C. F. v. Texas Department of Family and Protective Services ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00250-CV
C. F., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-19-003551, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
C.F. (Father) appeals from the trial court’s final order terminating his parental
rights to his child (Son),1 age two when the bench trial occurred. Father challenges the
sufficiency of the evidence supporting the trial court’s termination findings. See Tex. Fam. Code
§ 161.001(b)(1)(D), (E), (O), (2). We will affirm the final order of termination.
STANDARD OF REVIEW
To terminate a parent’s rights to his child, the Texas Department of Family and
Protective Services must prove by clear and convincing evidence that the parent engaged in
conduct amounting to statutory grounds for termination pursuant to section 161.001 and that
termination is in the child’s best interest. Id. § 161.001(b); In re S.M.R., 434 S.W.3d 576, 580
1
For the child’s privacy, we refer to him by a generic identifier and to his family
members by their relationships to him. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
Mother’s rights were also terminated, but she is not a party to this appeal.
(Tex. 2014). Clear and convincing evidence is “the measure or degree of proof that will produce
in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought
to be established.” Tex. Fam. Code § 101.007; In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).
We defer to the factfinder, who, “having full opportunity to observe witness testimony first-hand,
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 reviewing legal sufficiency, we consider undisputed
evidence contrary to the finding but assume the factfinder resolved disputed facts in favor of its
finding. A.C., 560 S.W.3d at 630-31. Evidence is legally sufficient if, viewing all the evidence
in the light most favorable to the factfinding and considering undisputed contrary evidence, a
reasonable factfinder could form a firm belief or conviction that the finding was true. Id. at 631.
In reviewing factual sufficiency, we weigh the disputed evidence contrary to the finding against
the evidence favoring the finding and ask whether a reasonable factfinder could not have
weighed the evidence in favor of the finding. Id. Evidence is factually insufficient if, in light of
the entire record, the disputed evidence a reasonable factfinder could not have credited in favor
of the finding is so significant that the factfinder could not have formed a firm belief or
conviction that the finding was true. Id.
Termination of the parent-child relationship may be ordered under subsection (D)
if clear and convincing evidence establishes 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 § 161.001(b)(1)(D), and under subsection
(E) if the evidence establishes 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,” id. § 161.001(b)(1)(E). Subsection (D) focuses on the child’s environment—which
2
includes the child’s living conditions and the environment produced by the conduct of the
parents or others in the home—and whether the environment itself endangered the child, while
subsection (E) focuses on the parent’s conduct and whether the parent engaged in a voluntary,
deliberate, and conscious course of conduct that endangered the child. V.P. v. Texas Dep’t of
Fam. & Protective Servs., No. 03-19-00531-CV, 2020 WL 544797, at *4 (Tex. App.—Austin
Feb. 4, 2020, no pet.) (mem. op.). When, as here, the evidence relevant to subsections (D) and
(E) is interrelated, we may consolidate our review of the record. Id.Both subsections require proof of endangerment, which means exposing a child
to loss or injury or jeopardizing a child’s emotional or physical well-being. See Texas Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); A.C. v. Texas Dep’t of Fam. &
Protective Servs., 577 S.W.3d 689, 698–99 (Tex. App.—Austin 2019, pet. denied). A finding of
endangerment requires more than the threat of metaphysical injury or possible ill effects from a
less-than-ideal family environment, but the Department does not have to prove that the conduct
was directed at the child or that the child suffered an actual injury. In re E.N.C., 384 S.W.3d 796,
803 (Tex. 2012); A.C., 577 S.W.3d at 699. “Endangerment does not need to be established as an
independent proposition but may be inferred from the parental misconduct.” A.C., 577 S.W.3d
at 699. Stability and permanence are paramount in the upbringing of children, In re M.E.-M.N.,
342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied), and a course of conduct that
subjects a child to a life of uncertainty and instability endangers the child’s well being, A.C., 577
S.W.3d at 699. A trial court may “infer that a parent’s lack of contact with her child and absence
from the child’s life endangers the child’s emotional well-being.” V.P., 2020 WL 544797, at *4.
Evidence of domestic violence may constitute evidence of endangerment, even if the violence is
not directed at the child. J.G. v. Texas Dep’t of Fam. & Protective Servs., 592 S.W.3d 515, 524
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(Tex. App.—Austin 2019, no pet.); In re P.W., 579 S.W.3d 713, 727 (Tex. App.—Houston [14th
Dist.] 2019, no pet.). Also, evidence that a parent allowed a child to be around other persons
using drugs can support the conclusion that the child’s surroundings endanger his physical or
emotional well-being and can qualify as a voluntary, deliberate, and conscious course of conduct
endangering the child’s well-being. In re C.V.L., 591 S.W.3d 734, 751 (Tex. App.—Dallas
2019, pet. denied).
We consider a trial court’s finding on best interest in light of the factors set out in
Holley v. Adams: the child’s wishes, if appropriate given the child’s age; the child’s emotional
and physical needs now and in the future; present and future emotional or physical danger posed
to the child; the parenting skills of those seeking custody; any programs available to assist those
seeking custody to promote the child’s best interest; plans for the child’s future; the stability of
the home or proposed placement; conduct by the parent that might show that the parent-child
relationship is inappropriate; and any excuses for the parent’s conduct. 544 S.W.2d 367, 371-72
(Tex. 1976). The Holley factors are not exhaustive, not all factors must be proved, and a lack of
evidence about some of the factors does not “preclude a factfinder from reasonably forming a
strong conviction or belief that termination is in the child’s best interest, particularly if the
evidence [was] undisputed that the parental relationship endangered the safety of the child.”
In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
SUMMARY OF THE EVIDENCE
Father’s testimony
At the April 2021 trial, Father testified that when the Department removed Son
from his and Mother’s care in May 2019, Mother had left the three-month old in Father’s care
4
while she worked because Father was unemployed at the time. After Mother returned home she
noticed Son “having a seizure.” Father had been watching television next to Son and did not
notice the seizure. Mother called 911 and Son was taken by ambulance to the hospital and
admitted. Father did not know why Son was seizing but later learned that he had not been
properly feeding the infant, giving him “bottles of water” and watered-down formula because
Son was otherwise spitting it up. Although Father had not discussed the issue of Son’s formula
with Son’s pediatrician, he followed the advice of Mother’s parents to reduce the “dosage” of the
formula. Medical personnel discovered that Son had several bruises on his body, but Father was
unable to explain how Son got the bruises.
The Department removed Son and placed him in the home of a family (Foster
Family) with whom Father and Mother were familiar through a church program providing
meals to needy families. In July 2020, the Department returned Son to Mother and Father for a
monitored return. Father explained that the monitored return failed because of an argument he
had with Mother, after which Mother called the police. During the argument—at which Son was
present—Father “confronted” Mother about “something” he felt she was lying about, and he
broke her phone and threw a chair, causing a light bulb to break. On a prior occasion, at which
Son was also present, one of Father’s friends broke two TVs in the home.2 Father explained that
he understands it is “not safe” for Son to be in a home where chairs are being thrown and things
are being broken. Father also testified that during the monitored return Mother was bringing
“toxic people” into the home while Son was present and that such people used illegal drugs like
2
Elsewhere during his testimony, Father stated that Son was not present when his friend
broke the TVs because the incident happened after the failed monitored return.
5
“K2, crack, all of the above.” Father admitted that during the monitored return he continued
to leave Son in Mother’s care despite knowing that Mother was inviting “unsafe” people into
the home and that Mother took Son into those people’s homes, which was a “dangerous
environment” for Son. He explained that he did not notify anyone with the Department or others
who might have been able to help because he thought “they would take [Son] from us.”
When the monitored return began, Department caseworker Natasha Cooper
provided Father with a “piece of paper that listed all of [Son’s] needs on it,” including
information about his extensive ear problems and the importance of following up with the ENT
doctor.3 Nonetheless, during the monitored return, Father took Son to a doctor’s appointment
previously scheduled by the Foster Family but told the doctor that Son did not require any
treatment regarding his ears. He testified that his current understanding of Son’s ear issues was
that Son had “ear infections” and that he did not understand why Son goes to speech therapy
multiple times per week.
Father testified that he was currently receiving disability payments through the
federal government but “honestly” did not know what his disability was and that he would have
to ask his mom about it because she knows the “full history.” He admitted that people in his life
had “questioned” whether he can meet his own needs, and that it takes him a “little longer to
learn things” because of the way he “intake[s]” information. He explained that he and Mother
were going to get divorced soon. Father testified that he could serve as Son’s “primary parent”
by making sure that Son goes to his doctor’s appointments and speech therapy and that “all of his
needs are met and being taken care of.” He had a job at Whataburger, working fifty-plus hours a
3
At another point during his testimony, Father denied being told by caseworker Cooper
of the extent of Son’s issues with his ears prior to that doctor appointment.
6
week from about 8:00 a.m. until 6:00 or 7:00 p.m. He explained that while he is working, either
his friend or neighbor would care for Son but that neither person had ever cared for Son.
Nonetheless, Father believed those friends were “safe people” to care for Son because they
each had “kids and grandkids of the[ir] own.” Father, who did not have a driver’s license or a
car, listed several people that he believed could take Son to his speech therapy and other
appointments; one of those individuals was Father’s friend who had broken the TVs. He
explained that his disability payments had been reduced and his food stamps had been “cut off”
since he had increased the number of hours he was working. He testified about the current
“resolution counseling” program through Lifeworks that he was attending. As of trial, he had
completed eight of the thirty-seven weeks of classes and was “enjoying” the class because it was
“insightful,” and he was learning “different skills” including communication. He planned to
finish the class regardless of the trial outcome.
First Department caseworker’s testimony
Department caseworker Colleen Steffenson testified that she was assigned to
Son’s case until January 2020. When assigned to Son’s case, Steffenson was already serving as
caseworker for Mother’s daughter, C.C., who was adopted by the Foster Family during the
pendency of this case after Mother relinquished her rights to C.C. and the parental rights of
C.C.’s father were terminated. Steffenson explained that the Department did not remove Son
from Mother’s and Father’s care when he was born because he was healthy, there were no
concerns about him at the time, and “the family had ongoing services to help them access
resources to support” Son because of the Department’s involvement with C.C. Because Mother
and Father were living together, Steffenson had interacted with Father.
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Steffenson observed bruising on both the front and back of Son’s body when she
visited him at the hospital in May 2019. Neither Mother nor Father could explain Son’s bruises,
and Steffenson determined that the infant was not safe in their care. Steffenson was concerned
that Mother and Father, despite having “access to professionals and resources to seek support,”
could not meet Son’s needs, resulting in his hospitalization. The support Mother and Father had
been receiving included regular “in-home contact with a parenting coach.” Neither Mother nor
Father had indicated to Steffenson that they were having trouble with feeding Son his formula.
After Son was released from the hospital, he was placed with Foster Family, with whom C.C.
was later placed.
After the Department removed Son from Mother’s and Father’s care, it
coordinated services for Father, including parenting services through the “Fatherhood program
with SAFE,” a psychological evaluation, and therapy. While Steffenson admitted to some delays
in getting Father’s services started—including the fact that some providers had “waitlists” and
“staffing changes” and that the Department, for unexplained reasons, did not schedule a
permanency conference for many months—by September 2019 Father had begun therapy and by
November 2019 had been provided with a parenting coach. Mother and Father were “engaging
in services” and visitations with Son when Steffenson left her position as a Department
caseworker in January 2020.
Second Department caseworker’s testimony
Caseworker Cooper took over Son’s case after Steffenson left her position.
Cooper testified that Mother had signed a mediated settlement agreement consenting to the
termination of her parental rights and agreeing that it would be in Son’s best interest for the
8
Foster Family to adopt him. She explained that Father’s court-ordered service plan required
him to engage in individual therapy, undergo a psychological evaluation and follow all
recommendations, complete a parenting program for fathers through SAFE, and maintain safe
and stable housing and employment. Although Father completed each of those services, in
August 2020 he was ordered to engage in couples therapy and complete a domestic violence
program called BIPP (Battering Intervention and Prevention Program) after the “incident of
domestic violence” between Mother and Father that led to Son’s removal from them during the
monitored return. Cooper explained that, since that incident, “there have been two additional
incidents where law enforcement had to be called because of the parents and their relationship.”
In September 2020 Cooper spoke with Father about the importance of his completing the twenty-
four weeks of BIPP classes and provided him information about accessing the classes. As of
trial he had not completed them and did not begin “engag[ing]” in them until January 2021.
Although Father had completed “most” of his services, Cooper did not believe
that he had demonstrated he could be a safe parent because during the monitored return Mother
and Father had taken Son to the wrong location for a medical appointment (although Cooper
had shown them the correct location previously), did not continue Son’s ECI (early childhood
intervention) services, and did not seem to understand what Son’s medical and developmental
needs were. Before Cooper took Father to Son’s first ENT appointment during the monitored
return, she provided him with information about Son’s ear issues and speech delays but, when
Father met with the doctor, he told the doctor that Son “didn’t need treatment.” Cooper testified
that Son has several ear issues, including the buildup of “a lot of fluid” requiring the insertion of
tubes to drain the fluid, a cyst in the inner ear requiring surgical removal, and some hearing loss
or impairment and resultant speech delays. Before the monitored return, Cooper also explained
9
to Father the Department’s rules about babysitters and frequent visitors to the home, including
background checks for such persons. Father did not provide Cooper with the names of any such
persons even though she later learned that Mother had been “taking [Son] with her to see various
men that she engaged in a sexual relationship with” and that some of those people “have criminal
and CPS history” and “use illegal substances.” Although Father had testified that during the
monitored return4 he knew Mother allowed such persons to be around Son, Father never
discussed the issue with Cooper.
Cooper testified that after Son was removed from the monitored return, Father
either did not confirm or show up for several visitations. This was concerning because if Father
was unable to attend weekly visitation regularly and consistently, he most likely would not be
able to meet Son’s needs by ensuring he attends his medical and other appointments, including
a biweekly ENT appointment, two or three speech therapy appointments per week, and
occupational therapy that would need to begin soon. Besides the domestic violence and Father’s
allowing Son to be around Mother while knowing that she had “toxic” and unsafe people around
Son, Cooper believed that Son would not be safe in Father’s care because his housing situation
would be changing imminently to something that Father had been unable to identify, which
was likely to place Son in unstable and potentially unsafe surroundings. She was also worried
about Father’s ability to provide for Son’s basic needs, as Father had “lost his food stamps” and
also possibly his disability benefits for failure to “renew the paperwork.” The Department’s
permanency plan for Son was adoption by Foster Family.
4
Cooper testified that the monitored return lasted from July 1, 2020, until about
August 10, 2020, when the Department removed Son because of domestic violence between
Father and Mother.
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Cooper testified that Foster Family’s home was “very organized and clean,” with
many toys, books, and other items for children. Son was “very bonded” with both foster parents,
who are “very patient with [Son] and very loving towards him.” She explained that after the
failed monitored return, Son had “a lot of trouble sleeping and asked to be held all the time” after
returning to the Foster Family’s care. When Cooper observed Son in Mother’s and Father’s
home during the monitored return, he “was not his normal [calm, bubbly, playful] self” and
would “cry a lot,” looking “very down.” A “couple of times” when Cooper came to visit
during the monitored return, she found Son crying, which was “unlike” him. During some of the
thirty-minute virtual visitations (due to the COVID-19 pandemic) that Father attended with Son,
Father was either not directly on the camera, was lying down, was shopping, or was at work.
During some of the in-person visitations, Father was spending time “on his phone” rather
than engaging with Son, and for several, Father was “very late.” During a few months Father
could have requested in-person visitation rather than virtual but instead requested to continue
virtual visitation.
Cooper testified about some of Father’s “positive characteristics,” including his
being funny, communicative, respectful, and compliant with the Department’s service plans
until the monitored return. She also believed that Father loved Son and wanted to take good
care of him. After the monitored return failed, Father was “agreeable” that Son return to the
Foster Family.
Dr. Katherine Snyder’s testimony
Dr. Katherine Snyder, M.D., is the medical director of the CARE (Child Abuse
Resource and Education) Team at Dell Children’s Medical Center. She examined Son when he
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was admitted to the hospital in May 2019. The trial court admitted the hospital’s medical
records into evidence. Dr. Snyder testified that tests the hospital performed on Son after he
presented with “what appeared to be a seizure” indicated that he had hyponatremia (a low level
of sodium) due to his excessive intake of water and inadequate intake of formula. The condition
can cause seizures, brain swelling, and even death, but Dr. Snyder did not believe that Son would
suffer any long-term consequences from the hyponatremia because it was discovered early. Dr.
Snyder observed bruising and scratches on Son’s body, and the trial court admitted photos of the
injuries, including bruises on the back of Son’s right shoulder, around his eye, on his back near
his spine, on his abdomen, and on his chest and scratches near his eye. Dr. Snyder testified
that, in her eleven years of conducting evaluations for pediatric child abuse in her position
with CARE, she had not seen an infant who had a seizure present with the type of bruising that
Son had. His injuries raised concerns for child abuse because Son was not independently
ambulatory; his injuries were in areas of his body that were atypical for an accidental, short fall;
there was no good history to explain his injuries; and he had no medical condition that could
have caused him to have the bruises.
Foster mother’s and father’s testimonies
The foster mother testified about the composition of her family: her husband, a
twenty-two-year-old son who lives across the street, a nineteen-year-old daughter currently
living at home, an eleven-year-old son, and four-year-old C.C. (Son’s biological half-sister, who
the Foster Family adopted in April 2020). She explained that Son is curious, wants to know
how to do everything, is very smart, loves to read and snuggle, is sensitive, and “lights up the
room.” She testified about the extensive medical and developmental care Son requires: regular
12
appointments with the ENT, speech therapy two or three times per week, weekly ECI
appointments for developmental concerns, upcoming occupational therapy with a schedule yet to
be determined, and dentist visits every three months. She had explained to Father about the
extent of Son’s ear issues before the monitored return began and was therefore concerned to
learn later that Father had told the ENT that Son did not need any treatment. Son has had three
surgeries while in the Foster Family’s care for issues related to his ears and throat. The Foster
Family is consistent about participating daily in the recommended ECI and speech-therapy
exercises and homework with Son to develop certain skills he should have acquired already,
given that he has a developmental delay of between three and six months and a speech delay
of about a year.
The foster mother testified that she and her husband had not been planning to
become a licensed foster home but had volunteered to provide short-term care for Son when they
learned of his hospitalization as an infant. They were familiar with Father and Mother through
their church’s outreach and mentoring programs. On the recommendation of a Department
caseworker shortly after Son came into their temporary care, the Foster Family became a
licensed home. The Foster Family later agreed to also care for C.C. at the Department’s request.
The foster mother believed it was important to keep the siblings together. She and her husband
want to adopt Son because “he’s definitely a part of our family,” having lived with them for
almost two years, and because they love him “very much.” She explained in detail the close and
unique relationships each of her children have developed with Son. She believed that they could
provide Son with a “safe, happy, healthy home” and also “maintain a good relationship with”
Mother and Father, who the Foster Family considered part of their family as well. As long as it
was “safe and healthy” for Son and C.C., the foster mother wanted to keep Father and Mother in
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the children’s lives, such as by having them attend picnics, barbecues, and school plays. The
Foster Family had already been engaging in such activities by inviting Mother and Father and
the children’s biological grandparents to attend gatherings with Son and C.C.
The foster mother testified about Father’s inconsistent, late, or non-confirmed
attendance at several of the weekly visitations since January 2021 (when Father requested the
visitations return to in-person). She said that although she would inform Son that they were
going to visit Father, if Father did not show up Son didn’t “really notice” and had “no reaction
one way or the other.” She testified that, as to her understanding of Father’s “intellectual
functioning” and in her experience, Father had “challenges sometimes to understanding
everything that’s going on and what’s being said” and in what he can “communicate.”
The foster mother testified about how she has become very “attuned” to the subtle
“cues” that Son gives concerning when his ears are getting inflamed or fluid-filled, requiring
draining or tube replacement. She also administers medication eardrops to Son on a regular
basis. She explained that Son’s sleep had been disrupted since he returned to their home from
the monitored return and that he wakes up between one and three times per night. She has
obtained a referral for a sleep study to be conducted on him. She also explained that members
of her family, including her children and husband, frequently participate in the necessary
interactions and exercises that the various therapists have recommended they regularly engage
in with Son. She explained that she and her husband take “really, really seriously” the idea
of embracing the “culture” of C.C. and Son and keeping their biological families “involved” in
their lives.5
5
Father and Mother are Black, and the Foster Family is white.
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The foster father testified similarly and explained that he has flexibility in
his professional work schedule to attend Son’s activities and appointments. He testified about
how bonded Son is to each family member and to C.C. The Foster Family had engaged an
“attachment consultant” to help in the adoption process of C.C. and especially with the “extra
element” of racial differences.
Other witnesses’ testimony
Marcus Griggs, a “Fatherhood specialist” with the SAFE Alliance, testified about
his work with Father through that agency’s thirteen-week, one-on-one, in-home parenting
program. Griggs explained that Father successfully completed the program in February 2020
and “engaged with the curriculum” and participated in the sessions, doing “everything that was
asked of him.” He testified that one of the modules of the curriculum covers domestic violence
and how it impacts children. He had also talked with Father about community support systems
available to Father and stated that Father knew how to contact him and continued to keep in
touch with him periodically after the class finished; however, Father had never reached out to
him to share that he was having problems in his personal life or needed assistance. Griggs had
never observed Father interact with Son.
Alecia Little, a Department parenting coach, testified about her weekly and
sometimes semi-weekly sessions with Mother and Father to “improv[e] their parenting skills
so that they could appropriately take care of [Son].” She testified that of the visitations she
observed, Father was “a real nurturing, hands-on, playful type of father” and took care of some
of Son’s “basic needs” such as diapering and feeding. She worked with Mother and Father from
about November 2019 until December 2020, including visiting weekly with them for a couple
15
hours at home during the monitored return. Father and Mother completed the “Nurturing
Parenting curriculum” in December 2020 and were then “able to demonstrate that they could
properly care for [Son].” Little therefore successfully “discharged” them from the service,
considering that Son was no longer living with them and that it was “difficult” to conduct any
further “observation” of their skill level. She understood that Father and Mother were currently
planning to divorce and believed that Father would be a “valuable person” in Son’s life. Despite
the “good relationship” that Little had established with Mother and Father for the nine months
before the monitored return, Father never shared with Little that he was concerned about the
“dangerous” people Mother brought into the home. Little testified that it would have been
important for Father to be “forthcoming” about such concerns because they would “affect” Son.
Little also explained that in speaking with Father, she needed to “rephrase and reask questions
several different times” because he often did not “fully grasp the question.”
Son’s attorney ad litem and guardian ad litem represented to the court that she
believed it is in Son’s best interest that Father’s parental rights be terminated and that Son remain
with the Foster Family and his biological half-sister and be adopted by that family. She did not
believe that Father “fully understands,” acknowledges, or is capable of meeting all of Son’s
“significant” needs or can provide him a safe and stable environment.
DISCUSSION
Statutory-predicate findings
In his first three issues, Father complains that the evidence is legally insufficient
to support the trial court’s subsection (D), (E), and (O) predicate findings. See Tex. Fam. Code
§ 161.001(b)(1)(D), (E), (O). Our review of the record leads us to conclude that the evidence
16
was legally sufficient to support the trial court’s endangerment findings, see id.
§ 161.001(b)(1)(D), (E), and we therefore need not review the trial court’s subsection (O)
finding, see In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The trial court heard evidence
that Father engaged in domestic violence in Son’s presence and left Son in Mother’s care on
several occasions during the monitored return when he knew that the individuals Mother allowed
to be around Son had criminal and CPS histories, used illegal substances, and were “toxic”
and “dangerous.” Father admitted that allowing Son to remain with Mother under such
circumstances was unsafe but that he did not attempt to remedy the situation, despite being aware
of several individuals he could contact for support. Evidence showed that Father had been
inadequately feeding infant Son while serving as the infant’s primary caregiver, which resulted
in Son having a seizure, being admitted to the hospital, and being removed by the Department.
Son was also found to have several bruises and scratches in various places on his body, but
neither Father nor Mother could explain how he had received the injuries, and specialists could
not determine any medical or other cause except suspected child abuse. Evidence showed that
Father was unable to understand or unwilling to acknowledge Son’s significant medical and
developmental needs and had not noticed his infant Son seizing while sitting next to him. He
had also failed to inform the ENT about Son’s significant ear and hearing issues despite the
caseworker having informed him of same.
Viewing this and the remaining evidence in the light most favorable to the trial
court’s subsection (D) and (E) findings, and considering the undisputed contrary evidence,
we conclude that the trial court could have formed a firm belief or conviction that the findings
were true. See id. § 161.001(b)(1)(D), (E); A.C., 560 S.W.3d at 631. We accordingly overrule
Father’s first three issues.
17
Best-interest finding
In his related fourth, fifth, and sixth issues, Father complains that the evidence is
factually insufficient to support the trial court’s finding that termination of his parental rights is
in Son’s best interest. See Tex. Fam. Code § 161.001(b)(2). He contends that the Department
merely thought it was “easier” to keep Son in the foster home than to attempt to allow Father
to “keep some legal relationship” with him through, for instance, a conservatorship agreement.
He contends that, although the trial court stated on the record that the potential adoptive
placement’s willingness to have Father and Mother remain in Son’s life “weighed heavily” in its
decision to terminate rights, there is no way to guarantee that the adoptive family will continue
allowing such contact. Cf. Tex. Fam. Code § 161.2062(a) (“An order terminating the parent-
child relationship may not require that a subsequent adoption order include terms regarding
limited post-termination contact between the child and a biological parent.”). Lastly, Father
contends that termination of his parental rights is not in Son’s best interest because it would
permanently “cut off legal ties to an African American child’s family, to be raised in a white,
wealthy neighborhood, around almost no one that looks like him.”
While we agree with Father that the best-interest standard does not permit
termination merely because Son “might be better off” being adopted by the foster family, see
In re W.C., 98 S.W.3d 753, 766 (Tex. App.—Fort Worth 2003, no pet.), the evidence supports
the trial court’s finding that termination is in Son’s best interest. The trial court heard evidence
about Son’s significant medical and developmental needs and about how Father had engaged in
conduct and allowed Son to remain in conditions that endangered Son’s physical and emotional
well-being. Although there was some evidence that Father had acquired some basic parenting
skills through completing most of his court-ordered services, he nonetheless demonstrated a
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continuing inability or unwillingness to advocate for Son’s safety and best interest when
confronted with having to make decisions related thereto. Father appeared unable to comprehend
or acknowledge the extent of Son’s medical and developmental conditions and needs. He
admitted being unable himself to bring Son to his medical and developmental appointments but
did not suggest a workable and safe alternative. There was evidence of Father’s engaging in
domestic violence in Son’s presence, inadequate feeding of Son as an infant, and unexplained
bruising on Son’s infant body. While Father completed most of his services, he delayed
beginning his BIPP program and had not completed it by the time of trial, despite his knowledge
that the monitored return failed due to domestic violence. Father had not demonstrated his
ability or willingness to take advantage of available resources and support despite his awareness
of them. He was unable to articulate plans for caring for Son and providing a safe and stable
home except to identify a few unvetted individuals whom he believed could assist him with
meeting Son’s extensive needs. Evidence showed that the Foster Family planned to adopt Son
and raise him with his older sister and was able to provide a nurturing environment and meet his
needs, including incorporating connections to his racial and cultural background. While Son was
too young to express his desires, the trial court could consider evidence that he had bonded
with the Foster Family and his sister whom they had adopted and that he had spent most of his
life with the family and minimal time with Father. See In re J.M., 156 S.W.3d 696, 706 (Tex.
App.—Dallas 2005, no pet.).
Weighing the evidence presented against the enumerated Holley factors and
bearing in mind the trial court’s role as factfinder, we conclude that factually sufficient evidence
supports the trial court’s finding that termination of Father’s parental rights is in Son’s best
interest. We conclude so despite evidence of Father’s progress with respect to his parenting
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skills and intention to no longer be in a relationship with Mother and despite the unenforceability
of Foster Family’s representation that they intended to keep Father and Son’s biological
extended family in Son’s life, considering the other factors related to Son’s best interest and
considering the trial court’s role in evaluating witness credibility as to future plans for Son.
As to Father’s contention that a conservatorship arrangement would have been in
Son’s best interest, courts have long recognized that stability and permanence are of the utmost
importance to a child’s best interest, see In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston
[14th Dist.] 2014, no pet.), and a factfinder may consider the consequences of its failure to
terminate parental rights and that the best interest of the child may be served by termination so
that adoption may occur rather than the temporary foster-care or parent-child conservatorship
arrangement that would result if termination did not occur, In re E.W., No. 10-16-00132-CV,
2017 WL 4079713, at *8 (Tex. App.—Waco Sept. 13, 2017, no pet.) (mem. op.) (“A parent’s
failure to show that he or she is stable enough to parent children for any prolonged period entitles
the factfinder to determine that this pattern would likely continue and that permanency could
only be achieved through termination and adoption.”). “The goal of establishing a stable,
permanent home for children is a compelling state interest.” Id. We accordingly overrule
Father’s fourth, fifth, and sixth issues.
CONCLUSION
Having overruled Father’s issues, we affirm the trial court’s order of termination.
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__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Smith
Affirmed
Filed: October 29, 2021
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