in the Interest of L.B., L.B., K.B., and K.B.

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00224-CV
__________________
IN THE INTEREST OF L.B., L.B., K.B., AND K.B.
__________________________________________________________________
On Appeal from the 317th District Court
Jefferson County, Texas
Trial Cause No. F-237,899
__________________________________________________________________
MEMORANDUM OPINION
After a bench trial, Appellant R.B. (“Ronald”) appeals the trial court’s order
terminating his parental rights to his children, L.B. (“Linda”), L.B. (“Lonnie”), K.B.
(“Katie”), and K.B. (“Kenny”). 1 The court also terminated the parental rights of the
1
To protect the identities of the minors, we use pseudonyms to refer to the
children and their parents. See Tex. R. App. P. 9.8(b)(2). Appellant’s notice of appeal
and brief include only three of the children’s initials in the case style, but we interpret
his brief to apply to all four children that are subjects of the termination order.
1
children’s mother, A.O. (“Annie”).2 For reasons explained herein, we affirm the trial
court’s judgment.
Background
On September 3, 2020, the Department of Family and Protective Services
(“the Department”) filed an Original Petition for Protection of a Child, For
Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship. The petition named Linda, Lonnie, Katie, and Kenny as the children,
Annie as the children’s mother, and Ronald as the children’s father. At the time the
petition was filed, Linda was eleven years old, Lonnie was nine years old, and Katie
and Kenny were five years old.
Evidence at Trial
Testimony of CPS Caseworker
The CPS Caseworker assigned to the case testified that the children came into
the care of the Department after law enforcement received a report and appeared at
Ronald’s home and found there was no water or electricity after a hurricane, the
children were left unsupervised for a long time, and the children were given keys to
the car to sit in it to get air conditioning. At the time, Ronald and his girlfriend had
been arrested for trespassing. During an investigation and during the Caseworker’s
2
Although the Department’s brief asserts Annie raised the same appellate
issues as Ronald, we note that Annie is not a party to this appeal. Accordingly, we
include limited details about her as necessary to explain the facts.
2
conversations with the children, the children expressed that they had limited access
to food and that food would be locked away and kept from them. According to the
Caseworker, other family members of the children had reported concerns about the
living conditions in the home. The Caseworker testified that it was her understanding
that when CPS responded the children were not clean. The Caseworker testified that
she learned that when the children were at home, Ronald and his girlfriend would
disappear for hours at a time and sometimes all day and that when they would return,
they would either use drugs and pass out or cook food for themselves and lock up
the rest of the food without feeding the children. The Caseworker testified that she
was told that Ronald’s girlfriend would tell the children that there was a camera in
the refrigerator and she and Ronald would know if they tried to get into the
refrigerator. It was also reported to the Caseworker that when Ronald and his
girlfriend dropped the children off to her, the children were underfed and not clean.
The Caseworker testified that she was informed that Lonnie had been diagnosed with
a medical condition, Ronald and his girlfriend had been overmedicating Lonnie, and
Ronald and his girlfriend were not taking Lonnie to his follow-up appointments.
At the time of removal, attempts to contact Annie, the children’s mother, were
unsuccessful. According to the Caseworker, Annie’s home had burned the previous
year, she was living in a travel trailer, and the children had been living with their
father for the past year. The Caseworker testified that Ronald and Annie had a
3
previous history with CPS from 2018 in which Annie admitted she used marijuana
and methamphetamine and Ronald admitted to drug abuse issues and crack cocaine
use.
The Caseworker testified that at the time of trial the children had been in the
Department’s care for over nine months, the court had ordered a plan of service for
the parents to remedy the effects of abuse or neglect that were happening in the
home, and she would discuss monthly with Ronald the tasks that needed to be
completed on his service plan. One of the requirements of the plan was that he
maintain a home with working utilities and that the home needed to be safe and drug
free. According to the Caseworker, Ronald owns the home that was given to him by
his father, and through virtual visits she conducted she was able to determine that
the home had working utilities and no safety hazards. The Caseworker testified that
“as far as me being able to assess whether the home was drug free, [Ronald] has
submitted to drug tests; and for the positive drug screen he did eventually provide
me proof of medication.” The Caseworker testified that she asked him for proof of
his hydrocodone prescription. The Caseworker testified that Ronald was unable to
submit to drug testing in the area because he was working out of town. The
Caseworker testified that she ordered a hair follicle drug test at one point, but that
Ronald did not have enough hair for them to do the test. According to the
Caseworker, Ronald had been working in a lot of different places and had expressed
4
that he had not had consistent work due to Covid, and she did not believe if the
children were returned home that the children would be appropriately supervised.
Ronald provided his pay stubs to the Caseworker the day prior to trial, but he only
provided pay stubs for a couple of weeks for a job in Houston, and he provided
employment information for the job he was working in Oklahoma at the time of trial.
The Caseworker testified that at the time of trial Ronald still had the same girlfriend
and that both Ronald and the girlfriend had left his children alone with food locked
up and that the younger children had to take care of Ronald’s girlfriend’s older child
who has special needs and aggressive tendencies. The Caseworker testified that
Ronald completed his parenting classes as part of his service plan, and she was
provided proof of completion. The Caseworker testified that Ronald’s visits with the
children were sporadic and “ha[d] not been significant[]” over the last nine months,
which she assumed was due to his work schedule. The Caseworker testified that
Ronald completed a drug assessment that recommended that he attend online
Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings. Ronald
completed a psychosocial evaluation and it was recommended that Ronald attend
counseling. According to the Caseworker, Ronald did not provide proof that he
attended AA or NA, and when they spoke about counseling sessions, he told her that
work would prevent him from participating in those sessions. He also did not provide
5
proof that he attended the parent support group meetings as recommended in the
parenting plan.
The Caseworker testified that Annie and Ronald both knowingly placed or
allowed the children to remain in conditions or surroundings which endangered their
physical and emotional well-being and engaged in conduct and placed the children
with persons who engaged in conduct that endangered the children’s physical and
emotional well-being. The Caseworker testified that Annie and Ronald both
constructively abandoned the children, as the children had been in the temporary
managing conservatorship of the Department for not less than six months, that the
Department had made reasonable efforts to provide services to return the children,
and that Annie and Ronald had not maintained significant contact with the children
and had not shown that they have a safe, stable environment to provide for the
children.
The Caseworker testified that the initial goal in the case was family
reunification, but the goal changed to relative adoption during the permanency
conference the month prior to the permanency hearing. According to the
Caseworker, the four children are currently placed with their maternal aunt and are
doing well in their current placement. She testified that the children have adjusted
well because they are familiar with their aunt’s home because they had gone to live
there whenever the parents had their drug problems or were in jail. She testified that
6
the children had gained weight, were included in family outings, and appeared to be
very happy and well taken care of in the aunt’s home. The Caseworker testified that
the oldest child, Linda, had expressed to her every visit since the case began that she
loved her parents, but she preferred to live at her aunt’s house because the children
are comfortable there, they have lived with their aunt off and on, and they are
supervised there. The Caseworker testified that Linda wrote a letter to the trial court
describing how she felt and where she thought she and her siblings should be, and
that she was “beside herself with worry and fears that she’s going to have to go
home.” According to the Caseworker, Lonnie, the oldest son, told her at the
beginning of the case that he also preferred to live with his aunt. The Caseworker
testified that during the case she learned from the two younger children that their
mother had told them to tell the judge that they wanted to go home. The Caseworker
acknowledged that she had not had the opportunity to see the children interact with
their parents, but that early in the case the children told the Caseworker that they
loved staying at their aunt and uncle’s house and were okay with living there. The
Caseworker testified that the children told her that they had stayed off and on
frequently with their aunt and uncle, and the Caseworker believed they felt safe and
protected there. The Caseworker testified that at the aunt and uncle’s house the
children had their own beds, ate, took baths, and had transportation to school and the
doctor. The Caseworker testified that the children’s aunt spent “almost every day of
7
every week” getting the children to doctor appointments and checkups, and that they
were being appropriately cared for and appropriately fed. The Caseworker testified
that she believes the children should be allowed to stay at their aunt’s so that they
can have the stability they need.
Testimony of the Aunt
Annie’s sister, the children’s aunt, testified that the children had been in her
care since their removal on August 29, 2020. When the children were removed and
the aunt arrived at Ronald’s home, law enforcement informed the aunt that the
children needed to be fed, and the aunt thought they appeared hungry. According to
the aunt, the children “grabbed [her] and hugged [her,]” and were glad to see her.
The aunt testified that in the past, the children, their mother, and their father
had lived with her, and “they have been in and out of my home.” She testified that
the children’s parents had a history with CPS “but it never was like this situation.”
According to the aunt, CPS became involved in 2018 due to Annie’s and Ronald’s
drug use, and CPS told Annie that if she left the children with the aunt, the case
would be dropped, so Annie left the children with her. After six months the aunt
returned the children to Annie because Annie “seemed to be doing good[.]” The aunt
testified that she also had the two older children before the younger two children
were born and when Annie was in jail, and that Annie had lived with her “on and off
their whole life.” According to the aunt, since the beginning of the case, Ronald has
8
only provided minor financial assistance and had not financially provided for the
children’s daily needs except he paid for one of the children’s cell phone service for
a while, and one month when he was on food stamps, he gave the aunt a card that
she used to buy about $250 in groceries for the children. The aunt testified that
Ronald had drug problems before 2011 or 2012 and, to her knowledge, he had not
had a problem with drugs since then.
The aunt testified that the children had a stable home when Ronald and Annie
were together, and that the children had a stable home when they lived with Ronald
“until this happened.” According to the aunt, her desire was not to testify to say
negative things about Ronald or Annie, but she provided her testimony “for the
children” and wished that Ronald’s and Annie’s situations were better.
The aunt testified that she and her husband had been married for twenty years
and had a stable home with room for the four additional children. They also had an
eighteen-year-old son and a pregnant sixteen-year-old daughter living in their home.
The aunt testified that she believed her sister’s four children were receiving a more
stable home, with more consistent food, shelter, and education in the aunt’s home
than in the home of either parent. While in her care, she took Lonnie to Texas
Rheumatology Center at Texas Children’s Hospital and learned that his parents had
been giving him too high of a dosage of his medication for his condition that involves
chronic inflammation, but the aunt testified that she did not think it was purposeful
9
but that it was instead a miscommunication about the dosage. The aunt testified that
she did learn at the visit that there were several missed appointments and lab
appointments while Lonnie was in his parents’ care. The aunt testified that doctors
informed her that Lonnie’s condition can be serious and even deadly, and the aunt
believed it was an important part of her job caring for him to make sure he received
the proper dosage of medicine and proper medical care. According to the aunt, since
coming into her care, Lonnie’s condition had been stable, and he had been without
pain or inflammation. The aunt testified that it would help if she could qualify for
adoption subsidies to help take care of the children and for them to go to college.
According to the aunt, she believed Ronald and Annie love their four children,
and she agreed that at the time of the children’s removal no one’s homes in the area
had electricity or water, including hers, because of the hurricane. The aunt testified
that the children were good students. The aunt testified that Linda was upset and
scared because she did not know what the judge was going to do, and the aunt
believed Linda would not have a good reaction if the judge sent her home with her
mother and father.
Testimony of Annie
Annie testified that the children had been in her care all their lives except for
when she went to rehab and also about a year earlier when she and Ronald agreed
after her house burned that the children would live with him because he was in a
10
better position to care for them. While Annie appreciated the care her sister had
provided for the children, Annie testified that she had raised the children, she was
the reason they were well mannered and well educated, and she wanted the children
back in her care. Annie testified that she had voiced concerns to her sister, brother-
in-law, and mother about Ronald’s girlfriend’s special needs child playing too rough
with her children and concerns about how her children were being treated and
disciplined because she did not know Ronald’s girlfriend well.
Linda’s Letter to the Trial Court
Linda, the oldest child, wrote letters to the trial court which were admitted
into evidence. In the letters she stated that she desired to stay at her aunt and uncle’s
house, that she loved her parents but they “mentally and emotionally hurt [her] every
day[,]” and she “could never go back to how much [she] and [her] siblings got
hurt[,]” she and her siblings loved living with their aunt and uncle, they were getting
fed and cared for at their aunt and uncle’s house, they “always got left alone at [her]
mom’s and dad’s for long periods of time[]” and at her father’s “he locked the pantry
so [they] had no way to get food[,]” her father had only visited them twice, they had
not seen their father in five months and when in town he did not even stop by, their
aunt and uncle’s is a “special place” where she and her siblings “belong[]” and are
safe, her father’s girlfriend’s son was violent toward the four children and they were
scared of him and would be left alone with him, and she wanted to stop moving from
11
place to place because she wanted to get a good education so she could become a
nurse.
Other Evidence at Trial
The Clinical Management for Behavioral Health Services notes from the
Burke Center were admitted into evidence and stated that Ronald reported starting
smoking marijuana at age nine, cocaine at age fifteen, and alcohol at age twenty-
two. He reported having a cocaine problem from 2005 through 2010, and he started
to get clean in 2011. He also reported having a prescription for Vicodin. According
to the notes, he and his girlfriend went to check on her grandmother “down the road”
after a storm and left the kids home alone “for maybe 15 minutes[,]” and he and his
girlfriend were arrested and went to the Jefferson County jail for three days.
Ronald’s drug tests results were admitted into evidence with tests on October
29, 2020, and November 30, 2020, being negative for drugs, and his December 31,
2020 test being positive for hydrocodone and hydromorphone. A hair follicle drug
test on November 30, 2020, was cancelled for “insufficient specimen quantity[.]”
A report from Ronald’s psychosocial assessment stated that he and Annie had
been in a relationship for fifteen years and used drugs. According to the report,
Ronald reported that he smoked marijuana and used cocaine and Annie used pills,
methamphetamine, cocaine, and marijuana. Ronald reported he quit using drugs, but
Annie continued to use them. He stated he had been in a relationship since November
12
2019 with his girlfriend who has a fourteen-year-old non-verbal autistic child who
was placed in foster care and a six-year-old child who was living with the child’s
father. The report noted that Ronald had been arrested multiple times from 2005 to
2010 for multiple reasons including burglary of a building, and he “had a DWI in
2018[.]” According to the report, Ronald used marijuana at age nine and cocaine in
2006 to 2009 and last used drugs a year prior.
Issues
In issue one, Ronald challenges the legal and factual sufficiency of the
evidence supporting the trial court’s finding that termination is in the children’s best
interest. Ronald’s brief argues that “the record remains devoid of evidence” relevant
to the children’s best interest and that “[s]cant or paltry evidence is not sufficient.”
In issues two, three, and four, Ronald challenges the legal and factual sufficiency of
the evidence supporting termination of Ronald’s parental rights under sections
161.001(b)(1)(D), (E), and (O) of the Texas Family Code. Ronald argues there is no
evidence that he placed the children with any dangerous person and no evidence that
he himself endangered or neglected the children. He also argues that his
incarceration alone is not sufficient to support termination on the grounds of
endangerment.
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Standard of Review
The decision to terminate parental rights must be supported by clear and
convincing evidence. Tex. Fam. Code Ann. § 161.001(b). Under the Family Code,
“‘[c]lear 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.” Id. § 101.007; In re J.L., 163 S.W.3d 79,
84 (Tex. 2005). The movant must show that the parent committed one or more
predicate acts or omissions and that termination is in the child’s best interest. See
Tex. Fam. Code Ann. § 161.001(b); In re J.L., 163 S.W.3d at 84.
In reviewing the legal sufficiency of the evidence in a parental rights
termination case, we must consider all the evidence in the light most favorable to the
finding to determine whether a reasonable factfinder could have formed a firm belief
or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344-45 (Tex.
2009) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so, and we disregard all evidence that a reasonable factfinder could have
disbelieved. Id. In a factual sufficiency review, we “give due consideration to
evidence that the factfinder could reasonably have found to be clear and
convincing.” In re J.F.C., 96 S.W.3d at 266. We must determine “‘whether the
evidence is such that a factfinder could reasonably form a firm belief or conviction
14
about the truth of the State’s allegations.’” Id. (quoting In re C.H., 89 S.W.3d 17, 25
(Tex. 2002)). “If, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” Id. In cases tried to the bench, the trial court in its
role as factfinder determines the credibility and weight of the witnesses’ testimony
and resolves any inconsistencies or conflicts in the evidence. See Webb v. Crawley,
590 S.W.3d 570, 578 (Tex. App.—Beaumont 2019, no pet.); In re R.J., 568 S.W.3d
734, 754 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).
Only one predicate finding under section 161.001(b)(1) is necessary to
support a judgment of termination when there is also a finding that termination is in
the child’s best interests. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (applying
previous version of the statute). Here, Ronald does not contest the predicate finding
for termination under subsection N. Accordingly, we can affirm the termination on
that ground alone. See In re C.M.C., 554 S.W.3d 164, 171 (Tex. App.—Beaumont
2018, no pet.). However, Ronald challenges the endangerment findings, and given
the potential future consequences of a finding under subsections D or E for a parent
of a different child, we will also examine these grounds. See In re N.G., 577 S.W.3d
230, 236-37 (Tex. 2019) (per curiam); In re C.M.C., 554 S.W.3d at 171; see also
15
Tex. Fam. Code Ann. § 161.001(b)(1)(M) (providing a sufficient basis to terminate
parental rights based on a previous section 161.001(b)(1)(D) or (E) finding).
Statutory Grounds D and E
Under subsection D, parental rights may be terminated if clear and convincing
evidence supports 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. Fam. Code Ann. § 161.001(b)(1)(D). Subsection E
allows for termination of parental rights if clear and convincing evidence supports
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).
Under subsection D, parental rights may be terminated based on a single act
or omission by the parent. In re L.E.S., 471 S.W.3d 915, 925 (Tex. App.—Texarkana
2015, no pet.) (citing In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003,
pet. denied)). Termination under subsection E requires more than a single act or
omission, and a “‘voluntary, deliberate, and conscious course of conduct by the
parent is required.’” Id. at 923 (quoting Perez v. Tex. Dep’t of Protective &
Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004, no pet.)). As for
subsection D, we examine the time before the child’s removal to determine whether
the environment of the home posed a danger to the child’s physical or emotional
16
well-being. Id. at 925 (citing In re L.C., 145 S.W.3d 790, 795 (Tex. App.—
Texarkana 2004, no pet.)). “A finding of endangerment under subsection E,
however, may be based on conduct both before and after removal.” In re A.L.H., 515
S.W.3d 60, 93 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (citing In re
S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)).
“‘[E]ndanger’ means to expose to loss or injury[.]’” In re N.S.G., 235 S.W.3d 358,
367 (Tex. App.—Texarkana 2007, no pet.) (quoting Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Under subsection E, it is sufficient that the
child’s well-being is jeopardized or the child is exposed to loss or injury. Boyd, 727
S.W.2d at 533; N.S.G., 235 S.W.3d at 367. “‘A child is endangered when the
environment creates a potential for danger that the parent is aware of, but
disregards.’” In re L.E.S., 471 S.W.3d at 925 (quoting In re N.B., No. 06-12-00007-
CV, 2012 Tex. App. LEXIS 3587, at **22-23 (Tex. App.—Texarkana May 8, 2012,
no pet.) (mem. op.)). Generally, subjecting a child to a life of uncertainty and
instability endangers the child’s physical and emotional well-being. See In re R.W.,
129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).
In addition, a history of drug abuse will support a finding of conduct
endangering a child even if there is no evidence that such drug use caused a physical
or actual injury to the child. Vasquez v. Tex. Dep’t of Protective & Regulatory Servs.,
190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). A history
17
of illegal drug use is conduct that subjects a child to a life that is uncertain and
unstable, endangering the child’s physical and emotional well-being. In re S.D., 980
S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied); Dupree v. Tex. Dep’t
of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no
writ). A parent’s drug use, criminal history, and employment and housing instability
prior to and during the case create a course of conduct from which the factfinder
could determine the parent endangered the child’s emotional and physical well-
being. See In re M.C., No. 09-18-00436-CV, 2019 Tex. App. LEXIS 2961, at **15-
16 (Tex. App.—Beaumont Apr. 11, 2019, no pet.) (mem. op.); see also In re S.R.,
452 S.W.3d at 361-62 (parent’s drug use may qualify as a voluntary, deliberate, and
conscious course of conduct endangering the child’s well-being); Walker v. Tex.
Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied) (illegal drug use may support termination under
subsection E because “it exposes the child to the possibility that the parent may be
impaired or imprisoned[]”). Further, a factfinder can reasonably infer that a parent’s
failure to submit to court-ordered drug tests indicated the parent was avoiding testing
because he was using illegal drugs. In re E.R.W., 528 S.W.3d 251, 265 (Tex. App.—
Houston [14th Dist.] 2017, no pet.). Allowing a child to live in unsanitary conditions
supports a finding that the parent has endangered the child’s physical and emotional
well-being. See In re A.T., 406 S.W.3d 365, 371-72 (Tex. App.—Dallas 2013, pet.
18
denied); see also In re P.E.W., 105 S.W.3d 771, 777 (Tex. App.—Amarillo 2003,
no pet.) (“[A] child’s exposure to continually unsanitary living conditions…may
prove endangerment.”). The child “need not develop or succumb to a malady due to
th[e] [unsanitary] conditions before it can be said that” the child was endangered. In
re P.E.W., 105 S.W.3d at 777.
The trial court heard evidence that Ronald and his girlfriend would leave the
children unsupervised and with Ronald’s girlfriend’s son who was violent toward
the children. The court heard testimony that the children were found unsupervised,
hungry, and not clean at the time of the removal. The court was presented with
evidence that food was locked away so that the children at times had no access to
food. The trial court heard evidence that Ronald and Annie had been giving one of
the children the wrong dosage of medication and that the child had missed medical
visits. The trial court heard evidence of Ronald’s history of drug abuse and failure
to submit to required drug testing and could have inferred it was because Ronald was
using drugs. The trial court was presented with letters from the oldest of the four
children, and the letters described how the children were emotionally and physically
harmed while living with Ronald. The trial court heard the Caseworker’s testimony
that due to Ronald’s constant traveling for work, she believed that if the children
were returned home, the children would not be appropriately supervised. The trial
court also heard the Caseworker’s testimony that in her opinion Annie and Ronald
19
both knowingly placed or allowed the children to remain in conditions or
surroundings which endangered their physical and emotional well-being and also
engaged in conduct and placed the children with persons who engaged in conduct
that endangered their physical and emotional well-being.
Deferring to the trial court’s credibility determinations and reviewing all the
evidence in the light most favorable to the termination findings under subsections D
and E, the trial court could reasonably have formed a firm belief or conviction that
Ronald, through his individual acts or omissions or a course of conduct, endangered
the children’s physical or emotional well-being. We conclude that the Department
established, by clear and convincing evidence, that Ronald committed the predicate
acts enumerated in subsections D and E. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E). Further, considering the entire record, we conclude the
disputed evidence the trial court could not reasonably have credited in favor of its
endangerment findings is not so significant that the court could not reasonably have
formed a firm belief or conviction that Ronald endangered the children. See In re
J.F.C., 96 S.W.3d at 266.
Best Interest of the Child
In issue one, Ronald challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that terminating Ronald’s parental rights
was in the children’s best interest. Trial courts have wide latitude in determining a
20
child’s best interest. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).
There is a strong presumption that the best interest of a child is served by keeping
the child with his parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re D.R.A.,
374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see also Tex.
Fam. Code Ann. § 153.131(b). Prompt and permanent placement of the child in a
safe environment is also presumed to be in the child’s best interest. Tex. Fam. Code
Ann. § 263.307(a).
The Family Code outlines nonexclusive factors to be considered in
determining whether a parent is willing and able to provide a safe environment for a
child including: the child’s age and physical and mental vulnerabilities; whether
there is a history of abusive or assaultive conduct by the child’s family or others who
have access to the child’s home; the willingness and ability of the child’s family to
seek out, accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision; the willingness and ability of
the child’s family to effect positive environmental and personal changes within a
reasonable period of time; whether the child’s family demonstrates adequate
parenting skills, including providing the child with minimally adequate health and
nutritional care, a safe physical home environment, and an understanding of the
child’s needs and capabilities; and whether an adequate social support system
consisting of an extended family and friends is available to the child. Id.21
§ 263.307(b); see also In re R.R., 209 S.W.3d at 116. The Texas Supreme Court has
articulated several additional factors that may be considered when determining
whether termination of parental rights is in the best interest of the child, including:
the desires of the child, the emotional and physical needs of the child now and in the
future, the emotional and physical danger to the child now and in the future, the
parental abilities of the individuals seeking custody, the programs available to assist
these individuals to promote the best interest of the child, the plans for the child by
these individuals or by the agency seeking custody, the stability of the home or
proposed placement, the acts or omissions of the parent that may indicate that the
existing parent-child relationship is not a proper one, and any excuse for the acts or
omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)
(setting forth the “Holley factors” and noting “[t]his listing is by no means
exhaustive[]”). No specific Holley factor is controlling, and evidence of one factor
may be enough to support a finding that termination is in the child’s best interest.
See M.C. v. Tex. Dep’t of Family & Protective Servs., 300 S.W.3d 305, 311 (Tex.
App.—El Paso 2009, pet. denied) (“Undisputed evidence of just one factor may be
sufficient to support a finding that termination is in the best interest of a child.”)
(citing In re C.H., 89 S.W.3d at 27); In re A.P., 184 S.W.3d 410, 414 (Tex. App.—
Dallas 2006, no pet.). Because stability and permanence are important in a child’s
emotional and physical development, termination of parental interests may be in the
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child’s best interest when a parent is unable to provide a stable environment or a
reliable source for food, clothing, shelter, and emotional support. See In re J.D., 436
S.W.3d 105, 119-20 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing In re
T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied)); In re
T.G.R.-M., 404 S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
A parent’s past conduct is relevant to determining the parent’s present and
future ability to care for a child. See In re C.H., 89 S.W.3d at 28 (parent’s past
performance as parent is relevant to determination of present and future ability to
provide for child); In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013,
pet. denied) (factfinder may measure a parent’s future conduct by past conduct);
Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 824 (Tex. App.—Fort Worth
2007, no pet.). The best-interest determination may rely on direct or circumstantial
evidence, subjective factors, and the totality of the evidence. In re N.R.T., 338
S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). If, in light of the entire
record, no reasonable factfinder could form a firm belief or conviction that
termination was in the child’s best interest, then we must conclude that the evidence
is legally insufficient to support termination. See In re J.F.C., 96 S.W.3d at 266.
As for the desires of the children, the trial court heard the Caseworker’s
testimony that the two older children had expressed to her that they wanted to stay
with their aunt and uncle, and that although the two younger children expressed the
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desire to go home, the Caseworker learned that Annie had coerced the children to
say that. The trial court read letters from Linda, the oldest child, asking for the court
to allow the children to stay with the aunt and uncle where Linda said they are safe
and their needs are met. This factor weighs heavily in favor of terminating Ronald’s
parental rights.
Regarding the children’s emotional and physical needs now and in the future,
and the possible emotional and physical danger to them now and in the future, the
record includes testimony that the children were being denied access to food, left
unsupervised, left with the girlfriend’s son who was a violent child, and subjected to
an unstable home life. The trial court was presented with Linda’s letters that
explained how Ronald’s home was not meeting the children’s physical and
emotional needs. The trial court was entitled to find that this factor weighed in favor
of termination.
As to the parental abilities of the parent seeking custody, the evidence showed
that although Ronald had completed his parenting classes, he had not submitted to
all drug testing and had not provided proof of attending the recommended counseling
and support group. The trial court heard the Caseworker’s testimony that due to
Ronald’s constant traveling for work, she believed that if the children were returned
home that they would not be appropriately supervised. The trial court read Linda’s
letters that stated that the children had not seen Ronald in five months during the
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pendency of the case, and the trial court heard the Caseworker’s testimony that
Ronald’s visits with the children were sporadic. The trial court heard evidence of
Ronald’s criminal history and history of drug abuse. This factor weighs in favor of
terminating Ronald’s parental rights.
Regarding the plans for the children, the trial court heard the Caseworker’s
testimony that the children were doing well in their current placement with the
children’s aunt and uncle. The trial court was presented with evidence that the
children had spent significant time at the aunt’s house prior to their removal and that
they were well-bonded with their aunt and uncle. The trial court heard evidence that
the children were growing and receiving appropriate medical care in the aunt and
uncle’s home. The trial court heard evidence from the children’s aunt that she and
her husband were willing to adopt the children. This factor weighed in favor of
terminating parental rights.
Regarding Ronald’s acts or omissions, evidence showed that Ronald has a
criminal history and history of drug abuse. He failed to submit to all drug testing
during the pendency of the case, and the trial court could have inferred that he was
continuing to use drugs. Ronald failed to provide proof of a stable and safe home.
The evidence showed that Ronald and his girlfriend denied the children access to
food and left them unsupervised and with a violent child. The trial court heard
evidence that Ronald and his girlfriend had been arrested for trespassing and
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incarcerated at the time of the children’s removal. On this record, we conclude the
trial court could have reasonably found that Ronald’s acts and omissions weigh
heavily in favor of terminating Ronald’s parental rights.
Having considered the evidence related to best interest and deferring to the
trial court’s determinations on witness credibility, the resolution of conflicts in the
evidence, and the weight to be given the testimony, we conclude that the statutory
and Holley factors weigh in favor of the trial court’s finding that termination is in
the children’s best interest. See Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307(a);
In re J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371-72. We conclude that the
evidence is both legally and factually sufficient to support the trial court’s finding
that termination of Ronald’s parental rights is in the children’s best interest.
Having overruled Appellant’s issues, we affirm the trial court’s judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on November 22, 2021
Opinion Delivered January 20, 2022
Before Kreger, Horton and Johnson, JJ.
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