in the Interest of I. D. G. v. A. G., E. R. G. and R. J. G., Children , 579 S.W.3d 842 ( 2019 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-18-00182-CV
IN THE INTEREST OF §
Appeal from
I.D.G., V.A.G., E.R.G., AND R.J.G., §
65th District Court
CHILDREN. §
of El Paso County, Texas
§
(TC # 2017DCM6687)
§
OPINION ON MOTION FOR REHEARING
W.M.U. (Wanda) appeals from the judgment terminating her parental rights to I.D.G.,
V.A.G., E.R.G., and R.J.G.1 The trial court also terminated the parental rights of the biological
father, V.G., but he has not appealed. On April 9, 2019, we issued our opinion and judgment
modifying the termination judgment to delete the finding under Section 161.001(b)(1)(K) and
affirming the termination judgment as modified. In our review of the legal and factual
sufficiency issues, we did not address termination of Wanda’s parental rights under Section
161.001(b)(1)(D) and (E) because Wanda did not challenge two other predicate termination
grounds. On May 17, 2019, the Texas Supreme Court decided In re Z.M.M. which holds that
due process requires an appellate court to review a parent’s sufficiency challenges directed at
subsections D and E even when an alternate predicate termination ground is supported by
1
To protect the identity of the children, the opinion will refer to W.M.U. by the fictitious name “Wanda”, to her
mother H.U. by the fictitious name “Helen” and to the children by their initials or collectively as the children. See
TEX.R.APP.P. 9.8.
sufficient evidence. In re Z.M.M., No. 18-0734, --- S.W.3d ---, 2019 WL 2147266, at *1 (Tex.
May 17, 2019)(per curiam); see In re N.G., No. 18-0508, --- S.W.3d ---, 2019 WL 2147263 (Tex.
May 17, 2019)(holding that due process and due course of law require an appellate court to
review and detail its analysis as to termination of parental rights under subsections D or E).
Wanda filed an amended motion for rehearing contending that we erred by failing to address the
sufficiency challenges to the findings based on subsections D and E. The Department filed a
response indicating that we must address these sufficiency challenges.
We grant Wanda’s amended motion for rehearing, withdraw our opinion and judgment
issued on April 9, 2019, and issue the following opinion and judgment in their place. Finding
that the Texas Department of Family and Protective Services abandoned its request to terminate
Wanda’s parental rights under Section 161.001(b)(1)(K) of the Texas Family Code, we delete
that affirmative finding from the termination order. We also find that the evidence is legally
insufficient to support the termination finding under Section 161.001(b)(1)(D) of the Texas
Family Code and delete that affirmative finding from the termination order. The termination
order, as so modified, is affirmed.2
FACTUAL SUMMARY
Wanda is the mother of four children, I.D.G., V.A.G., E.R.G., and R.J.G. In 2015,
Wanda left the children, ranging in age from six years to nine years of age, at the Lee and Beulah
Moor Children’s Home in El Paso.3 She provided her mother, Helen, with a power of attorney to
consent to medical treatment for the children. The facility is a temporary group home for
2
Our opinion and judgment disposing of the case were issued within the 180-day period established by
TEX.R.JUD’L ADMIN. 6.2(a). As a result of the change in law made by In re Z.M.M. and In re N.G., it became
necessary to grant the appellant’s motion for rehearing and withdraw our prior opinion and judgment. Under these
circumstances, we have endeavored to comply with Rule 6.2(a)’s mandate to ensure that the appeal is brought to
final disposition as quickly as reasonably possible even if it was not done within 180-days from the filing of the
notice of appeal.
3
Witnesses referred to the facility as the Lee Moor Home or the Lee Moor Children’s Home.
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children whose parents are having difficulty caring for the children. At the Lee Moor Home, the
children are provided a safe home, and they receive counseling, attend school, and are provided
medical care. The family is encouraged to participate with the children. Wanda visited the
children only sporadically, and it was the children’s grandmother, Helen, who participated in the
majority of the children’s events and activities. When Wanda attended events at the home,
including counseling sessions, she focused on her telephone rather than engaging with the
children. During the time the children were at Lee Moor Home, Helen cared for the children on
the weekends. The children remained at the Lee Moor Home until the Fall of 2017.
On August 28, 2017, the Department received a report that Wanda had been in and out of
jail and she had fled to Mexico with her boyfriend even though she was on probation. Helen
informed the caseworker that she had cared for the children for the last eight years, but she could
no longer be responsible for them due to her health issues and the children’s behavior. The
Department attempted to contact Wanda and V.G., but they could not locate either of them.
I.D.G. said she had not seen her mother for several weeks and the younger children had not seen
her recently and did not know her location. On October 6, 2017, the Department filed a petition
seeking termination of Wanda’s and V.G.’s parental rights. That same day, the trial court
entered an emergency order naming the Department as the temporary sole managing conservator
of the children. The court conducted the final trial in the case on September 14, 2018. Wanda
was in federal custody and did not attend the trial. Wanda’s criminal history includes federal
convictions for human trafficking and importing marijuana. She was convicted on
September 23, 2010 of encouraging and inducing the illegal entry of aliens and was placed on
probation for five years. The terms of probation required Wanda to take parenting classes. In
2011, she was convicted of importing marijuana. Wanda committed this offense only one month
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after she was placed on probation for the first offense. The court sentenced her to serve twenty-
one months followed by probation for three years. Finally, Wanda was convicted on March 11,
2016 of transporting aliens, and she was sentenced to serve sixteen months in prison followed by
supervised release for two years. Wanda’s federal probation officer, Karen Eisenberg, testified
at trial that she requested issuance of a warrant for Wanda in May 2017 after she left the halfway
house and other violations of the terms of her supervised release. The court did not revoke
Wanda’s supervised release, but she was ordered to spend an additional ninety days at the
halfway house. Wanda absconded from the halfway house again in September 2017. Following
her release from the halfway house in 2018, Wanda was arrested in August 2018 for transporting
aliens. At the time of the final hearing in this case, she was in federal custody and facing a new
charge as well as revocation of her supervised release.
The trial court found that the Department had proven by clear and convincing evidence
that Wanda had: (1) knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endanger the physical or emotional well-being of the children,
pursuant to § 161.00l(b)(l)(D), Texas Family Code; (2) engaged in conduct or knowingly placed
the children with persons who engaged in conduct which endangers the physical or emotional
well-being of the child, pursuant to § 161.00l(b)(l)(E), Texas Family Code; (3) executed before
or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights,
pursuant to § 161.001(b)(1)(K), Texas Family Code; (4) constructively abandoned the children
who have been in the permanent or temporary managing conservatorship of the Department of
Family and Protective Services for not less than six months and: (1) the Department has made
reasonable efforts to return the children to the mother; (2) the mother has not regularly visited or
maintained significant contact with the children; and (3) the mother has demonstrated an
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inability to provide the children with a safe environment, pursuant to § 161.001(b)(l)(N), Texas
Family Code; and (5) failed to comply with the provisions of a court order that specifically
established the actions necessary for Wanda to obtain the return of the children who have been in
the permanent or temporary managing conservatorship of the Department of Family and
Protective Services for not less than nine months as a result of the children’s removal from the
parent under Chapter 262 for the abuse or neglect of the child, pursuant to § 161.001(b)(l)(O),
Texas Family Code. The court also found by clear and convincing evidence that termination of
Wanda’s parental rights was in the children’s best interest, and it appointed the Department as
the permanent managing conservator of the children.
PREDICATE TERMINATION GROUNDS
In Issues One through Three, Wanda challenges the legal and factual sufficiency of the
evidence supporting the trial court’s determination that her parental rights should be terminated
based on subsections D, E, and K of Section 161.001(b)(1) of the Texas Family Code. Parental
rights may be involuntarily terminated through proceedings brought under Section 161.001 of
the Texas Family Code. See TEX.FAM.CODE ANN. § 161.001. Under this provision, the
petitioner must (1) establish one or more of the statutory acts or omissions enumerated as
grounds for termination, and (2) prove that termination is in the best interest of the children. See
id. Both elements must be established, and termination may not be based solely on the best
interest of the child as determined by the trier of fact. Texas Department of Human Services v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In the Interest of A.B.B., 482 S.W.3d 135, 138
(Tex.App.--El Paso 2015, pet. dism’d w.o.j.). Only one predicate finding under Section
161.001(b)(1) is necessary to support a judgment of termination 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).
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Standards of Review
When reviewing the legal sufficiency of the evidence in a termination case, we consider
all of the evidence in the light most favorable to the trial court’s finding, “to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”
In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We give deference to the
fact finder’s conclusions, indulge every reasonable inference from the evidence in favor of that
finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long
as a reasonable fact finder could do so. In the Interest of J.P.B., 180 S.W.3d at 573. We
disregard any evidence that a reasonable fact finder could have disbelieved, or found to have
been incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re
J.F.C., 96 S.W.3d at 266. However, when a parent’s rights have been terminated based on
multiple predicate grounds, including subsections D or E, we must address any sufficiency
challenges directed at subsections D and/or E, even if the evidence is sufficient to support
termination on other predicate grounds. See In re Z.M.M., 2019 WL 2147266 at *2; In re N.G.,
2019 WL 2147263 at *3.
In a factual sufficiency review, the inquiry is whether the evidence is such that a fact
finder could reasonably form a firm belief or conviction about the challenge findings. See In re
J.F.C., 96 S.W.3d at 266. We must give due consideration to evidence that the fact finder could
reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. A court of
appeals should consider whether disputed evidence is such that a reasonable fact finder could not
have resolved that disputed evidence in favor of its finding. Id. If the disputed evidence that a
reasonable fact finder could not have credited in favor of the finding is so significant that a fact
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finder could not reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient. Id.
Section 161.001(b)(1)(K)
We begin by addressing Issue Three which pertains to termination of Wanda’s parental
rights based on Section 161.001(b)(1)(K). The termination order recites that the Department
proved by clear and convincing evidence that Wanda’s parental rights should be terminated
pursuant to subsections D, E, K, N, and O of Section 161.001(b)(1). The record reflects,
however, that the Department abandoned its request for termination under Section
161.001(b)(1)(K). Consequently, we sustain Issue Three and modify the judgment by deleting
the challenged finding.
Section 161.001(b)(1)(D) -- Endangering Environment
In Issues One and Two, Wanda challenges termination of her parental rights pursuant to
Section 161.001(b)(1)(D) and (E). Wanda does not raise any arguments related to termination of
her parental rights under subsections N and O. Consequently, those unchallenged grounds are
sufficient to support the termination order. See Perez v. Texas Department of Protective and
Regulatory Services, 148 S.W.3d 427, 434 (Tex.App.--El Paso 2004, no pet.). We are
nevertheless required to address the merits of the sufficiency arguments related to subsections D
and E. See In re Z.M.M., 2019 WL 2147266 at *2; In re N.G., 2019 WL 2147263 at *3.
We begin by considering whether the evidence is legally and factually sufficient to
support termination under Section 161.001(b)(1)(D). A parent’s rights may be terminated if
there is 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. See TEX.FAM.CODE ANN. § 161.001(b)(1)(D). Subsection D
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addresses the child’s surroundings and environment. In re N.R., 101 S.W.3d 771, 775-76
(Tex.App.--Texarkana 2003, no pet). In this context, the child’s environment refers to the
suitability of the child’s living conditions as well as the conduct of parents or others in the home.
In re S.R., 452 S.W.3d 351, 360 (Tex.App.--Houston [14th Dist.] 2014, pet. denied).
A child is endangered when the environment creates a potential for danger that the parent
is aware of but disregards. In re E.R.W., 528 S.W.3d 251, 264 (Tex.App.--Houston [14th Dist.]
2017, no pet.). The relevant time frame to determine whether there is clear and convincing
evidence of endangerment is before the child was removed. Ybarra v. Texas Department of
Human Services, 869 S.W.2d 574, 577 (Tex.App.--Corpus Christi 1993, no pet.). When seeking
termination under subsection D, the Department must show that the child’s living conditions
pose a real threat of injury or harm. In re N.R., 101 S.W.3d at 776; Ybarra, 869 S.W.2d at 577.
Conduct that demonstrates awareness of an endangering environment is sufficient to show
endangerment. In re S.M.L., 171 S.W.3d 472, 477 (Tex.App.--Houston [14th Dist.] 2005, no
pet.). Evidence of criminal conduct, convictions, or imprisonment is relevant to a review of
whether a parent engaged in a course of conduct that created an environment endangering to the
child’s well-being. See In re S.R., 452 S.W.3d at 360-61; A.S. v. Texas Department of Family &
Protective Services, 394 S.W.3d 703, 712-13 (Tex.App.--El Paso 2012, no pet.).
The evidence shows that Helen had cared for the children most of their lives because
Wanda had been in and out of jail. Wanda’s criminal history includes three convictions for
federal felony offenses in 2010, 2011, and 2016, two of which resulted in her incarceration in
prison for a total of thirty-nine months. Wanda left the children at a temporary group home in El
Paso in 2015 and gave her mother power of attorney to consent to medical care for the children.
Over the next two years, Wanda visited the children only sporadically and her mother acted as
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the children’s primary caregiver on weekends. During this two-year period, Wanda was
convicted of transporting aliens in 2016 and sentenced to serve sixteen months in prison
followed by supervised release for two years. Because Wanda violated the terms of her
supervised release, she was ordered to spend an additional ninety days at the halfway house.
When Helen became unable to care for the children in 2017, Wanda refused to accept
responsibility for her children and it became necessary for the Department to take custody of
them.
During Wanda’s incarceration, the children were cared for by Helen or by the Lee Moor
Children’s Home. There is no evidence that the children’s living conditions posed a real threat
of injury or harm to them. While the evidence supports termination of Wanda’s parental rights
on other grounds, we conclude that the evidence is legally insufficient for a reasonable trier of
fact to form a firm belief or conviction that Wanda knowingly placed or knowingly allowed the
children to remain in conditions or surroundings which endangered their physical or emotional
well-being. Issue One is sustained. It is unnecessary to address Wanda’s factual sufficiency
challenge directed at the subsection D finding.
Endangering Conduct -- Section 161.001(b)(1)(E)
In Issue Two, Wanda contends that the evidence is legally and factually insufficient to
support termination of her parental rights under Section 161.001(b)(1)(E). The term “conduct,”
as used in Section 161.001(b)(1)(E), includes both the parent’s actions and failures to act. In re
M.J.M.L., 31 S.W.3d 347, 351 (Tex.App.--San Antonio 2000, pet. denied). Conduct that
subjects a child to a life of uncertainty and instability endangers the physical and emotional well-
being of a child. See A.S. v. Texas Department of Family and Protective Services, 394 S.W.3d
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703, 712 (Tex.App.--El Paso 2012, no pet.); In re M.R.J.M., 280 S.W.3d 494, 503 (Tex.App.--
Fort Worth 2009, no pet.).
Under Section 161.001(b)(1)(E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s physical and emotional well-being was the direct result of the
parent’s conduct, including acts, omissions, or failures to act. See In re J.T.G., 121 S.W.3d 117,
125 (Tex.App.--Fort Worth 2003, no pet.). Termination under this subsection must be based on
more than a single act or omission; the statute requires a voluntary, deliberate, and conscious
course of conduct by the parent. Id. When determining whether a parent has engaged in an
endangering course of conduct, a fact finder may consider the parent’s actions and inactions that
occurred both before and after the child was born. See In re J.O.A., 283 S.W.3d 336, 345 (Tex.
2009); In re B.C.S., 479 S.W.3d 918, 926 (Tex. App.--El Paso 2015, no pet.); In re S.M., 389
S.W.3d 483, 491-92 (Tex. App.--El Paso 2012, no pet.). The conduct need not occur in the
child’s presence, and it may occur both before and after the child has been removed by the
Department. Walker v. Texas Department of Family & Protective Services, 312 S.W.3d 608, 617
(Tex.App.--Houston [1st Dist.] 2009, pet. denied). Scienter is not required for an appellant’s
own acts under Section 161.001(b)(1)(E), although it is required when a parent places her child
with others who engage in endangering acts. In re U.P., 105 S.W.3d 222, 236 (Tex.App.--
Houston [14th Dist.] 2003, pet. denied).
Conduct that subjects a child to a life of uncertainty and instability endangers the child's
physical and emotional well-being. In re R.A.G., 545 S.W.3d 645, 651 (Tex.App.--El Paso 2017,
no pet.); Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex.App.--Houston [1st Dist.] 2010, pet.
denied); In re R.W., 129 S.W.3d 732, 739 (Tex.App.–Fort Worth 2004, pet. denied). The
commission of criminal conduct by a parent may support termination under Section
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161.001(b)(1)(E) because it exposes the child to the possibility that the parent may be
imprisoned. In re R.A.G., 545 S.W.3d at 651; In re M.C., 482 S.W.3d 675, 685 (Tex.App.--
Texarkana 2016, pet. denied); In re A.W.T., 61 S.W.3d 87, 89 (Tex.App.--Amarillo 2001, no
pet.)(intentional criminal activity which exposes the parent to incarceration is relevant evidence
tending to establish a course of conduct endangering the emotional and physical well-being of
the child). While criminal violations and incarceration are not enough to show endangerment by
themselves, they can be evidence of endangerment if shown to be part of a course of conduct that
is endangering to the child. Texas Department of Human Services v. Boyd, 727 S.W.2d 531,
533-34 (Tex. 1987); Perez v. Texas Department of Protective and Regulatory Services, 148
S.W.3d 427, 436 (Tex.App.--El Paso 2004, no pet.). Likewise, a fact finder may infer that a
parent’s lack of contact with the child and absence from the child’s life endangered the child's
emotional well-being. In re R.A.G., 545 S.W.3d at 652; In re U.P., 105 S.W.3d 222, 236
(Tex.App.--Houston [14th Dist.] 2003, pet. denied).
When a parent is incarcerated, she is absent from the child’s daily life and is unable to
provide support. See In re S.M.L., 171 S.W.3d 472, 479 (Tex.App.--Houston [14th Dist.] 2005,
no pet.). An environment which routinely subjects a child to the probability that he will be left
alone because his parent is incarcerated endangers both the physical and emotional well-being of
a child. In re C.L.C., 119 S.W.3d 382, 393 (Tex.App.--Tyler 2003, no pet.); In re S.D., 980
S.W.2d 758, 763 (Tex.App.--San Antonio 1998, pet. denied). Conduct that results in such a
disability, and that subjects a child to a life of uncertainty and instability, endangers the child’s
physical or emotional well-being. Id.
We have already detailed the evidence showing Wanda refused to accept parental
responsibility for the children and repeatedly committed criminal offenses which caused her to
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become incarcerated. There is also evidence in the record that Wanda did not complete most of
the services required by her service plan. While Wanda completed the general parenting classes,
she stopped attending her other services when she absconded from custody. Based on the
evidence, the trial could have formed a firm conviction or belief that Wanda’s failure to accept
parental responsibility, repeated commission of criminal acts resulting in her incarceration and
absence from the children’s lives, and her failure to complete the required services constitutes a
course of conduct which endangered the physical or emotional well-being of her four children.
See In re F.H., No. 14-18-00209-CV, 2018 WL 3977931, at *6 (Tex.App.--Houston [14th Dist.]
August 16, 2018, no pet.)(holding father’s incarceration, criminal history, and drug use, along
with absence from child’s life, created a course of conduct from which the fact finder could have
determined father endangered daughter’s emotional and physical well-being). Having found that
the evidence is both legally and factually sufficient to support termination under subsection E,
we overrule Issue Two.
BEST INTEREST
In Issue Four, Wanda contends that the evidence is legally and factually insufficient to
support the best interest finding made under Section 161.001(b)(2) of the Family Code.
Standard of Review
When reviewing the legal sufficiency of the evidence in a termination case, we consider
all of the evidence in the light most favorable to the trial court’s finding, “to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”
In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We give deference to the
fact finder’s conclusions, indulge every reasonable inference from the evidence in favor of that
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finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long
as a reasonable fact finder could do so. In the Interest of J.P.B., 180 S.W.3d at 573. We
disregard any evidence that a reasonable fact finder could have disbelieved, or found to have
been incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re
J.F.C., 96 S.W.3d at 266.
In a factual sufficiency review, the inquiry is whether the evidence is such that a fact
finder could reasonably form a firm belief or conviction about the challenge findings. See In re
J.F.C., 96 S.W.3d at 266. We must give due consideration to evidence that the fact finder could
reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. A court of
appeals should consider whether disputed evidence is such that a reasonable fact finder could not
have resolved that disputed evidence in favor of its finding. Id. If the disputed evidence that a
reasonable fact finder could not have credited in favor of the finding is so significant that a fact
finder could not reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient. Id.
The Holley Factors
A determination of best interest necessitates a focus on the child, not the parent. See In
the Interest of B.C.S., 479 S.W.3d 918, 927 (Tex.App.--El Paso 2015, no pet.); In the Interest of
R.F., 115 S.W.3d 804, 812 (Tex.App.--Dallas 2003, no pet.). There is a strong presumption that
it is in the child’s best interest to preserve the parent-child relationship. In re B.C.S., 479 S.W.3d
at 927. Several factors must be considered in our analysis of the best interest issue: the child’s
desires; the child’s emotional and physical needs now and in the future; the emotional and
physical danger to the child now and in the future; the parenting abilities of the individuals
seeking custody; the programs available to assist those individuals to promote the child’s best
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interest; the plans for the child by those individuals or the agency seeking custody; the stability
of the home or proposed placement; the parent’s acts or omissions that may indicate that the
existing parent-child relationship is not a proper one; and any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976)(“the Holley factors”). We also
must bear in mind that permanence is of paramount importance in considering a child’s present
and future needs. In re B.C.S., 479 S.W.3d at 927.
We begin by examining the legal sufficiency of the evidence supporting the best interest
finding. The first factor is the desires of the children. At the time of trial, I.D.G. was twelve-
years-old, V.A.G. was eleven-years-old, E.R.G., was ten-years-old, and R.J.G. was nine-years-
old. According to the caseworker, Iliana Ladd, the children are disappointed and upset with
mother, and are sad because they want their mother. I.D.G. asked the caseworker why Wanda
had them if she was not going to care for them. I.D.G. also stated that she knew her mother was
doing drugs and having relationships with men. There is no evidence that the children are
mature enough to express a preference as to their placement. In re A.R., 236 S.W.3d 460, 480
(Tex.App.--Dallas 2007, no pet.)(op. on reh’g)(a child’s preference should not be considered
absent a showing of sufficient maturity). Further, evidence that the children “want their mother”
does not necessarily mean that it is the children’s desire to be placed with mother.
Evidence that a child is well-cared for by the foster family, is bonded to the foster family,
and has spent minimal time in the presence of a parent is relevant to the best interest
determination under the desires of the child factor. See In re R.A.G., 545 S.W.3d 645, 653
(Tex.App.--El Paso 2017, no pet.); In re U.P., 105 S.W.3d 222, 230 (Tex.App.--Houston [14th
Dist.] 2003, pet. denied). The overwhelming evidence shows that Wanda has not been involved
in the children’s lives for several years and she had only twelve visits with them during the
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pendency of the termination case. The three younger children have been in their current
placement since March 2018. They are doing well, participate in family activities, and crave
their foster parents’ attention. The foster parents plan to adopt them and they are open to
fostering I.D.G. if they are able to resolve a foster home licensing issue. 4 I.D.G. was placed with
a new foster family on the day of the final hearing. Given Wanda’s lack of involvement in the
children’s lives for several years, we conclude that the first factor weighs in favor of the trial
court’s best interest finding. The next two factors are the children’s emotional and physical
needs now and in the future, and the emotional and physical danger to the children now and in
the future. The youngest child, R.J.G., has behavioral issues which require treatment with
medication and therapy. I.D.G. has also received counseling for sexual abuse. The need for
permanence is a paramount consideration for a child’s present and future physical and emotional
needs. In re R.A.G., 545 S.W.3d at 653; In re U.P., 105 S.W.3d at 230. The trial court found
that Wanda engaged in conduct endangering to the children. Conduct that subjects a child to a
life of uncertainty and instability endangers the physical and emotional well-being of a child.
See A.S. v. Texas Department of Family and Protective Services, 394 S.W.3d 703, 712
(Tex.App.--El Paso 2012, no pet.); In re M.R.J.M., 280 S.W.3d 494, 503 (Tex.App.--Fort Worth
2009, no pet.). Further, a fact finder may infer that past conduct endangering the well-being of a
child may recur in the future if the child is returned to the parent. In re R.A.G., 545 S.W.3d at
653; In re D.L.N., 958 S.W.2d 934, 934 (Tex.App.--Waco 1997, pet. denied). Intentional
criminal activity that exposes a parent to incarceration is conduct that endangers the physical and
emotional well-being of a child. Texas Department of Human Services v. Boyd, 727 S.W.2d 531,
533 (Tex. 1987). From the time the children were quite young, Wanda repeatedly violated
4
The caseworker testified that the foster parents would be required to obtain a group home license before I.D.G.
could be placed with them.
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federal law resulting in her incarceration, and she was arrested for a new offense just weeks
before the final hearing. Based on the evidence, the trial court could have determined that
Wanda would continue to endanger the children in the future by her criminal conduct and
abandonment of the children. The second and third factors weigh heavily in support of the best
interest finding.
The fourth factor is the parenting abilities of the individuals seeking custody. In
reviewing the parenting abilities of a parent, a fact finder can consider the parent’s past neglect
or past inability to meet the physical and emotional needs of the children. D.O. v. Texas
Department of Human Services, 851 S.W.2d 351, 356 (Tex.App.--Austin 1993, no writ),
disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002). The evidence
supports a conclusion that Wanda has poor parenting skills and an inability to care for her
children or provide for their basic needs. This factor weighs in favor of the best interest finding.
The fifth factor examines the programs available to assist those individuals to promote
the child’s best interest. Wanda completed the general parenting classes, but she failed to take
parenting classes aimed at teaching her parenting skills appropriate for the age of her children as
required by her service plan. The trial court could infer from Wanda’s failure to take the
initiative to utilize the available programs that she would not have the ability to motivate herself
in the future. See In re W.E.C., 110 S.W.3d 231, 245 (Tex.App.--Fort Worth 2003, no pet.). The
fifth factor supports the best interest finding.
We will consider the sixth and seventh factors together. The sixth factor examines the
plans for the child by those individuals or the agency seeking custody. The seventh factor is the
stability of the home or proposed placement. The fact finder may compare the parent’s and the
Department’s plans for the children and determine whether the plans and expectations of each
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party are realistic or weak and ill-defined. D.O., 851 S.W.2d at 356. The Department’s plan is
for the three younger children to remain in their current placement and to be adopted by the
foster parents. It is possible that I.D.G. will also be placed with her siblings if the foster parents
are able to become licensed as a group home. Wanda did not testify at trial or offer any evidence
of her own plan for the children. The trial court could have determined that the foster parents
will continue to provide the children with a safe and stable home. The sixth and seventh factors
weigh in favor of the best interest finding.
The eighth factor is the parent’s acts or omissions that may indicate that the existing
parent-child relationship is not a proper one. Wanda abandoned the children and endangered
them by repeatedly violating federal law which resulted in her incarceration. As a result, she
could not provide the stability and permanence needed by the children. Based on this evidence,
the trial court could have found that the existing parent-child relationship between Wanda and
the children is not a proper one. The eighth factor supports the best interest finding.
Finally, the ninth factor is whether there is any excuse for the parent’s acts or omissions.
Wanda’s brief does not address this factor or offer any excuse for her conduct.
After considering the evidence related to the Holley factors, the trial court could have
reached a firm conviction that termination of Wanda’s parental rights is in the best interest of her
children. We conclude that the evidence supporting the best interest finding is supported by both
legally and factually sufficient evidence. Issue Four is overruled.
Having sustained Issues One and Three, we modify the judgment by deleting the trial
court’s findings that Wanda’s parental rights should be terminated pursuant to Section
161.001(b)(1)(D) and (K). Having overruled Issues Two and Four, we affirm the order
terminating Wanda’s parental rights to I.D.G., V.A.G., E.R.G., and R.J.G. as so modified.
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July 30, 2019
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
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