-00388-CV drug test a month later, but she showed up to the testing facility after having recently dyed her hair again. The trial court could have easily drawn a reasonable inference that once Mother discovered she could avoid testing by dying her hair, she intentionally dyed her hair before the second test to avoid drug testing for the Department. Mother claimed she could not take the nail-bed drug test the trial court ordered her to take in March 2026 because she was scheduled to work. When asked why she didn’t reschedule, Mother stated: “I knew that it was the day before the weekend of trial. So like the way I see it is— I mean, I don’t want to—Never mind.” Then, unprompted and unrelated, Mother started talking about the caseworker’s failure to submit a referral for Mother’s psychological evaluation. The trial court could have reasonably inferred that Mother did not want to take the nail-bed drug test, and she was being evasive about rescheduling because she would test positive for drugs the week before trial and that would lead to termination. See In re E.A.R., 672 S.W.3d 716, 723 (Tex. App.—San Antonio 2023, pet. denied) (holding the trial court “could infer that [a parent] failed to submit to drug testing because [the parent] was using illegal drugs”). We are not able to assess a witness’s demeanor from the cold record. That is why our standard of review requires us to defer to the trial court’s credibility determinations. Here, however, even the cold record indicates Mother was being evasive when she was asked why she did not take the nail-bed drug test. 7 Mother began to answer, stopped because she may have realized she was going to say something that would harm her case, and then changed the subject. Across all three missed drug tests in the three months preceding trial, the trial court could have reasonably and logically inferred that Mother was intentionally seeking to avoid drug testing because she was using drugs and would have tested positive. See In re B.H., No. 04-25-00494- 7 In its oral pronouncement, the trial court noted Mother’s demeanor throughout the case exhibited “elements and dynamics of evasiveness, obstruction, and lack of accountability . . . .” - 16 - 04-26-00388-CV CV, 2026 WL 158827, at *3 (Tex. App.—San Antonio Jan. 21, 2026, no pet.) (mem. op.) (providing a factfinder may reasonably infer a parent avoided drug testing because the parent is using illegal drugs and would have tested positive, especially when considering the parent has a long history of drug abuse.). The trial court, as the factfinder, could have rejected Mother’s contention that she was no longer using drugs when she went to great lengths to avoid drug testing, or ignored the Department’s requests and the trial court’s order to drug test altogether. See id. (holding the trial court, as the sole arbiter of the witnesses’ credibility, could have disbelieved a parent’s self-serving testimony that she was sober particularly when the parent refused to drug test for the Department); In re D.M., 452 S.W.3d 462, 472 (Tex. App.—San Antonio 2014, no pet.) (“[A] trial court is not bound to accept the truth or accuracy of a parent’s testimony, either as to past actions or future intentions.”). To add, Mother admitted at trial that she could have demonstrated her sobriety if she had simply submitted to the drug tests. In fact, we need not guess as to the trial court’s assessment of Mother’s credibility because it expressly stated in its oral pronouncement that it believed Mother was playing a “cat and mouse” game with the Department when it came to her drug testing. It found that Mother intentionally obfuscated her obligation to drug test so that she could say at trial that the Department is unable to prove she is doing drugs. Our standard of review requires us to defer to the trial court when it comes to the credibility of the witnesses and the weight to give their testimony because the trial court is in the courtroom hearing