In the Interest of L. R. D. and K. A. M. v. Department of Family and Protective Services ( 2024 )

Opinion issued February 13, 2024
In The
Court of Appeals
For The
First District of Texas
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NO. 01-23-00623-CV
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IN THE INTEREST OF L.R.D. AND K.A.M., Children
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Case No. 2014-68273
MEMORANDUM OPINION
In this appeal, M.D.D. (Father) and M.R.M. (Mother) both challenge the
trial court’s termination of their parental rights to their minor children, L.R.D.
(Laurel) and K.A.M. (Kade). In five issues, Father argues that the evidence was
legally and factually insufficient to support the trial court’s findings that
termination of his parental rights was appropriate pursuant to Family Code
subsections 161.001(b)(1)(D), (E), (N), and (O) and that termination of his parental
rights was in the children’s best interest. In nine issues, Mother argues that the
evidence was legally and factually insufficient to support the trial court’s findings
that termination of her parental rights was appropriate pursuant to Family Code
subsections 161.001(b)(1)(B), (C), (D), (E), (L), (N), and (O), that termination was
in the children’s best interest, and that DFPS, a “nonparent,” should be appointed
as conservator.
We conclude that the evidence was legally and factually sufficient to support
the trial court’s findings that both Mother and Father “knowingly placed or
knowingly allowed the child[ren] to remain in conditions or surroundings which
endanger the physical or emotional well-being” of the children pursuant to Family
Code subsection 161.001(b)(1)(D) and that Father engaged in a course of conduct
that endangered the children pursuant to Family Code subsection 161.001(b)(1)(E).
We likewise conclude that the evidence was legally and factually sufficient to
support the trial court’s finding that termination of both parents’ parental rights
was in the children’s best interest. Finally, because we uphold the trial court’s
order terminating Mother’s parental rights, we conclude that her challenge to the
trial court’s conservatorship determination likewise fails. We therefore affirm.
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Background
Laurel, born in the fall of 2012, and Kade, born in the spring of 2014, are the
biological children of Mother and Father. In a 2015 order, the trial court
established Father’s paternity to both children. It found that appointing the parents
joint managing conservators was not in the children’s best interest, so it appointed
Mother managing conservator and Father possessory conservator with visitation
rights and child support obligations.
The children primarily lived with Mother until 2017, when they were
removed from Mother based on allegations that Mother’s then-boyfriend
physically abused Laurel. Mother was charged with injury to a child and eventually
placed on community supervision for that offense. The children began living with
Father and his then-girlfriend, M.H. When Father and M.H. ended their
relationship, Father’s mother, C.A., assisted him with the children.
In 2019, the trial court modified the 2015 custody order by a “Default Order
on Notice of Changed Status.” Mother did not appear at that hearing. The 2019
order designated Father as the children’s managing conservator, while Mother
became the possessory conservator with a standard possession schedule and
obligation to pay child support to Father.
Laurel and Kade came into DFPS care in December 2021, after DFPS
received a report that Father had physically abused both children. Father was
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arrested and charged with the offense of injury to a child for striking Kade with his
hand and with assault against a family member by impeding breathing and
aggravated assault on a family member for threatening Laurel with a firearm and
choking her. Upon Father’s arrest, the children were taken to Texas Children’s
Hospital until temporary care could be arranged for them. DFPS placed the
children with M.H. in a “fictive kin” placement on December 31, 2021. The
criminal charges against Father were dismissed by the district attorney on April 21,
2023, a few months before the June 2023 trial in this case.
At trial, DFPS sought to terminate both Mother’s and Father’s parental
rights on numerous grounds, including endangerment, constructive abandonment,
and failure to complete their family plans of service.
DFPS caseworker J. Bryant testified that Laurel was eleven at the time of
trial, and Kade was nine. At the time of trial, they remained in M.H.’s care, where
they had been “[s]ince the case opened back in 2021.” The placement was meeting
all of the children’s needs. Bryant testified that Laurel had completed the last
school year and passed to the next grade. Laurel was “a little behind in math and
reading, but she was getting tutoring. So, she’s caught up a lot since being in
[M.H.’s] care.” Laurel was going to therapy weekly, and still had some behavioral
issues, including “tantrums.” Bryant testified that M.H. dealt with the behavior
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issues appropriately, and “she also brings it to the therapist’s attention as well so
that it can be taken care of through therapy.”
Kade’s needs were also being met. Bryant testified that he was a little
delayed in “reading and math, but he’s also getting caught up on a lot since coming
into care.” He experiences “mild behavior issues, but really nothing that the
caregiver can’t handle.” Both Kade and Laurel were “very bonded” with M.H.
According to Bryant, M.H. had expressed a concern about continuing to care
for the children if it meant dealing with their parents and grandparents. Bryant
believed that, if both parents were to relinquish their rights, the caregiver was
“willing to adopt.” Based on the concern regarding permanency of the placement
with M.H., the trial court continued the trial setting for several days to allow DFPS
and the parents, primarily Father, to discuss and investigate other placements for
the children in the event the trial court did not terminate both parents’ parental
rights. Father had put forward his sister, G.F., as a potential placement.
When trial reconvened, Mother failed to appear, and Father arrived late.
DFPS began its case by presenting the testimony of Deputy L. Hernandez, the first
officer to respond to the scene following a call from the hotel where Father had
been staying with Laurel and Kade in late 2021. Deputy Hernandez found Laurel,
who had locked herself in the lobby restroom. Laurel made an outcry of abuse to
Deputy Hernandez, telling her that Father “had grabbed her by the throat with both
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of his hands, impeding her breathing” and that “he had pointed a weapon at her.”
Laurel told Deputy Hernandez that “she feared for her life [and] thought that her
dad was going to kill her.” Laurel indicated that the weapon Father threatened her
with was a gun. Laurel also told Deputy Hernandez that Father had hit her on her
thigh, and Deputy Hernandez observed bruising on Laurel’s thigh. Hernandez
testified that Father was not present while she talked with Laurel in the lobby.
Laurel told Deputy Hernandez that “he might have been in his room.” Kade was
not present in the lobby either. At that point, Deputy Hernandez sought additional
care for Laurel and attempted to find Father and Kade.
Deputy Hernandez testified that Father was eventually detained, and, while
detaining him, the deputies located “a weapon, a gun, on his waistband, which was
removed.” Deputy Hernandez further testified that Father was “belligerent and
upset.” When Deputy Hernandez explained the outcry that Laurel made, he denied
that it occurred. Deputy Hernandez stated, however, that she was able to speak
with Kade, and he reported that Father “was upset and grabbed [Laurel].” Kade
also told Deputy Hernandez that Father had a gun. Deputy Hernandez asked Kade
whether Father had hurt him, and Kade “displayed motions with his fist that his
dad will get mad and punch him.” Deputy Hernandez testified that she then asked
Kade to show her his chest, and he agreed, allowing her to take photographs of
visible, older-looking bruises on his chest area. Deputy Hernandez testified that in
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addition to the visible bruising on his ribs, Kade also had a bruise on the back of
his shoulder. According to Deputy Hernandez, Kade seemed fearful of Father.
Deputy Hernandez also reviewed video footage from the hotel that showed Father
“chasing the nine-year-old child down the hallway up the stairs . . . where the
video showed him lifting her and grabbing her.”
DFPS investigator D. Hickman testified that she interviewed Laurel at the
hospital, while Laurel and Kade were waiting in the emergency room before they
could be placed somewhere safe. Laurel told Hickman that she, Kade, and Father
had been living in the hotel. Laurel stated that she got the bruises on her thigh
when Father hit her with a belt. Laurel also explained that Kade had bruises on his
neck because Father “had his hand around [Kade’s] neck.” Laurel told Hickman
that Father made a threat to giver her “a whopping,” which scared her and led to
her hiding in the bathroom. Kade also told Hickman that Father punched him in the
ribs and “also put his hand on his neck and that’s how he had the scratches.”
Hickman testified that she attempted to find a family member who could
take the children. She “tried the mother, tried to get in touch with the mother but
with the CPS history she does have previous CPS history so that was out of the
question.” The children’s grandmother was sick. The children were ultimately
placed with M.H., a fictive kin placement.
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Caseworker D. Jones testified that he was the first caseworker assigned to
the case. When he became involved with the case, Mother was on probation for
child endangerment stemming from the prior DFPS case, so Father had custody of
the children. Jones stated that Mother complied with the terms of her probation and
engaged in some of the requirements of her family plan of service. He testified,
however, that Mother did not provide any financial support to the children. Mother
did not provide any food, clothing, or similar items to Laurel or Kade. Mother did
not have any visitation with the children. Jones testified that this was at least in
part due to the court order associated with her child-endangerment charge. Mother
explained that charge to Jones by telling him her “previous partner . . . was
identified as abusing the oldest kid. So, she had to face stipulations for it not being
protective of the children while she was with him.”
Father did not work any services while Jones was the caseworker, telling
Jones that “he was opposed to working services” and the case was “not his fault.”
As far as Jones was aware, Father was unemployed and living in the hotel where
police responded to the call regarding Laurel locking herself in the lobby
bathroom. Father did not provide any financial support, food, clothing, or other
items to the children while Jones was assigned to the case. Father had no visitation
with the children, both because it was a condition of his bond and because the
court ordered that he could not have visitation if he was not doing his services.
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Jones testified that he observed some of Laurel’s behavioral issues while she
lived with M.H. He testified that she would “tell things that didn’t happen or things
that weren’t true when it came to behavior incidents that were taking place at
school.” Jones also testified that he was called to Laurel’s school multiple times to
address her behavior issues, including concerns such as “[p]eeking over the
bathroom stall, utilizing profane language, making threats to certain students, [and]
things of that nature.” He noticed improvement in her behavior as she continued to
live with M.H.
While the case was pending, Kade expressed to Jones a desire to see his
Father, but he never asked to see his Mother. The children have siblings—
Mother’s other children—and he believed it would be in Laurel and Kade’s best
interest to have some kind of relationship with the siblings. Jones also testified that
the children’s grandmother, C.A., attempted to stay in contact. M.H. eventually
refused to supervise visits between Laurel, Kade and C.A. because C.A.
undermined her with the children and was disrespectful. Jones began supervising
the visits, and he also testified that C.A. would undermine instructions or directions
that he gave to the children. C.A. lived in a hotel, so she was not considered as a
placement for the children.
Bryant, the caseworker at the time of trial, provided additional testimony
once trial recommenced. She testified regarding Mother’s history with DFPS,
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stating the children were originally removed from her care in 2017 “due to
allegations against [Mother’s] mother and boyfriend of physical abuse to [Laurel].”
Mother was charged with child endangerment and was on probation for that charge
when the children were removed from Father and the current DFPS case began.
Bryant testified that DFPS provided Mother with a family plan of service, but
Mother had not completed any of its requirements. She started some of the
services, such as obtaining a psychological evaluation and attending some therapy
sessions, but she was unsuccessfully discharged because she quit going to the
appointments. Mother quit appearing for required drug tests around the same time
that her child-endangerment probation ended. Mother was employed full-time at a
fast-food restaurant and had an apartment, but Bryant had never been able to see it.
Mother was never home any of the times Bryant made a “pop-up” visit, and
Mother never kept any of the prearranged appointments with Bryant.
Bryant testified that DFPS was concerned about Mother’s “past assaultive
behavior from her prior case and prior conviction” as it related to her ability to be a
stable parent for Laurel and Kade. Bryant was also concerned about Mother’s
failure to complete any services, testifying that Mother had not taken any steps to
alleviate DFPS’s concerns regarding her ability to be a stable parent.
Bryant also testified that Father refused to engage in any of the services
provided to him. He initially told her that “[h]e didn’t want to work with [DFPS]
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until he got his criminal case taken care of,” but he did not work any of the
services set out in his family plan of service after his criminal charges were
dismissed. Bryant testified that, in addition to his arrest that brought the children
into DFPS custody, he was arrested again in December 2022 for “abuse of his
girlfriend.” Those charges were also dismissed. Father has not had any contact
with the children during the pendency of the case because there was a “no-contact
order” in place. He did not send any support, gifts, birthday cards, or similar items
through DFPS. Father did not appear for any of the requested drug tests, and he did
not provide any proof that he obtained stable employment or housing.
Bryant testified that DFPS believed it was in the children’s best interest that
it be named their managing conservator, and she believed it was in the children’s
best interest that both parents’ parental rights be terminated and the children
remain in their current placement with M.H., who wanted to adopt them.
Arcadio Rodriguez, the children’s therapist, testified that he provided
cognitive behavioral therapy and trauma-focused therapy services to the children.
When he first started seeing Laurel, immediately after she came into DFPS care,
she demonstrated “regressive behaviors”: “I’m referring to enuresis. She [had]
nocturnal enuresis, diurnal enuresis, nightmares, aggressive behaviors, temper
tantrums, head banging, door slamming. So, she was virtually out of control.”
Rodriguez began by focusing on behavioral therapy “to try to get a handle on her
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acting out behaviors,” then he progressed to “trauma focus” therapy. He testified
that Laurel had “progressed very well” and improved in “all areas of her
developmental process.”
Kade also demonstrated some regressive behaviors: “He was very insecure,
afraid, abandonment issues, hyperactivity and unable to stay on task.” Kade also
showed improvement and “has begun to flourish tremendously.”
Rodriguez testified that both children reported to him that Father would
“whip” them, either when he was mad or when they complained about being
hungry. They also told him that, when they lived with Father, they lived out of
hotels.
Rodriguez testified that the children were “very strongly” bonded to M.H.
He further stated that the children have “reached [a] tremendous level of stability
now in their life. They’ve expressed feeling very safe, secure in their current
environment and that they wish to stay there permanently.” DFPS asked Rodriguez
about whether either child had expressed any desire to live with Father, and
Rodriguez answered, “In the last session, [Kade], he said, ‘no.’” Laurel also said
no. Rodriguez also testified that he believed continued contact with Father would
“most definitely” cause the children more trauma because “[i]t would re-expose
both children to the chaos, instability and trauma that the dad subjected them to,”
and it would “raise the probability that they would start regressing back to their
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original baseline, which would be causing more harm than what they would benefit
from seeing the dad.” Rodriguez testified that he believed it would be
“catastrophic” to return the children to Father, stating that it would cause them to
“regress behaviorally, emotionally, socially, and academically in all areas of their
developmental process” and that they “would go into reverse instead of them
building on the positive gains that they’ve made and going forward.” He believed
that termination of both parents’ rights “would help them tremendously in the
healing process because that would give them the opportunity to complete their
healing and move forward in their developmental process.” Rodriguez testified that
the trauma the children experienced, and “their behavioral, regressed issues” were
“a direct result of the parents” actions, which he later specified as being “poor
parenting and chaotic life[styles].”
Rodriguez also testified that, for some time the children were having phone
conversations with C.A., their paternal grandmother, but he eventually had to cut
those off because they upset the children and led to them exhibiting more
regressive behaviors. Rodriguez believed that the children would continue to need
ongoing trauma therapy, at least until they were 18 years old.
M.H. testified that she had been caring for the children for a year-and-a-half.
She testified that she had known the children for longer than that because she was
dating Father “when the children were removed from the mom’s home.” She and
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Father broke up, and she did not see the children very regularly for a while. She
eventually ran into them again, and she learned that Father “was living with them
in hotels and he was having a hard time. He was having a hard time just having
children but also with [Laurel’s] behavior.” M.H. testified that she helped out to
the extent she could, while “[t]hey would move to different [hotels]. I think based
on, you know, his money that was available, what he had. But I know they moved”
because “they would be in different places when I would go either to pick them up
or bring them things.”
M.H. testified that she was very bonded to the children and that they were
“doing well” and “progressing” since they had been in her care. She testified that
Laurel had been diagnosed with oppositional defiant disorder and had a behavioral
individual education plan at her school. She was improving and doing fine
academically. Kade was also doing well. Both children had “some social
development delays,” which M.H. believed was “normal for children with trauma.”
She engaged in “normal” activities with them, like having dinner together and
watching movies on the weekend. Both children played sports regularly through
their local YMCA.
M.H. testified regarding Laurel’s behavior when she was first placed in her
home: Laurel “was angry most of the time. She was abusive towards [Kade],
physically and verbally. She would steal and lie about everything, even just things
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you wouldn’t think of.” Regarding Laurel’s tendency to lie, M.H. elaborated that
Laurel would lie about “[e]verything from, you know, whether she brushed her
teeth or put her deodorant on to stealing from the teachers.” M.H. recounted, “She
said one of her daycare teachers spit on her and was racist and we watched the
video and that never happened, things like that because she wanted her to get
fired.” M.H. testified that Laurel’s behavior, when she first arrived in M.H.’s
home, was similar to what it had been after Laurel was removed from Mother’s
home at the age of four, when she would also experience night terrors and other
sleeping problems. M.H. stated that Laurel’s behavior had improved significantly
over the last year and a half that she had lived with M.H., including that Laurel’s
relationship with Kade improved significantly.
M.H. testified that she never received anything from either Mother or Father
for the children—no support either in the form of money or other items. M.H.
believed that she was not supposed to have contact with the parents directly, but
she also testified that she never received anything they might have sent through
DFPS either. They had not sent any gifts or cards for birthdays or other holidays.
M.H. testified that she never saw Father abuse the children while they were
dating. She also testified that Father “has no parenting skills, that parenting classes
would be good for him, therapy. He has things he needs to work through to be a
stable dad and he knows that.”
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The DFPS supervisor for the case, L. Crawford, testified that the children
were removed from Mother’s care because of “the 2018 case,” which involved a
“physical abuse allegation.” DFPS disposed of that allegation as “reason to
believe.” Mother was given a family plan of service, which she completed in part,
such as providing a lease and informing DFPS that she was employed. Crawford
stated that Mother started several of her services but did not complete them. The
previous abuse allegation also resulted in Mother’s having a criminal history—she
was on probation for a charge of injury to a child when the instant case started.
When the children were removed from Father following his arrest, the children
could not be placed with Mother because “[t]here was a no-contact order at the
time [as a condition of her probation]; and mother was not able to be located at the
beginning of the case.” When asked what concerns DFPS had about Mother,
Crawford replied: “The past CPS history, lack of contact with the children for
going on years and that would be lack of relationship with the children.”
Regarding Father, Crawford testified that he was arrested for the conduct
that brought the children into DFPS care. Those charges were eventually
dismissed. Crawford testified that Father had been arrested again in 2022 for
assault, noting that it was listed as “domestic violence” in his criminal history. That
charge was also dismissed. Father had not worked any of the services provided in
his family plan of service. He did not appear for any of the requested drug tests.
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Crawford testified that, to his knowledge, Father was not employed and did not
have stable housing. Father had not attended any therapy or parenting classes.
Father was “adamant” that he did not commit the offense that the children accused
him of and did not believe he should be required to complete services.
Crawford testified that he did not believe either parent had demonstrated an
ability to provide a safe and stable environment for the children. He acknowledged
that DFPS had no opportunity to observe either parent interact with the children, in
part due to the no-contact order for Mother’s probation and because of the criminal
charges that had been pending against Father. Once Father’s criminal charges were
dismissed, DFPS still did not arrange visitation between Father and the children
because of their therapist’s opinion that contact would be detrimental to the
children. DFPS’s goal was termination of both parents’ rights and fictive-kin
adoption. In the alternative, DFPS was considering another family member who
was interested in taking custody of the children if DFPS was named permanent
managing conservator.
Althea Lacewell, the CASA volunteer, testified that she had observed both
children since the beginning of the case. They had shown a lot of improvement and
their placement with M.H. was serving them well. She also believed that their
trauma therapy was benefitting them “tremendously.” Lacewell attempted to meet
with Mother multiple times, beginning in the fall of 2022, once Mother had
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completed her probation. At that time, Mother quit attempting to work any of her
services and quit showing up for drug tests and counseling appointments. Lacewell
would make arrangements with Mother to meet, but Mother would not show,
telling Lacewell that she forgot the appointment. Lacewell had not been able to
meet with Father at all and had been able to speak with him only at the last court
hearing. Lacewell testified that CASA’s recommendation was to terminate parental
rights so that the children could be adopted. Lacewell did not believe either parent
could provide a safe and stable environment for the children, citing Father’s
statement to her that he did not have a home and Laurel’s statements that Father
“beat” her. She also testified that the children told her they loved Father, but did
not really know Mother.
Mother did not appear at trial. No witness testified on her behalf. Father
testified that, at the time of trial, he was staying with friends and had been “on and
off” for “about a year.” Father further testified that he did not have a job at the time
of trial. Father likewise did not have his own form of transportation, which he
testified was why he was late both days of trial. He testified regarding his arrest for
assault against his current girlfriend, testifying that the charges were dismissed
because she did not want to pursue charges and signed an affidavit of non-
prosecution. Father further acknowledged a prior arrest for terroristic threat against
his sister, who DFPS was investigating as an alternative placement for the children
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in the event that parental rights were not terminated. Father denied the allegations
of abuse against the children, testifying that he “never abused [his] kids.” He
acknowledged spanking the children with his hand. He further testified that, while
the children were living with him, he never exposed them to anyone who harmed
them or to anyone who did drugs.
Father also testified that he did not complete any of the services on his
family plan of service because he felt that, by doing so, he was “basically
volunteering to agree with something that [he] didn’t do,” emphasizing that he was
arrested based only on “allegations” that were not true. He denied using drugs, and
he testified that he refused to appear for drug tests because he did not “trust the
whole process of this.” He testified that, at the time of trial, he was not able to
provide a stable housing for himself and his children, but he was “working towards
that now that [he didn’t] have any criminal cases over [his] head.”
Father testified that, after he obtained primary custody of the children in
2017, and even after the 2019 order, Mother never paid regular child support. She
did not exercise her visitation with the children pursuant to the 2019 order, nor did
she have any regular contact with them. He testified that he did not think Mother
had seen the children at all since September 2017 when he first obtained custody of
them.
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Father testified that he observed several problems with Laurel’s behavior
when he first got custody of the children. He was not aware at the time of any
diagnosis, but he observed things like lying, “physical abuse to her brother and
other kids at school,” “a resentment for women,” and a refusal to “talk at school.”
He further testified that when Laurel first came to live with him—while he was
still in a relationship with M.H. and they were living together—they attempted to
get help from DFPS for Laurel but the counseling Laurel received did not appear to
help very much. After he and M.H. quit dating, Father attempted to get Laurel
some help through the school, but they “ended up moving to Florida a little bit
after that.” At some point after they returned to the Houston area, Father was living
on unemployment and then on pandemic-relief funds. He testified that Laurel was
still having issues, which he addressed by having his mother come get Laurel
sometimes. He did not think parenting classes would help him because it “was just
the financial part that was getting to me and just the behavior, [Laurel]. [Kade] was
not a problem or anything. It was just mainly [Laurel].”
Father testified that he wanted to keep his parental rights, and he was hoping
that the children could be placed with his sister.
Paternal grandmother C.A. testified that the children spent a lot of time with
her beginning when the children were first released into Father’s care, and “they
were with [her] a while until [she] ended up in the hospital with COVID.” When
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the children were removed from Father, C.A. initially thought they were going to
stay with M.H. just until C.A. was recovered from COVID. C.A. wanted custody
of the children at one point, but at the time of trial, she believed it would be in their
best interest to live with her daughter or her sister but still have visitation with
Father. She thought it would be in the children’s best interest to stay with family
members.
The trial court admitted into evidence copies of the 2015 and 2019 court
orders regarding custody between Mother and Father. DFPS also offered, and the
trial court admitted, Hickman’s removal affidavit, which contained a brief account
of Mother’s previous history with DFPS. It recounted that the allegations of abuse
against Laurel while she was in Mother’s care were “ruled as reason to believe,”
and Mother “was arrested for injury to the child.” Hickman’s affidavit also
contained criminal backgrounds for both parents, which was partially redacted. It
showed that Mother’s only arrest was for the injury to a child charge in 2017.
Hickman’s affidavit also contained additional information that she received
from the children regarding the events that led to DFPS removing them from
Father’s care. Laurel told Hickman that her family had been living in various
hotels for eight months. Both children told Hickman that they were sometimes
hungry and did not get enough to eat. Both children also told Hickman about
various instances in which Father would “whoop,” punch, or strike them with his
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hand or a belt. Laurel recounted that Father “put his hands around her neck” and
“pointed his gun at her.” Laurel told Hickman that, when Father “pulled the gun
out on her, his bullets fell out.”
Hickman’s affidavit summarized the forensic interview conducted with both
children, which again resulted in Kade telling the interviewer that he had not seen
his mother in five years. He told the interviewer that he did not get enough to eat
and that Father “starves them.” Kade told the interviewer that Father “smokes
weed, cigarettes, and cigars” and owns a gun that he keeps under the bed. Kade
further told the interviewer that Father “pulls [Kade’s] head up like a suitcase” and
“beat [Laurel] on the cheek,” putting her “on the floor.” He said that “happens a
lot,” and related a few other instances in which Father struck or grabbed one of the
children. Kade also recounted the incident when Father “took the pistol and tried to
shoot [Laurel] and the bullets fell down and the pistol did not shoot.” Laurel
likewise completed a forensic interview that Hickman recounted in her affidavit.
Laurel again repeated that Father had choked her with his hands and pointed his
gun at her, in addition to striking her on other occasions, including with a belt.
Laurel recounted another incident in which Father “held a knife and pointed at her
face.”
The trial court terminated Mother’s rights under subsections 161.001(b)(1)
(B), (C), (D), (E), (L), (N), (O), and it terminated Father’s rights under subsections
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161.001(b)(1)(D), (E), (N), and (O). The trial court further found that termination
of both parents’ parental rights was in the children’s best interest. It named DFPS
as the children’s sole managing conservator.
Father and Mother both appealed.
Standard of Review
To terminate parental rights pursuant to Family Code section 161.001, DFPS
has the burden to prove by clear and convincing evidence: (1) one of the predicate
grounds in subsection 161.001(b)(1) and (2) that termination is in the best interest
of the child. TEX. FAM. CODE § 161.001(b). Clear and convincing evidence
requires “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.” Id.
§ 101.007. The standard for reviewing legal and factual sufficiency of the evidence
to support these findings reflect the elevated burden of proof. See In re A.C., 560
S.W.3d 624, 630 (Tex. 2018).
“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.” Id. at 630–31. “Evidence
is legally sufficient if, viewing all the evidence in the light most favorable to the
fact-finding and considering undisputed contrary evidence, a reasonable factfinder
could form a firm belief or conviction that the finding was true.” Id. at 631.
23
Reviewing the factual sufficiency of evidence “requires weighing disputed
evidence contrary to the finding against all the evidence favoring the finding,” and
so we “must consider whether disputed evidence is such that a reasonable
factfinder could not have resolved it in favor of the finding.” Id. “Evidence is
factually insufficient if, in light of the entire record, the disputed evidence a
reasonable factfinder could not have credited in favor of a finding is so significant
that the factfinder could not have formed a firm belief or conviction that the
finding was true.” Id. We give due deference to the fact finder’s findings, and we
cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006); see also In re J.O.A., 283 S.W.3d 336, 346 (Tex.
2009) (holding that factfinder is sole judge of witnesses’ credibility and
demeanor).
“To affirm a termination judgment on appeal, a court need uphold only one
termination ground—in addition to upholding a challenged best interest finding—
even if the trial court based the termination on more than one ground.” In re N.G.,
577 S.W.3d 230, 232 (Tex. 2019) (citing TEX. FAM. CODE § 161.001(b)).
Nevertheless, “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” when the trial court’s
order of termination contains findings on those grounds. Id. at 237.
24
Endangerment Findings
Mother and Father both challenge the legal and factual sufficiency of the
evidence supporting the trial court’s endangerment findings under subsections
161.001(b)(1)(D) and (E).
A. Law on Endangerment
Subsection 161.001(b)(1)(D) allows a trial court to terminate a parent’s
rights if the court finds by clear and convincing evidence 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.”
TEX. FAMILY CODE § 161.001(b)(1)(D). Subsection (E) allows a trial court to
terminate a parent’s rights if the court finds by clear and convincing evidence that
the parent “engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being of the
child.” Id. § 161.001(b)(1)(E).
Endangerment means to expose to loss or injury; to jeopardize. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re M.C., 917 S.W.2d
268, 269 (Tex. 1996) (per curiam) (holding that “endanger” means to expose child
to loss or injury or to jeopardize child’s emotional or physical health); In re S.R.,
452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). A
finding of endangerment requires more than the threat of metaphysical injury or
25
possible ill effects from a less-than-ideal family environment, but DFPS does not
have to prove that the conduct was directed at the child or that the child suffered an
actual injury. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012).
While both subsections (D) and (E) focus on endangerment, they differ
regarding the source and proof of endangerment. In re J.I.G., No. 01-18-00023-
CV, 2018 WL 3233874, at *8 (Tex. App.—Houston [1st Dist.] July 3, 2018, no
pet.) (mem. op.) (citing In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied)). Subsection (D) “focuses on the child’s environment and
may be utilized as a ground for termination when the parent has ‘knowingly placed
or knowingly allowed the child to remain in conditions or surroundings which
endanger the physical or emotional well-being of the child.’” In re J.W., 645
S.W.3d 726, 749 (Tex. 2022) (quoting TEX. FAM. CODE § 161.001(b)(1)(D)); see
also In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)
(holding, in context of subsection (D)’s focus on child’s living environment, that
parental conduct is relevant to child’s environment). The child’s “environment”
encompasses the suitability of the child’s living conditions and the conduct of
parents or others in the home. In re S.R., 452 S.W.3d at 360. Inappropriate,
abusive, or unlawful conduct by a parent or other persons who live in the
children’s home can create an environment that endangers the physical and
emotional well-being of children as required for termination under subsection (D).
26
In re E.J., No. 14-23-00387-CV, 2023 WL 8043686, at *9 (Tex. App.—Houston
[14th Dist.] Nov. 21, 2023, no pet.) (mem. op.) (citing In re M.R.J.M., 280 S.W.3d
494, 502 (Tex. App.—Fort Worth 2009, no pet.)). “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). A single act or omission may support termination
under subsection (D). In re E.J., 2023 WL 8043686, at *9 (citing Jordan v. Dossey,
325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)).
Subsection (E) requires evidence that the endangerment was the result of the
parent’s conduct, including acts, omissions, or failures to act. In re S.R., 452
S.W.3d at 360; In re J.I.G., 2018 WL 3233874, at *8; In re J.T.G., 121 S.W.3d at
125. 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. In re S.R., 452 S.W.3d at 360. “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 Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987)).
27
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). 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 In re
S.R., 452 S.W.3d at 366–67; In re M.T.R., 579 S.W.3d 548, 568–69 (Tex. App.—
Houston [14th Dist.] 2019, pet. denied).
B. Analysis as to Father
Father argues that the evidence was legally and factually insufficient to
support the trial court’s findings that he endangered his children. Specifically, he
argues that the record “shows a complete absence of any evidence necessary to
support” the trial court’s finding under subsection (D) or (E). We disagree.
Considering all the evidence in the light most favorable to the trial court’s finding
and considering undisputed contrary evidence, the trial court could have formed a
firm belief or conviction that Father “knowingly placed or knowingly allowed the
child[ren] to remain in conditions or surroundings which endanger[ed] the physical
or emotional well-being of the child[ren]” and that he “engaged in conduct or
knowingly placed the child[ren] with persons who engaged in conduct which
endangers the physical or emotional well-being of the child[ren].” See TEX. FAM.
28
CODE § 161.001(b)(1)(D), (E); see also In re A.C., 560 S.W.3d at 631 (setting out
standard for legal-sufficiency review).
The trial court heard evidence that Father repeatedly abused both Laurel and
Kade. “Domestic violence may be considered evidence of endangerment.” In re
C.J.O., 325 S.W.3d 261, 265 (Tex. App.—Eastland 2010, pet. denied); In re R.S.-
T., 522 S.W.3d 92, 110 (Tex. App.—San Antonio 2017, no pet.) (“Domestic
violence, want of self-control, and propensity for violence may be considered as
evidence of endangerment.”) (quoting In re J.I.T.P., 99 S.W.3d 841, 845 (Tex.
App.—Houston [14th Dist.] 2003, no pet.)).
Deputy Hernandez testified regarding the events that lead to DFPS removing
the children from Father’s care, including Laurel’s outcry of abuse. Laurel told
Hernandez that Father “had grabbed her by the throat with both of his hands,
impeding her breathing” and that “he had pointed a weapon at her.” Laurel told
Deputy Hernandez that “she feared for her life [and] thought that her dad was
going to kill her.” Kade also told Hernandez that Father had struck his children.
Kade told Deputy Hernandez that Father “was upset and grabbed [Laurel]” and
that Father had a gun. Kade further indicated that Father had punched him. In
addition to the children’s outcry statements, Deputy Hernandez observed bruising,
and she noticed that the children seemed fearful of Father. Deputy Hernandez also
related the fact that she observed video footage from the hotel that showed Father
29
“chasing the nine-year-old child down the hallway up the stairs . . . where the
video showed him lifting her and grabbing her.” See In re E.J., 2023 WL 8043686,
at *9 (holding that inappropriate, abusive, or unlawful conduct by parent can create
environment that endangers physical and emotional well-being of children as
required for termination under subsection (D)); In re M.R.J.M., 280 S.W.3d at 502(same); see also Jordan, 325 S.W.3d at 721 (holding that single act or omission
may support termination under subsection (D)).
The subsequent investigation by DFPS provided additional information.
Hickman, the DFPS investigator, testified at trial that, when she interviewed the
children, Laurel stated that she got the bruises on her thigh when Father hit her
with a belt and that Kade had bruises on his neck because Father “had his hand
around [Kade’s] neck.” Laurel told Hickman that Father made a threat to give her
“a whopping,” which scared her and led to her hiding in the bathroom. Kade also
told Hickman that Father punched him in the ribs and “also put his hand on his
neck and that’s how he had the scratches.” Hickman’s affidavit, which was also
admitted into evidence, stated that the children indicated that Father struck them
regularly, and she related that the children provided similar information during
their forensic interviews. See In re E.J., 2023 WL 8043686, at *9; In re G.P., 01-
16-00346-CV, 2016 WL 6216192, at *11 (Tex. App.—Houston [1st Dist.] Oct. 25,
2016, no pet.) (mem. op.) (“Direct physical abuse is clearly conduct that endangers
30
a child.”); In re L.E.M., No. 02-11-00505-CV, 2012 WL 4936607, at *14 (Tex.
App.––Fort Worth Oct. 18, 2012, no pet.) (mem. op.) (holding that children’s
statements of physical abuse by parents sufficient to support endangerment
finding).
In connection with this case, Father was arrested and charged with the
offenses of injury to a child for striking Kade with his hand, assault against a
family member by impeding breathing for choking Laurel, and aggravated assault
on a family member for threatening Laurel with a firearm. The criminal court
issued a protective order requiring that he have no contact with his children while
the criminal charges were pending. Bryant also testified, and Father acknowledged
in his own testimony, that Father was arrested again in December 2022 for “abuse
of his girlfriend.” Additionally, there was evidence that Father had previously
made a terroristic threat against his sister. In re G.P., 2016 WL 6216192, at *12–
13, 16 (considering Father’s arrests for making terroristic threat and assault in
determining that evidence was sufficient to support endangerment findings
pursuant to subsections (D) and (E)).
In addition to the evidence of repeated physical abuse and Father’s other
violent or criminal behavior, the evidence demonstrated that Father failed to
maintain a job or stable housing while the children were living with him. Laurel
reported to Hickman that the family had been living in hotels for eight months
31
prior to DFPS removing her and Kade from Father’s care. M.H. and Father himself
also testified that he moved hotels regularly. Both children told DFPS investigator
Hickman that they all shared a bed and sometimes did not have enough food.
Father’s testimony also indicated that the instability made it difficult for him to
address Laurel’s behavioral concerns. Father testified that he attempted to get help
from DFPS for Laurel but the counseling Laurel received did not appear to help
very much. He also attempted to get Laurel some help through the school, but they
“ended up moving to Florida a little bit after that.”
M.H. and Rodriguez, the children’s trauma therapist, both testified about the
challenging behaviors Laurel demonstrated when she was first removed from
Father care. Rodriguez testified that when Laurel came into DFPS care, she
demonstrated “regressive behaviors”: “I’m referring to enuresis. She [had]
nocturnal enuresis, diurnal enuresis, nightmares, aggressive behaviors, temper
tantrums, head banging, door slamming. So, she was virtually out of control.”
Kade also demonstrated regressive behaviors, with Rodriguez testifying, “He was
very insecure, afraid, abandonment issues, hyperactivity and unable to stay on
task.” Rodriguez testified that both children reported to him that Father would
“whip” them, either when he was mad or when they complained about being
hungry. Rodriguez believed that the trauma the children experienced, and “their
behavioral, regressed issues,” were “a direct result of the parents” actions, which
32
he later qualified as “poor parenting and chaotic life[style].” This testimony thus
provides some evidence that the environment in which the children were living
prior to removal from Father was endangering to their physical and emotional
well-being.
Both caseworkers—Jones and Bryant—testified that Father refused to
participate in any of the services provided in his family plan of service, nor did he
engage in any contact with the children, even after his criminal charges were
dismissed. He provided no gifts, cards, or other support to the children. Father did
not appear for any of the requested drug tests,1 and he did not provide any proof
that he obtained stable employment or housing. Thus, there was evidence that
Father was not willing to address the circumstances that contributed to the
endangering environment that the children experienced before they were removed
from his care. See In re C.W.M.P., No. 14-20-00571-CV, 2021 WL 244865, *7
(Tex. App.—Houston [14th Dist.] Jan. 26, 2021, pet. denied) (mem. op.) (holding
that missed visitations and failure to complete court-ordered service plan may
constitute evidence supporting endangerment finding because such conduct
1
See In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.)
(recognizing that factfinder could reasonably infer that parent’s failure to complete
scheduled screenings indicated she was avoiding testing because she was using
drugs). Father argues that this inference should not apply to him because there was
no evidence indicating that drug use was a factor in the children’s removal from
his care. The record, however, does not support Father’s contention. Laurel and
Kade both told the DFPS investigator that Father smoked “weed,” and Laurel
indicated that Father “always smokes something in a glass little thing,” and “when
he smokes the ‘thing’ he gets mad and whoops them or kicks them out the door.”
33
subjects children to instability and uncertainty, which endangers children).
Rodriguez testified that he believed continued contact with Father would “most
definitely” cause the children more trauma because “[i]t would re-expose both
children to the chaos, instability and trauma that the dad subjected them to” and it
would “raise the probability that they would start regressing back to their original
baseline, which would be causing more harm than what they would benefit from
seeing the dad.”
This evidence indicates that Father, through the abuse and instability set out
above, “knowingly placed or knowingly allowed the child[ren] to remain in
conditions or surroundings which endanger[ed] the physical or emotional well-
being of the child[ren].” See TEX. FAM. CODE § 161.001(b)(1)(D). This same
evidence was based on Father’s own conduct. Thus, the evidence was sufficient for
the trial court to determine that Father engaged in a course of conduct that involved
abuse of the children and subjecting them to instability such as living in multiple
hotel rooms and not having enough food. See id. § 161.001(b)(1)(E) (providing
that parental rights are subject to termination if 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”).
Father argues that the evidence was insufficient because “[t]he only
evidence that was cited in the entire case was the occurrence that led to [Father’s
34
arrest] and the removal of the children,” citing the testimony of Deputy Hernandez.
This view of the evidence omits evidence from other witnesses, like Hickman and
Rodriguez, who also testified regarding outcries of abuse by the children, and other
evidence, such as visible bruising and the regressive behaviors associated with
trauma and instability demonstrated by both children. The fact that the criminal
charges against Father were dismissed does not preclude the trial court from
finding the evidence of abuse, including the testimony from Deputy Hernandez,
Hickman, and Rodriguez, credible and sufficient to support a finding of
endangerment. See In re J.O.A., 283 S.W.3d at 345 (holding that father’s history of
domestic violence, admitted marijuana use, and previous incarceration on criminal
charges that were later dismissed constituted sufficient evidence of endangerment);
see also In re T.G.R.-M., 404 S.W.3d 7, 14–15 (Tex. App.–Houston [1st Dist.]
2013, no pet.) (“Although charges stemming from the[] two arrests were ultimately
dismissed, each time the mother was jailed, she was absent from [child]’s life and
was not able to provide for [child]’s physical and emotional needs.”).
Thus, despite the dismissal of the criminal charges, the trial court could
nevertheless have concluded that the testimony regarding abuse and the
consequences of Father’s arrest constituted clear and convincing evidence that
Father placed the children in conditions that endangered their physical and
emotional wellbeing, and that he engaged in a course of conduct that endangered
35
them. See In re A.K.T., No. 01-18-00647-CV, 2018 WL 6423381, at *12 (Tex.
App.—Houston [1st Dist.] Dec. 6, 2018, pet. denied) (mem. op.) (recognizing that
courts consider evidence of physical abuse in termination cases without requiring
evidence that conduct resulted in criminal conviction).
Father also points to the testimony of M.H. and Jones that Laurel had been
known to lie, and he points to M.H.’s testimony that she had never seen Father
harm his children and that it was hard for her to believe the allegations made
against Father. M.H. also testified, however, that she knew Father “was having a
hard time just having children but also with [Laurel’s] behavior” prior to the
children’s removal, and she also testified that Father “has no parenting skills, that
parenting classes would be good for him, therapy. He has things he needs to work
through to be a stable dad and he knows that.”
This disputed evidence implicates the weight and credibility of the testimony
addressing Laurel’s outcry of abuse and Father’s own credibility in denying the
allegations of abuse. We defer to the trial court as the fact-finder to resolve these
issues. See In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (factfinder had “full
opportunity to observe witness testimony first-hand” and was “sole arbiter when
assessing the credibility and demeanor of witnesses”); In re H.R.M., 209 S.W.3d at
108 (holding that reviewing court must give due deference to fact finder’s findings
and cannot substitute its own judgment for that of fact finder); see also In re A.C.,
36
560 S.W.3d at 361 (holding that in factual sufficiency review, appellate courts
weigh “disputed evidence contrary to the finding against all the evidence favoring
the finding,” and “must consider whether disputed evidence is such that a
reasonable factfinder could not have resolved it in favor of the finding”).
Considering the entire record, including the fact that both children made
outcries of abuse and the observations made by Deputy Hernandez and others
regarding bruising and demeanor of the children, we conclude that the disputed
evidence that the trial court could not have credited in favor of the finding is not so
significant that the trial court could not have formed a firm belief or conviction that
its findings pursuant to subsections (D) and (E) were true. See In re A.C., 560
S.W.3d at 361.
Because we have affirmed the trial court’s findings under subsections (D)
and (E), we need not address the trial court’s findings pursuant to (N) and (O). See
In re N.G., 577 S.W.3d at 232, 237 (holding that appellate court need uphold only
one termination ground to affirm termination judgment on appeal, and “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” when the trial court’s order of
termination contains findings on those grounds).
We overrule Father’s first through fourth issues.
37
C. Analysis as to Mother
DFPS presented evidence that Mother “knowingly placed or knowingly
allowed the child[re] to remain in conditions or surroundings which endanger[ed]
the physical or emotional well-being of the child[ren].” See TEX. FAM. CODE
§ 161.001(b)(1)(D).
DFPS presented evidence that the children lived with Mother until 2017,
when they were removed from Mother based on allegations that Mother’s then-
boyfriend physically abused Laurel. Both DFPS caseworkers, Jones and Bryant,
testified regarding Mother’s history with DFPS. Bryant testified that the children
were originally removed from her care in 2017 “due to allegations against
[Mother’s] mother and boyfriend of physical abuse to [Laurel].” Jones stated that
Mother explained that the charge arose based on abuse by her “previous partner:
against Laurel, and Mother herself faced charges for “not being protective of the
children while she was with him.” DFPS’s own internal investigation determined
that there was “reason to believe” the allegations against Mother. Mother was
charged with injury to a child and was placed on community supervision for that
offense. See In re R.S.-T., 522 S.W.3d at 110 (holding that domestic violence may
be considered as evidence of endangerment); In re E.J., 2023 WL 8043686, at *9
(holding that inappropriate, abusive, or unlawful conduct by parent can create
38
environment that endangers physical and emotional well-being of children as
required for termination under subsection (D)).
The children began living with Father. Mother had almost no contact with
the children after they were removed in 2017. See In re L.M., 572 S.W.3d 823,
835–36 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (upholding finding of
endangerment based in part on parent’s “wholesale absence” from child’s life).
The record included the 2019 default modification order, providing that Mother
failed to appear at the modification hearing and ordering that Father be named the
children’s managing conservator. The 2019 order required Mother to pay Father
support. Father, however, testified that, after he obtained primary custody of the
children in 2017, and even after the 2019 order, Mother never paid regular child
support. She did not exercise her visitation with the children pursuant to the 2019
order, nor did she have any regular contact with them. He testified that he did not
think Mother had seen the children at all since September 2017 when he first
obtained custody of them. See In re C.W.M.P., 2021 WL 244865, *7 (holding that
missed visitations and failure to complete court-ordered service plan may
constitute evidence supporting endangerment finding because such conduct
subjects children to instability and uncertainty, which endangers children).
In addition to Father’s testimony that Mother did not see the children after
2017 and did not provide support as ordered, Hickman testified that she attempted
39
to find a family member who could take the children after they were removed from
Father. Hickman “tried the mother, tried to get in touch with the mother but with
the CPS history she does have previous CPS history so that was out of the
question.”2 DFPS supervisor Crawford testified that the children could not be
placed with Mother after they were removed from Father’s care because “[t]here
was a no-contact order at the time [as a condition of her probation]; and mother
was not able to be located at the beginning of the case.” Crawford was concerned
about Mother’s “past CPS history [and the] lack of contact with the children for
going on years and that would be lack of relationship with the children.”
Jones and Bryant both testified that DFPS provided Mother with a family
plan of service, but Mother did not complete any of its requirements. Mother did
not provide any financial support to the children, nor did she provide any food,
clothing, or similar items to the children. Bryant testified that Mother started some
of the services, such as obtaining a psychological evaluation and attending some
therapy sessions, but she was unsuccessfully discharged because she quit going to
the appointments. Mother quit appearing for required drug tests around the same
time that her child-endangerment probation ended. Mother was employed full-time
at a fast-food restaurant and had an apartment, but Bryant had never been able to
2
Mother complains about the admission of evidence in the affidavit from Hickman.
But Hickman also testified at trial, and Mother’s attorney requested and received
redactions from Hickman’s affidavit. There was sufficient evidence outside the
affidavit to support the trial court’s findings.
40
see it. Mother was never home any of the times Bryant made a “pop-up” visit, and
Mother never kept any of the prearranged appointments with Bryant. Lacewell, the
CASA volunteer, likewise attempted to meet with Mother multiple times,
beginning in the fall of 2022, once Mother had completed her probation, but was
unable to do so.
Bryant testified that DFPS was concerned about Mother’s “past assaultive
behavior from her prior case and prior conviction” as it related to her ability to be a
stable parent for Laurel and Kade. Bryant was also concerned about Mother’s
failure to complete any services, testifying that Mother had not taken any steps to
alleviate DFPS’s concerns regarding her ability to be a stable parent. Crawford
likewise testified that he did not believe either parent had demonstrated an ability
to provide a safe and stable environment for the children. He acknowledged that
DFPS had not had an opportunity to observe Mother interact with the children, in
part due to the no-contact order for Mother’s probation. However, Mother’s
probation concluded while the case was pending. DFPS was not aware of any
attempts by Mother to visit or contact the children, and Lacewell testified that the
children did not really know Mother. DFPS did not attempt to arrange any
visitation because of the therapist’s opinion that contact would be detrimental to
the children.
41
Thus, the evidence demonstrates that Mother “knowingly placed or
knowingly allowed the child[re] to remain in conditions or surroundings which
endanger[ed] the physical or emotional well-being of the child[ren]” when she
failed to protect Laurel from her partner’s abuse. See TEX. FAM. CODE
§ 161.001(b)(1)(D). The 2017 incident itself, reflected in Mother’s prior history
with DFPS and which resulted in criminal charges against Mother, demonstrated
that the children were in an unsafe environment with Mother. See In re E.J., 2023
WL 8043686, at *9 (holding that single act or omission may support termination
under subsection (D)); In re G.P., 2016 WL 6216192, at *12 (“Notably, a parent’s
abuse of another child is conduct that supports a finding of endangerment.”).
Furthermore, the consequences of that criminal charge—Mother was placed
on probation and was subject to a no-contact order—resulted in her absence from
the children’s lives. This left them in the care of Father who, as set out above, also
subjected the children to abuse and instability. Cf. In re V.V., 349 S.W.3d 548, 554
(Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“Intentional criminal activity
that exposes a parent to incarceration is conduct that endangers the physical and
emotional well-being of a child.”); In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.–
Houston [14th Dist.] 2005, no pet.) (parent’s absence from child’s daily life and
inability to support child, caused as consequence of parent’s criminal conduct—
i.e., incarceration—contribute to endangering conduct).
42
Mother argues that there was “scant evidence” to support the finding under
(D). But this ignores the evidence of Mother’s own failure to properly protect
Laurel from Mother’s abusive partner. While the evidence of this fact was not
voluminous, it was undisputed that the children were removed because of that
abuse and that Mother herself faced criminal charges related to that incident. See In
re E.J., 2023 WL 8043686, at *9 (holding that inappropriate, abusive, or unlawful
conduct by parent can create environment that endangers physical and emotional
well-being of children as required for termination under subsection (D)).
Mother argues that the children were removed from Father while he had
possession as provided for under the 2019 order, but the evidence demonstrates
that it was Mother’s own criminal conduct that resulted in her loss of custody and
absence from the children’s lives at least until her probation ended.
Mother asserts that she was not present at the time of the children’s removal
from Father and that she and Father were not living in the same residence. Mother
argues there was no evidence that she “was aware that the children were exposed
to any danger while in the care, custody, and possession of [Father], who was
appointed as the sole managing conservator of the children.” She also argues that
“[t]here is no evidence to support any reasonable inference that she would have
and should been suspicious or aware of any potential dangers of leaving the
children with their father, appointed as their managing conservator” under the 2019
43
order. Again, this construction of the evidence ignores the fact that it was Mother’s
own criminal conduct that resulted in her absence from the children’s live—not the
2019 order. Furthermore, the evidence demonstrated that Mother did not attempt to
stay in contact with the children in a way that would have allowed her to assess the
safety or appropriateness of their homelife with Father.
Considering the entire record, including the evidence of Mother’s previous
DFPS history and criminal history directly implicating her treatment of Laurel, we
conclude that the disputed evidence that the trial court could not have credited in
favor of the finding is not so significant that the trial court could not have formed a
firm belief or conviction that its findings pursuant to subsection (D) was true. In re
A.C., 560 S.W.3d at 361 (holding that in factual sufficiency review, appellate
courts weigh “disputed evidence contrary to the finding against all the evidence
favoring the finding,” and “must consider whether disputed evidence is such that a
reasonable factfinder could not have resolved it in favor of the finding”).
Because termination based on either a subsection (D) or (E) predicate
finding is sufficient to invoke paragraph (M) in a future proceeding, and we have
found sufficient evidence of the trial court’s finding under (D), we need not
separately address the sufficiency of evidence supporting the trial court’s finding
under paragraph (E). See In re D.S.J., No. 01-17-00678-CV, 2018 WL 1003635, at
*7 (Tex. App.—Houston [1st Dist.] Feb. 22, 2018, pet. denied) (mem. op.).
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Similarly, only one predicate finding under Family Code section 161.001(b)(1) is
necessary, so we need not address the additional grounds found against Mother by
the trial court in its termination order. See In re N.G., 577 S.W.3d at 232, 237.
We overrule Mother’s first through seventh issues.
Best Interest
Mother and Father also challenge the trial court’s determination that
termination of their parental rights to Laurel and Kade was in the children’s best
interest.
A. Law on Best Interests
There is a strong presumption that the best interest of a child is served by
keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per
curiam) (citing TEX. FAM. CODE § 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 § 263.307(a).
The Texas Legislature has set out several factors that courts should consider
in determining whether a child’s parent is willing and able to provide the child
with a safe environment, including factors such as the frequency and nature of out-
of-home placements, the magnitude and frequency of harm to the child, the
willingness of the child’s family to seek out, accept, and complete counseling
services and to effect positive environmental and personal changes within a
45
reasonable period of time, and whether the child’s family demonstrates adequate
parenting skills and ability to provide minimally adequate care for the child’s
needs. Id. § 263.307(b). The Supreme Court of Texas has also set out several non-
exclusive factors that we should consider when determining whether the
termination of a parent’s rights is in the child’s best interest, including (1) the
child’s desires; (2) the child’s current and future physical and emotional needs;
(3) the current and future physical and emotional danger to the child; (4) the
parenting abilities of the person seeking custody; (5) the programs available to
assist the person seeking custody in promoting the child’s best interests; (6) the
plans for the child by the person or agency seeking custody; (7) the stability of the
home or proposed placement; (8) the acts or omissions of the parent that may
indicate the parent-child relationship is not proper; and (9) any excuse for acts or
omissions of the parent. In re J.W., 645 S.W.3d at 746 (citing Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976)); In re A.C., 394 S.W.3d 633, 641–42 (Tex.
App.—Houston [1st Dist.] 2012, no pet.).
These factors are not exhaustive, and it is not necessary that DFPS prove all
these factors “as a condition precedent to parental termination.” In re C.H., 89
S.W.3d 17, 27 (Tex. 2002); In re M.A.J., 612 S.W.3d 398, 410 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied). The absence of evidence concerning some
of the factors does not preclude a factfinder from forming a firm belief or
46
conviction that termination is in the children's best interest. In re A.C., 394 S.W.3d
at 642.
The best-interest analysis may consider circumstantial evidence, subjective
factors, and the totality of the evidence as well as the direct evidence. In re Y.G.,
No. 01-22-00181-CV, 2022 WL 3362953, at *13 (Tex. App.—Houston [1st Dist.]
Aug. 16, 2022, pet. denied) (mem. op.) (citing In re B.R., 456 S.W.3d 612, 616
(Tex. App.—San Antonio 2015, no pet.)). “A trier of fact may measure a parent's
future conduct by his past conduct and determine whether termination of parental
rights is in the child's best interest.” In re B.R., 456 S.W.3d at 616; see In re C.H.,
89 S.W.3d at 28 (stating that past performance as parent “could certainly have a
bearing on [parent’s] fitness to provide for” child, and courts should consider prior
history of child neglect in best-interest analysis). In reviewing the sufficiency of
the evidence to support the trial court’s finding on best interest, we are mindful that
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 that the children have with the parent. See
In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012).
B. Best-Interest Factors
Reviewing the entirety of the record in light of the factors set out in Holley
and Family Code section 263.307(b), we conclude that there was legally and
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factually sufficient evidence that terminating both Mother’s and Father’s parental
rights was in the children’s best interest.
1. The children’s desires
Both children expressed the desire to continue living with M.H., and the
evidence at trial indicated that the children were very bonded with M.H. Nothing in
the record established that either child had expressed a specific desire to have a
relationship with Mother. The evidence indicated that Mother had limited or no
contact with the children since 2017. There was evidence that Kade in particular
expressed that he loved Father and wanted to see him. Laurel did not want to see
Father. See In re F.M.E.A.F., 572 S.W.3d 716, 732 (Tex. App.—Houston [14th
Dist.] 2019, pet. denied) (explaining that child’s love for parent is important but
not controlling best interest factor); In re M.D.M., 579 S.W.3d 744, 770 (Tex.
App.—Houston [1st Dist.] 2019, no pet.) (“Evidence that a child is well-cared for
by a foster family or a proposed adoptive placement, is bonded to the proposed
placement, and has spent minimal time in the presence of the child’s parent is
relevant to the best interest determination and, specifically, is relevant to the
child’s desires.”).
2. Emotional and physical needs
Father testified that he loved the children, but he acknowledged that he could
not provide them with a stable home at the time of trial. There was evidence that
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the children had extended family that could provide love and care for them. There
was also significant testimony that M.H. provided love and stability for the
children and that they were extremely bonded because she had been a part of their
lives since 2017. She took the children to therapy regularly, made sure they
attended school and that their educational needs were being met, and had them
enrolled in extracurricular programs through the YMCA. Both caseworkers, the
children’s therapist, and the CASA volunteer testified that living with M.H. had
resulted in a tremendous improvement in the children’s behaviors and that she did
a good job of dealing with the children’s trauma-related challenges. By contrast,
neither Father nor Mother provided any care or support to the children while the
case was pending.
3. Emotional and physical danger
Mother lost custody of the children in 2017 because she was not properly
protective of Laurel, who was abused by Mother’s then-partner. As set out above,
the record also contained evidence that Father abused the children and subjected
them to instability. There was no evidence of any danger in their placement with
M.H.
4. Parental abilities
There was limited evidence admitted concerning Mother’s parenting
abilities, beyond the fact that she was charged with injury to a child in connection
49
with her treatment of Laurel. There was evidence that she repeatedly failed to
participate in services offered by DFPS and that DFPS had concluded there was
reason to believe that she had endangered her children in connection with the 2017
abuse allegations. See In re C.H., 89 S.W.3d at 27–28 (explaining that historical
deficiencies in parenting are relevant to best-interest inquiry).
There was likewise evidence that Father had abused the children. He denied
that he engaged in any abuse, but he refused to participate in any of the services
required by his family plan of service. M.H. testified that she never saw Father
abuse the children, but she also testified that Father “has no parenting skills, that
parenting classes would be good for him, therapy. He has things he needs to work
through to be a stable dad.”
Rodriguez testified that the children’s “regressive” behaviors were a result
of their parents’ poor parenting and unstable lifestyles. DFPS caseworkers both
testified that they had significant concerns about both parents’ abilities to provide
safe and stable homes. By contrast, the evidence at trial indicated that the children
were thriving in M.H.’s care and that she had the parenting skills to provide a safe
and stable home for the children.
5. Programs available to assist
Neither parent demonstrated a willingness to participate in programs that
would assist them in caring for their children. Mother failed to complete any of the
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services provided in her family plan of service. She also failed to keep any of her
meetings or appointments with Bryant or Lacewell. Father refused to participate in
any of the offered DFPS services. He testified that he did not believe he would
benefit from any parenting classes. M.H., however, took the children to therapy
regularly and provided the support the children needed to catch up academically.
6. Plans and stability
Mother did not appear at trial, and she put forward no evidence of any plans
she might have for the children. Bryant and Lacewell testified that Mother had a
job and a home, but Mother never kept any appointments that she made with DFPS
or CASA so that they could determine the suitability of her home. Father testified
that he loved his kids and wanted to retain his parental rights. He recognized that,
without employment or housing, he could not provide a stable home for the
children at the time of trial. However, he testified that his sister, who had
maintained contact with the children, could care for them while he worked toward
obtaining employment. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort
Worth 2007, no pet.) (holding that parent’s inability to provide stable home and
failure to comply with family plan of service supported finding that termination
was in child’s best interest); In re J.R.W., No. 14-12-00850-CV, 2013 WL 507325,
at *9 (Tex. App.—Houston [14th Dist.] Feb. 12, 2013, pet. denied) (mem. op.) (“A
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parent who lacks stability, income, and a home is unable to provide for a child’s
emotional and physical needs.”).
M.H., who had been a part of the children’s lives since 2017 and who cared
for them since their removal from Father, was willing to adopt the children if the
parents’ rights were terminated. She did not want to continue to provide foster care
for the children if it required her on-going involvement with the children’s parents
and grandparents. Bryant and Lacewell, among others, testified that they believed
termination of both parents’ rights and adoption by M.H. was in the children’s best
interest. They believed that M.H. was in a position to offer the children stability,
whereas neither parent was able to do so. See In re A.G., No. 14-18-01089, 2019
WL 2385723, at *5 (Tex. App.—Houston [14th Dist.] June 6, 2019, pet. denied)
(mem. op.) (holding that stability of proposed home environment is important
consideration in determining whether termination of parental rights is in children’s
best interest).
7. Acts or omissions and any excuses
Both parents engaged in abuse and negligent conduct, as discussed in detail
above. Mother failed to be properly protective of Laurel, resulting in DFPS finding
reason to believe abuse allegations against her and criminal charges for injury to a
child. Mother was absent from the children’s lives beginning in 2017 up to the time
of trial.
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The children reported that Father physically abused them. They also stated
that they moved from hotel to hotel and that they sometimes did not have enough
food. Father acknowledged that he struggled with employment and in dealing with
Laurel’s behavior, relying on his mother for help. He testified that he still lacked a
job at the time of trial because the pending criminal charges made finding
employment very difficult. Father did not believe, however, that he needed
parenting classes and refused to cooperate with DFPS because he did not want to
signal his agreement with the allegations of abuse against him.
C. Analysis
Considering the factors set out above, we conclude that the evidence was
sufficient to allow the trial court to form a firm belief or conviction that
termination of both Mother’s and Father’s parental rights was in the children’s best
interest. See In re E.N.C., 384 S.W.3d at 808; Holley, 544 S.W.2d at 371–72; see
also TEX. FAM. CODE § 263.307(b).
The evidence of endangerment outlined above, including the 2017 incident
of abuse against Laurel by Mother, Father’s abuse of the children, and the
instability in the children’s lives, supports the trial court’s best-interest finding. See
In re C.H., 89 S.W.3d at 27–28 (holding that evidence establishing predicate
grounds under section 161.001(b)(1) also may be relevant to determining child’s
best interest); see also TEX. FAM. CODE § 263.307(b) (best-interest factors include
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considerations such as frequency and severity of harm to child and parent’s history
of violent behavior or criminal activity, among others).
Mother lost custody of the children in 2017 following a report of abuse that
DFPS found reason to believe, including conduct for which Mother faced criminal
charges and served deferred adjudication community supervision. She remained
absent from the children’s lives following that instance and did not complete any
of the services required in her family plan of service. See TEX. FAM. CODE
§ 263.307(b) (best-interest factors include parent’s willingness to seek out services
and demonstrate ability to provide adequate parenting skills). Neither child
indicated that they had any kind of relationship with Mother.
Father was arrested for assaulting his children. He was also arrested for
domestic violence against his girlfriend while this case was pending. Father
refused to participate in any of the services required in his family plan of service.
At the time of trial, he had not obtained employment or stable housing. See id.
M.H., by contrast had cared for the children since their removal from Father.
The children made remarkable progress while in her care, and they were very
bonded to her. While Kade expressed that he loved his Father and wanted
sometimes to see him, both children expressed a desire to remain in M.H.’s care.
Rodriguez and Bryant both testified that M.H. did a good job of dealing with
Laurel and Kade’s behaviors and had the parenting skills necessary to provide
54
stability for the children. M.H. testified that she was willing to adopt the children if
the parents’ rights were terminated.
Father argues that there is no clear and convincing evidence to support the
finding that termination of his parental rights was in the children’s best interest,
asserting that Bryant, Lacewell, and Rodriguez “did not relate any facts that
formed the basis of their opinion as to why termination was in the best interest of
the children.” He asserts that their testimony “amounted to little more than a
recitation that the children were in foster care, that their needs were being met, that
the children had bonded with [M.H.], and that [M.H.] wanted to adopt them.”
Father argues that the best-interest standard “does not permit termination merely
because a child might be better off living elsewhere,” citing In re AH, 414 S.W.3d
802, 807 (Tex. App.—San Antonio 2013, no pet.). This narrow view of the
evidence ignores the other testimony regarding the circumstances of the children
prior to their removal from his care and his criminal history, the evidence of
Father’s failure to engage in any of the court-ordered services, his failure to obtain
employment or stable housing, and the evidence of the improvement in the
children’s behavior and emotional well-bring since removal. See In re A.C., 394
S.W.3d at 642 (holding that absence of evidence concerning some of factors does
not preclude factfinder from forming firm belief or conviction that termination is in
children’s best interest).
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Mother argues that the fact that she is currently parenting two other children
is some evidence that she has adequate parenting skills to parent Laurel and Kade.
This contention, however, does not address the evidence that Mother failed to be
properly protective of Laurel and failed to be involved in Laurel and Kade’s lives
in any meaningful way since 2017.
In light of the entire record, we conclude that the disputed evidence that the
trial court could not have credited in favor of its best-interest finding is not so
significant that the court could not have formed a firm belief or conviction that the
finding was true. See In re A.C., 560 S.W.3d at 631 (setting out factually
sufficiency standard).
We overrule Mother’s eighth issue and Father’s fifth issue regarding
sufficiency of the evidence to support the trial court’s best-interest finding.
Conservatorship Determination
In her ninth issue, Mother argues that the evidence was insufficient to
overcome the fit-parent presumption and the constitutional rights afforded to her.
We recognize, as Mother argues in her brief, that a parent has a constitutional right
to the care, custody, and control of her child. See In re J.W., 645 S.W.3d at 740.
When the government seeks not only to infringe on this fundamental right, but to
terminate the right altogether, such termination is considered “traumatic,
permanent, and irrevocable” and “constitutes the ‘death penalty’ of civil cases.” In
56
re J.C.H.-P., 673 S.W.3d 262, 264 (Tex. App.—San Antonio 2023, no pet.)
(quoting In re D.T., 625 S.W.3d 62, 69 (Tex. 2021)).
However, under Family Code section 161.207, if, as in this case, the trial
court terminates the parent-child relationships, “the court shall appoint a suitable,
competent adult, the Department of Family and Protective Services, or a licensed
child-placing agency as managing conservator of the child.” TEX. FAM. CODE
§ 161.207(a); In re J.D.G., 570 S.W.3d 839, 856 (Tex. App.—Houston [1st Dist.]
2018, pet. denied). Conservatorship determinations are reviewed for an abuse of
discretion and will be reversed only if the decision is arbitrary and unreasonable. In
re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re J.D.G., 570 S.W.3d at 856.
An order terminating the parent-child relationship divests a parent of legal
rights and duties with respect to the child. See TEX. FAM. CODE § 161.206(b). Once
we overrule a parent’s challenge to an order terminating her parental rights, the
trial court’s appointment of DFPS as sole managing conservator may be considered
a “consequence of the termination.” In re J.D.G., 570 S.W.3d at 856.
As set out above, we have overruled Mother’s challenges to the order
terminating her parental rights to Laurel and Kade. Because we have overruled
Mother’s challenges to the portion of the trial court’s order terminating her
parental rights, the order has divested Mother of her legal rights and duties related
to Laurel and Kade. See TEX. FAM. CODE § 161.206(b); In re J.D.G., 570 S.W.3d
57at 856. Therefore, Mother does not have standing to challenge the portion of the
order appointing DFPS as the children’s conservator. See In re J.D.G., 570 S.W.3d
at 856 (affirming termination of mother’s parental rights and holding that mother,
who had been divested of her legal rights to child, could not challenge
conservatorship determination); see also In re L.G.R., 498 S.W.3d 195, 207 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied) (finding no abuse of discretion in
conservatorship finding in which evidence was sufficient to support termination of
parental rights under clear-and-convincing evidence standard).
We overrule Mother’s ninth issue.
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Conclusion
We have concluded that sufficient evidence supports the trial court’s
predicate findings under subsections (D) and (E) as to Father, the predicate
findings under subsection (D) as to Mother, the best-interest finding as to both
parents, and the order terminating both parents’ rights. Finally, because the
termination of Mother’s parental rights is upheld, she does not have standing to
challenge the designation of DFPS as the children’s managing conservator.
Therefore, we affirm.
Richard Hightower
Justice
Panel consists of Justices Kelly, Hightower, and Guerra.
59