M.A.R. v. Department of Family and Protective Services ( 2023 )

Reversed and rendered in part, Affirmed in Part, and Majority and
Dissenting Memorandum Opinions filed August 8, 2023.
In The
Fourteenth Court of Appeals
NO. 14-23-00094-CV
M.A.R., Appellant
V.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2021-01122J
MEMORANDUM OPINION
This accelerated appeal arises from a final order in which, after a final
hearing tried to the bench,1 the trial court terminated the parental rights of appellant
M.A.R. (Father) with respect to his daughters A.R. (Anna) and B.R. (Bea),2 who
1
We refer to the final hearing as the “trial.”
2
To protect the minor’s identity, we have not used the actual names of the child, parents,
or other family members. See Tex. R. App. P. 9.8. We refer to Anna and Bea collectively as “the
girls.”
were three-years old and two-years old respectively at the time of trial, and
appointed appellee Department of Family and Protective Services (the Department)
to be the girls’ sole permanent managing conservator. See Tex. Fam. Code Ann.
§ 109.002(a-1) (accelerated appeals in parental-termination cases); Tex. R. App. P.
28.4 (same).3
In issue one, Father challenges the sufficiency4 of the evidence to support
the trial court’s findings on the predicate grounds of endangerment pursuant to
subsection D and E. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). In issue
two, Father challenges the sufficiency of the evidence to support the trial court’s
finding that termination is in the best interest of Bea.5 See Tex. Fam. Code Ann.
§ 161.001(b)(2). Father does not challenge the trial court’s finding on the predicate
grounds for termination under subsection O or N.
We agree with Father that the evidence does not support the trial court’s
findings on the predicate grounds of endangerment pursuant to subsection D and E,
reverse the order of the trial court in part, and render the judgment the trial court
should have rendered, striking the subsection D and E findings. We further
conclude the trial court did not err in finding that termination was in the best
interest of the girls. Because Father did not challenge termination of his parental
rights pursuant to subsection O and N, we affirm the remainder of the order.
3
The girls’ mother K.M. (Mother) signed an affidavit voluntarily relinquishing her
parental rights to Anna and Bea. See Tex. Fam. Code Ann. § 161.103. The trial court terminated
Mother’s parental rights on that basis, and Mother does not appeal.
4
While Father did not file a motion for new trial, “[i]n a civil nonjury case, 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).
5
Father does not challenge on appeal the trial court’s termination of his parental rights as
the alleged father of Anna. As discussed below, Father never legally acknowledged paternity of
Anna, filed a counterclaim for paternity or submitted to DNA testing (as ordered by the
Department). Therefore, we only discuss his legal- and factual-sufficiency challenge as to his
parental rights over Bea.
2
I. BACKGROUND
Anna was born in August 2019 and Bea was born in September 2020. The
girls came into the care of the Department in July 2021 when Mother was found
unconscious or asleep in her vehicle at a gas station with the girls in the back seat.
An employee called the police after Mother had been asleep in her vehicle for an
hour. Mother was arrested after alcohol and marijuana were found in the vehicle
and she failed a field-sobriety test.6 Father was called to pick up the girls, which he
did. Mother and Father had ended their relationship by this time and were living
separately. The next day, after Mother posted bond and returned home, Father
returned the girls to Mother.
A Child Protective Services (CPS) investigator followed up with Mother
after her release and ultimately the Department sought and received temporary
conservatorship over the girls.
The trial on termination of Father’s parental rights was held in November
2022, and the trial court terminated Father’s parental rights to Bea pursuant to
Family Code subsections 161.001(D), (E), (N) and (O). The trial court also found
termination was in Bea’s best interest. Because Father had not acknowledged Anna
as his child nor had he initiated a counterclaim for paternity, the trial court
terminated any parental relationship between Father and Anna.7 Tex. Fam. Code
Ann. § 161.002(b)(1) (rights of alleged father may be terminated if after being
served with citation, alleged father does not respond by timely filing an admission
of paternity or a counterclaim for paternity).
6
Mother was later charged with and pleaded guilty to driving while under the influence
with a child under 15 years of age.
7
Father signed an Acknowledgement of Paternity of Bea in September 2020. The trial
court signed an order establishing Father as the parent of Bea in January 2022.
3
A. Documentary evidence
1. First Amended Temporary Order
Following the July 2021 adversary hearing (as updated in July 2022 with
Anna’s correct birth date), the trial court found there was an immediate danger to
the girls’ physical health or safety. As a result of these findings, the trial court
named the Department as the temporary sole managing conservator of the child
with rights to physical possession of the child until a full adversary hearing was
held.
2. Family-plan evaluation
According to the Department’s family-plan evaluation (the services plan)
first drafted in August 2021, which was admitted into evidence at trial, the goal
was to ensure the girls lived in a safe and stable environment with a caregiver that
could protect them from harm and danger. With respect to Father, the family-plan
evaluation stated that Father was not to “allow his children to return to the
conditions or surroundings which endangered the physical or emotional well-
being” of the girls.
The plan outlined the required actions for Father including the following:
a. obtain and maintain stable employment (including providing proof
of employment to the Department);
b. notify the caseworker of any changes to his address or telephone
number;
c. provide lease documents to the Department and maintain stable
housing;
d. participate in court hearing, conferences with the Department and
family visits;
e. sign release of confidential information;
f. abstain from engaging in criminal conduct;
g. successfully complete a parenting class;
4
h. maintain minimum monthly contact with the caseworker;
i. complete random drug and alcohol testing;
j. participate in a drug/alcohol assessment and follow all
recommendations; and
k. participate in a psychological assessment and address any
emotional or mental needs.
3. Father’s drug testing history
Records were admitted at trial establishing that Father failed to appear for
drug testing in July and September 2021.8 In January 2022, Father submitted to
testing and tested positive for marijuana and its metabolites. Father did not submit
for testing as ordered in May 2022 or thereafter.
4. Father’s criminal record
The following judgments of conviction representing Father’s criminal
history were admitted as evidence at trial:
• (1) Theft of $50 or more but less than $500; 30 days in county jail.
No. 2006363 (Cnty. Crim. Ct. at Law No. 6, Harris Cnty., Tex. Jan.
29, 2015).
• (2) Possession of marijuana two ounces or less; 30 days in county jail
(ran concurrently with the sentence (1)). No. 2006365 (Cnty. Crim.
Ct. at Law No. 6, Harris Cnty., Tex. Jan. 29, 2015).
• (3) Burglary of vehicle; 300 days in county jail. No. 2037794 (Cnty.
Crim. Ct. at Law No. 15, Harris Cnty., Tex. July 30, 2015).
• (4) Credit/debit card abuse; 180 days in state jail (ran concurrently
with sentence (3)). No. 1476888 (228th Dist. Ct., Harris Cnty., Tex.
Oct. 6, 2015).
• (5) Theft of firearm; 180 days in state jail (ran concurrently with
sentences (3) and (4)). No. 1479245 (228th Dist. Ct., Harris Cnty.,
Tex. Oct. 6, 2015).
8
The Permanency Report to the Court, admitted into evidence, references other positive
drug tests for marijuana and alcohol that were not included as trial exhibits.
5
• (6) Possession of marijuana four ounces or less but more than two
ounces; 90 days in county jail. No. 2093014 (Cnty. Crim. Ct. at Law
No. 15, Harris Cnty., Tex. June 17, 2015).
• (7) Evading arrest; 90 days in county jail (ran concurrently with
sentence (6)). No. 2093015 (Cnty. Crim. Ct. at Law No. 15, Harris
Cnty., Tex. June 17, 2015).
• (8) Unauthorized use of vehicle; 180 days in county jail (ran
concurrently with sentence (7)). No 1513563 (183rd Dist. Ct., Harris
Cnty., Tex. Dec. 14, 2016).
• (9) Assault causing bodily injury; 200 days in county jail. No.
1601680 (208th Dist. Ct., Harris Cnty., Tex. Sept. 4, 2018).
Father was charged with assault of a family member as a result of allegations by
Mother in April 2020, but those charges were dismissed at Mother’s request.
Father was also charged with assault of a security officer in April 2020, but the
charges were dropped by the State after Father completed an anger management
course.
5. Permanency report to the court
The report submitted to the court in October 2022 reflected that Father was
in contact with the Department, but was not in compliance with most of his
required services and had missed two visits with the girls in June 2022.
Although Father completed his substance-abuse assessment and counseling
program, he was not in compliance with the post-discharge plan. Father was
discharged from the psychological evaluation due to non-compliance and repeated
failure to attend his appointments. Following his psychological assessment, the
report notes that Father would benefit from therapy to work on his
anger-management issues.
B. Trial testimony
Father did not appear or testify at trial. However, testimony was received
6
from the following witnesses.
1. CPS Supervisor
Child Protective Services (CPS) supervisor S. Khan testified that Father was
served but had not acknowledged paternity of Anna and refused to submit to DNA
testing to determine paternity.
The CPS supervisor testified that the girls came into the care of the
Department after Mother was found in her car unconscious, due to intoxication,
with the girls inside. Father was called to come and get the girls. The supervisor
testified based on documentation from a prior caseworker that (1) Father had the
girls for one day, (2) Father was aware of Mother’s intoxication yet returned the
girls back to the care of Mother, and (3) Father was unwilling to serve as a long-
term caregiver and had no place for the girls to live. On cross-examination, the
supervisor admitted that Father also described to the caseworker that Mother
threatened Father with kidnapping charges if he did not return the girls.
The supervisor testified that Father did not complete his services plan.
Father had not submitted to the required drug testing, had not followed the
recommendations of the current substance-abuse-treatment program, had missed a
significant number of visits with the girls, had not participated in counseling, and
had not provided any proof of residence or employment.
The supervisor testified that Father has been very argumentative with her
and difficult to deal with. She stopped communicating with Father in person or
over the phone because of his behavior. She only communicates with Father
through email and copies his attorney. The caseworker testified that Father
endangered the children by returning to them Mother after her arrest.
The supervisor testified that when she became involved with the girls’ case
7
in May 2022, Father was not showing up to his in-person visits. The trial court then
changed visitation to videoconference contact only. The supervisor testified that
Father had missed three of five virtual visits.
Although the supervisor testified to concerns of domestic violence between
Mother and Father, the services plan for Father did not address any such concerns
or make recommendations for addressing such concerns. The supervisor was aware
that Father had tested positive for marijuana and alcohol during the pendency of
the case. However, she had no knowledge of whether the girls had ever been
affected by his drug usage.
The supervisor testified that one of Mother’s cousins was interested in
fostering and adopting the girls. Though she had not personally observed their
interaction, the caseworker had reported to her that the girls were responding well
to Mother’s cousin. At the time of the trial, the girls were staying with Mother’s
cousin as part of a longer transition visit.
2. Child Advocates coordinator
Child Advocates coordinator G. Subuh testified at trial that she agreed with
the Department’s recommendation to terminate Father’s parental rights to the girls.
A volunteer with Child Advocates previously went over the services plan with
Father and made attempts to contact him. The Child Advocates coordinator
testified that Father was presently not able to meet the girls’ needs. The Child
Advocates coordinator also agreed with the Department that no concerns existed
with placing the girls with Mother’s cousin, and that it was in the best interest of
the girls to place them with her.
3. CPS caseworker
CPS caseworker P. Boatner had only been assigned to the case a few months
8
before the trial. However, the caseworker observed Father’s virtual visits with the
girls and testified that the interaction between Father and the girls was appropriate.
The girls recognized Father, and Father exchanged “I love yous” with the girls at
the end of the visits.
II. ANALYSIS
A. Standards of review
Involuntary termination of parental rights is a serious matter that implicates
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
Although parental rights are of constitutional magnitude, they are not absolute. In
re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is imperative for courts to
recognize the constitutional underpinnings of the parent-child relationship, it is
also essential that emotional and physical interests of the child not be sacrificed
merely to preserve that right.”). Given the fundamental liberty interests at stake,
“termination proceedings should be strictly scrutinized, and involuntary
termination statutes are strictly construed in favor of the parent.” Holick, 685
S.W.2d at 20.
Due to the severity and permanency of terminating the parental relationship,
the law in Texas requires clear-and-convincing evidence to support such an order.
See Tex. Fam. Code Ann. § 161.001(b); In re J.F.C., 96 S.W.3d 256, 265–66 (Tex.
2002). “Clear and convincing evidence” means “the measure or degree of proof
that will produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007;
J.F.C., 96 S.W.3d at 264.
The heightened burden of proof in termination cases results in a heightened
standard of review. See J.F.C., 96 S.W.3d at 266–67. We review the legal
9
sufficiency of the evidence by considering all evidence in the light most favorable
to the finding to determine whether a reasonable factfinder could have formed a
firm belief or conviction that its finding was true. Id. at 266. We must assume the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so, and we disregard all evidence a reasonable factfinder could have
disbelieved or found incredible. Id. However, this does not compel us to disregard
all evidence that does not support the finding. J.F.C., 96 S.W.3d at 266. Because of
the heightened standard, we are also mindful of any undisputed evidence contrary
to the finding and consider that evidence in our analysis. Id.
In reviewing the factual sufficiency of the evidence under the
clear-and-convincing burden, we consider and weigh all of the evidence, including
disputed or conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
“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.” J.F.C., 96 S.W.3d at 266. We 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) (per curiam).
B. Predicate termination grounds
The trial court made predicate termination findings that Father had
committed acts establishing the grounds set out in subsections D, E, N, and O of
section 161.001(b)(1), which provides for termination of parental rights if the
factfinder finds by clear-and-convincing evidence that the parent has:
(D) knowingly placed or knowingly allowed the child to remain
in conditions or surroundings which endanger the physical or
emotional well-being of the child;
10
(E) 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;
...
(N) constructively abandoned the child who has been in the
permanent or temporary managing conservatorship of the Department
of Family and Protective Services for not less than six months; [or]
(O) failed to comply with the provisions of a court order that
specifically established the actions necessary for the parent to obtain
the return of the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the child’s
removal from the parent under Chapter 262 for the abuse or neglect of
the child[.]
Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O).
Only one predicate finding under section 161.001(b)(1) is necessary to
support a judgment of termination when there also is a finding that termination is
in the child’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1); In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003). Father does not challenge the sufficiency of the
evidence supporting predicate termination grounds of subsection (N) and (O).
Due process requires, however, that when a parent has raised the issue of
insufficiency of the evidence to support the trial court’s findings under Family
Code section 161.001(b)(1)(D) or (E), an appellate court must address those
endangerment findings to ensure a meaningful appeal due to the collateral
consequences of a finding under those subsections. In re N.G., 577 S.W.3d 230,
237 (Tex. 2019). Due-process and due-course-of-law requirements also mandate
that an appellate court detail its analysis for an appeal of termination of parental
rights under Family Code section 161.001(b)(1)(D) or (E). Id. Accordingly, we
proceed to the trial court’s endangerment findings under section 161.001(b)(1)(D)
and (E). See Tex. Fam. Code Ann. § 161.001(b)(1).
11
1. Endangerment under subsection D
“To endanger” means to expose a child to loss or injury or to jeopardize a
child’s emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex.
1996) (per curiam); In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied). Endangerment under subsection D is established by
evidence related to the child’s “conditions or surroundings.” Tex. Fam. Code Ann.
§ 161.001(b)(1)(D). Analysis of the child’s conditions or surroundings may include
evidence of the acceptability of living conditions, parental conduct in the home,
and other issues concerning the child’s environment. See S.R., 452 S.W.3d at 360.
A child is endangered when the environment creates a potential for danger that the
parent is aware of but consciously disregards. See id. Inappropriate, abusive, or
unlawful conduct by a parent or other persons who live in the child’s home can
create an environment that endangers the physical and emotional well-being of a
child as required for termination under subsection D. See id. In evaluating
endangerment under subsection D, we consider the child’s environment before the
Department obtained custody of the child. Id.The primary reason repeatedly given to the trial court for terminating
Father’s parental rights was because Father returned the girls to Mother’s care after
she posted bond for her intoxication offense. However, the Department never
established that returning the girls to Mother was dangerous in and of itself. The
Department did not establish Father’s knowledge that Mother regularly engaged in
behavior hazardous to the welfare of the girls. The Department did not establish
that Father was aware that Mother was not able to meet the needs of the girls or
that she would endanger the girls. There was no evidence at trial as to the living
conditions of Mother’s home. There was not also no evidence at trial establishing
an endangering pattern of conduct by Mother.
12
All the Department established is that Father knew that Mother was
intoxicated with the girls in the car and then returned the girls to Mother after she
posted bond. Although the CPS supervisor testified that Father should have
contacted CPS or taken some other action, the Department did not develop the
record sufficiently to support termination on the basis that Father endangered the
girls by returning them to Mother’s care. This evidence is not legally sufficient to
satisfy the heightened burden of proof required in termination cases. See J.F.C., 96
S.W.3d at 266–67. Having determined the evidence was not legally sufficient to
support termination based on subsection D grounds, we need not consider whether
the evidence was factually sufficient to support termination.
2. Endangerment under subsection E
A finding of endangerment under subsection E requires evidence that the
endangerment was the result of the parent’s conduct, including acts, omissions, or
failure to act. S.R., 452 S.W.3d at 360. Termination under subsection E must be
based on more than a single act or omission; the statute requires a voluntary,
deliberate, and conscious course of conduct by the parent. Id. “While
endangerment often involves physical endangerment, the statute does not require
that conduct be directed at a child or that the child actually suffers injury; rather,
the specific danger to the child’s well-being may be inferred from parents’
misconduct alone.” Id. at 360 (citing Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987)).
A court may consider actions and inactions occurring both before and after a
child’s birth to establish a “course of conduct.” In re V.A., 598 S.W.3d 317, 331
(Tex. App.—Houston [14th Dist.] 2020, pet. denied). “Because the inquiry under
both subsections D and E includes the conduct of the parent, evidence of criminal
conduct, convictions, or imprisonment is relevant to a review of whether a parent
13
engaged in a course of conduct that endangered the well-being of the child.” S.R.,
452 S.W.3d at 360–61. Imprisonment alone is not an endangering course of
conduct but is a fact properly considered on the endangerment issue. Boyd, 727
S.W.2d at 533–34. A parent’s past endangering conduct may create an inference
that the past conduct may recur and further jeopardize the child’s present or future
physical or emotional well-being. See S.R., 452 S.W.3d at 367; In re M.T.R., 579
S.W.3d 548, 568 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (“Routinely
subjecting a child to the probability he will be left alone because his parent is in
jail endangers the child’s physical and emotional well-being.”). “As a general rule,
conduct that subjects a child to a life of uncertainty and instability endangers the
physical and emotional well-being of a child.” In re R.W., 129 S.W.3d 732, 739
(Tex. App.—Fort Worth 2004, pet. denied).
Father argues there was legally and factually insufficient evidence to support
a finding under subsection (E). Father points out that he has no arrests since 2020
and no convictions since 2018. He acknowledges that he tested positive for
marijuana during the pendency of the CPS case. However, he argues there was no
evidence at trial establishing a causal link between his marijuana use and
endangerment of the children. Finally, Father admits that he was arrested for
family violence charges against Mother. However, those charges were dismissed,
and Father argues that he and Mother are no longer in a relationship and no longer
live together. Father also acknowledges his prior assault conviction but maintains
that it does not rise to the level of evidence establishing endangering conduct.
The Department did not introduce clear-and-convincing evidence that Father
engaged in conduct that endangered the physical or emotional well-being of the
girls. Although Father did test positive for marijuana during the pendency of the
case (and had convictions for possession of marijuana in the past), there was no
14
evidence that Father used the substance when was caring for the children or that
there was causal link between his usage of marijuana and any alleged
endangerment. In re L.C.L., 599 S.W.3d 79, 84 (Tex. App.—Houston [14th Dist.]
2020, no pet.) (en banc) (“A plain language reading of the statute requires a causal
connection between Mother’s drug use and the alleged endangerment.”)
(discussing Tex. Fam. Code Ann. § 161.001(b)(1)(P)(i), (11)). Father did have a
criminal record; however, Father had no convictions since the girls were born and
Father’s convictions were all nonviolent with exception of a single assault
conviction. See In re J.F.-G., 627 S.W.3d 304, 313 (Tex. 2021) (“A parent’s
criminal history—taking into account the nature of the crimes, the duration of
incarceration, and whether a pattern of escalating, repeated convictions exists—can
support a finding of endangerment.”).
Although the CPS supervisor was concerned about or suspected domestic
violence between Mother and Father, there was no evidence in the record
substantiating this concern. The speculation of the CPS caseworker is not evidence
of domestic violence on which we can support a termination finding. Evidence that
Mother on one occasion made charges of domestic violence against Father, that she
later recanted, does not provide clear-and-convincing evidence of endangering
conduct on Father’s part. Although Mother testified at trial, she did not testify to
her relationship with Father or his interactions with the girls. In sum, we agree with
Father that the evidence is not legally sufficient to support a finding of
endangerment under subsection E. Having determined the evidence was not legally
sufficient to support termination based on subsection E grounds, we need not
consider whether the evidence was factually sufficient to support termination.
Accordingly, we sustain issue 1. However, as there is at least one predicate
ground for termination unchallenged on appeal, we proceed to Father’s challenge
15
that the trial court’s finding that termination of his parental rights was in Bea’s best
interest was not supported by sufficient evidence. See Tex. Fam. Code Ann.
§ 161.001(b)(1), (2).
C. Best interest of the child
1. Legal standard
Father challenges the legal and factual sufficiency of the evidence to support
the trial court’s finding that termination of his parental rights is in the best interest
of Bea. See Tex. Fam. Code Ann. § 161.001(b)(2). There is a strong presumption
that the best interest of a child is served by keeping the child with a natural parent.
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) (citing Tex. Fam. Code
Ann. § 153.131(b)). However, prompt and permanent placement of children in a
safe environment is also presumed to be in the children’s best interest. Tex. Fam.
Code Ann. § 263.307(a). The considerations the factfinder may use to determine
the best interest of the children, known as the Holley factors, include:
(1) the desires of the child;
(2) the present and future physical and emotional needs of the child;
(3) the present and future physical and emotional danger to the child;
(4) the parental abilities of the person seeking custody;
(5) the programs available to assist the person seeking custody in
promoting the best interest of the children;
(6) the plans for the child by the individuals or agency seeking
custody;
(7) the stability of the home or proposed placement;
(8) acts or omissions of the parent that may indicate the existing
parent-child relationship is not appropriate; and
(9) any excuse for the parent’s acts or omissions.
See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also Tex. Fam.
16
Code Ann. § 263.307(b) (listing factors to be considered in evaluating “whether
the child’s parents are willing and able to provide the child with a safe
environment”). A best-interest finding does not require proof of any unique set of
factors or limit proof to any specific factors. See Holley, 544 S.W.2d at 371–72.
In reviewing the legal and factual sufficiency of the evidence to support the
trial court’s finding on best interest, we are mindful the focus in a best-interest
analysis is not only on the parent’s acts or omissions, but also on the nature of the
relationship the children have with the parent. See In re E.N.C., 384 S.W.3d 796,
808 (Tex. 2012).
2. Sufficiency of the evidence
a. Desires of the child
Bea was removed from Mother when she was approximately a year old and
Father stopped living with the girls some time before the removal, although the
record does not reflect how long. When children are too young to express their
desires, the factfinder may consider that the children have bonded with the foster
parents, are well-cared-for by the foster parents, and have spent minimal time with
a parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.]
2016, pet. denied). A child’s need for permanence through the establishment of a
“stable, permanent home” has sometimes been recognized as the paramount
consideration in a best-interest determination. See In re K.C., 219 S.W.3d 924, 931
(Tex. App.—Dallas 2007, no pet.). Therefore, evidence about the present and
future placement is relevant to the best-interest determination. See C.H., 89 S.W.3d
at 28.
Here, the evidence reflects Bea and her sister had been placed with Mother’s
cousin and Bea was doing well, with no special medical needs. Although the girls
had only visited with Mother’s cousin twice before the termination hearing, the
17
reports to the court were that Mother’s cousin could provide a positive, long-term,
and well-suited environment in which the girls could be raised together. The CPS
caseworker testified at trial that Bea appeared to know Father and have a bond with
him during the visits she supervised. Given the age of the girls, the lack of
familiarity with Mother’s cousin, and the apparent bond with Father, this factor is
neutral.
b. Physical and emotional needs of the child
Evidence of a parent’s unstable lifestyle can support a factfinder’s
conclusion that termination of parental rights is in the child’s best interest. In re
S.B., 207 S.W.3d 877, 887 (Tex. App.—Fort Worth 2006, no pet.). Lack of
stability, including a stable home, supports a finding that the parent is unable to
provide for a child’s emotional and physical needs. See In re G.M.G., 444 S.W.3d
46, 59–60 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also Doyle v. Tex.
Dep’t of Protective & Regulatory Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso
2000, pet. denied) (parent’s failure to provide stable home and provide for child’s
needs may contribute to finding that termination of parental rights is in child’s best
interest).
The record reflects that at the time of trial Father either had not secured
employment or refused to provide that information to the caseworker. He also had
not provided proof of stable housing and previously told the case worker that he
had no stable, long-term housing. Given that Father returned the girls to Mother, in
part, due to the fact he was not able to care for them on his own, the evidence is
clear that Father’s lifestyle did not permit him to be a primary caregiver for the
girls. This factor weighs in favor of the trial court’s finding that termination was in
Bea’s best interest.
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c. Parenting abilities
There is no evidence in the record of Father’s parenting abilities. Given the
girls’ young age and the fact that Father was no longer living with them at the time
of removal, it is unknown whether Father possesses the parenting abilities or
resources to care for Bea. In addition, Father did not participate in the parenting
class as required by the services plan. This factor weighs in favor of the trial
court’s finding that termination was in Bea’s best interest.
d. Endangerment
We have already concluded that Father’s pattern of conduct did not endanger
the girls such that termination of his parental rights was appropriate. Father argues
there was no conduct at trial establishing that he had acted aggressively or
violently toward the girls, negligently supervised the girls, or knowingly exposed
them to danger. We agree there was very little evidence developed in the record
suggesting that Father had endangered the girls or engaged in conduct that
endangered the girls. This factor weighs against the trial court’s finding that
termination was in Bea’s best interest.
e. Father’s services plan
Evidence that Father did not comply with the services plan for reunification
with Bea supports the trial court’s best-interest determination. See In re E.C.R.,
402 S.W.3d 239, 249–50 (Tex. 2012). Father complied with very few of the plan
requirements, and the CPS supervisor testified that Father was very difficult to deal
with and argumentative. Father was unable to show any stable employment or
housing. He refused to comply with the drug and alcohol testing required by the
plan. He missed several visits with the girls and did not appear at trial. Father’s
lack of interest or inability to prioritize services required for reunification weighs
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in favor of the trial court’s finding that termination was in Bea’s best interest.
f. Current placement of the child
Father points out there is little evidence in the record supporting the
conclusion that Mother’s cousin presented a stable and appropriate environment
for the girls. Although Father points out that the evidence was largely “conclusory
and without explanation or detail,” Father ignores the clear-and-convincing
evidence received at trial. None of the witnesses at trial had personally observed
the girls with Mother’s cousin. However, their opinions were based on two
different visits and evaluations; one by a CPS caseworker and another by a Child
Advocates volunteer, both of whom observed the girls interact with Mother’s
cousin. Mother’s cousin was interested in raising the girls and adopting them.
There was strong, undisputed evidence that Mother’s cousin offered stability and
permanency. She had reached out at the beginning of the case and expressed
interest in adopting the girls. Mother’s cousin had completed her home study and
was working with the Department in all aspects. Mother’s cousin had also
previously adopted another child and raised that child to adulthood.
This factor weighs in favor of the trial court’s finding that termination was in
Bea’s best interest.
g. Analysis
The evidence at trial supports the trial court’s finding that termination of
Father’s parental rights is in Bea’s best interest, including the evidence of the
stability and permanency of a placement with Mother’s cousin, Father’s lack of
participation in the services plan, and the comparative dearth of evidence regarding
Father’s resources and plans for taking care of Bea. See In re L.M., 572 S.W.3d
823, 838 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“[T]he trial court
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reasonably could have formed a firm belief or conviction that terminating Father’s
parental rights was in the child’s best interest so that she could promptly achieve
permanency through adoption.”). At the time of removal, Father did not have the
resources or ability to care for the girls and there was no evidence offered at trial
suggesting this factor had materially changed for Father. We also consider that
Father did not attend the trial and offered no excuse.
Our review of the Holley factors indicates the trial court’s finding by
clear-and-convincing evidence that termination of Father’s parental rights is in
Bea’s best interest is supported by legally- and factually-sufficient evidence, and
accordingly we overrule issue two. See Tex. Fam. Code Ann. § 161.001(b)(2);
Holley, 544 S.W.2d at 371–72.
We overrule issue two.
III. CONCLUSION
We reverse the portion of the final order of the trial court with respect to the
findings on the predicate grounds of endangerment pursuant to subsection D and E
and render the judgment the trial court should have rendered, with the result that
we strike subsection D and E findings.
We affirm the remaining portion of the final order as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Bourliot, and Spain (Spain, J., majority).
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