In the Interest of Z.E., Child(ren) v. the State of Texas ( 2023 )

Affirm and Opinion Filed May 23, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01337-CV
IN THE INTEREST OF Z.E., A CHILD
On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JC-22-00703-W
MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Breedlove
Opinion by Justice Molberg
Father and Mother appeal from the trial court’s decree terminating their
parental rights to their child, Z.E. Father raises five issues, which we address and
overrule below. Mother’s appointed counsel has filed a motion to withdraw and a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),1 concluding that no
arguable grounds for reversible error exist and that Mother’s appeal is frivolous and
without merit. Mother’s counsel and this Court both provided Mother a copy of the
1
Anders concerns the “duty of a court-appointed appellate counsel to prosecute a first appeal from a
criminal conviction, after that attorney has conscientiously determined that there is no merit to the
indigent’s appeal.” 386 U.S. at 739. Anders procedures apply in appeals from a trial court’s decree
terminating parental rights where, as here, the appellant’s appointed counsel concludes there are no non-
frivolous issues to assert on appeal. In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied).
Anders brief and advised Mother of her right to examine the appellate record and
file a pro se response. She filed a response that states, in part, there is “alot of he
say she say and no real suffient [sic] evidence to terminate my rights to [Z.E.],” thus
expressing, in essence, a belief the evidence is insufficient to support the termination
of her rights to Z.E.. We affirm the trial court’s decree and deny Mother’s counsel’s
motion to withdraw. Because the issues are settled, we do so in a memorandum
opinion. See TEX. R. APP. P. 47.4.
I. TRIAL COURT BACKGROUND
Z.E. was born in early 2016. Shortly after his fifth birthday, the Department
of Family and Protective Services filed an original petition for emergency protection,
conservatorship, and termination of Mother’s parental rights to Z.E. and two other
children.2 On March 5, 2021, the trial court issued an ex parte order for emergency
care and temporary custody of the children, appointing the Department as temporary
managing conservator. The trial court also appointed a court appointed special
advocate (CASA) and a guardian ad litem (GAL) to represent the children.3
In May 2021, the Department amended its petition, adding, among other
things, an allegation regarding Father’s parentage of Z.E., and allegations seeking
establishment and termination of Father’s parental rights to Z.E. Later that year,
2
No issue regarding the other two children is presented for our review in this appeal. The trial court
severed this case from the cases involving the other two children in August 2022.
3
The court later modified the GAL appointment by entering an order indicating the person appointed—
who is also an attorney—would serve in a dual role of guardian ad litem and attorney ad litem. For purposes
of this opinion, we refer to that person simply as GAL.
–2–
GAL filed a petition in intervention seeking to terminate Mother’s and Father’s
rights to Z.E. as well, and GAL later amended its petition.
In the Department’s and GAL’s latest-filed pleadings, each alleged, among
other things, that Father is Z.E.’s alleged father; termination of Parents’ rights to
Z.E. was in Z.E.’s best interest; Father and Mother committed acts described in
family code section 161.001(b)(1)(D) and (E); Mother also committed acts under
161.001(b)(1)(L); and Father also committed acts under section 161.001(b)(1)(Q).
About two months before trial began, GAL filed a motion to admit videotaped
forensic interview statements of Z.E. and his brother and to use them in lieu of their
testimony at trial. See TEX. FAM. CODE 104.002. The trial court granted the motion,
admitting the videos “for all purposes,” and stating, in part, that the use of such
statements in lieu of the children’s trial testimony is “necessary to protect the
[children’s] welfare.”
According to the record before us, a bench trial began August 29, 2022, and
was then recessed. Trial was continued in person and via Microsoft TEAMS on
November 14, 2022, and concluded the next day. Father, who was jailed in another
state at the time of trial, attended remotely.
When trial continued on November 14, 2022, Mother moved to dismiss the
case against her, arguing the trial court lacked jurisdiction because there was no
record the March 7, 2022 dismissal deadline was extended before it expired. See
TEX. FAM. CODE § 263.401(a). The trial court heard the motion and denied it.
–3–
At the trial’s conclusion, the trial court pronounced its ruling. In both its
pronouncement and in the later decree, the trial court found Father committed the
conduct described in family code section 161.001(b)(1)(D), (E), and (Q), found
Mother committed the conduct in section 161.001(b)(1)(D), (E), and (L), and found
termination of each of their parental rights was in Z.E.’s best interest.
After these pronouncements, the trial court stated:
[THE COURT]: The Court will appoint the Department as permanent
managing conservator. CASA will continue as a guardian. SMU will
continue as attorney ad litem. The case will be transferred to the
permanency court.
The Court is ordering the Department to look at the paternal cousin[4]
for a possible placement in Illinois since she has been approved in
Illinois before, and she is a family placement. The Court orders that
happen within the next 90 days.
The Court finds that all orders entered today are in the best interest of
this child. All right, anything else?
[DEPARTMENT’S COUNSEL]: Judge, Department will request an
expedited ICPC[5] order if we can on the cousin.
THE COURT: Okay. Expedited ICPC request is granted. All right,
anything else?
[DEPARTMENT’S COUNSEL]: No, ma’am.
[GAL]: No, Your Honor, thank you.
THE COURT: All right. Thank you-all.
4
The initials of the cousin referred to here and in Father’s fifth issue are N.L.B.
5
ICPC refers to the Interstate Compact on the Placement of Children. See generally TEX. FAM. CODE
§ 162.101–.107 (adopting compact in Texas).
–4–
On November 17, 2022, two days after trial concluded, the trial court entered
an order of home study requiring Department to institute an ICPC home study
request on the paternal cousin referred to in the above exchange.
The trial court signed the decree on December 7, 2022. The decree did not
mention the November 17, 2022 order but did refer the case to the local child
protection and permanency court for further hearings and stated that court was to
conduct a permanency hearing after final order no later than ninety days after the
trial court rendered the decree. The Department, GAL, and counsel for Father all
signed the decree, approving it as to form, while Mother’s appointed counsel
declined to do so.
After the decree was signed, no party requested written findings of fact or
conclusions of law, requested any modification of the decree, or filed a motion for
new trial. Father and Mother timely appealed.
II. PARENTS’ JOINT MOTION TO DISMISS IN OUR COURT
On appeal, Parents have not raised any issue regarding the trial court’s denial
of Mother’s motion to dismiss. However, before filing their briefs, and similar to
Mother’s argument in the trial court, Father and Mother filed a joint motion to
dismiss the appeal, asking us to dismiss the appeal for want of jurisdiction, on the
theory that the trial court’s decree was void, when there was no record the March 7,
2022 dismissal deadline was extended before it expired.
–5–
We denied Parents’ motion because GAL filed its petition in intervention
before the dismissal deadline passed, and there is nothing in the record to indicate
the trial court lost its jurisdiction to decide GAL’s petition. See In re A.W., No. 05-
22-00053-CV, 2022 WL 195573, at *3 (Tex. App.—June 6, 2022, pet. denied)
(mem. op.) (concluding similar arguments lacked merit); see also In re C.D., No.
05-21-00768-CV, 2022 WL 484559, at *2 (Tex. App.—Dallas Feb. 17, 2022, orig.
proceeding) (mem. op.); In re L.D.R., No. 05-21-00369-CV, 2021 WL 5104376, at
*3 (Tex. App.—Dallas Nov. 3, 2021, no pet.) (mem. op.) (reaching similar
conclusions). Parents have not asked us to reconsider our ruling on their motion.
III. REVIEW STANDARDS
A. Evidentiary Sufficiency in Parental Termination Cases
The involuntary termination of parental rights involves fundamental
constitutional rights. In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). A natural
parent’s desire for—and right to—the companionship, care, custody, and
management of his or her children is an interest “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982). A termination order is
final and irrevocable, divesting for all time that natural right as well as all legal
rights, privileges, duties, and powers between the parent and child except for the
child’s right to inherit. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re
M.S., 115 S.W.3d 534, 549 (Tex. 2003) (referring to termination of a parent’s right
to his or her child as “traumatic, permanent, and irrevocable.”)
–6–
Section 161.001(b)(1) of the family code lists twenty-one predicate acts that,
if found by clear and convincing evidence, allow a court to terminate a parent-child
relationship if the court also finds that termination of the relationship is in the child’s
best interest. See TEX. FAM. CODE §§ 161.001(b)(1)(A)–(U); 161.001(b)(2). Only
one predicate finding is necessary to support a judgment of termination of parental
rights when a finding is also made that termination is in the child’s best interest. In
re A.V., 113 S.W.3d 355, 362 (Tex. 2003). However, due to the significant collateral
consequences that may result from such findings, even when we affirm the
termination of a parent’s rights on another ground, we must consider the sufficiency
of the evidence regarding subsections (b)(1)(D) and (E) when raised on appeal,6
although the extent to which we must do so in an Anders context is unclear. See In
re E.K., 608 S.W.3d 815, 815 (Tex. 2020) (Green, J., concurring in denial of petition
for review) (stating the issue of how In re N.G. applies to parental termination
appeals in which the appellant’s counsel has filed an Anders brief is “an important
question” [the Texas Supreme Court] should answer”).
“Because the fundamental liberty interest of a parent in the care, custody, and
control of his child is one of constitutional dimensions, involuntary parental
termination must be strictly scrutinized.” In re C.V.L., 591 S.W.3d 734, 748 (Tex.
App.—Dallas 2019, pet. denied). While we acknowledge the constitutional
6
See In re N.G., 577 S.W.3d 230, 234–37 (Tex. 2019) (per curiam) (explaining why, though not in an
Anders context).
–7–
dimensions of parental rights, we also recognize the imperative that the “emotional
and physical interests of the child not be sacrificed merely to preserve” those rights.
In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The evidence supporting termination must
be clear and convincing before a court may involuntarily terminate a parent’s rights.
Holick, 685 S.W.2d at 20. 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. Termination of parental rights requires proof by clear and convincing
evidence that (1) a parent committed one or more of the enumerated statutory acts
in section 161.001(b)(1) of the family code, and (2) termination is in the best interest
of the child. See TEX. FAM. CODE § 161.001(b). When the burden of proof requires
clear and convincing evidence, traditional legal sufficiency and factual sufficiency
standards are inadequate. See In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002)).
As a result, in conducting legal sufficiency review in a parental termination
case, we determine whether the evidence, viewed in the light most favorable to the
finding, is such that a reasonable factfinder could have formed a firm belief or
conviction that its finding was true. Id. at 266. “[L]ooking at the evidence in the
light most favorable to the judgment means that a reviewing court must assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so.” Id. We disregard all evidence a reasonable factfinder could have
disbelieved or found incredible. Id.
–8–
In factual sufficiency review in a parental termination case, we consider the
entire record, including evidence both supporting and contradicting the finding, and
determine whether a reasonable factfinder could have formed a firm conviction or
belief about the truth of the allegation. In re C.H., 89 S.W.3d at 25–26. We
“consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor of its finding.” In re J.F.C., 96 S.W.3d
at 266. “If, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” Id.
B. Other Standards
Under the Texas Family Code, “The procedural and substantive standards for
termination of parental rights apply to the termination of the rights of an alleged
biological father.” TEX. FAM. CODE § 161.002(a). While subsection (b)(1) allows
the Department to summarily terminate the rights of an alleged biological father who
does not assert his paternity, an alleged biological father’s admission of paternity
“gives him the right to proceed to trial and require the state to prove by clear and
convincing evidence that he engaged in one of the types of conduct listed” in section
161.001(b)(1) and “that termination is in the best interest of his child.” Phillips v.
Tex. Dep’t of Protective & Regul. Servs., 25 S.W.3d 348, 357 (Tex. App.—Austin
2000, no pet.); see In re Z.A., No. 05-21-00126-CV, 2021 WL 3477713, *6 (Tex.
–9–
App.—Dallas Aug. 6, 2021, no pet.) (mem. op.) (quoting Phillips, stating, “an
alleged father who admits paternity can ‘stave off summary termination of his rights
[under section 161.002(b)(1)] and require[ ] the Department to meet the high burden
of proof found in section 161.001.’”). We assume, but do not decide, Father had
that right here.7
Generally, to preserve an issue for appellate review, the record must show a
complaint was made to the trial court “by a timely request, objection, or motion”
that, among other things, “states the specific grounds for the desired ruling, if they
are not apparent from the context of the request, objection, or motion.” TEX. R. APP.
P. 33.1(a). However, in a civil nonjury case, as this case is, “a complaint regarding
the legal or factual insufficiency of the evidence . . . may be made for the first time
on appeal in the complaining party’s brief.” TEX. R. APP. P. 33.1(d).
Under rule of civil procedure 296, “[i]n any case tried in the district or county
court without a jury, any party may request the court to state in writing its findings
of fact and conclusions of law.” TEX. R. CIV. P. 296. We may not look to any
7
The family code states, “A respondent in a proceeding to adjudicate parentage may admit to the
paternity of a child by filing a pleading to that effect or by admitting paternity under penalty of perjury
when making an appearance or during a hearing.” TEX. FAM. CODE § 160.623(a). While this is not “a
proceeding to adjudicate parentage,” see id., Father admitted in both his written filings and in his sworn
testimony in the trial court that Z.E. is his child. Father twice referred to Z.E. as “my child” in a pro se
letter he filed in the trial court, which declared it was made “under the penalty of perjury.” Father also
referred to himself as “Respondent Father of [Z.E.], the subject of this suit” in in his original answer, and
at trial, Father testified he is the father of Z.E. Neither the Department nor GAL dispute Father’s parentage
of Z.E. Though we have not located any such determination in the record before us, when the Department’s
caseworker testified at trial, she answered, “Yes” when Father’s counsel asked her if “during the pendency
of the case it has been determined that [Father] is the biological father of [Z.E.].”
–10–
comments the judge made at the conclusion of a bench trial as being a substitute for
findings of fact and conclusions of law. In re W.E.R., 669 S.W.2d 716, 716 (Tex.
1984) (per curiam). Where, as here, findings of fact and conclusions of law are not
properly requested and none are filed, the trial court’s judgment implies all findings
of fact necessary to support it, Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471,
480 (Tex. 2017), and we must affirm the judgment of the trial court if it can be
upheld on any legal theory that finds support in the evidence. In re W.E.R., 669
S.W.2d at 717.
IV. MOTHER’S APPEAL
After we denied Parents’ joint motion to dismiss, Mother’s counsel filed an
Anders brief concluding that no arguable grounds for reversible error exist and that
Mother’s appeal is frivolous and without merit. Mother’s counsel also filed a motion
to withdraw as counsel, which repeated counsel’s conclusion and asked that Mother
be allowed to file a pro se brief or a brief through other counsel.
Mother filed a pro se response reflecting she disagrees with the termination of
her rights to Z.E. When read reasonably and liberally,8 her response claims, in
essence, that insufficient evidence exists to support the termination of her parental
rights to Z.E. But aside from simply making a conclusory statement in that regard,9
8
See Gonzalez v. VATR Const. LLC, 418 S.W.3d 777, 784 (Tex. App.—Dallas 2013, no pet.)
(“Appellate courts must construe briefing requirements reasonably and liberally[.]”).
9
Mother’s pro se response states, there is “alot of he say she say and no real suffient [sic] evidence to
terminate my rights to my son.”
–11–
Mother fails to cite to the evidence, record or legal authorities in support and fails to
make any specific argument. In another context, we have concluded that a brief of
this nature is inadequate and fails to preserve any issue for appellate review.10
But even if we assume without finding Mother’s pro se response is adequate—
as we do here—we need only determine whether there are any arguable grounds for
reversal. Previously, we stated:
In reviewing an Anders brief, this Court is not required to address the
merits of each claim raised in the brief or a pro se response. See Bledsoe
v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). Rather, this
Court’s duty is to determine whether there are any arguable grounds for
reversal and, if so, to remand the case to the trial court so that new
counsel may be appointed to address the issues.
In re D.D., 279 S.W.3d at 850; see In re J.A., No. 05-16-00825-CV, 2016 WL
5945003, *1 (Tex. App.—Dallas Oct. 13, 2016, no pet.) (mem. op.) (same).
Similar to the situation in J.A., see id. at *2, in his Anders brief, Mother’s
counsel provides his professional evaluation of the record demonstrating why there
are no arguable grounds for reversal and concluding that Mother’s appeal is frivolous
and without merit. See Anders, 386 U.S. at 744. Mother’s counsel also details in
his Anders brief the compelling evidence supporting the implied findings against
Mother, including, but not limited to, evidence regarding her actions under
subsections (b)(1)(D) and (E), some of which we also detail below.
10
See Gonzalez, 418 S.W.3d at 784 (discussing briefing requirements under rule of appellate procedure
38.1 and stating, “Appellate courts must construe briefing requirements reasonably and liberally, but a party
asserting error on appeal still must put forth some specific argument and analysis showing that the record
and the law support his contention” and concluding issue was not preserved for appellate review).
–12–
Having thoroughly reviewed the record ourselves, we conclude, as Mother’s
counsel did, there are no arguable grounds for reversal. We independently reviewed
the entire record and counsel’s Anders brief, find nothing in the record that could
arguably support the appeal, and agree the appeal is frivolous and without merit.
Also, while the extent to which In re N.G.11 applies in an Anders context is unclear,12
we have specifically considered the trial court’s implied findings as to Mother under
family code sections 161.001(b)(1)(D) and (E), and we find no non-frivolous issues
that could be raised on appeal with respect to those implied findings. See In re
J.A.R., 658 S.W.3d 921, 925 (Tex. App.—El Paso 2023, pet. denied) (doing and
concluding the same as to the trial court’s findings in that case); In re M.M., 584
S.W.3d 885, 891 (Tex. App.—Amarillo 2019, pet. denied) (Quinn, C.J., concurring)
(expressing belief that an appellate court would further justice by assuring in an
Anders context that findings based on subsections (b)(1)(D) and (E) have sufficient
evidentiary support and that an appellant’s counsel would serve his client by
addressing and detailing the sufficiency of the evidence underlying such findings
when concluding the Anders procedure is the correct avenue to follow).
11
See In re N.G., 577 S.W.3d at 234–37 (holding “that due process and due course of law requirements
mandate that an appellate court detail its analysis for an appeal of termination of parental rights under
section 161.001(b)(1)(D) or (E) of the Family Code.”).
12
See In re E.K., 608 S.W.3d at 815 (Green, J., concurring in the denial of the petition for review,
stating the court “should answer” the “important question” of “how In re N.G. applies to parental
termination appeals in which the appellant’s counsel has filed an Anders brief,” and explaining why the
question was not, in his view, squarely before the court in that case).
–13–
Here, evidence supporting these implied findings includes, but is not limited
to, photographs of permanent scarring on Z.E. on multiple parts of his body; Z.E.’s
forensic interview which included statements that he “got a whipping all the time”
by Mother and that Mother hit him with an extension cord and the silver part of a
belt; Mother’s admission at trial that she did hit and cause injuries to Z.E. with an
extension cord, which she claimed was a one-time event, though she provided
inconsistent testimony regarding its timing; Mother’s testimony that she had
multiple partners that “beat [her] children” but that she made no report about that;
Mother’s agreement that the children’s “home environment for probably as long as
they can remember includes the adults in their world beating them,” and Z.E.’s
therapist’s testimony that the only person Z.E. mentioned as being responsible for
hitting him was Mother.
Accordingly, we overrule Mother’s issue but deny Mother’s counsel’s motion
to withdraw. Because this is a termination of parental rights case, appointed
counsel’s duties to Mother continue through the filing of a petition for review in the
Texas Supreme Court, and a motion to withdraw in our Court may be premature
unless good cause is shown. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per
curiam) (stating, “In light of our holding, however, an Anders motion to withdraw
brought in the court of appeals, in the absence of additional grounds for withdrawal,
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may be premature.”);13 see also J.A., 2016 WL 5945003, at *2 (applying P.M. and
reaching similar conclusion). No good cause has been offered or shown.
V. FATHER’S APPEAL
Father raises five issues on appeal. We construe Father’s first four issues as
challenging the legal and factual sufficiency of the evidence to support the implied
finding he committed the acts described in family code sections 161.001(b)(1)(D),
(E), and (Q) (first three issues) and the implied finding that termination of his rights
was in Z.E.’s best interest (fourth issue).14 Alternatively, in his fifth issue, Father
asks us to modify the decree to reflect the trial court’s oral pronouncement that the
Department continue with an ICPC placement investigation on Father’s cousin.15
13
In re P.M. also indicates that Mother’s appointed counsel may satisfy his obligation in the supreme
court by “filing a petition for review that satisfies the standards for an Anders brief.” 520 S.W.3d at 27.
14
Father frames his first four issues as follows:
1. Whether or not the parental rights of an alleged father may be terminated under TEX.
FAM. CODE §161.001(b)(1)(D) based on acts which occurred before birth, before the
alleged father had any knowledge of his status as an alleged parent, and where the record
establishes that a parent did not influence the child’s environment.
2. Whether or not the parental rights of an alleged father may be terminated under TEX.
FAM. CODE §161.001(b)(1)(E) based solely on a criminal conviction without evidence of
knowledge and without evidence of a conscious course of conduct.
3. Whether or not the parental rights of an alleged father may be terminated under TEX.
FAM. CODE §161.001(b)(1)(Q) based upon a conviction for a reckless act, and where there
is evidence of a plan and effort to support a child after gaining knowledge of alleged
paternity.
4. Whether or not the best interests of a child require the termination of an alleged father’s
parental rights when the only evidence in the record establishes that the termination of a
parent’s rights is unnecessary to accomplish a child’s best interests.
15
Father frames his fifth issue as follows:
5. Whether or not the court’s judgment, as reduced to writing, accurately reflects the
judgment of the trial court as orally announced.
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A. Father’s Acts Under 161.001(b)(1)(D) and (E)
1. Applicable Law
If a best-interest finding under subsection (b)(2) is also made, parental rights
may be terminated if clear and convincing evidence supports a finding under
subsection (b)(1)(D) that the parent “knowingly placed or knowingly allowed the
child to remain in conditions or surroundings which endanger the physical or
emotional well-being of the child” or a finding under subsection (b)(1)(E) 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.” See
TEX. FAM. CODE §§ 161.001(b)(1)(D), (E).
Proof of endangerment is required under both subsections (b)(1)(D) and (E).
Id. §§ 161.001(b)(1)(D), (E). “Endanger” means to expose to loss or injury or to
jeopardize a child’s emotional or physical health, but it is not necessary that the
conduct be directed at the child or that the child actually suffer an injury. In re M.C.,
917 S.W.2d 268, 269 (Tex. 1996) (per curiam); In re J.D.B., 435 S.W.3d 452, 463
(Tex. App.—Dallas 2014, no pet.).
At least three distinctions exist between subsections (b)(1)(D) and (E): the
source of the endangerment, the frequency of the endangerment, and the necessity
of knowledge of paternity.
First, the source of the physical or emotional endangerment to the child is the
primary distinction between subsections (b)(1)(D) and (E). See In re J.D.B., 435
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S.W.3d at 463. Subsection (D) addresses the child’s surroundings and environment,
while subsection (E) addresses parental misconduct. Id.; In re S.K., 198 S.W.3d 899,
902 (Tex. App.—Dallas 2006, pet. denied) (subsection (E) “refers only to the
parent’s conduct, as evidenced not only by the parent’s acts, but also by the parent’s
omissions or failures to act”). However, parental conduct is also relevant to the
child’s environment under subsection (D). In re J.D.B., 435 S.W.3d at 463. That is,
“[c]onduct of a parent or another person in the home can create an environment that
endangers the physical and emotional well-being of a child as required for
termination under subsection (D).” Id. at 464 (quoting Castaneda v. Tex. Dep’t of
Protective & Regulatory Servs., 148 S.W.3d 509, 522 (Tex. App.—El Paso 2004,
pet. denied)). “Inappropriate, abusive, or unlawful conduct by persons who live in
the child’s home is part of the ‘conditions or surroundings’ of the child’s home under
[subsection (b)(1)(D)].” Id.; see also In re W.S., 899 S.W.2d 772, 776 (Tex. App.—
Fort Worth 1995, no writ) (“environment” refers not only to the acceptability of the
living conditions but also to a parent’s conduct in the home).
Second, as to frequency of the endangerment, termination of parental rights
under subsection (b)(1)(D) can be based on only a single act or omission. See In re
L.D.C., 622 S.W.3d 63, 71 (Tex. App.—El Paso 2020, no pet.); Jordan v. Dossey,
325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); In re T.B.,
No. 07-12-00538-CV, 2013 WL 2467344, at *5 (Tex. App.—Amarillo May 31,
2013, no pet.) (mem. op.). However, under subsection (b)(1)(E), termination “must
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be based on more than a single act or omission; a voluntary, deliberate, and
conscious course of conduct by the parent is required.” In re K.S., No. 05-15-01294-
CV, 2016 WL 1613126, at *14 (Tex. App.—Dallas Apr. 21, 2016, pet. denied)
(mem. op.) (internal quotations and citations omitted).
Third, knowledge of paternity is a prerequisite to a showing of a knowing
placement of a child in an endangering environment under subsection (D) but not to
a showing of a parental course of conduct endangering a child under subsection (E).
A.S. v. Texas Dep’t of Fam. & Protective Servs., 394 S.W.3d 703, 713 (Tex. App.—
El Paso 2012, no pet.); see In re D.W., No. 10-09-00188-CV, 2009 5155890, at *3
(Tex. App.—Waco 2009, no pet.) (mem. op.); In re M.J.M.L., 31 S.W.3d 347, 351
(Tex. App.—San Antonio 2000, pet. denied).
Though subsections (b)(1)(D) and (E) have distinctions, they also have
similarities. Under both subsections, a trial court may consider endangering conduct
that occurred before and after the child’s birth. See In re E.N.C., 384 S.W.3d 796,
804–05 (Tex. 2012) (agreeing “an offense occurring before a person’s children are
born can be a relevant factor in establishing an endangering course of conduct”); In
re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (noting “endangering conduct may
include the parent’s actions before the child’s birth, while the parent had custody of
older children, including evidence of drug usage” which was at issue in that case).
Also, under both subsections, a trial court may consider conduct that occurred
both inside and outside the child’s presence. Dir. of Dall. Cnty. Child Protective
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Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex. App.—Dallas 1992, no writ)
(concluding that endangerment under predecessor statute to subsection (b)(1)(E)
does not require that the child witness the conduct).
As to endangerment generally, it is not necessary that the conduct be directed
at the child or that the child actually suffers injury. Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.D.B., 435 S.W.3d at 463. Specific
danger to the child’s well-being may be inferred from the parent’s misconduct alone.
Boyd, 727 S.W.2d at 533; see In re C.V.L., 591 S.W.3d at 750. 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 C.V.L., 591 S.W.3d at 750.
2. Analysis
We construe Father’s first and second issues as challenging the legal and
factual sufficiency of the evidence to support the implied finding that he committed
the acts described in subsections (b)(1)(D) and (E). We consider both together
because the evidence on them is interrelated.16
Father has been incarcerated since June 2015, roughly six months before Z.E.
was born. His anticipated release date is 2028.
Though he denied he knew Mother was pregnant with Z.E. before he was
incarcerated—which Mother disputed—Father testified Mother “probably said she
16
See In re C.V.L., 591 S.W.3d at 750 (consolidating examination under sections 161.001(b)(1)(D) and
161.001(b)(1)(E) because evidence on these two grounds is interrelated).
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wanted to have a baby, and I participated in that.” Mother brought Z.E. to jail to see
Father after he was incarcerated. When asked why he was currently in custody,
Father answered, “aggravated battery, discharge of firearm, . . . unlawful usage of
firearm by a felon, and criminal damages.” The record also includes other evidence
regarding Father’s criminal convictions and incarceration, which we discuss in more
detail in the next section regarding subsection (b)(1)(Q).
When asked why he believed Z.E. is in foster care, he stated, “Well, a little
rough. You know, like probably over, you know, disciplining and allowing certain
different type of authority figures in his life to discipline him when it wasn’t needed.”
He confirmed that he understood Mother has been criminally charged for injury to a
child for excessive discipline inflicted on the children and described Mother as a
person “overwhelmed with too many different emotions, and sometimes she lose[s]
control.” He also described Mother as a person that “picks arguments” and stated
the two “normally don’t see eye to eye so she normally don’t bother with me, and I
don’t bother her.”
After responding to questions from the trial court about his “little rough”
comment—which the trial court described as a comment regarding “rough love,”
with an explanation from and without disagreement from Father—Father stated
Mother “need[s] to get herself together mentally” and “work some things out for
herself which is anger.”
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Despite his belief that Mother “probably made one big mistake that ended up
into a greater mistake” and his feeling Mother was “taking out her anger – what she’s
been through on the kids,” when asked what Father thought was best for Z.E., he
answered, in part, “If it’s a possibility that his mother get him, I would – I would
highly, you know, agree upon that.”
The Department’s caseworker testified Father did not contribute in any way
to any of the facts that led to Z.E.’s removal in Texas. Z.E.’s therapist provided no
opinion regarding Father’s relationship with Z.E. Father described the last visit he
had with Z.E. as a video visit he had with him when Z.E. was around three years old,
when Mother let Father’s sister watch Z.E. for a couple of weeks. Father testified
that since that video visit, he had no interaction with Z.E. but “probably talked on
the phone with him three times after that” but stated Mother changed her phone
number so much it was hard to catch up with her. When GAL asked whether it had
been “quite, quite some time” since he actually had contact with Z.E., Father agreed.
After reviewing all the evidence in the light most favorable to the implied
termination findings, we conclude a reasonable factfinder could have formed a firm
belief or conviction as to the truth of the implied findings that Father committed the
acts described in subsections (b)(1)(D) and (E). We also conclude, based on the
entire record, that the disputed evidence that a reasonable factfinder could not have
credited in favor of these termination findings is not so significant that a factfinder
could not reasonably have formed a firm belief or conviction as to the truth of these
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findings under subsections (b)(1)(D) and (E). We therefore hold the evidence is
legally and factually sufficient to support the implied findings under subsections
(b)(1)(D) and (E) as to Father. See TEX. FAM. CODE §§ 161.001(b)(1)(D), (E).
We overrule Father’s first and second issues.
B. Father’s Acts Under § 161.001(b)(1)(Q)
Next, we consider Father’s third issue, which we construe as challenging the
legal and factual sufficiency of the evidence to support the trial court’s implied
finding that Father committed the acts described in section 161.001(b)(1)(Q). We
do so even though we are not required to, as only one predicate finding is necessary
to support a judgment of termination of parental rights when there is also a finding
that termination is in the child’s best interest. See In re A.V., 113 S.W.3d at 362.
1. Applicable Law
If a best-interest finding under subsection (b)(2) is also made, parental rights
may be terminated under section 161.001(b)(1)(Q) if clear and convincing evidence
supports a finding that the parent “knowingly engaged in criminal conduct that has
resulted in the parent’s (i) conviction of an offense; and (ii) confinement or
imprisonment and inability to care for the child for not less than two years from the
date of filing the petition.” TEX. FAM. CODE § 161.001(b)(1)(Q).
Subsection (b)(1)(Q) requires finding both that the parent is incarcerated and
that he is unable to care for the child for at least two years from the date the petition
was filed. In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006) (per curiam); TEX. FAM.
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CODE § 161.001(b)(1)(Q). Absent evidence that a non-incarcerated parent or other
person has agreed to provide support for the child on the incarcerated parent’s behalf,
merely leaving a child with a non-incarcerated parent does not constitute the ability
to provide care. In re H.R.M., 209 S.W.3d at 110.
We employ a burden-shifting analysis to assess an incarcerated parent’s
ability to care for a child. In re J.G.S., 574 S.W.3d 101, 118–19 (Tex. App.—
Houston [1st Dist.] 2019, pet. denied). The party seeking termination must first
establish that the parent will remain in confinement for the requisite period. In re
B.D.A., 546 S.W.3d 346, 358 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).
The burden then shifts to the parent to produce “some evidence” as to how he would
provide or arrange to provide care for the child during his incarceration. Id. at 358.
“Cases discussing the incarcerated parent’s provision of support through other
people contemplate that the support will come from the incarcerated parent’s family
or someone who has agreed to assume the incarcerated parent’s obligation to care
for the child.” In re H.R.M., 209 S.W.3d at 110. When the incarcerated parent meets
that burden of production, the person seeking termination then has the burden of
persuasion to show by clear and convincing evidence that the parent’s provision or
arrangement would not satisfy the parent’s duty to the child. In re Caballero, 53
S.W.3d 391, 395 (Tex. App.—Amarillo 2001, pet. denied).
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2. Analysis
Here, Father does not dispute that he engaged in criminal conduct resulting in
his incarceration for at least two years from the date of the filing of the petition.
Instead, Father argues there is no evidence in the record to establish that he
“knowingly” engaged in such criminal conduct.
We disagree. State’s exhibit 2, which was admitted into evidence, consists of
certified copies of various court records relating to Father’s present incarceration.
That exhibit reflects that on July 10, 2015, Father was charged with eight different
felony counts in Illinois, one of which alleged the following:
As it reflects, the indictment states, in part, that Father, “on or about the 13th
day of June, 2015 . . . committed the offense of “AGG BATTERY/DISCHARGE
FIREARM,” in violation of an Illinois law cited in the indictment, “in that [Father]
. . . in committing a battery . . . knowingly and by means of discharging a firearm
caused an injury to [a particular individual] in that said defendant shot [the
individual] in the foot with a semiautomatic rifle.”
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State’s exhibit 2 also reflects that on June 29, 2016, Father pleaded guilty to
that felony charge and another felony charge, and on August 10, 2016, the court
entered a judgment convicting him of both charges and sentencing him to a fifteen-
year sentence on the first charge and a three-year sentence on the other charge,
allowing him credit for time served beginning June 10, 2015, and ordering, on the
first charge, that he serve eighty-five percent of the sentence. Father testified his
anticipated release date is in 2028, which is roughly seven years after the Department
filed its petition.
The Department and GAL, the parties seeking termination, thus met their
burden of first establishing that Father will remain in confinement for the requisite
period. See In re B.D.A., 546 S.W.3d at 358.
The burden thus shifted to Father to produce “some evidence” as to how he
would provide or arrange to provide care for the child during his incarceration. Id.
at 358. To the extent he argues he met that burden of production and that GAL and
Department failed to meet its resulting burden of persuasion, we disagree because
we find no evidence in the record as to how Father would provide or arrange to
provide care for Z.E. during his incarceration. See In re B.D.A., 546 S.W.3d at 358;
see also In re J.G.S., 574 S.W.3d 101, 119 (Tex. App.—Houston [14th Dist.] 2019,
pet. denied) (“An incarcerated parent cannot meet his burden merely by producing
evidence that there is an unincarcerated [caregiver] who is willing and able to care
for the child; instead, the parent must present evidence that the alternative caregiver
–25–
is providing care on behalf of the parent.”) (emphasis added). We find no such
evidence in the record before us.
We conclude the evidence is legally and factually sufficient to support the trial
court’s implied finding that Father knowingly committed criminal conduct that
resulted in “imprisonment and inability to care for the children for not less than two
years from the date the petition was filed.” TEX. FAM. CODE § 161.001(b)(1)(Q); see
In re H.R.M., 209 S.W.3d at 110. We overrule Father’s third issue.
C. Best Interest Under 161.001(b)(2)
We construe Father’s fourth issue as challenging the legal and factual
sufficiency of the evidence to support the trial court’s implied finding under
subsection (b)(2) that termination of Father’s rights was in Z.E.’s best interest.
1. Applicable Law
“Best interest” is a term of art encompassing a broad “facts-and-circumstances
based evaluation that is accorded significant discretion.” In re Lee, 411 S.W.3d 445,
460 & n.22 (Tex. 2013). The best-interest prong “is child-centered and focuses on
the child’s well-being, safety, and development,” In re A.C., 560 S.W.3d at 631, and
it allows a court to consider the following non-exclusive factors:
(1) the desires of the child;
(2) the emotional and physical needs of the child now and in the future;
(3) the emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals seeking custody;
–26–
(5) the programs available to assist these individuals to promote the best
interest of the child;
(6) the plans for the child by these individuals or by the agency seeking
custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see In re A.C., 560 S.W.3d
at 631 & n.29 (citing Holley, while listing many of these same factors and noting
that family code section 263.307 also provides additional best-interest factors).17
These Holley factors are not exhaustive, and a best-interest finding need not
be supported by evidence of every Holley factor. In re C.H., 89 S.W.3d at 27. The
same evidence can be relevant to both section 161.001(b)(1) termination grounds
and the child’s best interest. Id. Moreover, while there is a strong presumption that
17
Section 263.307(b) lists several best-interest factors that the trial court and the Department can
consider in determining whether a child’s parents are willing and able to provide the child with a safe
environment, including (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and
nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the
child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by
the Department or other agency; (5) whether the child is fearful of living in or returning to the child’s home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents,
or other family members, or others who have access to the child’s home; (7) whether there is a history of
abusive or assaultive conduct by the child’s family or others who have access to the child’s home; (8)
whether there is a history of substance abuse by the child’s family or others who have access to the child’s
home; (9) whether the perpetrator of the harm is identified; (10) the willingness and ability of the child’s
family to seek out, accept, and complete counseling services and to cooperate with and facilitate an
appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to effect
positive environmental and personal changes within a reasonable period of time; (12) whether the child’s
family demonstrates adequate parenting skills; and (13) whether an adequate social support system
consisting of an extended family and friends is available to the child. TEX. FAM. CODE § 263.307(b). Father
lists the Holley factors and does not discuss these other factors in his brief.
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maintaining the parent–child relationship serves the child’s best interest, there is also
a presumption that promptly and permanently placing the child in a safe environment
is in the child’s best interest. TEX. FAM. CODE §§ 153.131(b); 263.307(a); In re
D.W., 445 S.W.3d 913, 925 (Tex. App.—Dallas 2014, pet. denied).
In C.H., the supreme court stated, “The absence of evidence about some of
these considerations would 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 were undisputed that the parental relationship endangered the safety
of the child.” In re C.H., 89 S.W.3d at 27. Although “paltry evidence relevant to
each [Holley factor] would not suffice to uphold [a factfinder’s] finding that
termination is required,” id., as we discuss below, we conclude the evidence in this
case is sufficient.
2. Analysis
Much of the evidence discussed above is also pertinent here, particularly with
regard to the second, third, sixth, eighth, and ninth factors. Also, as to the first factor,
although no evidence was presented regarding Z.E.’s desires regarding placement in
connection with Father, in his forensic interview, when asked about his Father, Z.E.
expressed no desire to be placed with Father and, in fact, described his Father as
being “dead.”
Based on the record evidence, when viewed in the light most favorable to the
ruling and as a whole, we conclude that a reasonable trier of fact could have formed
–28–
a firm belief or conviction that termination of Father’s parental rights is in Z.E.’s
best interest and therefore hold the evidence is both legally and factually sufficient
to support the trial court’s implied best-interest finding as to Father under subsection
(b)(2). See Holley, 544 S.W.2d at 371–72; TEX. FAM. CODE §§ 161.001(b)(2).
We overrule Father’s fourth issue.
D. Pronouncement & Decree
Unlike his first four issues—in which Father asks us to reverse the decree—
in his fifth issue, Father asks us, alternatively, to modify the decree to reflect the trial
court’s oral pronouncement that the Department continue with an ICPC placement
investigation on Father’s cousin.18
After its pronouncement, but before the decree was signed, the trial court
signed a separate order requiring the Department to institute an ICPC priority home
study request on Father’s cousin regarding Z.E. The decree does not refer to,
modify, or mention that order, and after the order, the record does not show any
request, objection, or other motion by Father regarding the ICPC placement
investigation. Father’s counsel signed the decree, agreeing as to its form, and Father
did not object to or seek to modify the decree in the trial court.
18
When the trial court pronounced its ruling, the trial court ordered the Department “to look at the
paternal cousin for a possible placement in Illinois since she has been approved in Illinois before, and she
is a family placement” and to do so “within the next 90 days.” In the decree, the trial court referred the
case to the local child protection and permanency court (CPPC) for further hearings and stated the CPPC
shall conduct a permanency hearing after final order no later than ninety days after the trial court rendered
the decree.
–29–
GAL argues that, by failing to object to the decree in the trial court, Father
failed to preserve for appellate review any error related to its contents. We agree.
Generally, to preserve an issue for appellate review, the record must show a
complaint was made to the trial court “by a timely request, objection, or motion”
that, among other things, “states the specific grounds for the desired ruling, if they
are not apparent from the context of the request, objection, or motion.” TEX. R. APP.
P. 33.1(a). The record fails to show Father made any such request, objection, or
motion in the trial court regarding the lack of a reference in the decree to the ICPC
placement investigation of his cousin.
We conclude Father failed to preserve his fifth issue for appellate review, and
it is waived. See id. We overrule Father’s fifth issue.
V. CONCLUSION
We affirm the trial court’s decree and deny Mother’s counsel’s motion to
withdraw.
/Ken Molberg/
221337f.p05 KEN MOLBERG
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF Z.E., On Appeal from the 304th Judicial
A CHILD District Court, Dallas County, Texas
Trial Court Cause No. JC-22-00703-
No. 05-22-01337-CV W.
Opinion delivered by Justice
Molberg. Justices Reichek and
Breedlove participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
Judgment entered this 23rd day of May, 2023.
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