in the Interest of K.F. and K.F. ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00078-CV
__________________
IN THE INTEREST OF K.F. AND K.F.
__________________________________________________________________
On Appeal from the 279th District Court
Jefferson County, Texas
Trial Cause No. F-230,235-A
__________________________________________________________________
MEMORANDUM OPINION
The trial court terminated the parental rights of D.F. and K.T. to their children
K.F. (“Kari”) and K.F. (“Kate”). 1 In separate briefs submitted in this appeal, D.F.
and K.T. challenge the legal and factual sufficiency of the evidence supporting the
best-interest finding and the termination grounds specified in sections
161.001(b)(1)(D), (E), and (O). See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E),
1
To preserve the privacy of the parties, we refer to the parties by their initials,
the children by the fictitious names “Kari” and “Kate”, and we will identify other
family members based on their respective relationships to the specific child who is
discussed. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8.
1
(O), (2). We affirm the trial court’s judgment terminating D.F.’s and K.T.’s parental
rights.
Background
In February 2020, the Department of Family and Protective Services (“the
Department”) filed a petition seeking the termination of D.F.’s and K.T.’s parental
rights to their children, Kari and Kate. In March 2021, the trial court conducted a
bench trial on the Department’s petition. Dashelle Reed, a Department caseworker,
testified that in December 2018, the Department received a referral due to concerns
about K.T.’s mental health, drug use, and criminal history, and the case was
transferred to Family Based Safety Services (“F.B.S.S.”). Reed testified that during
F.B.S.S.’s investigation, K.T. was pregnant with Kate and tested positive for
marijuana and cocaine, and D.F. was incarcerated. Reed explained that K.T. and
D.F. had drug issues the entire time the Department worked with the family, and in
January 2020, F.B.S.S. executed a removal affidavit. Reed testified that in February
2020, the trial court granted the Department temporary managing conservatorship of
the children, and the Department placed the children with an aunt. According to
Reed, the children are happy with their aunt and their needs are being met.
Reed explained that the Department developed a Family Plan of Service for
K.T. and D.F., and Reed testified that she went over the family plan with K.T. Reed
testified that K.T. tested positive for marijuana, cocaine, amphetamines, and
2
methamphetamines throughout the case and failed to maintain employment, provide
a stable and appropriate environment to which the children could return, successfully
address her anger management and mental health issues, and attend the required
parenting class. Reed explained that a month prior to trial, K.T. went to an inpatient
drug facility and completed the program, and Reed testified that she assumed that
K.T. believed that she would get an extension on her case if she was an inpatient.
According to Reed, since K.T. failed to seek treatment in a timely manner, K.T. did
not have time to demonstrate whether she would be able to live a drug free life. Reed
also testified that K.T. had previously completed outpatient treatment when her case
was with F.B.S.S., and K.T. tested positive while she was in outpatient.
Reed testified that K.T. has been diagnosed with bipolar disorder and has a
history of not addressing her mental health issues, being noncompliant with her
medications, and having suicidal ideations. Reed explained that K.T. has abused her
medications, self-medicated with illegal drugs, and attempted suicide on multiple
occasions. Reed testified that if K.T. failed to comply with treatment and continued
to use illegal drugs, K.T. would continue to have mental health issues that would
affect her ability to parent her children until they are eighteen, and Reed explained
that the children are young and unable to care for themselves. According to Reed,
she has observed K.T. come to court “to the point where she’s sleepy and barely able
to form a sentence or stay focused on what’s going on.” Reed explained that K.T.’s
3
untreated mental health issues caused the children to be in conditions or
surroundings which endangered their physical or emotional well-being, and if left
untreated, K.T.’s mental illness would continue to place the children in harm.
Reed also testified that K.T. was still in a relationship with D.F., and since
D.F.’s release from jail, the majority of K.T.’s drug tests were positive and K.T. was
no longer focused on working her service plan. Reed further explained that it is in
the children’s best interest that K.T.’s parental rights be terminated, because the
Department has been working with K.T. for approximately three years, and K.T. has
not effectively worked her service plan or demonstrated the ability to change.
Reed testified that the Department has also been working with D.F. since
2018, and after D.F.’s release from jail, Reed and D.F. reviewed his individual
service plan and discussed the ramifications of D.F.’s choice to be in a relationship
with K.T. According to Reed, D.F. reported that he made poor decisions because his
cognitive thinking was messed up. Reed testified that D.F. failed to comply with his
service plan, and D.F. indicated that working the plan was not his primary goal. Reed
explained that in the six months after D.F.’s release from jail, D.F. tested positive
for drugs, failed to complete his psychosocial evaluation and parenting class, and
failed to maintain stable housing and employment. Reed testified that in the two
months prior to trial, D.F. tested positive for marijuana, methamphetamines,
amphetamines, opiates, and codeine, and D.F. went to inpatient treatment and was
4
released four days before the trial began. According to Reed, there was no time to
determine whether D.F.’s treatment had been effective. Reed explained that D.F.
completed drug treatment twice before, and D.F. tested positive upon his release
from jail. Reed further testified that D.F.’s criminal activity and drug use endangered
the children’s well-being, and it was in the children’s best interest that D.F.’s
parental rights be terminated.
K.T. testified that she is still in a relationship with D.F., and they currently
live with D.F.’s mother. K.T. explained that in August 2020, Dr. Amin diagnosed
her with Type 1 bipolar disorder, major depressive disorder, generalized anxiety
disorder, an unspecified personality disorder, cocaine use disorder in remission,
substance abuse disorder in remission, and cannabis use disorder in remission. K.T.
admitted that in 2019, when her first child, Kari, was two years old, she reported that
she had been off her medications since 2016 and was buying Xanax off the street.
K.T. testified that after she had Kari, she started smoking marijuana, and K.T.
explained that when she was three months pregnant with Kate, she stopped taking
her medications and jumped out of a moving vehicle because she had taken seven
Xanax. K.T. further testified that after she had Kate, she reported having auditory
and visual hallucinations, but K.T. did not recall reporting that she heard voices
telling her to hurt herself and others. K.T. explained that she attempted suicide seven
times “before my kids and with the exception of the jumping out the car.”
5
K.T. testified that after she had her children, she took her mental health
medications along with methamphetamine and cocaine, and the Department gave
her an opportunity to participate in F.B.S.S. to avoid having her children removed.
K.T. explained that in February 2020, she went to court for a theft charge and tested
positive for benzodiazepine, methamphetamine, cocaine, and marijuana. K.T.
testified that she was currently on probation and had three theft convictions, one of
which she committed with D.F. K.T. admitted that she had not taken her case
seriously for over a year because she did not have the proper tools to work her
services and “my addiction had the best of me.” K.T. testified that she completed a
seven-month outpatient program approximately six months before trial, and she
tested positive for drugs during the program and continued to test positive after
completing the program. According to K.T., she received the proper tools to deal
with her problems when she attended inpatient treatment shortly before trial, and she
had been compliant with her current medications for one week. K.T. admitted that
she could have sought inpatient treatment earlier in her case.
K.T. explained that she had changed, but K.T. agreed that she had not
demonstrated change over the past year. According to K.T., she has dealt with mental
health issues for almost fifteen years and has had addiction problems for ten years,
and the Department did not give her enough time to address her problems. K.T.
testified that it was in the best interest of her children that her parental rights remain
6
intact so she can continue to work on her services. K.T. explained that she needed
three months to get a job and find an appropriate place for her and D.F. to live with
the children.
D.F. testified that he was twenty-nine years old and has a long history of drug
use, and D.F. admitted that during the case, he tested positive for opiates codeine,
methamphetamine, benzodiazepine, and marijuana. D.F. also admitted he was an
addict and explained that he started using ecstasy when he was fourteen years old,
and he was using ecstasy pills that were methamphetamine based for approximately
six months prior to trial. D.F. testified that he attended an inpatient drug
rehabilitation the month before trial and was diagnosed with a mental health issue
and referred to treatment, and D.F. explained that he did not seek drug treatment
earlier because he did not think he had a problem. D.F.’s records from the residential
substance abuse treatment facility show D.F. was on parole, had been using drugs
daily, and had possible mental health issues. According to D.F., he had an
appointment to address his mental health issues. D.F. also testified that he has an
extensive criminal history, his probation was revoked for “dirty U.A.s[,]” and he
tested positive while on parole. D.F. also explained that although he has been
through the Safe P Program twice, which is a six-month drug treatment program, he
only attended four months of the program the second time, and D.F. believed that
7
his recent thirty-day inpatient treatment was more intensive and helped him become
clean and change his life.
D.F. further testified that he had reviewed his Family Plan of Service, and
D.F. explained that he is serious about changing his lifestyle. D.F. testified that he
plans to stay sober and remain in a relationship with K.T., but he will separate from
K.T. if she relapses. D.F. also testified that he is living at his mother’s home and
drawing unemployment, and D.F. explained that his mother can get him a job at a
refinery when he is able to pass a hair follicle drug test. D.F. testified that he could
pass a urinalysis and provide a safe and stable home for the children and requested
that the trial court consider options other than termination.
Aaron Moore, the CASA volunteer, testified that he had worked on the case
for approximately one year and has had monthly interactions with the children.
Moore testified that his contact with K.T. has been sporadic, and K.T. has been
noncompliant with her Family Plan of Service. Moore further testified that
termination of K.T.’s parental rights would be in the children’s best interest because
K.T. has had ample time to work her services and demonstrate change. According
to Moore, K.T. does not deserve more time to work her services because based on
K.T.’s history, it is difficult to believe that she has suddenly changed. Moore
explained that the children need consistency and a clean and sober parent to care for
them daily and who is not possibly going to jail for violating their probation.
8
Moore also testified that D.F. has been noncompliant with his Family Plan of
Service and has also had ample time to demonstrate change but failed to do so.
Moore explained that D.F. knew the consequences of using drugs and violating his
probation, but his freedom was not enough for him to contemplate change because
he was arrested on a motion to revoke and incarcerated during the case. Moore
testified that termination of D.F.’s parental rights would be in the children’s best
interest, because even considering D.F.’s recent sobriety, D.F. has not shown that he
can provide consistency and a clean and sober lifestyle. Moore also testified that the
children were in a long-term placement with relatives who were meeting the
children’s needs and providing a consistent and drug-free home. According to
Moore, the children seemed very happy and should remain in their current
placement.
The trial court found that clear and convincing evidence supported three
predicate statutory grounds for terminating D.F.’s and K.T.’s parental rights and that
termination of D.F.’s and K.T.’s parental rights was in the best interest of Kari and
Kate. See id. § 161.001(b)(1)(D), (E), (O), (2). The trial court also found that clear
and convincing evidence supported that K.T. has a mental or emotional illness that,
in all probability, will render her unable to provide for the children’s needs until the
children’s eighteenth birthdays. See id. The trial court appointed the Department as
the permanent managing conservator of the children. D.F. and K.T. appealed.
9
Analysis
In issue one, D.F. and K.T. contend that the evidence is legally and factually
insufficient to support termination of their parental rights under section
161.001(b)(1)(D) of the Family Code, and in issue two, D.F. and K.T. argue that the
evidence is legally and factually insufficient to support termination under section
161.001(b)(1)(E). See id. § 161.001(b)(1)(D), (E). In issue three, D.F. and K.T.
challenge the legal and factual sufficiency of the evidence supporting termination of
their parental rights under section 161.001(b)(1)(O). See id. § 161.001(b)(1)(O). In
issue four, D.F. and K.T. contend that the evidence is legally and factually
insufficient to demonstrate that termination of their parental rights is in the best
interest of Kari and Kate. See id. § 161.001(b)(2). We address issues one through
four together.
Under legal sufficiency review, we review 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 the Interest of J.F.C.,
96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could, and we disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible. Id. If no reasonable factfinder could form a firm belief or conviction that
the matter that must be proven is true, the evidence is legally insufficient. Id.10
Under factual sufficiency review, we must determine whether the evidence is
such that a factfinder could reasonably form a firm belief or conviction about the
truth of the Department’s allegations. Id. (citation omitted). We give due
consideration to evidence that the factfinder could reasonably have found to be clear
and convincing. Id. We consider whether disputed evidence is such that a reasonable
factfinder could not have resolved that disputed evidence in favor of its ruling. Id.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, the evidence is factually
insufficient. Id.The decision to terminate parental rights must be supported by clear and
convincing evidence, i.e., “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 Ann. § 101.007; In the Interest of J.L.,
163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the parent committed
one or more predicate acts or omissions and that termination is in the child’s best
interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2); see also In the Interest of
J.L., 163 S.W.3d at 84. We will affirm a judgment if any one of the grounds is
supported by legally and factually sufficient evidence and the best-interest finding
is also supported by legally and factually sufficient evidence. In the Interest of
11
C.A.C., Jr., No. 09-10-00477-CV, 2011 WL 1744139, at *1 (Tex. App.—Beaumont
May 5, 2011, no pet.) (mem. op.). However, when, as here, a parent challenges a
trial court’s findings under section 161.001(b)(1)(D) or (E), we must review the
sufficiency of those grounds as a matter of due process and due course of law. In the
Interest of N.G., 577 S.W.3d 230, 235 (Tex. 2019).
Section 161.001(b)(1)(D) of the Family Code allows for termination of a
parent’s rights if the trier of fact finds by clear and convincing evidence 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[.]”
Tex. Fam. Code Ann. § 161.001(b)(1)(D). Section 161.001(b)(1)(E) allows for
termination if the trier of fact finds by clear and convincing evidence that 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[.]” Id.§ 161.001(b)(1)(E). “[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 the Interest of J.O.A.,
283 S.W.3d 336, 345 (Tex. 2009). A parent’s conduct in the home can create an
environment that endangers the child’s physical and emotional well-being. In the
Interest of J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no
pet.). “The factfinder may infer from past conduct endangering the child’s well-
being that similar conduct will recur if the child is returned to the parent.” In the
12
Interest of M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.)
(citation omitted).
For purposes of subsection (E), endangerment means to expose the child to
loss or injury or to jeopardize a child’s emotional or physical health. See id.; see also
In the Interest of M.L.L., 573 S.W.3d 353, 363 (Tex. App.—El Paso 2019, no pet.).
Termination under subsection (E) must be based on more than a single act or
omission and requires a voluntary, deliberate, and conscious course of conduct by
the parent. Interest of M.L.L., 573 S.W.3d at 363-64. A parent’s conduct that
subjects a child’s life to instability and uncertainty endangers the emotional or
physical well-being of a child. Id. at 363. Endangerment is not limited to actions
directed toward the child and includes the parent’s actions before the child’s birth
and while the parent had custody of older children, including evidence of drug
usage. In the Interest of J.O.A., 283 S.W.3d at 345.
Courts may consider whether a parent’s drug use continues after the child is
removed from the parent’s care, as such conduct shows a voluntary, deliberate, and
conscious course of conduct that endangers a child’s well-being. In the Interest of
J.S., 584 S.W.3d 622, 635 (Tex. App.— Houston [1st Dist.] 2019, no pet.); see In
the Interest of M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.— Fort Worth 2011, pet.
denied). A mother’s use of drugs during pregnancy may constitute conduct that
endangers the physical and emotional well-being of a child. Cervantes-Peterson v.
13
Tex. Dep’t of Family and Protective Servs., 221 S.W.3d 244, 253 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). Scienter is not required for a parent’s own act
under subsection (E). In the Interest of U.P., 105 S.W.3d 222, 236 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied). One parent’s drug-related endangerment of
the child may be imputed to the other parent. Edwards v. Tex. Dep’t of Protective
and Regulatory Servs., 946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ),
overruled on other grounds, In the Interest of J.F.C., 96 S.W.3d at 267.
Evidence of a parent’s untreated mental illness can also expose a child to
endangerment, because when a parent fails to take required medication, the parent
can behave erratically and neglect the care of the child. See In the Interest of P.H.,
544 S.W.3d 850, 858 (Tex. App.—El Paso 2017, no pet.). Evidence of criminal
conduct, conviction, and imprisonment may support a finding of endangerment
under subsection (E). In the Interest of E.R.W., 528 S.W.3d 251, 264 (Tex. App.—
Houston [14th Dist.] 2017, no pet.). When a parent is incarcerated, their conduct
subjects a child’s life to uncertainty and instability, and a factfinder may infer that a
parent’s lack of contact with a child and absence from a child’s life endangered the
child’s emotional well-being. In the Interest of I.D.G., 579 S.W.3d 842, 851-52 (Tex.
App.—El Paso 2019, pet. denied).
Regarding the best-interest inquiry, we consider a non-exhaustive list of
factors: (1) the desires of the child; (2) the child’s emotional and physical needs now
14
and in the future; (3) emotional and physical danger to the child now and in the
future; (4) parental abilities of the individuals seeking custody; (5) programs
available to assist these individuals to promote the child’s best interest; (6) plans for
the child by these individuals or by the agency seeking custody; (7) stability of the
home or proposed placement; (8) acts or omissions of the parent which may indicate
that the existing parent-child relationship is not proper; and (9) any excuse for the
acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
1976); see also Tex. Fam. Code Ann. § 263.307(b). No particular Holley factor is
controlling, and evidence of one factor may be sufficient to support a finding that
termination is in a child’s best interest. In the Interest of A.P., 184 S.W.3d 410, 414
(Tex. App.—Dallas 2006, no pet.). The best-interest determination may rely on
direct or circumstantial evidence, subjective facts, and the totality of the evidence.
In the Interest of N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.).
“A parent’s drug use, inability to provide a stable home, and failure to comply
with a family service plan support a finding that termination is in the best interest of
the child.” In the Interest of M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth
2007, no pet.). Evidence of a parent’s continued drug use supports a finding that he
or she poses a present and future risk of physical or emotional danger to the child
and that termination would be in the child’s best interest. See In the Interest of S.N.,
272 S.W.3d 45, 53 (Tex. App.—Waco 2008, no pet.).
15
The clerk’s record shows that based on the affidavit of Lena Brooks, a
Department caseworker, the trial court issued an emergency temporary order in
February 2020, naming the Department as the temporary sole managing conservator
of the children based on its findings that there was an immediate and continuing
danger to the physical health or safety of the children and that the continuation of
the children in the home of the parent would be contrary to the children’s welfare.
According to Brooks’s affidavit, the Department received a report during K.T.’s
current F.B.S.S. case when K.T. gave birth to Kate in December 2019, but the
concerns regarding K.T.’s mental health were ruled out because K.T. was under
psychiatric care and not having any suicidal ideations. Brooks explained that in
January 2020, she was assigned to K.T.’s case, and her review of the investigation
showed that the Department became involved due to D.F.’s and K.T.’s criminal
activity and drug use. Brooks’s affidavit indicated that K.T. was pregnant with Kate
during the investigation, K.T. tested positive for marijuana and cocaine, and the
investigation found there was “Reason to Believe” regarding K.T. and Kari.
According to Brooks, the case disposition regarding D.F. was found to be unable to
determine because D.F. passed a random drug test and had limited caregiving time
with Kari.
Brooks averred that in August 2019, K.T. and D.F. signed their Family Plan
of Service with F.B.S.S., agreeing to participate in parenting, substance abuse
16
treatment, random drug testing, and for K.T. to maintain her mental health needs.
Brooks further averred that after K.T. gave birth to Kate in December 2019, K.T.
failed to return to outpatient services and to visit her mental health professionals to
update her medications. Brooks explained that when she met with the family on
February 5, 2020, K.T. admitted using marijuana, and Brooks learned that D.F. was
on the run from probation and the U.S. Marshalls. Brooks put a safety plan in place
that prohibited D.F. from having unsupervised contact with the children until he
cleared up his warrants. Brooks also averred that on February 12, K.T. tested positive
for marijuana, and on February 14, Brooks put a second safety plan in place after
receiving a report that K.T. had an alternation with her mother while K.T. was
holding Kate. Brooks further averred that on February 20, K.T. went to jail after
testing positive for cocaine and marijuana during a court hearing concerning a pawn
shop robbery that K.T. was allegedly involved in. Based on the circumstances,
Brooks requested that Kari and Kate be placed with their maternal aunt and uncle
due to concerns for the children based on their parents’ ongoing drug use, K.T. being
incarcerated, D.F. running from law enforcement, and K.T.’s and D.F.’s continuous
disregard for the children’s safety by placing them in dangerous situations. On
February 25, the trial judge ordered the removal of the children due to the immediate
and continuing danger to the physical health and safety of the children.
17
Grounds for Termination-K.T.
The trial judge considered evidence that while K.T.’s case was with F.B.S.S.,
K.T. (1) tested positive for marijuana and cocaine and went to jail; (2) jumped out
of a moving vehicle while pregnant with Kate; (3) admitted to using marijuana after
giving birth to Kate; (4) failed to return to outpatient services and to visit her mental
health professionals to update her medications; (4) and had an altercation with her
mother while holding Kate. The trial court heard evidence that K.T. failed to
complete her services, maintain employment, or provide an appropriate home. The
trial judge heard that K.T. continued to test positive for drugs throughout the case
and failed to timely seek inpatient treatment. The trial judge also considered
evidence that K.T. failed to address her mental health issues, had been noncompliant
with her medications, and self-medicated with illegal drugs. The trial court also
heard evidence that K.T. had a history of having suicidal ideations, attempted suicide
on multiple occasions, and jumped out of a moving vehicle while pregnant. The trial
judge heard evidence that K.T continued to be in a relationship with D.F., and after
D.F.’s release from jail, K.T. tested positive for drugs and was not focused on
working her service plan. The trial court considered evidence K.T. was on probation
and had continued to use drugs and engage in criminal activity in violation of the
terms of her probation.
18
Viewing the evidence in the light most favorable to the trial judge’s findings,
we conclude that the trial judge could reasonably have formed a firm belief or
conviction that K.T. knowingly placed or knowingly allowed Kari and Kate to
remain in conditions or surroundings which endangered their physical or emotional
well-being and engaged in conduct or knowingly placed Kari and Kate with persons
who engaged in conduct that endangered their physical or emotional well-
being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); In the Interest of J.O.A.,
283 S.W.3d at 345; In the Interest of J.F.C., 96 S.W.3d at 266; In the Interest of J.S.,
584 S.W.3d at 635; In the Interest of I.D.G., 579 S.W.3d at 851-52; In the Interest
of P.H., 544 S.W.3d at 857-58; In the Interest of E.R.W., 528 S.W.3d at 264; In the
Interest of M.L.L., 573 S.W.3d at 363; In the Interest of M.E.-M.N., 342 S.W.3d at
263; In the Interest of M.R.J.M., 280 S.W.3d at 502; Cervantes-Peterson, 221
S.W.3d at 253; In the Interest of J.T.G., 121 S.W.3d at 125.
With respect to the best interest of the children, the trial court heard evidence
that K.T. (1) had been in jail and continued to engage in criminal activity throughout
the case, (2) continued to use drugs throughout the case, (3) failed to complete her
family service plan, (4) failed to maintain employment or provide an appropriate
home for the children, and that (5) Kari and Kate are happy and have stability in
their current placement with relatives. The trial court considered Reed’s testimony
that it is in the children’s best interest that K.T.’s parental rights be terminated
19
because K.T. has not demonstrated change over a three-year period. The trial court
also heard Moore testify that it was in the children’s best interest that K.T.’s parental
rights be terminated because K.T. was sporadic and noncompliant and had been
given ample time to work her services and demonstrate change, and the children
needed consistency and a sober parent who is able to care for them.
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. See Tex. Fam. Code Ann. § 263.307(a).
As the sole judge of the credibility of the witnesses and the weight to be given to
their testimony, the trial court could reasonably conclude that termination of K.T.’s
parental rights is in the best interest of Kari and Kate. See id. §§ 161.001(b)(2),
263.307(a); see also In the Interest of J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d
at 371-72; In the Interest of S.N., 272 S.W.3d at 53; In the Interest of M.R., 243
S.W.3d at 821.
Grounds for Termination-D.F.
The trial judge heard evidence that D.F. tested positive for drugs throughout
the case, failed to complete his services, and failed to maintain employment and
provide an appropriate home. The trial court also considered evidence that D.F.
continued to engage in criminal conduct after the children’s removal. The record
includes a Judgment Adjudicating Guilt dated April 8, 2020, which shows that D.F.
pleaded “true” to violating the terms of his community supervision and that the trial
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court found D.F. guilty of burglary of a habitation and assessed punishment at three
years of imprisonment. The record also includes a Judgment of Conviction by Court
dated April 8, 2020, showing that D.F. pleaded guilty to felony theft and the trial
court assessed punishment of six months in jail.
Viewing the evidence in the light most favorable to the trial judge’s findings,
we conclude that the trial judge could reasonably have formed a firm belief or
conviction that D.F. knowingly placed or knowingly allowed Kari and Kate to
remain in conditions or surroundings which endangered their physical or emotional
well-being and engaged in conduct or knowingly placed Kari and Kate with persons
who engaged in conduct that endangered their physical or emotional well-
being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); In the Interest of J.O.A.,
283 S.W.3d at 345; In the Interest of J.F.C., 96 S.W.3d at 266; In the Interest of J.S.,
584 S.W.3d at 635; In the Interest of I.D.G., 579 S.W.3d at 851-52; Interest of
M.L.L., 573 S.W.3d at 363; In the Interest of E.R.W., 528 S.W.3d at 264; In the
Interest of M.E.-M.N., 342 S.W.3d at 263; In the Interest of M.R.J.M., 280 S.W.3d
at 502; In the Interest of J.T.G., 121 S.W.3d at 125; Edwards, 946 S.W.2d at 138.
With respect to the best interest of Kari and Kate, the trial court heard
evidence that D.F. (1) had been incarcerated and continued to engage in criminal
activity throughout the case, (2) continued to use drugs throughout the case in
violation of his probation and parole, (3) failed to complete his Family Plan of
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Service, (4) failed to maintain employment or provide an appropriate home for Kari
and Kate to return to, and that (5) Kari and Kate were in a long-term placement with
relatives who were meeting their needs and providing a consistent and drug-free
home.
The trial court considered Reed’s testimony that it is in the children’s best
interest that D.F.’s parental rights be terminated because of D.F.’s continued
criminal activity and drug use. The trial court also heard Moore testify that it was in
the children’s best interest that D.F.’s parental rights be terminated because D.F.
failed to comply with his service plan, failed to provide consistency and demonstrate
a sober lifestyle, and was incarcerated for using drugs in violation of his probation.
The trial court considered Moore’s testimony that the children were happy and
should remain in their current placement.
As the sole judge of the credibility of the witnesses and the weight to be given
to their testimony, the trial court could reasonably conclude that termination of
D.F.’s parental rights is in the best interest of Kari and Kate. See Tex. Fam. Code
Ann. §§ 161.001(b)(2), 263.307(a); see also In the Interest of J.F.C., 96 S.W.3d at
266; Holley, 544 S.W.2d at 371-72; In the Interest of S.N., 272 S.W.3d at 53; In the
Interest of M.R., 243 S.W.3d at 821.
We conclude that the Department established, by clear and convincing
evidence, that D.F. and K.T. committed the predicate acts enumerated in sections
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161.001(b)(1)(D) and (E) and that termination of D.F.’s and K.T.’s parental rights is
in the best interest of Kari and Kate. See Tex. Fam. Code Ann. § 161.001(b)(1)(D),
(E), (2); In the Interest of C.A.C., Jr., 2011 WL 1744139, at *1. Accordingly, we
overrule D.F.’s and K.T.’s first, second, and fourth issues. Having concluded that
the evidence was legally and factually sufficient to support the trial court’s findings
as to subsections 161.001(b)(1)(D), (E), and (2), we need not reach D.F.’s and K.T.’s
third issue, in which D.F. and K.T. challenge the sufficiency of the evidence
supporting the trial court’s findings under sections 161.001(b)(1)(O). See In the
Interest of N.G., 577 S.W.3d at 235; In the Interest of C.A.C., Jr., 2011 WL 1744139,
at *1; see also Tex. R. App. P. 47.1. We affirm the trial court’s judgment terminating
D.F.’s and K.T.’s parental rights.
AFFIRMED.
_________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on August 11, 2021
Opinion Delivered August 26, 2021
Before Golemon, C.J., Kreger and Johnson, JJ.
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