in the Interest of A.J.R. A/K/A A.J.R., a Child v. Texas Department of Family and Protective Services ( 2019 )

Affirmed and Memorandum Opinion filed April 9, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00951-CV
IN THE INTEREST OF A.J.R. A/K/A A.J.R., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2017-04707J
MEMORANDUM OPINION
This accelerated appeal arises from a final order in a suit in which termination
of the parent-child relationship was at issue. See Tex. Fam. Code Ann. § 109.002(a-
1). The child is Alex; his parents are L.D.J. (Mother) and appellant A.R. (Father).1
The trial court terminated each parent’s rights and appointed the Texas Department
of Family and Protective Services (the Department) to be Alex’s managing
conservator.
On appeal, Father challenges the sufficiency of the evidence to support
1
We use pseudonyms or initials to refer to the children, parents, and other family members
involved in this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
termination. We conclude legally and factually sufficient evidence supports the trial
court’s findings that Father endangered Alex and that termination of his parental
rights is in Alex’s best interest. Therefore, we affirm the trial court’s final order.
BACKGROUND
A. Removal
The following facts come from the affidavit of Department caseworker
Michael Ejeh, which was admitted into evidence at trial.
Alex was born prematurely at 35 weeks’ gestation. Both he and Mother tested
positive for amphetamines at his birth. When Alex was 10 days old, the Department
received a referral of neglectful supervision of him by Mother. The reporter alleged
Mother had been diagnosed with, among other things, bipolar disorder. Mother was
also said to suffer from suicidal ideation.
Ejeh visited Alex in the hospital the next day. No family member was with
Alex at that time. Ejeh spoke with Mother in the hospital and noticed she had a black
eye—an injury she claimed resulted from playing baseball with her nephews but
Ejeh later learned may have been the product of an assault by Father. Mother claimed
she was prescribed various medications, including an antipsychotic and a stimulant,
but could not provide proof of those prescriptions when asked.
Father was not at the hospital when Ejeh visited. Ejeh first spoke with Father
two days later. Father said he was from California but had lived in Texas for two
years. He said he had two children in California, ages nine and two, both of whom
he said lived with their mother. Father denied any history of criminal activity, mental
illness, domestic violence, drug use, or being abused as a child. He also alleged he
had no history with the Department.
That day, Mother and Father agreed to a Parental Child Safety Plan (PCSP)
with the Department. Under the PCSP, Alex and both parents would move in with
Alex’s paternal grandmother when he was discharged, and both parents would
submit to a drug test. Neither Mother nor Father appeared for the drug test. For
various reasons, including reported drug use by the grandmother, the PCSP became
unsustainable.
Alex suffered a serious health scare a few days later. His blood had been
drawn at a doctor’s appointment. After he left, tests run on the blood revealed he
suffered from low hemoglobin levels and direly needed a blood transfusion. Clinic
staff attempted to contact Mother and Father several times that day but could not
reach them. Ejeh eventually tracked the parents down the following day, by which
time Alex was said to be at risk of death if he did not receive a blood transfusion
immediately. Mother took Alex to the hospital; he was admitted for four days and
successfully treated.
Shortly after Mother arrived at the hospital with Alex, Department supervisor
Debra Reyna talked with her about implementing another PCSP. Mother rejected the
idea, insisting Alex stay with her. In support of her contention she could take care of
Alex, Mother offered explanations for her and Father’s failures to submit to drug
testing as they had agreed and her failure to submit evidence of prescriptions for the
psychotropic medications she said she was taking. Reyna offered to conduct a family
team meeting with the Department and the parents. Mother agreed and “very much”
wanted to have such a meeting to “explain everything going on.”
Despite Mother’s professed enthusiasm about a family team meeting, neither
Mother or Father contacted the Department to schedule the meeting. Neither parent
proposed another person for a PCSC. Neither parent visited Alex during his hospital
stay. Neither parent was seen after the day Mother took Alex to the hospital.
Alex would need close medical supervision upon discharge, according to his
doctor. Because the Department could not locate Mother or Father, the Department
formally removed Alex and placed him in foster care. The Department then filed its
petition for protection of a child, conservatorship, and termination, attaching Ejeh’s
affidavit.
B. Pretrial proceedings
Following a full adversary hearing, the trial court found Alex was in such
danger due to his parents’ acts or failures to act that he needed to be removed from
their care immediately for his protection. The court appointed the Department to be
Alex’s temporary managing conservator and ordered the parents to comply with any
family service plan by the Department. The service plan would identify the goals
they needed to achieve and tasks and services they needed to complete before Alex
could be placed in their care.
Father’s service plan required him to, among other things: complete a
psychological evaluation and follow the evaluator’s recommendations; support
Alex, financially and otherwise; complete a substance abuse assessment; complete
individual counseling to develop his parenting skills; maintain stable employment
and provide the caseworker with appropriate documentation; maintain contact with
the Department; and attend all visits with Alex, court dates, and meetings.
C. Hearing
Father did not appear at trial; he was in jail in California at the time. He was
represented by counsel.
1. Evidence about Father
a. Drug use
Drug tests conducted immediately after the emergency hearing in this case, at
the beginning of October 2017, revealed Father was positive for alcohol, marijuana,
amphetamines, and methamphetamines. His levels for each substance were multiple
times higher than the minimum level that will yield a confirmed positive result. For
example, the minimum level for a confirmed positive result for methamphetamine
is 500 nanograms per milliliter [ng/mL] by urinalysis and 300 picograms per
microgram [pg/mg] by hair follicle test. Father’s levels were 52,200 ng/mL and
greater than 50,000 ng/mg. The two components considered in alcohol testing, ethyl
glucuronide and ethyl sulfate, both have a confirmed positive level of 250 ng/mL.
Father’s levels were 40,100 ng/mL and 6,860 ng/mL, respectively.
Two weeks later, the trial court ordered Father to remain in the courtroom
following the full adversary hearing for drug testing. Father left the courtroom
without submitting to the test. His leaving is considered a positive drug test result
under Department policy. Three more drug tests were scheduled through the end of
February 2018, but Father failed to appear for any of them. Like walking out before
being tested, failing to appear for a drug test is deemed a positive result.
Father was extradited to California on a theft charge sometime after the
scheduled February test. No further drug tests were scheduled for him in this case.
b. Criminal history
Despite telling Ejeh he had no criminal history, Father was convicted at least
twice in Texas. He pleaded guilty to burglary of a vehicle in April 2016 and was
sentenced to 120 days’ confinement in jail. In April 2018, he pleaded guilty to
forgery he committed just days before Alex was born. He was sentenced to serve
180 days in jail for that offense.
Before the criminal court formally accepted his plea in the forgery case, Father
was extradited to California to face charges regarding stolen property. The record
does not contain further information about the California proceedings, including
whether Father was convicted and his punishment if so.
c. Service plan
The trial court approved Father’s family service plan on November 30, 2017.
Father was not extradited until the beginning of March 2018 at the earliest. During
that three-month period, Father did not begin any of the requirements of his service
plan, much less complete them.
d. Ability to provide for Alex
Ejeh wrote in his affidavit that Father told him he works for his stepfather and
earns $1,200 per month. Father made that statement near the end of September 2017.
There is no other evidence regarding Father’s ability to provide for Alex.
e. Relationship with Alex
Father never lived with Alex. The record does not indicate whether Father was
present for Alex’s birth or saw Alex at any time before the Department became
involved. Father did not visit Alex during his hospitalization due to low hemoglobin
levels.
2. Evidence about Alex
Upon discharge from the hospital following his blood transfusions, Alex was
placed in the home of a couple already caring for one of Mother’s other children,
Alex’s then-nine-year-old half-sister. They had been the half-sister’s managing
conservators for years. If Mother’s and Father’s parental rights were terminated as
to Alex, the foster parents planned to adopt both Alex and his half-sister.
Alex required regular blood transfusions after he was placed with his foster
parents. He also needed an iron supplement. The foster parents ensured all his
medical needs were met. His last blood transfusion occurred when he was three or
four months old.
Just over a year old at the time of the final hearing, Alex was said to be
thriving. His health issues were controlled. He lived with his foster parents, his
biological half-sister, and his foster parents’ 17-year-old daughter. The foster parents
had three other children, all in college. The foster father testified Alex was bonded
with the entire family. Caseworker Alexandra Brown testified the Department
believed it was in Alex’s best interest to remain with his foster family and
wholeheartedly endorsed the foster parents’ plan to adopt Alex.
3. Trial court’s findings
The trial court found Mother and Father engaged in the conduct described in
subsections D, E, and O of section 161.001(b)(1) of the Family Code. The court
additionally found termination of each parent’s rights was in Alex’s best interest.
The trial court appointed the Department to be Alex’s managing conservator. Father
timely appealed.
ANALYSIS
I. Burden of proof and standards of review
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980);
In re J.E.M.M., 532 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). However, the child’s emotional and physical interests must not be sacrificed
to preserve parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Parental rights can be terminated if clear and convincing evidence shows
(1) the parent committed an act described in section 161.001(b)(1) of the Family
Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001(b)(1), (2). Only one predicate finding under section 161.001(b)(1), along
with the best-interest determination, is necessary to support termination. In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003). “‘Clear and convincing evidence’ means 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. This high burden reflects the severity of termination.
The heightened burden of proof results in heightened standards of review for
evidentiary sufficiency:
 Legal sufficiency. We consider all the evidence in the light most favorable to
the finding to determine whether a reasonable fact finder could have formed
a firm belief or conviction that its finding was true. We assume the fact finder
resolved disputed facts in favor of its finding if a reasonable fact finder could
do so, and we disregard all evidence a reasonable fact finder could disbelieve.
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
 Factual sufficiency. We consider and weigh all the evidence, including
disputed or conflicting evidence, to determine whether a reasonable fact finder
could have formed a firm belief or conviction that its finding was true. We
consider whether disputed evidence is such that a reasonable fact finder could
not have resolved that dispute in favor of its finding. C.H., 89 S.W.3d at 25.
The fact finder is the sole arbiter when assessing the credibility and demeanor
of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re H.R.M., 209 S.W.3d
105, 109 (Tex. 2006) (per curiam). We may not second-guess the fact finder’s
resolution of a factual dispute by relying on disputed evidence or evidence the fact
finder “could easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003).
II. Predicate ground for termination: Endangerment (161.001(b)(1)(E))
Father challenges the legal and factual sufficiency of the evidence to support
the trial court’s findings under subsections D, E, and O of section 161.001(b)(1) of
the Family Code. We conclude the evidence is legally and factually sufficient to
support the finding of endangerment under subsection E. Accordingly, we do not
review the findings regarding subsections D or O. A.V., 113 S.W.3d at 362.
A. Legal standards
Family Code section 161.001(b)(1)(E) requires clear and convincing evidence
that the parent “engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being of the
child.” Tex. Fam. Code Ann. § 161.001(b)(1)(E). “To endanger” 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); In re S.R., 452 S.W.3d 351, 360 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied). “Conduct” includes acts and failures
to act. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
A finding of endangerment requires evidence the endangerment resulted from
the parent’s conduct. S.R., 452 S.W.3d at 360. Termination under subsection E 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. at 361. 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 S.M., 389 S.W.3d 483, 491–92 (Tex.
App.—El Paso 2012, no pet.). While endangerment often involves physical
endangerment, the statute does not require that conduct be directed at a child or that
the child actually suffer injury. Rather, the specific danger to the child’s well-being
may be inferred from the parent’s misconduct alone. Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738–39 (Tex.
App.—Fort Worth 2004, pet. denied). A parent’s conduct that subjects a child to a
life of uncertainty and instability endangers the child’s physical and emotional well-
being. In re A.L.H., 515 S.W.3d 60, 92 (Tex. App.—Houston [14th Dist.] 2017, pet.
denied).
B. Application
Substance abuse. A parent’s continuing substance abuse can qualify as a
voluntary, deliberate, and conscious course of conduct endangering the child’s well-
being. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re L.G.R., 498 S.W.3d 195,
204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). A parent’s drug use
exposes the child to the possibility the parent may be impaired or imprisoned and,
thus, unable to take care of the child. Walker v. Tex. Dep’t of Family & Protective
Servs., 312 S.W.3d 608, 617–18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
The fact finder may give “great weight” to the “significant factor” of drug-related
conduct. L.G.R., 498 S.W.3d at 204.
Father tested positive at apparently high levels for methamphetamines,
amphetamines, marijuana, and alcohol when this case began a few weeks after Alex
was born. Two weeks later, Father defied a court order and refused to submit to
another drug test. He failed to appear at any of the three drug tests scheduled for him
over the next number of months. Father was deemed to have tested positive for drugs
for each refusal to test.
Criminal activity. A parent’s criminal conduct and imprisonment are relevant
to the question of whether the parent engaged in a course of conduct that endangered
the well-being of the child. S.R., 452 S.W.3d at 360–61; A.S. v. Tex. Dep’t of Family
& Protective Servs., 394 S.W.3d 703, 712–13 (Tex. App.—El Paso 2012, no pet.).
Imprisonment alone is not an endangering course of conduct but is a fact properly
considered on the endangerment issue. Boyd, 727 S.W.2d at 533–34. Routinely
subjecting a child to the probability he will be left alone because his parent is in jail
endangers the child’s physical and emotional well-being. S.M., 389 S.W.3d at 492.
Father was convicted of burglary of a vehicle roughly 18 months before
Alex’s birth. Then, just days before Alex was born, Father committed forgery, an
offense to which he later pleaded guilty. During the pendency of this case, Father
was extradited to California, where he had allegedly stolen property. The record
contains no further information about the California proceeding.
The record in this case is short, and there is not overwhelming evidence of
endangering conduct by Father. But there is legally and factually sufficient evidence.
Considering all the evidence in the light most favorable to the endangerment finding,
we conclude the trial court reasonably could have formed a firm belief or conviction
that Father engaged in conduct described in subsection E. Further, in light of the
entire record, we conclude the disputed evidence the trial court could not reasonably
have credited in favor of its endangerment finding is not so significant that the court
could not reasonably have formed a firm belief or conviction that Father endangered
Alex. Accordingly, the evidence is legally and factually sufficient to support the trial
court’s finding as to Father regarding subsection E. We overrule Father’s first and
second issues.
III. Best interest
Father challenges the legal and factual sufficiency of the evidence to support
the trial court’s finding that termination of his parental rights is in Alex’s best
interest.
A. Legal standards
Termination must be in the child’s best interest. Tex. Fam. Code Ann.
§ 161.001(b)(2). Texas courts presume two conditions to be in a child’s best interest:
(1) prompt, permanent placement in a safe environment, id. § 263.307(a); and
(2) remaining with the child’s natural parent. In re U.P., 105 S.W.3d 222, 230 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied). The best-interest analysis focuses on
the child, not the parent. In re K-A.B.M., 551 S.W.3d 275, 287 (Tex. App.—El Paso
2018, no pet.).
Courts may consider these non-exclusive factors, known as the Holley factors,
in the best-interest analysis: the desires of the child; the physical and emotional needs
of the child now and in the future; the physical and emotional danger to the child
now and in the future; the parental abilities of the persons seeking custody; the
programs available to assist those persons seeking custody in promoting the best
interest of the child; the plans for the child by the individuals or agency seeking
custody; the stability of the home or proposed placement; acts or omissions of the
parent that may indicate the existing parent-child relationship is not appropriate; and
any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976). This list of factors is not exhaustive, and evidence is not
required on all the factors to support a finding that termination is in the child’s best
interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012,
no pet.). The Family Code also identifies factors the court may consider in evaluating
a parent’s willingness and ability to provide the child with a safe environment. Tex.
Fam. Code Ann. § 263.307(b). Finally, evidence supporting the statutory predicate
of termination is relevant to the best-interest analysis. S.R., 452 S.W.3d at 366.
B. Application
1. Alex’s desires and needs
When a child is too young to express his desires, the fact finder may consider
that the child has bonded with the foster family, is well cared for by them, and has
spent minimal time with a parent. L.G.R., 498 S.W.3d at 205; In re J.D., 436 S.W.3d
105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Alex was less than a
month old when the Department became involved in his life. Apart from the few
weeks he spent in the hospital and the few days he stayed with his maternal
grandmother, Alex has lived his entire life with his foster parents. He never lived
with Father. Just over one year old at the time of trial, Alex was thriving and well-
bonded with his foster family.
2. Stability of proposed placement
Both the Department and the foster parents believed it is in Alex’s best interest
to remain in his foster home so (1) he can be with his older half-sister, and (2) he
can enjoy permanency by being adopted.
3. Predicate ground of endangerment
Evidence supporting termination under the grounds listed in section
161.001(b)(1) 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). Accordingly, the
evidence of Father’s endangerment of Alex, discussed above, is relevant to the best-
interest analysis.
4. Service plan
Father did not begin, much less complete, any of the requirements of his court-
ordered family service plan.
5. Willingness and ability to parent
The record is silent regarding Father’s involvement with Mother while she
was pregnant with Alex. Though not clear, the record implies Father was not present
for Alex’s birth and did not see him before the Department received the referral
regarding Alex a few weeks later. Father did not visit Alex during his hospitalization
for blood transfusions. The facts support an inference that Father is unwilling to
parent Alex.
The effect of Father’s incarceration in California on his ability to parent is not
clear. There is no evidence about, for example, the range of punishment Father faces;
whether trial has occurred; whether Father has been convicted; and the length of his
sentence, if any.
6. Programs available
There is no evidence regarding programs available to assist Father in
parenting Alex.
7. Acts or omissions and any excuses for them
There is no evidence purporting to explain Father’s positive drug test results
or his refusals to submit to scheduled drug tests.
C. Conclusion on best interest
Considering all the evidence in the light most favorable to the best-interest
finding, we conclude the trial court reasonably could have formed a firm belief or
conviction that termination of Father’s parental rights is in Alex’s best interest. See
J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. Further,
in light of the entire record, we conclude the disputed evidence the trial court could
not reasonably have credited in favor of its best-interest finding is not so significant
that the court could not reasonably have formed a firm belief or conviction that
termination of Father’s rights is in Alex’s best interest. Accordingly, the evidence is
legally and factually sufficient to support the trial court’s finding that termination is
in Alex’s best interest. We overrule Father’s third issue.
CONCLUSION
We affirm the trial court’s final order of termination.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Wise, Zimmerer, and Spain.