In the Interest of L.D.T.P., a Child v. the State of Texas ( 2023 )

Affirmed and Memorandum Opinion filed April 27, 2023
In The
Fourteenth Court of Appeals
NO. 14-22-00815-CV
IN THE INTEREST OF L.D.T.P., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2021-00320J
MEMORANDUM OPINION
Father appeals the trial court’s final order terminating his parental rights as
to his two-and-a-half-year-old son, L.D.T.P. (“Lazaro”). 1 Father does not contest
the trial court’s finding that he failed to meet the requirements of his court-ordered
service plan, but seeks to reverse the trial court’s judgment in his challenge to the
sufficiency of the evidence in support of the trial court’s best interest findings.
To avoid future collateral consequences in connection with the trial court’s
endangerment findings, Father also challenges the sufficiency of the evidence to
1
We use pseudonyms to refer to appellants, the children, and other family members. See Tex.
Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8.
support those predicate grounds. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Father met Mother on Facebook. According to Father, he lived with Mother
nine or ten months prior to his arrest in July 2020–a period that included the first
part of Mother’s pregnancy with Lazaro and which coincides with events reported
by appellee, the Department of Family & Protective Services (“Department”),
leading to Lazaro’s removal.
Department’s Investigation and Removal
The Department received the first report pertaining to Mother on May 15,
2020, approximately six months before Lazaro was born. At that time, it was
alleged that Mother was using “crack cocaine”, that she had physically abused two
of her children, and was “prostituting with [the children] in the home.” When the
Department went to visit Mother, the investigator discovered that an eviction
process had begun for not allowing maintenance personnel to access the unit and
for falling three months behind on her rent. Mother refused permission for the
investigator to go inside the apartment without a warrant. The case remained open.
The second intake was initiated two weeks later when the reporter noted that
Mother had posts on Facebook of herself smoking and drinking and that she was
pregnant. The reporter suspected that her own ex-boyfriend, Lee, was the father of
the unborn child, and told the caseworker that Lee was a drug dealer who had been
selling drugs to Mother before becoming involved with Mother. The Department’s
investigators had limited success contacting Mother while investigating the second
report and did not speak to her in-person until August 2020. The investigation
into the first and second reports remained open at the time a third report was made.
In November, a third report was made to the Department alleging Mother’s
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neglectful supervision of Lazaro after both Mother and Lazaro revealed positive
screening results for cocaine after Lazaro’s birth. Lazaro’s medical records show
he was diagnosed with “drug use complicating pregnancy,” and that the pregnancy
was complicated by Mother’s “scant prenatal care.” However, a nurse reported to
the Department that Mother was appropriate with the newborn who was doing well
and showed no symptoms of withdrawal. Mother had admitted to using cocaine use
during her pregnancy but stated she did not know she was pregnant at the time.
Her medical records indicate that she reported not knowing that she was pregnant
until five months’ gestation.
Mother originally reported to the Department that Lee was Lazaro’s father
but that he was not involved in her life. Father, though not mentioned in the
removal affidavit, is referenced in medical records at the time of Lazaro’s birth.
Mother named Father as Lazaro’s biological father to the hospital staff. Mother
reported that he had been in jail for four months and she was unsure when he
would be released.
Mother reported living with her oldest son’s father, Alex, who welcomed
Mother, his son and Mother’s other children to stay with him. Alex purchased a
crib for Lazaro, and the Department’s initial observations were that the home and
conditions were suitable.
A month after Lazaro’s birth, Alex and Mother both tested positive for
cocaine.
The termination lawsuit, Family Service Plan
On March 4, 2021, approximately eight months after Father was arrested and
incarcerated, and four months after Lazaro was born, the Department filed the
present termination suit in which it alleged that allowing the child to remain in his
3
parents’ care was contrary to his welfare and requested Lazaro be placed in its
temporary managing conservatorship following a full adversary hearing. The
Department’s live amended petition seeks termination against Father under three
grounds: endangerment (by conduct), constructive abandonment, and for non-
compliance with the court-ordered post-removal plan. Tex. Fam. Code Sec.
161.001(b)(1)(E), (N), & (O).
According to the Department’s caseworker’s testimony at trial, a family
service plan was given to Father in May 2021. The court signed an order
establishing Father’s paternity to Lazaro based on the results of genetic testing.
Father contacted the Department shortly after he was released in April of
2022 and told the Department’s caseworker that he was “willing to do whatever to
get his son back.” On April 27, 2022, the Department served him with notice of
the termination suit.
On July 28, 2022, the Department filed an amended family service plan for
Father, in both Spanish and English, which was approved by the Court on August
2, 2022. It required Father to maintain stable housing and income, complete
parenting classes, participate in a drug screen (which required that if Father tested
positive that he complete a substance abuse assessment and follow any
recommendations), participate in a psycho-social assessment, and develop a
support system. The plan stated the concern that Father might continue to
participate in criminal activities that would preclude him from parenting Lazaro.
Pursuant to the plan, Father participated in a substance abuse assessment and
a psychosocial assessment; both assessments recommended Father participate in
substance abuse therapy appointments. Father attended two therapy sessions but
had missed one session shortly before trial and had taken no action to reschedule.
Father participated in a parenting class and has shown proof of employment and
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housing. The Department caseworker agreed that Father was progressing with most
of his family service plan. Compliance with drug testing was a component of
Father’s plan. Father told the Department that he did not use drugs and “has never
used drugs or alcohol,” but admitted to the Department that in 2020 police found
illegal drugs in his car. Two of Father’s drug screenings under the plan yielded
positive results. On July 7, 2022, Father was positive for cocaine in hair-follicle
test. Again, on September 6, 2022, Father tested positive for cocaine. At trial,
Father suggested that these positive results were related to second-hand vape
smoke that he encountered on his job driving a truck.
Conclusion of Hearing and Judgment
At the conclusion of trial, the court signed an order terminating Father’s
parental rights pursuant to Texas Family Code, Sections 161.001(b)(1)(E), (O) and
(2). The Court also found termination proper under the unpled endangerment-by-
conduct theory under section 161.001(b)(1)(D), yet made no express finding on the
abandonment theory (which had been pled) under section 161.001(b)(1)(N). This
appeal followed.
II. ISSUES AND ANALYSIS
A court may terminate the parent-child relationship if the court finds by
clear and convincing evidence that (1) the parent has engaged in at least one
statutory predicate act and (2) termination is in the best interest of the child. See In
re N.G., 577 S.W.3d 230 (Tex. 2019); In re L.C.L., 599 S.W.3d 79, 83 (Tex.
App.—Houston [14th Dist.] 2020) (en banc), pet denied, 629 S.W.3d 909 (Tex.
2021); see also Tex. Fam. Code § 161.001(b).
Father raises two issues. In his first issue, Father aims to avoid future
collateral consequences the trial court’s judgment could have on his parental rights
5
to other children by challenging the legal and factual sufficiency of the evidence to
support the trial court’s finding of the two endangerment-predicate grounds for
termination. Tex. Fam. Code Ann. § 161.001(b)(1)(D) & (E). In his second issue,
Father seeks to retain his parental rights to Lazaro by challenging the sufficiency of
the evidence to support the trial court’s finding that termination of his parental
rights is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(2).
A. Standard of Review
Termination of the parent-child relationship is a drastic remedy and is of
such weight and gravity that due process requires the state to justify termination by
clear and convincing evidence. In re C.H., 89 S.W.3d 17, 23 (Tex. 2002); see also
In re L.G.R., 498 S.W.3d 195, 201 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied). Clear and convincing evidence is the measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established. Tex. Fam. Code § 101.007. This
heightened burden of proof results in a heightened standard of review when
evaluating the sufficiency of the evidence. In re L.G.R., 498 S.W.3d at 202.
Under a legal sufficiency review, we look at all the evidence in the light
most favorable to the finding to determine whether a reasonable factfinder could
have formed a firm belief or conviction that the finding was true. In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so. Id. We disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
not credible, but we do not disregard undisputed facts. See In re Commitment of
Stoddard, 619 S.W.3d 665, 674 (Tex. 2020).
Evidence is factually insufficient if, in light of the entire record, “the
disputed evidence that a reasonable factfinder could not have credited in favor of
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the finding is so significant that a factfinder could not reasonably have formed a
firm belief or conviction.” In re J.F.C., 96 S.W.3d at 266.
B. Is the trial court’s order terminating Father’s parental rights supported by
legally and factually sufficient evidence to support termination of parental
rights under 161.001(b)(1)(D) or (E)?
Only one predicate finding under section 161.001(b)(1) is necessary to
support a judgment of termination when there also is a finding that termination is
in the child’s best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re
L.E.R., No. 14-21-00590-CV, 2022 WL 1088592, at *8 (Tex. App.—Houston
[14th Dist.] Apr. 12, 2022, no pet. h.). Although Father has conceded the trial
court’s predicate ground under Subsection (O), we must address the trial court’s
endangerment findings under section 161.001(b)(1)(D) or (E) because he has
challenged the sufficiency of the evidence to support those findings which may
have collateral consequences to Father in the future. In re N.G., 577 S.W.3d 230,
235 (Tex. 2019) (per curiam); Interest of P.W., 579 S.W.3d 713, 720 (Tex. App.—
Houston [14th Dist.] 2019, no pet.).
Termination of parental rights is warranted if the factfinder finds by clear
and convincing evidence, in addition to the best-interest finding, that the parent has
“knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child” or
“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 § 161.001(b)(1)(D), (E). “To endanger” means to expose a child to loss
or injury or to jeopardize a child’s emotional or physical health. In re M.C., 917
S.W.2d 268, 269 (Tex. 1996).
1. Tex. Fam. Code § 161.001(b)(1)(D): Endangerment by Environment.
7
By making a finding under subsection (D), the court concluded that Father
knowingly placed or knowingly allowed Lazaro to remain in conditions or
surroundings which endangered Lazaro’s physical or emotional well-being. See
Tex. Fam. Code § 161.001(b)(1)(D). Inappropriate, abusive, or unlawful conduct
by a parent or other persons who live in the home can create an environment that
endangers the physical or emotional wellbeing of a child. In re L.E.R., 2022 WL
1088592, at *9. A single act or omission may be sufficient to support termination
under subsection (D). Id. In evaluating endangerment under subsection (D), the
court must consider the child’s environment before the Department obtained
custody. Id. Subsection (D) is not a basis for termination of parental rights if the
parent was unaware of the endangering environment. In re V.A., 598 S.W.3d 317,
329 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). There must be clear and
convincing evidence of endangerment as well as of the parent’s awareness of the
endangering environment. Id. Although the parent need not have certain
knowledge that an actual injury is occurring, the parent must at least be aware of
the potential for danger to the child in such an environment and must have
disregarded that risk. In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied).
Though neither party draws particular attention to the pleadings, we note
that the Department never asserted subsection (D) as a predicate ground for
termination in any petition on record. Nevertheless the trial court’s termination
order specifically makes a predicate finding of endangerment under subsection (D).
Assuming, without deciding, that unpled termination grounds can be tried by
consent and that the endangerment-by-environment ground under subsection (D)
was tried by consent, we conclude the evidence to support that ground was legally
insufficient. Father’s criminal activity and imprisonment leading up to Lazaro’s
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birth, at a time when he knew Lazaro would be born, is relevant to the analysis.
However, this activity alone, occurring before the Department obtained custody,
does not support a finding under subsection (D). The criminal activity was not a
matter of domestic violence, it did not directly harm Lazaro, Mother or any other
person in the household. Father denied knowledge that Mother had used drugs.
However doubious Father’s denial might seem, there was no evidence to the
contrary upon which the trial court could rely. In Interest of F.E.N., 542 S.W.3d
752, 764–65 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Schwartz v.
Pinnacle Communications, 944 S.W.2d 427, 434 n.5 (Tex. App.–Houston [14th
Dist.] 1997, no writ) (“[A]lthough a trial court is generally free to disbelieve
testimony, in the absence of competent evidence to the contrary, it is not
authorized to find that the opposite of the testimony is true.”). The Department’s
own witness testified that the agency had no evidence that Father knew about the
Mother’s drug use. Our review of the record shows that the testimony that Father
had no knowledge of Mother's drug use during pregnancy was left uncontroverted.
Accordingly, we conclude the evidence is legally and factually insufficient
to support the subsection (D) finding.
2. Tex. Fam. Code § 161.001(b)(1)(E): Endangerment by Conduct.
By making the subsection (E) finding, the judge determined that Father had
engaged in conduct or knowingly placed Lazaro with persons who engaged in
conduct that endangered Lazaro’s physical or emotional well-being. Tex. Fam.
Code Ann. § 161.001(b)(1)(E). A finding of endangerment under subsection (E)
requires evidence that the endangerment resulted from the parent’s conduct,
including acts, omissions, or failures to act. In re S.R., 452 S.W.3d at 361. Unlike
subsection (D), termination of the parent-child relationship under subsection (E)
must be based on more than a single act or omission; the statute requires a
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voluntary, deliberate, and conscious course of conduct by the parent. Id. A court
properly may consider actions and inactions occurring both before and after a
child’s birth to establish a course of conduct. In re A.L.H., 515 S.W.3d 60, 91 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied).
Additionally, our review of termination judgments under subsection (E),
particularly those based on evidence of a parent’s incarceration and criminal
conduct, continues to be guided by the high court’s nuanced decision in Texas
Department of Human Services v. Boyd, 727 S.W.2d 531, 534 (Tex. 1987).
In Boyd, the father of the child was in jail at the child's birth. 727 S.W.2d at
533. He saw the child eight months later upon his release on parole, lived with her
for five months, and then returned to jail for burglary. Id. The evidence was
“vague, at best” as to whether the father ever supported the child. Id. The father
and mother were not married, and father’s paternity was not adjudicated until the
termination hearing. Id. at 532. The Texas Supreme Court concluded that such
evidence supports a termination based on endangerment. Id. at 533. The court
expressly rejected the court of appeals’ conclusion that danger under subsection
(E) “cannot be inferred from parental misconduct.” Id.
Both this court and the Supreme Court of Texas continue to follow Boyd.
Interest of M.M., No. 14-18-00881-CV, 2019 WL 1387964, at *8 (Tex. App.—
Houston [14th Dist.] Mar. 28, 2019, no pet.) (“The court's holding
in Boyd continues unabated”); Interest of J.F.-G., 627 S.W.3d 304, 312–13 (Tex.
2021). In Interest of J.F.-G., Supreme Court stated:
Endangering conduct under subsection (E) need not be directed at the
child. Nor must the child actually suffer injury. Rather, ‘endanger’
means to expose to loss or injury; to jeopardize. In Texas Department
of Human Services v. Boyd, we acknowledged that “Texas cases have
considered the involuntary termination of the rights of an imprisoned
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parent, and have held that mere imprisonment will not, standing alone,
constitute engaging in conduct which endangers the emotional or
physical well-being of a child,” but we nevertheless held that
incarceration does support an endangerment finding “if the evidence,
including the imprisonment, shows a course of conduct which has the
effect of endangering the physical or emotional well-being of the
child.” A parent's criminal history—taking into account the nature of
the crimes, the duration of incarceration, and whether a pattern of
escalating, repeated convictions exists—can support a finding of
endangerment. Imprisonment thus “is certainly a factor” the trial
court may weigh when considering endangerment.
627 S.W.3d 304, 312–13.
The record of Father’s conduct for the reviewable period under subsection
(E) constituted more than a single criminal offense resulting in incarceration. First,
Father was indicted for two offenses in July of 2020 for installing a card skimming
device at a fuel pump in the effort to steal credit card information, and on the same
date for cocaine possession. He was charged with both crimes, only pled guilty to
the credit card offense, but admitted to the Department of his possession of
cocaine. This resulted in Father’s absence at Lazaro’s birth through the first year-
and-a-half of Lazaro’s life. During this period, the court may have considered
circumstances making unborn Lazaro vulnerable in his absence. Father was aware
of the pending CPS cases against Mother, and that the father of one of Mother’s
other children challenged her parentage.
Second, in the short time after Father was released and subject to the family
service plan, he twice tested positive for cocaine in the short five-month period
before trial, while he had the opportunity to obtain his child’s return by complying
with the Department’s service plan and his parental rights were conditioned on his
ability to do so. He thus engaged in same conduct during the termination
proceedings which led to his initial arrest and incarceration, and therefore risked
not only another criminal charge, conviction, and absence from his child, but also
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the termination of his relationship with Lazaro. See Interest of M.M., No. 14-18-
00881-CV, 2019 WL 1387964, at *8 (Tex. App.—Houston [14th Dist.] Mar. 28,
2019, no pet.) (finding that a father’s criminal conduct leading to his incarceration
at the time of the child’s removal and during the termination proceedings was clear
and convincing support for an endangerment determination); also In re K.R.L., 14-
10-00187-CV, 2010 WL 4069351, at *5 (Tex. App.—Houston [14th Dist.] Oct. 19,
2010, no pet.) (“An incarcerated parent is absent from the child’s daily life and
unable to provide support. Therefore, a pattern of intentional criminal activity that
exposes a parent to incarceration is conduct that endangers the physical and
emotional well-being of a child.”)
Though Father asserted no objections to the evidence of the test results at
trial, Father argues that the two positive test results were unreliable. First, he
argues that his positive result on July 7, 2022 is discredited by a subsequent
negative result on July 29, 2022. He provides no authority to support this
reasoning; and we are unpersuaded particularly in light of the fact that he was
reported to fail a subsequent drug test on September 6, 2022, weeks before trial.
Father also argues that his positive result from September 6, 2022 is
deficient because the Department did not offer the physical report to support the
caseworker’s testimony at trial. We might be inclined to entertain this argument
had Father objected at trial to the testimony or impeached the testimony on this
basis.
The evidence would support a finding that Father had a history of criminal
conduct, incarceration, and drug use that endangered the Lazaro and would
continue to engage in such behavior. We conclude that under these circumstances,
the factfinder could have formed a firm belief or conviction that its endangerment
finding under subsection (E) was true. E.g., See Interest of M.M., 2019 WL
121387964, at *8; In re J.B., 2021 WL 1683942, at *6; In re J.O.A., 283 S.W.3d at
344. Considered in the light most favorable to the trial court’s finding, the evidence
is legally sufficient to support the trial court’s determination that termination of
Father’s parental rights was justified under section 161.001(b)(1)(E). Further, in
view of the entire record, we conclude the disputed evidence is not so significant as
to prevent the trial court from forming a firm belief or conviction that termination
was warranted under section 161.001(b)(1)(E). Accordingly, we conclude the
evidence is legally and factually sufficient to support the subsection (E) finding.
We therefore overrule appellant’s second issue.
C. Is the trial court’s order terminating Father’s parental rights supported by
legally and factually sufficient evidence to support the trial court’s finding
that termination is in the best interest of the child?
There is a strong presumption that the best interest of the child is served by
keeping the child with his natural parents. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (per curiam) (citing Tex. Fam. Code Ann. § 153.131(b)); In re D.R.A., 374
S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). However,
prompt and permanent placement of the child in a safe environment is also
presumed to be in the child’s best interest. In re S.R., 452 S.W.3d at 366 (citing
Tex. Fam. Code Ann. § 263.307(a)). Proof of acts or omissions under section
161.001(b)(1) is probative of the issue of the child’s best interest. See id. The
considerations that the factfinder may use to determine the best interest of the
child, known as the Holley factors, include:
(1) the desires of the child;
(2) the present and future physical and emotional needs of the child;
(3) the present and future physical and emotional danger to the child;
(4) the parental abilities of the person seeking custody;
(5) the programs available to assist the person seeking custody in
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promoting the best interest of the children;
(6) the plans for the child by the individuals or agency seeking
custody;
(7) the stability of the home or proposed placement;
(8) acts or omissions of the parent that may indicate the existing
parent-child relationship is not appropriate; and
(9) any excuse for the parent’s acts or omissions.
See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (interpreting former
Tex. Fam. Code § 15.02 (since amended)); see also Tex. Fam. Code Ann. §
263.307(b) (listing factors to be considered in evaluating “whether the child’s
parents are willing and able to provide the child with a safe environment”).
Desires of the Child
Father was in prison when Lazaro was born and did not first visit him until
over a year after Lazaro had been in foster care. When Father was out of prison, he
visited Lazaro most, but not all months leading up to his trial. 2 The caseworker
testified initially that Lazaro would cry at the beginning of each visit, but toward
the end of the visit “he seems to warm up as [Father] brings him snacks and videos
on his phone”. Through the testimony of its caseworker, the Department provided
evidence showing the child was placed in a foster home with foster parents who
demonstrated the ability to care for Lazaro, provide for all his needs, and wished to
adopt him should termination be granted.
Under such circumstances the factfinder may consider that the child has
bonded with the foster family, is well cared for by the foster family, and has spent
minimal time with the parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied).
2
The record and testimony indicate that Father attended scheduled visits pursuant to the
Family Service Plan in April, May, July, and August, but failed to visit Lazaro during the month
of June.
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The Department’s plan would also afford Lazaro with the opportunity to
obtain permanency and stability in a home with his siblings, to whom he was
significantly bonded.
This factor weighs in favor of terminating Father’s parental rights.
Present and Future Physical and Emotional Needs and Dangers
At the time shortly before trial, Father provided proof that he was employed
and had secured a stable residence. 3 He was also participating in parenting classes
and attended most visits with Lazaro. Such facts are supportive of finding that he
demonstrated some willingness to address Lazaro’s emotional and physical needs.
However, his latest positive drug test shortly before trial is evidence the trial
court could have considered as probative of Father’s recklessness with regard to
the risk of another drug-related incarceration, again putting his presence at risk,
jeopardizing his ability to care directly for Lazaro’s physical and emotional needs.
Father’s positive drug test results are also supportive of the court’s
consideration of present and future physical and emotional dangers to the child. A
parent’s drug use supports a positive finding on the third Holly factor that
termination is in the best interest of the child. Interest of D.M.M., No. 14-18-
00750-CV, 2019 WL 546029, at *8 (Tex. App.—Houston [14th Dist.] Feb. 12,
2019, pet. denied). The factfinder can give “great weight” to the “significant
factor” of drug-related conduct. In re K.C., 219 S.W.3d 924, 927 (Tex. App.–Dallas
2007, no pet.); see also, In re J.J.W., No. 14-18-00985-CV, 2019 WL 1827591, at
*6 (Tex. App. Houston [14th Dist. 2019, pet. denied) (“Drug abuse and its effect
on the ability to parent can present an endangering course of conduct.”).
3
Father had only provided the department with an address of such location where he was
living a week before trial. The Department had not yet had an opportunity to evaluate the
residence.
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Foster parents did not testify, but the Department’s caseworker testified that
she had observed Lazaro in his foster home and said his foster family was meeting
all his physical and emotional needs and they wished to adopt him. The caseworker
testified that there was a bond between Lazaro and his foster parents, and that the
child sought his foster parents out for comfort and was very attached to them.
Under the foster family’s care Lazaro was developmentally on target and had no
medical needs. She also explained that Lazaro was in daycare which, the
caseworker testified said, he loved. She said, “he is the boss in day care. He’s super
friendly and is always wanting to help the teacher.”
On the balance, these second and third Holly factors weigh in favor of
terminating Father’s parental rights.
The parental ability of the individuals seeking custody
The Court could have also considered Father’s relationship with other
children and any proven ability to care for the needs of other children. Father
provided no details other than the fact he had parented children that he left behind
in Cuba. Father testified that during the year he was living with Mother he
parented all of her other children and that they referred to him as their father. Even
assuming Father provided for these children’s emotional and physical needs, the
record shows that the household was unstable during that time, subject to reports of
drug traffic and prostitution. The court could have reasonably concluded that this
factor favored termination of Father’s parental rights.
This factor weighs in favor of terminating Father’s parental rights.
The plans for the child by the individuals or agency seeking custody, and the
stability of the home or proposed placement
Placement plans and adoption are relevant but “the lack of evidence about
definitive plans for permanent placement and adoption cannot be the dispositive
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factor.” In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). The issue is “whether, on the
entire record, a factfinder could reasonably form a firm conviction or belief that
termination of the parent’s rights would be in the child’s best interest even if the
agency is unable to identify with precision the child’s future home environment.”
Id. The court was provided only limited details about the stability of Father’s
home. The Department reported that Lazaro was sought after by his foster family.
In addition to the likelihood of a stable foster family for Lazaro, the Department
plans for Lazaro included a possible opportunity for Lazaro’s sibling (with who
Lazaro had already bonded). Even with some details of Lazaro’s future with the
department under its plan left to be determined, its plans and proof of stability
favored Lazaro’s best interests.
This factor weighs in favor of terminating Father’s parental rights.
Acts, omissions, and excuses of existing parent-child relationship: Noncompliance
with subsection (O) and Excuses for Noncompliance
Evidence supporting termination under the grounds listed in section
161.001(b)(1) also can be considered in support of a finding that termination is in
the child’s best interest. See C.H., 89 S.W.3d at 27 (holding the same evidence
may be probative of both section 161.001(b)(1) grounds and best interest). In
determining the best interest of the child in proceedings for termination of parental
rights, the trial court properly may consider that the parent did not comply with the
court-ordered service plan for reunification with the child. See In re E.C.R., 402
S.W.3d 239, 249 (Tex. 2013). Most of the excuses Father presents for failing his
drug test under his plan on appeal were not presented at trial, yet had they been,
they would not have been so overwhelming to discount Father’s noncompliance
with the family service plan.
This factor weighs in favor of terminating Father’s parental rights.
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Concluding Analysis of Holly factors
Applying the applicable Holley factors to the evidence, we conclude that
legally and factually sufficient evidence supports the trial court’s finding that
termination of Father’s parental rights is in Lazaro’s best interest. See Interest of
D.M.M., 2019 WL 546029, at *8; In re E.C.R., 402 S.W.3d at 249; See In re S.B.,
207 S.W.3d 877, 887–88 (Tex. App.–Fort Worth 2006, no pet.) (considering the
parent’s drug use, inability to provide a stable home, and failure to comply with a
family-service plan in holding the evidence supported the best-interest finding).
Based on the evidence presented, the trial court reasonably could have formed a
firm belief or conviction that terminating Father’s rights served Lazaro’s best
interests so that they quickly could achieve permanency through adoption. See In
re T.G.R.–M., 404 S.W.3d 7, 17 (Tex. App.–Houston [1st Dist.] 2013, no pet.);
M.G.D., 108 S.W.3d at 513–14.
Accordingly, we overrule Father’s second issue.
III. CONCLUSION
Having overruled each of the issues presented, we affirm the judgment of the
trial court.
/s/ Randy Wilson
Justice
Panel consists of Justice Wise, Justice Zimmerer and Justice Wilson.
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