In the Interest of B.G.A.Y., a Child v. the State of Texas

NUMBER 13-25-00657-CV

                                    COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI – EDINBURG


                       IN THE INTEREST OF B.G.A.Y., A CHILD


           ON APPEAL FROM THE COUNTY COURT AT LAW NO. 5
                     OF NUECES COUNTY, TEXAS


                                MEMORANDUM OPINION

                      Before Justices Silva, Peña, and Fonseca
                      Memorandum Opinion by Justice Fonseca

        In this appeal, appellant S.A. challenges the trial court’s order terminating her

parental rights to her biological daughter B.G.A.Y.1 By a single issue, S.A. contends that

termination was not in the child’s best interests. We affirm.

                                          I.       BACKGROUND

        B.G.A.Y. was born to biological parents S.A. and J.F.Y. on December 28, 2023.



       1 We refer to the child and her biological parents by initials in accordance with the rules of appellate

procedure. See TEX. R. APP. P. 9.8(b)(2).
The Texas Department of Family and Protective Services (the Department) filed a petition

for conservatorship and termination of both parents’ parental rights on December 20,

2024. The petition was accompanied by an “Affidavit in Support of Removal” in which

Department caseworker Maria Arispe averred, among other things, that S.A. “admitted to

using hydrocodone prior to delivering” B.G.A.Y. and that the child “was delivered

prematurely” and tested “positive for opioids and methadone” at birth. Arispe also stated

that both parents took court-ordered hair follicle and urinalysis drug tests which were

positive for heroin and cocaine; that they “continue to test positive on recent oral drug

swabs for Heroin”; that they “missed a session with the Mental Health/Parenting

counselor on December 13, 2024”; and that they “are not consistent with their services.”

       At trial in October of 2025, S.A. did not appear personally but was represented by

counsel. Carlos Cadena testified that he was the “primary conservatorship caseworker”

assigned to the case. Because B.G.A.Y. “tested positive for opiates at birth,” her parents

were offered Family-Based Safety Services. However, they were not “successful” in those

services, so the Department sought and obtained emergency removal and

conservatorship.

       Cadena said that, at the initial adversary hearing on January 6, 2025, both parents

admitted to having used heroin the previous day. He said that he presented them with a

Family Plan of Service, but S.A. did not sign the plan. J.F.Y. attended inpatient drug

treatment for five days, then left. S.A. did not attend inpatient drug treatment.

       Cadena said that his communication with S.A. has “been very sporadic” throughout

the case. He said he attempted to communicate with S.A. “[a]t least once a month” via

text and phone and “[t]here w[ere], at least, two times in the case that she had personally



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tried to call me,” but “[f]or the most part, she largely didn’t respond to me.” He stated that

both parents knew how to contact him, and he did not change his office location or phone

number during the case. Cadena further testified that, since the Department was named

the child’s conservator in January 2025, S.A. had not attempted to visit B.G.A.Y. or taken

a drug test.2 He explained the Department was seeking termination due to both parents’

“continued usage of substances,” “concerns related to mental health,” and the fact that

“the Department hasn’t been able to fully assess their residences.”

        According to Cadena, B.G.A.Y. has been living at a foster residence in Corpus

Christi since her removal in December 2024. When asked how she is doing in that

placement, he replied:

        She’s been doing pretty well. She has actually referred to the caregivers,
        husband and wife, as her mama and dada. She’s bonded with some of the
        other children that are at the residence pretty well. She’s capable of walking
        and has been able to start saying words now. She’s able to do things such
        as wiping her mouth with a napkin. Being able to drink from a sippy cup.
        She’s been growing pretty well. I can say that in the short amount of time
        she’s been here.

He acknowledged that “during her time in care with the Department, [B.G.A.Y.] has had

several illnesses or minor medical issues come up,” but he said the Department and the

foster parents have ensured that the child received proper medical treatment. Cadena

stated that the foster parents are “already licensed to adopt through the Department” and

are willing to adopt B.G.A.Y.3 He opined that termination of both parents’ rights would be

in the child’s best interest.


        2 Cadena clarified that “[t]here was at least one visit when it was part of the Family[-]Based Safety

Services, but none with the conservatorship.”
        3 B.G.A.Y.’s foster mother testified that there are four other children in her household. She said that

B.G.A.Y. is “very affection[ate] with everybody” and has “a very, very strong bond” with her thirteen-year-
old daughter in particular. She said that she is willing to provide a home for B.G.A.Y. whether or not her
parents’ rights are terminated.


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        The trial court granted the Department’s petition to terminate S.A.’s parental rights.

In its written order signed on October 30, 2025, the trial court found predicate grounds for

termination under parts (D), (E), (N), and (O) of Texas Family Code section 161.001(b)(1).

See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (N), (O).4 It further found that termination

was in the child’s best interest. See id. § 161.001(b)(2).5 This appeal followed.

                                            II.      DISCUSSION

A.      Standard of Review and Applicable Law

        Involuntary termination of parental rights involves fundamental constitutional rights

and divests the parent and child of all legal rights, privileges, duties, and powers normally

existing between them, except for the child’s right to inherit from the parent. Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—


        4 The relevant parts of the statute authorize termination if a parent:


        (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;
        (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;
                ....
        (N)     constructively abandoned the child who has been in the permanent or temporary
                managing conservatorship of the [Department] for not less than six months, and:
                (i)      the [D]epartment has made reasonable efforts to return the child to the
                         parent;
                (ii)     the parent has not regularly visited or maintained significant contact with
                         the child; and
                (iii)    the parent has demonstrated an inability to provide the child with a safe
                         environment; [and]
        (O)     used a controlled substance, as defined by Chapter 481, Health and Safety Code,
                in a manner that endangered the health or safety of the child, and:
                (i)      failed to complete a court-ordered substance abuse treatment program; or
                (ii)     after completion of a court-ordered substance abuse treatment program,
                         continued to abuse a controlled substance.
TEX. FAM. CODE § 161.001(b)(1)(D), (E), (N), (O).
        5 The trial court also terminated J.F.Y.’s parental rights. J.F.Y. is not a party to this appeal.




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Corpus Christi–Edinburg 2010, no pet.); see In re K.M.L., 443 S.W.3d 101, 121 (Tex.

2014) (Lehrmann, J., concurring) (“Termination of parental rights, the total and irrevocable

dissolution of the parent-child relationship, constitutes the ‘death penalty’ of civil cases.”).

Accordingly, termination proceedings must be strictly scrutinized. In re K.M.L., 443

S.W.3d at 112.

        A trial court may order termination of the parent-child relationship only if it finds by

clear and convincing evidence that: (1) the parent committed an act or omission described

in Texas Family Code section 161.001(b)(1); and (2) termination is in the best interest of

the child.6 TEX. FAM. CODE § 161.001(b)(1), (2). The “clear and convincing” standard falls

between the preponderance of the evidence standard of ordinary civil proceedings and

the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847

(Tex. 1980); In re L.J.N., 329 S.W.3d at 671. It is defined as the “measure or degree of

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

truth of the allegations sought to be established.” TEX. FAM. CODE § 101.007.

        Evidence is legally sufficient to support termination if a reasonable factfinder could

form a firm belief or conviction that the finding was true. In re A.C., 560 S.W.3d 624, 631

(Tex. 2018). In conducting a legal sufficiency review, we assume that the fact-finder

resolved disputed facts in favor of its finding if it was reasonable to do so, and we

disregard all evidence that a reasonable fact-finder could have disbelieved or found to be

incredible. In re L.J.N., 329 S.W.3d at 671. We must also consider undisputed evidence,

if any, that does not support the finding. In re K.M.L., 443 S.W.3d at 113; see In re J.F.C.,




        6 S.A. does not dispute that the evidence was sufficient to support the trial court’s findings under

section 161.001(b)(1).


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96 S.W.3d 256, 266 (Tex. 2002) (“Disregarding undisputed facts that do not support the

finding could skew the analysis of whether there is clear and convincing evidence.”).

       Evidence is factually insufficient to support termination if, “in light of the entire

record, the disputed evidence that a reasonable factfinder could not have credited in favor

of the finding is so significant that a factfinder could not reasonably have formed a firm

belief or conviction” that the finding was true. In re A.C., 560 S.W.3d at 631; In re J.F.C.,

96 S.W.3d at 266. Under the factual sufficiency standard, we defer to the trier of fact’s

determinations on the credibility of the witnesses “so long as those determinations are

not themselves unreasonable.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per

curiam); see In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).

B.     Analysis

       There is a strong, though rebuttable, presumption that keeping a child with a parent

is in the child’s best interest. TEX. FAM. CODE § 153.131; In re R.R., 209 S.W.3d 112, 116

(Tex. 2006) (per curiam). Factors that courts consider in determining whether termination

is in a child’s best interest include: (1) the desires of the child; (2) the emotional and

physical needs of the child now and in the future; (3) the emotional and physical danger

to the child now and in the future; (4) the parenting abilities of the parties seeking custody;

(5) the programs available to assist the parties seeking custody; (6) the plans for the child

by the parties seeking custody; (7) the stability of the home or proposed placement; (8) the

acts or omissions committed by the parent which may indicate that the existing parent-

child relationship is not proper; and (9) any excuse for the acts or omissions committed

by the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The party seeking

termination is not required to prove all of these factors; in some cases, undisputed



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evidence of just one factor may be sufficient to support a finding that termination is in the

best interest of the child. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); In re M.R., No.

13-25-00271-CV, 2025 WL 2726536, at *5 (Tex. App.—Corpus Christi–Edinburg Sep. 25,

2025, no pet.) (mem. op.).

       In her brief, S.A. comprehensively recites the applicable law and standard of

review, including the Holley factors and the factors required to be considered “in

determining whether the child’s parents are willing and able to provide the child with a

safe environment.” See TEX. FAM. CODE § 263.307(b).7 S.A.’s entire argument applying


       7 Those factors are:


       (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,
               the child’s parents, other family members, or others who have access to the child’s
               home;
       (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, including
               providing the child and other children under the family’s care with:
               (A)     minimally adequate health and nutritional care;
               (B)     care, nurturance, and appropriate discipline consistent with the child’s
                       physical and psychological development;
               (C)     guidance and supervision consistent with the child’s safety;



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the law to the facts is as follows:

       Considering the Holley and Family Code factors, termination of [S.A.]’s
       parental rights is not in the best interest of the child. [Cadena], the primary
       conservatorship caseworker, testified that although sporadic, there were
       two times during the pendency of the case in which [S.A.] tried to contact
       the Department, and she had at least one visit with her child. The child,
       [B.G.A.Y.], had been residing in a foster home with three or four other
       children since the time of removal in December of 2024, and had only been
       doing “pretty well.” [B.G.A.Y.] had several illnesses or minor medical issues
       since being placed in the foster-to-adopt three bedroom home. The
       Department failed to show the child was thriving in her new environment.

       We cannot agree with S.A.’s characterization of the record. Even if B.G.A.Y. was

not born with opioids and methadone in her system, the fact that she had “several

illnesses or minor medical issues” in her first year of life would not be surprising, nor would

it reflect negatively on the abilities of the foster parents or the suitability of their home as

a placement. Instead, considering the disadvantage at which her biological parents

placed her, the undisputed evidence that B.G.A.Y. was doing “pretty well” in her foster

placement unequivocally supports the trial court’s best interest finding.

       In any event, the evidence at trial supporting termination largely centered around

S.A.’s drug use, which she does not address in her brief. It is well-established that, in

evaluating a child’s best interest, a factfinder can give “great weight” to the “significant

factor” of drug-related conduct by a parent. See, e.g., In re G.L., No. 13-20-00187-CV,

2020 WL 4812632, at *4 (Tex. App.—Corpus Christi–Edinburg Aug. 13, 2020, pet.



               (D)    a safe physical home environment;
               (E)    protection from repeated exposure to violence even though the violence
                      may not be directed at the child; and
               (F)    an understanding of the child’s needs and capabilities; and
       (13)    whether an adequate social support system consisting of an extended family and
               friends is available to the child.
TEX. FAM. CODE § 263.307(b).


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denied) (mem. op.); In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.]

2016, pet. denied); In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no

pet.); In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.); see also Walker

v. Tex. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied) (reasoning that a parent’s illegal drug use may support

termination because “it exposes the child to the possibility that the parent may be impaired

or imprisoned”).

       Here, in addition to the evidence that B.G.A.Y. tested positive for drugs at birth,

Cadena testified that S.A. admitted to using heroin the day before the initial adversary

hearing, that she did not attend inpatient drug treatment, and that she did not undergo

any drug testing during the conservatorship phase of the case. See In re W.E.C., 110

S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (“The jury could reasonably infer

that appellant’s failure to complete the scheduled screenings indicated she was avoiding

testing because she was using drugs.”). Notably, S.A. does not dispute that the evidence

was sufficient to support the trial court’s findings as to the predicate grounds for

termination, including its finding under Texas Family Code section 161.001(b)(1)(O) that

she “used a controlled substance . . . in a manner that endangered the health or safety of

the child, and . . . failed to complete a court-ordered substance abuse treatment program.”

See TEX. FAM. CODE § 161.001(b)(1)(O). The trial court could have inferred from all of this

evidence that S.A. presents a risk of emotional and physical danger to the child, both now

and in the future. See Holley, 544 S.W.2d at 372; In re B.M.S., 581 S.W.3d 911, 917 (Tex.

App.—El Paso 2019, no pet.); In re R.H.W. III, 542 S.W.3d 724, 737 (Tex. App.—Houston

[14th Dist.] 2018, no pet.) (“The evidence supporting the predicate grounds for termination



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also may be used to support a finding that the best interest of the child warrants

termination of the parent-child relationship.”).

       A child’s need for permanence through the establishment of a “stable, permanent

home” has been recognized as the paramount consideration in determining best interest.

In re G.A.C., 499 S.W.3d 138, 141 (Tex. App.—Amarillo 2016, pet. denied); In re K.C.,

219 S.W.3d at 931; see In re R.S.-T., 522 S.W.3d 92, 113 (Tex. App.—San Antonio 2017,

no pet.). A factfinder may consider the consequences of failure to terminate parental

rights and may also consider that the child’s best interest may be served by termination

so that adoption may occur, rather than the impermanent foster-care arrangement that

would result in the absence of termination. See In re K.C., 219 S.W.3d at 931.

Accordingly, the undisputed evidence that B.G.A.Y. is “doing pretty well” with her foster

parents, and that the foster parents are willing and able to adopt her, supports the best

interest finding in this case. See id.

       Considering all the Holley factors, we conclude that the evidence was legally and

factually sufficient to rebut the presumption that keeping the child with her biological

mother is in her best interest. See In re J.L., 163 S.W.3d 79, 85 (Tex. 2005); In re C.H.,

89 S.W.3d at 25; In re J.F.C., 96 S.W.3d at 266. We overrule S.A.’s issue on appeal.

                                     III.   CONCLUSION

       The trial court’s judgment is affirmed.


                                                              YSMAEL D. FONSECA
                                                              Justice

Delivered and filed on the
9th day of April, 2026.




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