J. M. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00435-CV
J. M., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 321,340-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING
MEMORANDUM OPINION
J.M. (Father) appeals from a judgment terminating his parental rights to his son
(Child) aged two years at the time of trial. 1 Father argues that the district court never acquired
personal jurisdiction over him and, in the alternative, challenges the legal and factual sufficiency
of the evidence supporting the four statutory predicates and the finding that termination is in
Child’s best interest. We affirm.
BACKGROUND
Child was born in January of 2020. Father and Mother were sixteen years old at
the time and living with their respective mothers. Father later testified that he had little
involvement in Child’s life at this point because Mother’s family did not want him around.
1 We refer to Child’s parents and his other relatives by their relationship to him and an
alias. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
Mother would sometimes “sneak” Father into the house so that he could watch Child while
Mother slept.
Child lived with Mother at Maternal Grandmother’s house until August of 2020,
when the Department of Family and Protective Services removed Mother and her siblings from
that house because of allegations of physical abuse and neglect. According to the removal
affidavit, Mother made an outcry that “[Maternal Grandmother] had physical altercations with
her in the past,” and her brother had been injured in a fight and left alone in the hospital because
Maternal Grandmother arrived intoxicated. The Department placed Mother and Child together
and Mother’s siblings in a separate home. Child stayed with Mother because, according to the
removal affidavit, “[T]here were no concerns for [Child’s] safety at the time of the removal.”
That changed in November of 2020 when the caregiver of Mother’s brother
reported that Mother came to the house “attempting to start a fight” and threatened to have her
uncle “spray their house.” Mother did not have Child with her at the time and refused to divulge
his location. According to the Department’s caseworker, Mother and Child were on “runaway”
status for two weeks. For part of that time, Mother and Child stayed with Father and later with
Maternal Grandmother. After the Department found Mother and Child, they both tested positive
for cocaine and marijuana. The Department removed Child from Mother. The Department
considered placing Child with Father until he tested positive for marijuana and
methamphetamines. Child was placed with a foster family, where he remained throughout
the case.
On December 1, 2020, the Department filed its original petition seeking to
terminate the rights of both parents. On the same day, citation was issued to Mother, Father, and
their respective mothers. None of the first round of citation was served. The Department
2
eventually served Paternal Grandmother “as parent of minor child [Father].” Nothing in the
record indicates that Father was ever personally served with citation. Father appeared in court
with his appointed counsel the following week. Father subsequently filed a counterpetition
seeking to vacate the acknowledgment of paternity that he signed at Child’s birth. He attached to
the counterpetition an affidavit from Paternal Grandmother verifying the truth of the allegations.
However, neither Paternal Grandmother nor another guardian appeared on Father’s behalf before
he turned eighteen at the end of March 2021. See Tex. R. Civ. P. 44 (minors must appear in
court through guardian or next friend). The district court granted the counterpetition, and genetic
testing later established Father’s paternity.
The parties tried the case to the bench on March 30 and April 27, 2022. The
associate judge admitted exhibits offered by the Department, including the Department’s final
report to the court and the affidavit supporting removal of Child. The Department’s caseworker,
Father, and Father’s Virginia caseworker Mary Chamblis testified. The Department’s
caseworker testified that the Department created a service plan for Father laying out the steps
necessary to obtain custody of Child. The service plan required Father to regularly drug test,
attend and complete counseling, take all prescribed medications, and undergo a psychological
and a psychiatric evaluation. The caseworker testified that Father told her that he would not drug
test or fulfill any other requirement of the plan until his paternity was established. Father also
informed her that he had been diagnosed with bipolar disorder but did not want treatment.
Shortly after the start of the case, Father moved to Virginia to live with his
grandmother (Great Grandmother). The Department informed him at that time that he was
responsible for finding and paying for his services. The caseworker testified that Father never
provided the Department with drug test results or proof that he was engaging in the services
3
required by his plan. Father testified that he was engaging in services but that he was “not
comfortable” providing documentation to the caseworker or in signing a release. Father
explained that he did not drug test until the day before the final hearing because he “wasn’t ready
yet.” Father also testified that he started a job at a McDonalds three weeks beforehand and was
working 50 hours a week. When the final hearing resumed on April 27, 2022, however, he was
no longer employed. He did not specify whether he was fired or quit and expressed his plans to
work at Walmart.
After Father moved to Virginia, the Department arranged for him to have virtual
visits with Child. The caseworker testified that the visits initially went well until August
of 2021, when Father stopped regularly attending. Father told the caseworker that the change
occurred because he had moved from Great Grandmother’s house to his father’s house. Great
Grandmother had requested custody of Child and the Department indicated that the request
would be denied if he lived in the same house. Father told the caseworker that he could not do a
virtual visit from his new residence and lacked reliable transportation to Great Grandmother’s
house. Father’s virtual visits with Child were suspended in January of 2022 because he had not
provided drug test results.
Great Grandmother died in January of 2022. After her death, the caseworker and
Paternal Grandmother discussed a potential placement, but Paternal Grandmother decided
against it. The caseworker explained that Paternal Grandmother wanted custody of Child but
had limited mobility and “did not feel that she could keep up with an active 2-year-old.”
The Department’s caseworker testified that Father was arrested “around the
beginning” of the case for unlawful carrying of a weapon. She was unaware of the status of the
charge but reported that Father told her the week before “that he didn’t have the time available to
4
work services because of pending criminal charges.” In his initial testimony, Father
acknowledged that he had pending criminal charges at the start of the case. After the first day of
the final hearing, Father traveled to Texas and entered a plea agreement with the county attorney
where he was placed on deferred-adjudication probation.
The court also heard testimony from Mary Chamblis, who described herself as a
“case manager” at the “Life Management Program at Western Tidewater Community Services
Board” in Virginia. Father had enrolled in the program, which provides “wraparound therapeutic
services.” According to Chamblis, at the time of trial, Father was meeting with a psychiatrist,
attending weekly therapy sessions, and receiving outpatient drug treatment.
The caseworker testified that the foster parents can meet all of Child’s needs and
intend to adopt him if Father’s rights are terminated. Child’s guardian ad litem testified that
Child’s foster parents are meeting his needs. She recommended that the court terminate the
rights of both parents so that the foster parents could adopt Child.
Following the hearing, the associate judge rendered judgment terminating the
rights of both parents. With respect to Father, the judge found that the Department had proven
four predicate grounds for termination and that termination is in Child’s best interest. See Tex.
Fam. Code § 161.001(b)(1)(D), (E), (N), (O), (b)(2). Father requested a de novo hearing before
the district court. The district court heard testimony from the caseworker and one of Child’s
foster parents and admitted evidence from the hearing before the associate judge. The district
court subsequently rendered judgment terminating Father’s rights on the same grounds as the
associate judge. Father timely appealed.
5
PERSONAL JURISDICTION
Father argues in his first issue that the district court never acquired personal
jurisdiction over him because he was a minor when the case began. Whether personal
jurisdiction exists is a question of law that we review de novo. Old Republic Nat’l Title Ins.
v. Bell, 549 S.W.3d 550, 558 (Tex. 2018).
To render a valid judgment, “a court must have both subject-matter jurisdiction
over a case and personal jurisdiction over the party it purports to bind.” In re Guardianship of
Fairley, 650 S.W.3d 372, 379 (Tex. 2022). Establishing personal jurisdiction over a party
requires “citation issued and served in a manner provided for by law.” Id. at 380 (citing
In re E.R., 385 S.W.3d 552, 563 (Tex. 2012)). In a suit seeking termination of parental rights,
citation “shall be issued and served as in other civil cases.” Tex. Fam. Code § 102.009(c). “If
service is invalid, it is ‘of no effect’ and cannot establish the trial court’s jurisdiction over a
party.” E.R., 385 S.W.3d at 563 (quoting Uvalde Country Club v. Martin Linen Supply Co.,
690 S.W.2d 884, 885 (Tex. 1985) (per curiam)). A “complete failure of service deprives a
litigant of due process and a trial court of personal jurisdiction; the resulting judgment is void
and may be challenged at any time.” Id. at 566.
Generally, a party waives complaints about service of process by making a
general appearance. See Tex. R. Civ. P. 120 (stating that general appearance has “the same force
and effect as if the citation had been duly issued and served as provided by law”); Baker
v. Monsanto Co., 111 S.W.3d 158, 161 (Tex. 2003) (stating that “general appearance in action
waives any defect in the manner of service”). “[A] party enters a general appearance when it
invokes the judgment of the court on any question other than the court’s jurisdiction, recognizes
by its acts that an action is properly pending, or seeks affirmative action from the court.” J.O.
6
v. Texas Dep’t of Fam. & Protective Servs., 604 S.W.3d 182, 189 (Tex. App.—Austin 2020, no
pet.) (citing Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (per curiam)).
Father, however, was a minor at the time the Department filed its original petition.
Minors are considered to be under a legal disability and are therefore “unable to sue or be sued in
their individual capacities; they are required to appear in court through a legal guardian, a ‘next
friend,’ or a guardian ad litem.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.
2005). “Consequently, a minor cannot waive service or consent to the jurisdiction of the court.”
N.J. v. Texas Dep’t of Fam. & Protective Servs., 613 S.W.3d 317, 321 (Tex. App.—Austin
2020), vacated as moot, 644 S.W.3d 189 (Tex. 2022) (citing In re W.L.C., 562 S.W.2d 454, 455
(Tex. 1978) (per curiam)); see Wheeler v. Ahrenbeak, 54 Tex. 535, 539 (Tex. 1881) (explaining
that waiver of service is “the voluntary act of the party himself” and “that to be binding it must
have been done by one legally capable of performing it”). Generally, when a minor is named
party to a suit, the minor must be personally served. See N.J., 613 S.W.3d at 321; In re Estate of
Bean, 120 S.W.3d 914, 920 (Tex. App.—Texarkana 2003, pet. denied). Under certain
circumstances, minors may be properly joined through their legal guardian or next friend.
See American Gen. Fire & Cas. Co. v. Vandewater, 907 S.W.2d 491, 492 (Tex. 1995); N.J.,
613 S.W.3d at 321. When that occurs, whether the court acquired personal jurisdiction depends
on “whether the minor’s interests have been properly protected and whether a deficiency in
notice or due process has been shown.” Vandewater, 907 S.W.2d at 492.
Father presumes that this rule governs because he was a minor at the time the
Department served him through Paternal Grandmother. Father relies entirely on cases where the
7
minor party had not become an adult when the trial court rendered judgment. 2 Cf., e.g., N.J.,
613 S.W.3d at 321 (“Because the record establishes that N.J. was a minor during the proceedings
below, including when the trial court signed the judgment terminating her parental rights, we
disagree with the Department’s assertion that N.J.’s appearance in the suit relieved it of its duty
to ensure that she was properly served with citation.”); Estate of Bean, 120 S.W.3d at 920–21.
Father cites only one authority holding that a person who becomes an adult before the trial court
renders judgment cannot waive defects in service by entering an appearance. See In re M.M.S.,
No. 14-16-00349-CV, 2016 WL 6134456 (Tex. App.—Houston [14th Dist.] Oct. 20, 2016, pet.
denied) (mem. op.). We do not find that case persuasive.
In M.M.S., the Department served the minor parent three weeks before she turned
eighteen. Id. at *3. The minor was not served with citation after becoming an adult. Id. After
becoming an adult, the parent signed a mediated settlement agreement. Id. She later participated
in an adversarial hearing where she sought to set aside the agreement. Id. On appeal, she argued
that the court never obtained personal jurisdiction over her because she was not represented by a
parent, guardian, or next friend when she was served. Id. The Department responded that she
had waived service by participating in the adversary hearing. Id. Our sister court rejected the
Department’s argument, reasoning that she was a minor when she was served and her “later
appearance after turning eighteen does not cure her lack of capacity at the time she was served.”
Id. at *4. The court cited the supreme court’s decision in E.R., which states the general
proposition that “[i]f service is invalid, it is ‘of no effect’ and cannot establish the trial court’s
jurisdiction over a party.” 385 S.W.3d at 563. But the court did not explain why the parent
2 We observe that Father turned eighteen over a year before the final judgment in
this case.
8
could not enter a general appearance after becoming an adult, and it relied entirely on authorities
concerning persons who were minors at the time the lower court rendered judgment. See
M.M.S., 2016 WL 6134456, at *3. Father has cited no other authorities holding that an adult
person cannot enter a general appearance prior to the judgment because the person was a minor
when the action began, and we are aware of none. Absent further guidance from the supreme
court, we will apply the general rule that an adult may waive any complaints about service by
entering a general appearance. See Tex. R. Civ. P. 120; Baker, 111 S.W.3d at 161 (stating that
“general appearance in action waives any defect in the manner of service”).
We now determine whether Father entered a general appearance. Texas courts
“routinely hold that a court-appointed attorney who files an answer or seeks affirmative action
from the court invokes the court’s jurisdiction and thus enters a general appearance on behalf of
the client.” Fairley, 650 S.W.3d at 386. In the context of termination of parental rights, courts
have held that when an attorney ad litem attends a hearing and announces “not ready” but
participates in the hearing by objecting to the admissibility of evidence, or by questioning
witnesses about information relevant to the termination of the parent’s parental rights, “the
attorney’s actions constitute a general appearance and establish the court’s personal jurisdiction
over the parent.” In re M.D.M., 579 S.W.3d 744, 759 (Tex. App.—Houston [1st Dist.] 2019, no
pet.) (citing In re P.Y.M., No. 04-13-00024-CV, 2013 WL 4009748, at *2 (Tex. App.—San
Antonio Aug. 7, 2013, pet. denied) (mem. op.)). Here, at the final hearing held after Father
became an adult, Father’s counsel announced ready, questioned each of the Departments’
witnesses about information relevant to Father’s fitness as a parent and his relative responsibility
for Child’s removal. At the end of the hearing, counsel asked the district court to find the
Department had not met its burden and to return Child to Father. Further, Father testified that he
9
was asking the court to return Child to his custody. We conclude that Father waived any defects
in service by appearing and seeking the court’s judgment on the merits of the Department’s
petition to terminate his parental rights. See M.D.M., 579 S.W.3d at 759; In re D.M.B.,
467 S.W.3d 100, 103–04 (Tex. App.—San Antonio 2015, pet. denied) (holding parent entered
general appearance through court-appointed counsel, who participated at hearing and opposed
Department’s requests). We overrule Father’s first issue.
SUFFICIENCY CHALLENGES
Having rejected Father’s jurisdictional challenge, we turn to his challenges to the
sufficiency of the evidence.
A court may render judgment terminating the parent-child relationship if it finds
by clear and convincing evidence that the parent’s acts or omissions satisfy at least one statutory
ground for termination and that termination is in the best interest of the child. Tex. Fam. Code
§ 161.001(b)(1), (2). “Clear and convincing evidence” is “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. “This heightened proof standard carries the weight and gravity due
process requires to protect the fundamental rights at stake.” In re A.C., 560 S.W.3d 624, 630
(Tex. 2018).
The heightened burden of proof in parental termination cases requires “a
concomitantly heightened standard of appellate review.” In re Z.N., 602 S.W.3d 541, 545 (Tex.
2020) (per curiam). In reviewing for legal sufficiency, a court should look at “all the evidence in
the light most favorable to the finding.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Under
the clear-and-convincing standard, the reviewing court “cannot ignore undisputed evidence
10
contrary to the finding” but “must otherwise assume the factfinder resolved disputed facts in
favor of the finding.” A.C., 560 S.W.3d at 630–31. Evidence is legally insufficient if, after
conducting this review, the reviewing court concludes that “no reasonable factfinder could form
a firm belief or conviction that the matter that must be proven is true.” Z.N., 602 S.W.3d at 545
(citing J.F.C., 96 S.W.3d at 266).
Factual-sufficiency review, in contrast, “requires weighing disputed evidence
contrary to the finding against all the evidence favoring the finding.” Id. “In a
factual-sufficiency review, the appellate court 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. Under either standard,
the trier of fact remains “the sole judge of the witnesses’ credibility and the weight to be given
to their testimony.” A.A. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00307-CV,
2021 WL 5893695, at *4 (Tex. App.—Austin Dec. 14, 2021, no pet.) (mem. op.).
Predicate Findings
The district court found that the Department had proven four predicate grounds
for termination. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (O). We begin with the
Subsection (D) and (E) findings because the supreme court has held that allowing Subsection
“(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to the
court thus violates the parent’s due process and due course of law rights.” In re N.G.,
577 S.W.3d 230, 237 (Tex. 2019) (per curiam).
11
Termination of the parent-child relationship may be ordered under Subsection (D)
if clear and convincing evidence establishes that 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,” Tex. Fam. Code § 161.001(b)(1)(D), and under Subsection
(E) if the evidence establishes 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). These grounds are intertwined; Subsection (D) focuses on the
child’s environment—which includes the child’s living conditions and the environment
produced by the conduct of the parents or others in the home—and whether the
environment itself endangered the child, while Subsection (E) focuses on the parent’s conduct
and whether the parent engaged in a voluntary, deliberate, and conscious course of conduct that
endangered the child. S.G. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00085-CV,
2021 WL 3437890 at *11 (Tex. App.—Austin Aug. 6, 2021, no pet.) (mem. op.); see also In re
C.V.L., 591 S.W.3d 734, 750 (Tex. App.—Dallas 2019, pet. denied). Both subsections require
proof of endangerment, which means exposing a child to loss or injury or jeopardizing a child’s
emotional or physical well-being. See Texas Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987); A.C. v. Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 698–99 (Tex.
App.—Austin 2019, pet. denied). A finding of endangerment requires more than the threat of
metaphysical injury or possible ill effects from a less-than-ideal family environment, but the
Department does not have to prove that the conduct was directed at the child or that the child
suffered an actual injury. See In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); A.C., 577 S.W.3d
at 699.
12
Father argues that there is insufficient evidence to support the Subsection (D)
finding because he was unaware that Child was in a dangerous environment. See In re J.E.M.M.,
532 S.W.3d 874, 881 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“[S]ubsection D is not a
basis for termination of parental rights if the parent was unaware of the endangering
environment.”). He relies on his uncontradicted testimony that he was unaware of Mother’s drug
use or the conditions in Grandmother Melissa’s home that led to the removal of Mother and her
siblings, did not hide her from the Department during the two weeks that she was on runaway
status, and did not supply her with drugs. The caseworker also acknowledged that while Father
was aware of Mother’s whereabouts, “I don’t believe that he knew the circumstances of her CPS
case. So he may not have known that there was an issue.” But the factfinder is the ultimate
arbiter of the credibility of the witnesses and the weight to be given to their testimony. A.A.,
2021 WL 5893695, at *4. The district court also heard testimony that Father was present in the
home with Child while Mother was sleeping, suggesting that he had first-hand knowledge of the
conditions of the home. Moreover, Father conceded that Mother told him “what was going on”
and that he did not alert the Department to her location. Under the circumstances, the district
court could have reasonably concluded that Father’s testimony that he was unaware of Mother’s
drug use or the conditions in Maternal Grandmother’s home was not credible. Taken together,
the evidence supports the finding that Father knowingly allowed Child to remain in a dangerous
environment. See F.H. v. Texas Dep’t of Fam & Protective Servs., No. 03-22-00231-CV, 2022
WL 4540839, at *4–5 (Tex. App.—Austin Sept. 29, 2022, pet. denied) (mem. op.) (holding
testimony that father was present in mother’s home during her pregnancy supported finding that
he was aware of her drug use).
13
The record also supports the finding that Father engaged in a course of
endangering conduct required for termination under Subsection (E). “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 J.O.A., 283 S.W.3d 336, 345 n.4 (Tex. 2009). Endangering conduct
“may include the parent’s actions before the child’s birth.” Id. at 345. Evidence of a parent’s
criminal history and convictions may establish an endangering course of conduct. J.G. v. Texas
Dep’t of Fam. & Protective Servs., 592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no pet.).
“Routinely subjecting a child to the probability that she will be left alone because her parent is in
jail, endangers the child’s physical and emotional well-being.” Id. at 525–26 (citing In re J.S.,
584 S.W.3d 622, 635 (Tex. App.—Houston [1st Dist.] 2019, no pet.)). Father was arrested for
unlawfully carrying a weapon less than three months after the Department petitioned to terminate
his parental rights. He left the state with that charge still pending and did not resolve it until after
the final hearing began even though he told the Department that he takes regular trips to Texas.
Further, Father was charged with possession of marijuana in 2017 and arrested and adjudicated
delinquent for burglary of a habitation in 2018. The court reasonably could have considered
these offenses “‘as part of a voluntary, deliberate, and conscious course of conduct’ that has the
effect of endangering [Child].” See J.S., 584 S.W.3d at 636 (quoting In re S.M., 389 S.W.3d
483, 492 (Tex. App.—El Paso 2012, no pet.)).
Father’s drug use is also evidence of endangerment. See J.O.A., 283 S.W.3d at
345 (“[A] parent’s use of narcotics and its effect on his or her ability to parent may qualify as an
endangering course of conduct”). His initial positive test for methamphetamines precluded the
Department from placing Child with him. When asked why he did not take drug tests after his
paternity was confirmed, Father replied: “I wasn’t ready yet” and “I had to keep my mind
14
stable.” Father stated that he took a drug test the day before the final hearing but did not have
the results. The court reasonably could have inferred that Father was refusing to drug test
because he was using drugs. See F.H., 2022 WL 4540839, at *5 (“A factfinder may reasonably
infer from a parent’s refusal to take a drug test that the parent was using drugs.” (citing J.K.
v. Texas Dep’t of Fam. & Protective Servs., No. 03-18-00814-CV, 2019 WL 1646268, at *2
(Tex. App.—Austin Apr. 17, 2019, pet. denied))). Evidence that a “parent continued to use
illegal drugs when he knew his parental rights were in jeopardy ‘is conduct showing a
voluntary, deliberate, and conscious course of conduct, which by its nature, endangers a
child’s well-being.’” See id. (quoting J.B. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-21-00325-CV, 2021 WL 5456653, at *6 (Tex. App.—Austin Nov. 17, 2021, pet. denied)
(mem. op.)).
Considering the entire record, we conclude that a reasonable factfinder could form
a firm belief or conviction that Father knowingly allowed Child to remain in dangerous
conditions and knowingly engaged in a course of endangering conduct himself. See Tex. Fam.
Code. § 161.001(b)(1)(D), (E). The evidence is therefore factually sufficient to support those
findings. Because the evidence is factually sufficient, it is necessarily legally sufficient. See
A.F. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00670-CV, 2022 WL 2068818, at *7
(Tex. App.—Austin June 9, 2022, pet. denied) (mem. op.) (“Evidence that is factually sufficient
to support a trial court’s finding necessarily satisfies the legal-sufficiency standard.”). We
overrule Father’s fourth and fifth issues. We do not address his second and third issues, which
challenge the other predicate findings. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (noting
that Section 161.001 requires proof of only one statutory predicate to support termination).
15
Best Interest
Father argues in his final issue that the record contains legally and factually
insufficient evidence that termination is in Child’s best interest. The best-interest analysis “is
child-centered and focuses on the child's well-being, safety, and development.” A.C.,
560 S.W.3d at 631. “[T]here 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). To
determine whether termination is in a child’s best interest, we consider the non-exclusive
Holley factors:
• the child’s wishes;
• the child’s present and future emotional and physical needs;
• any 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 the individuals seeking custody;
• the plans for the child by the individuals or agency seeking custody;
• the stability of the proposed placement;
• parental acts or omissions which may indicate that the existing parent-child
relationship is improper; and
• any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). A best-interest finding does not require
proof of a specific factor or set of factors. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
We begin with Child’s wishes. Child—twenty-six months at the start of the final
hearing and twenty-eight months at the de novo hearing—was too young to express his desires.
16
“When a child is too young to express [his] desires, the factfinder may consider that the child has
bonded with the foster family, is well cared for by them, and has spent minimal time with a
parent.” In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)
(citing In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.)). The
caseworker testified that Child is “well bonded” with the foster family and has spent most of his
life with them. In contrast, Father has spent minimal time with Child since his birth and stopped
regularly attending visitations in August of 2021.
Turning to Child’s present and future physical and emotional needs, “it is
well settled that stability and permanence are paramount considerations in evaluating the
needs of a child.” N.K. v. Texas Dep’t of Fam. & Protective Servs., No. 03-22-00028-CV,
2022 WL 2673236, at *8 (Tex. App.—Austin July 12, 2022, no pet.) (mem. op.). “A parent who
lacks stability, income, and a home is unable to provide for a child’s emotional and physical
needs.” 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.) (citing In re C.A.J., 122 S.W.3d 888, 894 (Tex.
App.—Fort Worth 2003, no pet.)). Father testified that he was employed for three weeks during
the case but did not explain why his employment ended. He was not employed by the end of the
final hearing but testified to having an upcoming interview at Walmart. But self-serving
testimony of such a “speculative” and “hypothetical” nature does not constitute evidence of a
concrete plan for a child. See, e.g., In re A.P.S., No. 07-11-00476-CV, 2012 WL 1835688, at *7
(Tex. App.—Amarillo May 21, 2012, no pet.) (mem. op.); Gonzalez v. Texas Dep’t of Fam.
& Protective Servs., No. 03-06-00004-CV, 2008 WL 2309208, at *6, *9 (Tex. App.—Austin
June 5, 2008, no pet.) (mem. op.). Moreover, the caseworker testified that Father never provided
her with pay stubs or any other proof of income.
17
With respect to the present and future danger to Child, Father argues that there is
“no direct evidence of emotional or physical danger” to [Child]. He asserts that the caseworker
conceded as much when she agreed with his counsel that there is “no reason [Father] can’t have
contact in the future as far as the Department’s concerned.” The caseworker testified that while
she saw no reason they could not have virtual contact, Father should provide proof that he is not
using illegal drugs before meeting in person. Regarding Father’s larger point that there is no
evidence he posed a direct danger to Child, endangering conduct need not be directed at the child
or result in an actual injury. See E.N.C., 384 S.W.3d at 803; A.C., 577 S.W.3d at 699. Father
engaged in a pattern of criminal conduct that could have resulted in his incarceration
and inability to care for Child. See E.N. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-21-00014-CV, 2021 WL 2460625, at *7 (Tex. App.—Austin June 17, 2021, no pet.)
(mem. op.) (“Routinely subjecting a child to the probability that she will be left alone because
her parent is in jail, endangers the child’s physical and emotional well-being.” (citing J.S.,
584 S.W.3d at 635)).
With respect to the parenting abilities of the persons seeking access to Child,
Father’s history of arrests reflects negatively on his parenting abilities. See F.H.,
2022 WL 4540839, at *7 (parent’s repeated arrests “suggest that his parenting skills are seriously
suspect” (citing In re A.M., No. 02-16-00208-CV, 2016 WL 7046858, at *4 (Tex. App.—Fort
Worth Dec. 2, 2016, no pet.) (mem. op.))). Also relevant is Father’s lack of a steady income,
long-term residence, and instability. See J.D., 436 S.W.3d at 119 (“A parent’s . . . unstable
lifestyle, lack of a home and income, lack of parenting skills, and poor judgment may be
considered when looking at the children’s best interest.”). For unexplained reasons, Father was
unable to keep a job for more than three weeks during the case and was unemployed when the
18
final hearing ended. Moreover, Father never provided the Department with drug test results even
though he knew testing was a condition on his visits with Child.
Father points out that the caseworker testified that “while [Father’s] parenting
abilities may be limited, he could work with [Paternal Grandmother] to provide adequate care for
[Child].” But the quotation is taken out of context. The caseworker in fact said that she had
concerns regarding both Paternal Grandmother and Father. The caseworker is not concerned by
Paternal Grandmother’s parenting skills but with her mobility; she is concerned by Father’s lack
of parenting skills, history of drug use, lack of income, and likely inability to provide a stable
home. She never testified that Paternal Grandmother’s involvement would ameliorate her
concerns regarding Father.
Regarding plans for Child, Father testified that he intends to “be there by his side
each and every step.” He gave no specifics beyond that his extended family will help him care
for Child. See A.P.S., 2012 WL 1835688, at *7 (self-serving “hypothetical” does not constitute
evidence of concrete plans). The caseworker testified that the Department intends to leave Child
in his current placement while the foster family applies for adoption. Foster Mother testified that
her family plans to adopt Child if both parents’ rights are terminated. Foster Mother added that
she has not received any support from Father and that he has not sent any gifts, cards, or pictures.
Finally, we consider any evidence that the parent-child relationship is improper
and any excuses for the parent’s conduct. Father’s arrests and conviction are indicators of an
improper relationship, see N.K., 2022 WL 2673236, at *9, as are his failure to provide drug test
results and proof that he completed other parts of his service plan, see In re E.C.R., 402 S.W.3d 239,
249 (Tex. 2013) (holding that evidence parent failed to complete court-ordered service plan can
support best-interest finding); In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.—Houston [1st
19
Dist.] 2017, pet. denied) (“A fact finder may infer from a parent’s failure to take the initiative to
complete the services required to regain possession of his child that he does not have the ability
to motivate himself to seek out available resources needed now or in the future.”). It is
especially relevant that Father failed to provide evidence that he tested negative for drugs when
doing so resulted in the abatement of his virtual visits with child. See, e.g., J.M.T., 519 S.W.3d
at 270 (“[D]espite being offered substance-abuse counseling and individual therapy, Father did
not refrain from illegal drug use and did not complete either program.”).
Father attributes any shortcomings to his relative youth, citing the caseworker’s
testimony that there is no reason why Father could not learn parenting skills. He argues that
presumption in favor of preserving the parent-child bond precludes termination in this instance.
Although courts presume that preserving the parent-child relationship is in the best interest of
the child, it is the “child’s need for permanence through the establishment of a stable,
permanent home” that is “the paramount consideration in a best-interest determination.” E.N.,
2021 WL 2460625, at *8 (citing L.G.R., 498 S.W.3d at 205). Taken together, the record before
us would enable a reasonable factfinder to conclude that Father would be unable to provide that
stability in the future. See J.G., 592 S.W.3d at 525 (“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.” (citing In re B.R., 456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015,
no pet.))).
Considering the entire record, we conclude that a reasonable factfinder could have
formed a firm belief or conviction that termination is in Child’s best interest. Thus, the evidence
is factually sufficient to support that finding. Because the evidence is factually sufficient, it is
20
necessarily legally sufficient. See A.F., 2022 WL 2068818, at *7. We overrule Father’s
sixth issue.
CONCLUSION
We affirm the district court’s judgment.
__________________________________________
Edward Smith, Justice
Before Chief Justice Byrne, Justices Triana and Smith
Concurring Opinion by Justice Triana
Affirmed
Filed: January 17, 2023
21