A. K. and T. A. v. Texas Department of Family and Protective Services ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00285-CV
A. K. and T. A., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-19-008463, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
A.K. (Mother) and T.A. (Father) appeal from the trial court’s order terminating
Mother’s parental rights to K.L.H., who was born in December 2007, and their parental rights to
T.A.A., who was born in February 2013; T.K.A., who was born in February 2014, and T.A.A.,
who was born in October 2016. 1 In their respective appellate issues, Mother and Father
challenge the sufficiency of the evidence to support the trial court’s predicate-ground and best-
interest findings. See Tex. Fam. Code § 161.001(b)(1)(D) (endangering environment),
(E) (endangering conduct), (O) (failing to comply with court-ordered services), (P) (using
controlled substance in manner that endangered health or safety of child and failing to complete
court-ordered substance abuse program), (2). Mother also challenges the sufficiency of the
1 We refer to the parents by their initials or as Mother and Father, and we refer to the
children by their initials. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. The trial court
granted possessory conservatorship of K.L.H. to her biological father K.H., and he has not
appealed from the order of termination.
evidence to support K.L.H.’s biological father, K.H., retaining his parental rights to K.L.H. For
the following reasons, we affirm the trial court’s order of termination.
BACKGROUND
In October 2019, the Department became involved with Mother, Father, and the
four children because they were living out of a van in an apartment complex parking lot and
there were concerns about the parents’ drug use, the family’s living conditions, and the
children’s safety. The parents voluntarily agreed to a safety placement for the children with their
maternal great grandmother and their great aunt (Aunt).
In December 2019, the parents were court-ordered to participate in services.
They, however, failed to comply with the court order and, in April 2020, the Department filed an
amended petition seeking to be appointed the children’s temporary managing conservator and to
terminate parental rights. Among the Department’s concerns, the parents had not been
participating in services, including drug testing, and one of the children had made an outcry that
Father was selling drugs. In July 2020, the trial court appointed the Department as the children’s
temporary managing conservator and continued their placement with their maternal relatives.
During the case, both parents tested positive and did not show up for
court-ordered drug screenings for months at a time. Mother and Father tested positive for
methamphetamine and marijuana in August 2020; Father tested positive for marijuana in
October 2020, April 2021, and June 2021; and Mother tested positive for marijuana in
September 2020, October 2020, April 2021, August 2021, and January 2022. Mother also
acknowledged that she had been a victim of domestic violence but represented to the Department
that she and Father were separated. Father was ordered to stay 200 yards away from Mother and
the children’s placement, school, or daycare. Mother’s visits progressed to unsupervised, and
2
she sought a monitored return, but the trial court denied her request and discontinued her
unsupervised visits. Mother had told K.L.H. that she was pregnant and had a miscarriage, and
Mother continued to miss drug screenings.
After multiple extensions of the dismissal date, the jury trial occurred in
April 2022. The witnesses consisted of Mother, Father, K.L.H., Aunt, a clinical psychologist
who evaluated five family members, the children’s therapist, the conservatorship supervisor and
caseworker, and the CASA volunteer. The Department sought to terminate the parental rights of
Mother and Father because of its continuing concerns about their parental abilities. If the
parents’ rights were terminated, the Department’s plan was for the children to remain in their
placement with their maternal relatives and for K.L.H.’s biological father to be appointed as her
possessory conservator.
Mother and Father were both employed, lived together in an apartment, and
planned to co-parent if the children were returned to them. Although the parents had represented
to the Department that they were separated during the case and Mother’s attorney made this
representation in her opening statement, 2 they had been living together in the apartment since
September 2021.
2 In her opening statement, Mother’s attorney represented that the evidence would
show that:
[Mother] has addressed the domestic violence allegations, the drug use
allegations, in her way and has been able to maintain a stable household, maintain
her own household, as well as protect herself from—and prevent any incidents of
domestic violence or law enforcement involvement since deciding to separate
from [Father].
The evidence will also show that she’s not in an antagonistic relationship with
[Father]; she’s not in adversarial relationship with [Father]; and that, you know,
she wishes for him to be a good father to the children and wants the children to
have that—a good relationship with their father. However, she’s not team
[Father]. She feels like he has a lot of things that he has to work on himself, and
3
K.L.H., who was fourteen at the time of trial, testified before Mother and Father
testified. She testified that she “believe[d] that [Mother’s] still with him currently,” that it was
hard to believe Mother when “she says she’s not” with Father “as much as she lies,” and that she
“did not trust [Mother] enough” not to go back to Father. K.L.H. also testified that she had not
been truthful with the Department in the past about her living situation. She explained that she
was “scared of what [Father] might do or what he might do to [Mother]” but that she actually had
not been safe and got “whoopings” and that her parents “smoked weed.” As to living in the van,
she testified that they were “just all smooshed in there” and “really uncomfortable”; that she
“knew there [were] ecstasy pills going around multiple times” and that Mother and Father
“would both take it a lot”; that she “knew that [Father] was selling drugs” and her mother wanted
to start doing so but did not; that Father hid drugs in “socks,” K.L.H.’s backpack, and “the
vehicle they were in”; that their clothes were “just nasty and dirty”; that they only took showers
“every so often”; that “you could literally . . . scrape the dirt off [their] skin”; and that she was
not going to school.
K.L.H. asked the jury to terminate Mother’s and Father’s rights to her and her
siblings. She did not believe that there should be any contact with them. She testified that
Father had “threatened to kick [her] out” multiple times; that Mother and Father “promise so
many things, and they never do it”; and that she and her siblings were “honestly tired of it.” She
explained that she had suicidal thoughts because Mother “was putting [her] through so much
stress,” “the things” Father was doing, and “the lies and things.” She did not want to visit with
that’s for him to do and not for her to be involved with. And that a romantic
relationship for them is just no longer tenable. And they can still have a co-parent
relationship and—that’s reasonable and they’re able to discuss things in a mature
and responsible fashion.
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Mother because “what is the point” when Mother’s “actions [were] not adding up,” but she
recently had gone to visits with Mother because her siblings wanted her to be there. She testified
about verbal fights between Mother and Father where they tried to draw her in and about an
incident where Father threw Mother on the bed because “he didn’t want her to leave” and that
there was a point where they kept a “suitcase and bags packed” in case Mother wanted to leave
but she “just runs back.” As to her current placement with her maternal relatives, K.L.H.
testified that they provide “the perfect amount of structure that we need in our life” and gave
them “the attention and love that we need and deserve.”
Following K.L.H.’s testimony, Father and Mother testified. They admitted that
they had been living together. Father testified that they had been living together since
September 2021, that their plan was to be together and co-parent their children, and that he had
been working as a limo driver for about two weeks. He admitted that he continued to use
marijuana but denied knowing that he needed to notify the Department that they were living
together and testified that he stopped complying with services because “[i]t doesn’t help.” He
further testified that the children’s trauma was after they were removed from their parents, that
Mother had to say that they were separated because of the Department’s threats, that she made
up the domestic violence, and that the Department tried to have him deported. He also denied
that he had been dealing drugs or that he threatened to kick K.L.H. out.
Mother similarly admitted that she and Father were living together and that she
had been with him for the majority of the case. She denied domestic violence but testified that
she told the Department that she was not in a relationship with Father and that there was
domestic violence in the home “to try to appease CPS” and that she was told to separate “so that
[she] could get family reunification.” She testified that she made up a story with her
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caseworker’s help about Father chasing her with a machete to try to get into a shelter. She also
admitted that she made up that she was pregnant during the case. Mother denied using
methamphetamine, but she admitted to using marijuana. When asked why she lied to her
children, Mother refused to answer, instead invoking the Fifth Amendment. She believed that
she had a stable and safe home and testified that the three youngest children had voiced that they
want to come home and were not afraid of Father and that K.L.H. was not suicidal when with
her. She also testified that Father had made significant positive changes and that she thought the
children would see a difference in Father if they came home so that “there won’t be a concern of
safety anymore.”
The exhibits included the test results showing positive test results from drug
screenings for Mother and Father, the family service plans for Mother and Father, redacted court
orders, and the psychological evaluations of family members. The psychologist who provided
the evaluations testified that Mother had post-traumatic stress disorder from being emotionally
abused by Father, that K.L.H. had major depressive disorder and suicidal ideation, and that the
other children also were suffering from trauma from instability that they experienced in their
home life. She believed it was in the children’s best interest to terminate parental rights and for
Father and Mother not to be a regular part of the children’s lives. She expressed concern that the
children’s symptoms from their trauma would not improve if they were returned to Father and
Mother and that the children needed nurturing, structure, love, and therapy.
The therapist for the children, the CASA volunteer, and Aunt also believed that it
was in the best interest of the children to terminate parental rights. The therapist testified that the
children were all “suffering from complex trauma” and that the trauma “stems from childhood
abuse,” being neglected and exposed to family violence and uncertainty, and not being able to
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trust their caregivers. He testified that the children had improved in their placement, that they
were happy and thriving, and that their placement was providing structure and stability and
meeting the children’s needs. He expressed his fear that the children would lose the progress
that they had made if they were returned to their parents and that they would be exposed to a
“dysfunctional, stressful environment.” Although the youngest child expressed that she wanted
to be with Mother and the two middle children fluctuated about wanting to be with Mother, the
therapist testified that the children did not express a desire to be with Father and were afraid of
him; that it was not safe to place the children with Father; that it would not be healthy for them to
be subjected to his aggression, anger, and “abusive manners”; and that the children did not trust
Mother to protect them.
The CASA volunteer testified that she “had suspicions” that Father and Mother
were together but that Mother told her during the case that “they [were] apart,” that it was
concerning because she did not believe that Mother could be protective and Father had not
addressed his issues and was not a good parent for the children, and that Father’s “controlling
behavior and the fear that he instills in the children [was] extremely concerning to CASA.” She
testified that Aunt was “phenomenal” and had “been extraordinary in getting [the children] what
they need in many areas,” that Mother had not addressed the emotional and educational needs of
the children when in her care, and that Father and Mother had not demonstrated that they had the
necessary parental abilities to take care of the children.
Aunt testified about her reasons for believing that it would be best if she adopted
the children:
I think it’s best that I’m able to adopt [the three younger children] and [K.L.H.]
because they need that stability. They need to be able to be—to realize, you
know, that someone reliable is there, no broken promises, not having to fear for
7
what’s going to happen, knowing that they’re going to be truly taken care of and
loved like they should be.
She testified that prior to the children’s placement with her and great grandmother, the children
had not been going to school and were “behind majorly” and that after they were placed with her
and great grandmother, they had made “some great strides.” She also was not opposed to
updating the parents on the children and was willing to work with the children’s therapist or
psychologist if it would be helpful to the children to have a relationship with Father and Mother.
The jury found that Mother, as to all four children, and Father, as to his three
children, knowingly placed or knowingly allowed the children to remain in conditions or
surroundings which endangered their physical or emotional well-being, engaged in conduct or
knowingly placed the children with persons who engaged in conduct which endangered the
children’s physical or emotional well-being, failed to comply with court-ordered services, used a
controlled substance in an endangering manner without completing a court-ordered substance
abuse treatment program or after completing a treatment program, and that it was in the
children’s best interest for parental rights to be terminated. See Tex. Fam. Code
§ 161.001(b)(1)(D), (E), (O), (P), (2). The jury also found that K.H. should be named a
possessory conservator of K.L.H.
In its order of termination, the trial court terminated the parental rights of Father
and Mother on the grounds found by the jury, appointed the Department as the children’s
permanent managing conservator, and appointed K.H. as a possessory conservator of K.L.H.
This appeal followed.
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ANALYSIS
Standard of Review
To terminate parental rights under section 161.001, the Department has the
burden to prove by clear and convincing evidence one of the predicate grounds in subsection
(b)(1) and that termination is in the best interest of the child. See id. § 161.001(b)(1), (2); In re
A.V., 113 S.W.3d 355, 362 (Tex. 2003); see also Tex. Fam. Code § 161.206(a); In re J.F.C.,
96 S.W.3d 256, 263 (Tex. 2002) (explaining that “[d]ue process requires the application of the
clear and convincing evidence standard of proof in parental termination cases”). “‘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 § 101.007; see In re C.H., 89 S.W.3d 17, 23 (Tex. 2002) (stating definition of
“clear-and-convincing burden of proof” (quoting State v. Addington, 588 S.W.2d 569, 570
(Tex. 1979))).
“In conducting a legal-sufficiency review, the reviewing court cannot ignore
undisputed evidence contrary to the finding, but must otherwise assume the factfinder resolved
disputed facts in favor of the finding.” In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018). Legal
sufficiency review of the evidence to support a termination finding requires a court to look at all
the evidence in the light most favorable to the finding and consider undisputed contrary evidence
to determine whether a reasonable trier of fact could have formed a firm belief or conviction that
its finding was true. Id.In reviewing the factual sufficiency of the evidence under the
clear-and-convincing standard, we consider and weigh disputed evidence contrary to the finding
against all the evidence favoring the finding. Id. at 631. “Evidence is factually insufficient if, in
9
light of the entire record, the disputed evidence a reasonable factfinder could not have credited in
favor of a finding is so significant that the factfinder could not have formed a firm belief or
conviction that the finding was true.” Id. We must give due deference to the factfinder’s
findings, and we cannot substitute our own judgment for that of the factfinder. In re H.R.M.,
209 S.W.3d 105, 108 (Tex. 2006); see In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (noting that
when reviewing termination order, appellate courts defer to “factfinder who, having full
opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the
credibility and demeanor of witnesses”).
Endangerment Grounds
Although Mother and Father challenge each of the jury’s predicate-ground
findings, we limit our review to their challenges to the sufficiency of the evidence to support the
jury’s findings under subsections (D) and (E)—that (i) Mother and Father knowingly placed or
knowingly allowed the children to remain in conditions or surroundings which endangered the
children’s physical or emotional well-being, and (ii) Mother and Father engaged in conduct or
knowingly placed the children with persons who engaged in conduct which endangered the
children’s physical or emotional well-being. See Tex. Fam. Code § 161.001(b)(1)(D), (E); In re
N.G., 577 S.W.3d 230, 232–33, 237 (Tex. 2019) (per curiam) (explaining that only one predicate
ground is necessary to support termination of parental rights when there is also best interest
finding but requiring appellate court to detail analysis in appeal challenging subsection (D) or (E)
finding because of their collateral consequences in future termination proceedings). Mother
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challenges the legal sufficiency of the evidence and Father challenges the legal and factual
sufficiency of the evidence to support the endangerment findings. 3
“‘Endanger’ means ‘to expose to loss or injury; to jeopardize.’” In re M.C.,
917 S.W.2d 268, 269 (Tex. 1996) (quoting Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,
533 (Tex. 1987)). “Although ‘endanger’ means more than a threat of metaphysical injury or the
possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be
directed at the child or that the child actually suffers injury.” Id. “Endangerment does not have
to be established as an independent proposition, but can be inferred from parental misconduct
alone,” the conduct does not have to occur in the presence of the child, and courts may look to
conduct “both before and after the child has been removed by the Department.” Pruitt v. Texas
Dep’t of Fam. & Protective Servs., No. 03-10-00089-CV, 2010 Tex. App. LEXIS 10272, at *13–
14 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.). “Conduct that subjects a child to a
life of uncertainty and instability endangers the child’s physical and emotional well-being.” Id.at *14 (citing In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied)).
3 The Department argues that this Court should overrule Father’s issues challenging the
sufficiency of the evidence because he did not preserve them for this Court’s review. See J.M.
v. Texas Dep’t of Fam. & Protective Servs., No. 03-22-00187-CV, 2022 Tex. App. LEXIS 7608,
at *36 (Tex. App.—Austin Oct. 13, 2022, no pet. h.) (mem. op.) (concluding that parent waived
sufficiency challenges by failing to take action to preserve); In re A.P., No. 05-19-01536-CV,
2020 Tex. App. LEXIS 4321, at *13–15 (Tex. App.—Dallas June 10, 2020, no pet.) (mem. op.)
(concluding in appeal from termination of parent’s rights that parent had not preserved challenge
to sufficiency of evidence “because she failed to take any of the steps in the trial court necessary
to do so” and describing preservation rules). In the interest of justice and because of the
importance of the rights involved, however, we review the sufficiency of the evidence to support
the jury’s endangerment findings against Father. See, e.g., In re N.G., 577 S.W.3d 230, 237
(Tex. 2019) (per curiam) (explaining that due process concerns “coupled with the requirement of
a meaningful appeal” demand review of evidence supporting trial court’s findings under
subsections (D) and (E)); W.B. v. Texas Dep’t of Fam. & Protective Servs., No. 03-14-00134-CV,
2014 Tex. App. LEXIS 9173, at *2 (Tex. App.—Austin Aug. 20, 2014, no pet.) (mem. op.)
(reviewing sufficiency of evidence in interest of justice and because of importance of issues in
appeal from judgment terminating parental rights following jury trial even though parent had not
preserved challenge).
11
The relevant inquiry under subsection (E) is whether evidence exists that the
endangerment of the child’s well-being “was the direct result of Appellant’s conduct, including
acts, omissions, or failures to act.” In re M.E.-M.N., 342 S.W.3d 254, 262 (Tex. App.—Fort
Worth 2011, pet denied.). “Additionally, 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. In contrast, the relevant inquiry under subsection (D) is
whether the child’s environment, including the child’s living conditions and conduct by parents
or others in the home, endangered the child’s well-being. V.P. v. Texas Dep’t of Fam. &
Protective Servs., No. 03-19-00531-CV, 2020 Tex. App. LEXIS 938, at *9–10 (Tex. App.—
Austin Feb. 4, 2020, no pet.) (mem. op.). “Inappropriate, abusive, or unlawful conduct by
persons who live in the child’s home—including physical violence or abusive conduct by one
parent toward the other parent—is part of the ‘conditions or surroundings’ of the child’s home
under subsection (D).” Id. at *10 (citing In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort
Worth 2009, no pet.)). Because the evidence pertaining to subsections (D) and (E) is
interrelated, we consolidate our review of the evidence. See id. at *11 (citing In re M.R.J.M.,
280 S.W.3d at 503).
Mother argues that the evidence is legally insufficient to support the
endangerment findings against her because she “had shown significant effort.” She argues that
there was little or no evidence that she had not completed many service hours; that she had a
stable home, job, and transportation; and that she was available to help the children. She
compares herself with K.H. who was incarcerated and had not been able to do services. She
argues that because K.H. was allowed to keep his rights, she “should have been allowed to keep
her rights,” particularly because “there was testimony that the younger children wanted to return
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to their mother.” She argues that “termination on the (D) ground is unconscionable where the
parent could not have completed services that were not set up, or not required, specifically
family therapy and drug treatment” and that the case started, “in large part, because of poverty
and homelessness,” not because the children were placed in “unsafe circumstances.” As to
subsection (E), Mother argues that termination on this ground is “unfair where the parent had
done a lot of her services” and she maintained that no domestic violence had occurred, making
the finding “not certain.” She acknowledges the evidence that the children were afraid of Father
but argues that conservatorship “may have been more appropriate.”
Father argues that there was no evidence that the children’s living conditions
endangered the children because they were residing in apartments in a complex where he was
performing maintenance work; the fact that the children were not in school did not by itself
create an endangering environment; poverty, temporary homelessness, and “squatting” did not
constitute an endangering environment; and the family had previously been living with their
maternal relatives, with whom the Department placed the children. Father also characterizes the
Department’s evidence to be limited to the loud and forceful way he expressed himself,
unsubstantiated allegations of domestic violence, and his spanking K.L.H. “four years prior to
trial” and being “at times” “insensitive” about her weight gain. He relies on his and Mother’s
testimony denying domestic violence and the lack of any records of arrests or convictions.
The jury, however, reasonably could have found the testimony of Mother and
Father not credible. See In re A.B., 437 S.W.3d at 503. Mother admitted in her testimony that
she had not been truthful to the Department or her children during the case, including being
untruthful about her relationship with Father. Not until after Mother’s attorney’s opening
statement did Mother and Father admit that they were living together. Mother also testified that
13
she had not been truthful about being pregnant during the case and testified that she made up
allegations of domestic violence by Father to appease the Department. K.L.H. also testified that
Mother was not truthful and that K.L.H. did not trust her.
The jury also reasonably could have believed K.L.H.’s testimony that Mother was
not protective and that Father was abusive and the evidence about the family’s unstable and
unsanitary living conditions and the Mother’s and Father’s concerning conduct prior to the
children’s removal. K.L.M testified that when the family was living in the van, Father was
selling and using illegal drugs, he sometimes hid the drugs in her backpack, and Mother was
using illegal drugs. See In re C.V.L., 591 S.W.3d 734, 751 (Tex. App.—Dallas 2019, pet.
denied) (“Evidence of a parent’s drug use, or evidence that another parent allowed a child to be
around a parent or other persons using drugs, can support the conclusion that the child’s
surroundings endanger her physical or emotional well-being under subsection (D) and can
qualify as a voluntary, deliberate, and conscious course of conduct endangering the child’s
well-being under subsection (E).”); In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001,
no pet.) (“[I]ntentional criminal activity which exposed the parent to incarceration is relevant
evidence tending to establish a course of conduct endangering the emotional and physical
well-being of the child.” (citation omitted)).
The jury also could have credited the evidence that the children suffered from
abuse, neglect, and exposure to domestic violence when they were living with Mother and
Father. See V.P., 2020 Tex. App. LEXIS 938, at *9–10 (noting that “[i]nappropriate, abusive, or
unlawful conduct by persons who live in the child’s home—including physical violence or
abusive conduct by one parent toward the other parent—is part of the ‘conditions or
surroundings’ of the child’s home under subsection (D)”). K.L.H. testified that she witnessed
14
Father throwing Mother onto a bed so she could not leave, that they had their suitcases packed in
case Mother wanted to leave but she “just runs back,” that Father was verbally and physically
abusive to her, and that Mother did not protect her. K.L.H. testified that Father would hit her
with “[h]ands, belt, and occasionally—usually sometimes what he can use, like close to him. So
it’d be, like, the back scratcher.” She testified that it hurt when he hit her and that her Mother
did “[n]othing” and “[m]ost of the time” defended him for doing it. The therapist also testified
that the children were “suffering from complex trauma” and that the trauma “stems from
childhood abuse,” being neglected, exposed to family violence and uncertainty, and not being
able to trust their caregivers.
The evidence also showed that during the case, the parents went months without
drug screenings and tested positive for methamphetamine in August 2020 and for marijuana
multiple times. See J.B. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00325-CV,
2021 Tex. App. LEXIS 9308, at *18–19 (Tex. App.—Austin Nov. 17, 2021, pet. denied) (mem.
op.) (considering ongoing drug use after child was removed as evidence of endangering course
of conduct); In re C.V.L., 591 S.W.3d at 751 (“Continued illegal drug use after a child’s removal
is conduct that jeopardizes parental rights and may be considered as establishing an endangering
course of conduct under subsection (E).”); see also In re C.A.B., 289 S.W.3d 874, 885 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (“A factfinder reasonably could infer that [parent’s]
failure to submit to the court-ordered drug screening indicated she was avoiding testing because
she was using drugs.”); In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no
pet.) (same).
Viewing the evidence under the applicable standards of review, we conclude that
it was legally sufficient to support the endangerment findings against Mother and legally and
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factually sufficient to support the endangerment findings against Father. See Tex. Fam. Code
§ 161.001(b)(1)(D), (E); In re A.C., 560 S.W.3d at 630–31. Thus, we overrule their first and
second issues and do not reach their third and fourth issues addressing subsections (O) and (P).
See Tex. Fam. Code § 161.001(b)(1)(O), (P); In re N.G., 577 S.W.3d at 232–33.
Best Interest
In their fifth issues, Mother challenges the factual sufficiency of the evidence and
Father challenges the legal and factual sufficiency of the evidence to support that termination of
their respective parental rights was in the children’s best interest. See Tex. Fam. Code
§ 161.001(b)(2).
Relevant factors in assessing the best interest of a child include: (i) the desires of
the child, (ii) the stability of the home or proposed placement, (iii) parental abilities, (iv) the
emotional and physical needs of the child now and in the future, (v) the emotional and physical
danger to the child now and in the future, (vi) the plans for the child by the individual or agency
seeking custody, (vii) the programs available to assist the individuals seeking custody to promote
the best interest of the child, (viii) acts or omissions by the parent showing that the parent-child
relationship was not proper, and (ix) any excuses for the parent’s conduct. Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976); see also Tex. Fam. Code § 263.307 (stating that “prompt
and permanent placement of the child in a safe environment is presumed to be in the child’s best
interest” and listing factors that court should consider “in determining whether the child’s
parents are willing and able to provide the child with a safe environment”). No one factor is
controlling, evidence on each factor is not required, and evidence presented to satisfy the
predicate-ground finding may also be probative of the child’s best interest. See In re C.H.,
89 S.W.3d at 27–28; Pruitt, 2010 Tex. App. LEXIS 10272, at *22–23.
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Mother argues that “it is not clear that the jury could find that is was in the best
interest of the children” for her rights to be terminated when the adoptive placement was not
necessarily willing to allow post-termination contact, the youngest child wanted to have a
relationship with her and return to her, another parent was able to maintain parental rights
“despite their incarceration,” and the Department did not set up family therapy with the children,
which “might have affected the outcome of the case.” She argues that her parental rights should
not have been terminated “when a conservatorship agreement might have been more
appropriate.” Mother, however, admitted that she was living with Father at the time of trial and
planning to co-parent if the children were returned to her. Although Mother testified that the
children were not afraid of Father, that Father had made significant positive changes, and that
she thought the children would see a difference in Father if they came home so that “there won’t
be a concern of safety anymore,” the jury did not have to believe this testimony and reasonably
could have believed the evidence that the children had reason to be and were afraid of Father.
The therapist and the caseworker testified that the children had told them that they
were afraid of Father. The caseworker testified that the four children had told her “that they do
not feel safe in the presence of their father,” “that they are uncomfortable at visits,” and that
“they didn’t want to be around him.” She explained:
Father has been aggressive and inconsistent, and he has put fear into his children
by his behaviors and his actions and his active choices that have caused his
children harm and left them in foster care for an extended period of time.
The caseworker further testified that Mother had been “unable to provide a safe, consistent
environment for her children,” “to take the necessary steps it takes to even attempt to create a
safe environment for her children,” or to “choose to engage in safe relationships and put their
best interest forward.”
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As support for his position that it was not in his children’s best interest to
terminate his parental rights, Father relies on his visits with his children. He recognizes that
“there was ample evidence that the children were thriving under [Aunt’s] care” but argues that
“there also was evidence that [his children] enjoyed seeing him.” He characterizes the evidence
as supporting that, “absent one visit where [he] became upset,” his visits with the children were
“appropriate.” The caseworker, however, testified about her concerns with Father’s conduct
during visits, including an incident where he yelled at her. She also testified that for over half of
the visits that she observed, Father needed “redirection.” Further, K.L.H. testified that she did
not believe that the children should have contact with Mother and Father, and she stopped visits
with Father during the case.
In reaching its best-interest findings, the jury reasonably could have believed the
testimony and other evidence that Mother and Father engaged in endangering conduct when the
children were in their care and during the case. See Holley, 544 S.W.2d at 371–72 (listing
among factors acts or omissions by parent showing parent-child relationship was not proper); see
also In re C.H., 89 S.W.3d at 27–28; Pruitt, 2010 Tex. App. LEXIS 10272, at *22–23. Other
than Mother and Father, the Department’s witnesses uniformly testified to their beliefs that
termination of parental rights was in the children’s best interest and provided the underlying
bases for their beliefs. For example, the therapist and the psychologist testified about the trauma
that the children had suffered when they were in the care of Mother and Father and expressed
their concerns that the children’s symptoms would not improve and that they would lose the
progress that they had made if they were returned to the parents. See Holley, 544 S.W.2d at 371–
72 (listing among factors parental abilities and needs and danger to children in future). The
evidence also showed that the children were thriving in their current placement; that Aunt was
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providing the love, stability, and structure that the children needed; that Aunt hoped to adopt the
children; and that Aunt would allow continued contact between the parents and the children if
appropriate. See id. (listing among factors plans for children by individual or agency
seeking custody).
Viewing the evidence under the applicable standards of review, we conclude that
it was factually sufficient to support the jury’s best-interest finding against Mother and legally
and factually sufficient to support the jury’s best interest finding against Father. See Tex. Fam.
Code § 161.001(b)(2); In re A.C., 560 S.W.3d at 630–31. Thus, we overrule the parents’
respective fifth issues.
K.H.’s Parental Rights to K.L.H.
In her sixth issue, Mother argues that the evidence is legally and factually
insufficient to support the jury’s finding that retaining K.H.’s parental rights was in K.L.H.’s
best interest.
Because we have concluded that the evidence was sufficient to support
termination of Mother’s parental rights, we conclude that she does not have standing to challenge
the portion of the trial court’s order that appointed K.H. as a possessory conservator of K.L.H.
See Tex. Fam. Code § 161.206(b) (stating generally that “an order terminating the parent-child
relationship divests the parent and the child of all legal rights and duties with respect to each
other”); In re Y.V., No. 02-12-00514-CV, 2013 Tex. App. LEXIS 7291, at *3–4 (Tex. App.—
Fort Worth June 13, 2013, no pet.) (mem. op.) (concluding that because father was bound by
portion of trial court’s order terminating his parental rights, he lacked standing to challenge
portion of termination order appointing Department as permanent managing conservator); see
also A.P. v. Texas Dep’t of Fam. & Protective Servs., Nos. 03-18-00780-CV, 03-18-00781-CV,
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2019 Tex. App. LEXIS 2268, at *2–4 (Tex. App.—Austin Mar. 26, 2019, no pet.) (mem. op.)
(concluding in context of parents’ appeal from judgment terminating their parental rights, that
parents lacked standing to challenge trial court’s ruling as to grandmother’s petition in
intervention and collecting cases in which court concluded that appealing party lacked standing
to complain of errors that did not injuriously affect party or that affected rights of others). We
overrule Mother’s sixth issue.
CONCLUSION
Having overruled Mother’s and Father’s dispositive issues, we affirm the trial
court’s order of termination.
__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Baker, and Kelly
Affirmed
Filed: October 27, 2022
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