in the Interest of M.D.M.. T.L.H. and J.D.B. Children v. Department of Family and Protective Services

Opinion issued June 13, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-01142-CV
———————————
IN THE INTEREST OF M.D.M., T.L.H., AND J.D.B., CHILDREN
On Appeal from the County Court at Law
Washington County, Texas
Trial Court Case No. CCL8785
OPINION
In this case, the trial court terminated the parental rights of B.L.B. (Mother)
to her minor son and to her two minor daughters. The trial court also terminated the
parental rights of each of the children’s fathers. Two of the fathers have appealed
the trial court’s order terminating their parental rights. Appellant T.D.H. (Truman)1
raises five issues, arguing that the Department of Family & Protective Services
(DFPS or the Department) did not present legally and factually sufficient evidence
that (1) his daughter was kept in an environment that endangered her physical and
emotional well-being; (2) his conduct in placing his daughter with her grandmother,
which occurred prior to the conduct by Mother that brought DFPS into the children’s
lives, endangered her physical and emotional well-being; (3) he constructively
abandoned his daughter; (4) his incarceration would last more than two years or that
he would be unable to care for his daughter during his incarceration; and
(5) termination of his parental rights would be in his daughter’s best interest.
Appellant J.K., Sr. (Jeffrey) also raises five issues, arguing that the
Department (1) violated his due process rights because it did not properly serve him
with process; (2) failed to present legally sufficient evidence that his daughter was
kept in an environment that endangered her physical and emotional well-being;
(3) failed to present legally sufficient evidence that his conduct in allowing Mother
to have possession of his daughter endangered her physical or emotional well-being;
(4) failed to present legally sufficient evidence that it removed his daughter from
1
In this opinion, we refer to the minor children, their fathers, the children’s maternal
grandmother, and T.D.H.’s father by pseudonyms to protect their privacy and for
ease of reading.
2
him for “abuse or neglect”; and (5) failed to present legally sufficient evidence that
termination of his parental rights would be in his daughter’s best interest.
We affirm.
Background
Mother has three children who were the subjects of the underlying
proceedings: M.D.M. (Michael), a son born in 2006; T.L.H. (Tamara), a daughter
born in 2009; and J.D.B. (Jennifer), a daughter born in 2016. Mother voluntarily
relinquished her parental rights to all three children, and she is not a party to this
appeal. Michael’s father, M.D.M., also voluntarily relinquished his parental rights
to Michael, and he is not a party to this appeal. Truman is the father of Tamara, and
Jeffrey is the father of Jennifer. Truman and Jeffrey are the only appellants in this
appeal. Jeffrey has an adult son who has the same name as Jeffrey. In this opinion,
we refer to Jeffrey’s son as J.K., Jr.
DFPS became involved with Mother and the children after Mother was in a
car accident in College Station, Texas, shortly after Christmas in December 2017. A
Texas A&M University Police Department officer conducted a routine traffic stop
and discovered that Mother had outstanding warrants. Mother then tried to flee the
scene, and she hit head-on the patrol vehicle of another University Police
Department officer who had arrived at the scene to provide backup. Michael and
Jennifer were in the car with Mother; Tamara was visiting with Joe, her paternal
3
grandfather, at the time of the accident. Michael, who was eleven at the time, was
sitting in the front seat, and he was holding Jennifer, who was almost two, on his
lap. Jennifer was not sitting in a car seat, and neither she nor Michael were restrained
by seatbelts. Mother and Michael had minor injuries from the wreck, but Jennifer
appeared “very lethargic” and “had some bruising on her face” and some swelling
around her eyes, so officers transported all three of them to a local hospital.2
Mother was subsequently placed in custody at the Brazos County Jail, and
Michael and Jennifer went to live with their maternal grandmother, Dierdre. Tamara
had been living with Dierdre since August 2017, so after the car accident in
December 2017, Dierdre had possession of all three children.
DFPS caseworker Mandy Hodde met with the children and Dierdre at
Dierdre’s house in Bryan, Texas, on January 4, 2018. Michael had already been
interviewed by another DFPS worker, so Hodde did not interview him again, but she
noted that Michael appeared “to be free of any visible marks or bruises.” Due to
Jennifer’s young age, Hodde could not interview her, but she noted that Jennifer had
“some healing lacerations on her face,” but no other marks or bruises. Hodde did
conduct a full interview with Tamara, who had not been present during the car
accident, and who also did not have any visible marks or bruises.
2
There is no indication in the record that Jennifer was seriously injured as a result of
the collision.
4
During Hodde’s interview with Tamara, who was eight years old at the time,
Tamara stated that she had observed Mother using drugs, that Mother had physically
abused her and Michael, and that she was afraid of Mother. Hodde testified:
In regards to drug use, [Tamara] described in detail marijuana use and
observing marijuana. She also described pills of various colors that she
had observed her mom taking before and described an incident where
her mother took a bottle of pills while driving because she was being
stopped by officers.
Tamara also told Hodde that Mother was “very mean” to Dierdre, that Mother had
pushed Dierdre down before, that Mother had hit Tamara and Michael before, that
Mother had once caused Michael to have a bloody nose, and that Mother “threatened
to hang [Tamara] the last time CPS talked to [Mother].” Hodde believed that
Dierdre’s home was an appropriate place for the children, and she did not investigate
other potential familial placements for the children.
On January 5, 2018, the Department filed its original petition for protection
of the children and sought termination of the parental rights of Mother and of all the
children’s fathers. This petition named Truman as Tamara’s father. Truman had been
incarcerated since May 2017, and he was served with a copy of the original petition
while in prison. This petition also named J.K. as Jennifer’s alleged father, but the
petition did not specify J.K., Sr. (appellant Jeffrey), or J.K., Jr. (Jeffrey’s adult son,
who is not involved in this case). As the date of birth for J.K., the petition stated a
5
date in November 1985, which is J.K., Jr.’s birthdate, not that of Jeffrey, who was
born in January 1966.3 Citation issued to J.K. was returned unserved.
The trial court held the statutorily-required adversary hearing on January 18,
2018. Jeffrey appeared in person, and Hodde recalled that he was the only father
present at the hearing. She testified that Jeffrey “made an appearance in front of the
bench, and he also met in chambers,” and he “acknowledged being the father of”
Jennifer. According to Hodde, during the meeting in the trial court’s chambers,
Jeffrey “expressed that he wanted [Jennifer] to stay with her grandmother,” Dierdre.
Jeffrey signed a “Temporary Order Following Adversary Hearing” that, among other
things, required “[J.K.]” to submit to a paternity test, to undergo a psychological
evaluation, to participate in parenting classes and drug and alcohol assessments, and
to comply with each requirement in a family service plan. Hodde acknowledged at
trial that the Department’s original petition referred to “the wrong [J.K.]”
The appellate record includes a family service plan for J.K., again without
specifying if the plan was for J.K., Sr. or J.K., Jr. The service plan recited the facts
leading to DFPS’s involvement with the children, including the car accident and
3
The Department’s affidavit in support of removal of the children, filed with the
Department’s original petition, also identified Jennifer’s father as J.K. without
specifying Jr. or Sr. and listed J.K.’s birthdate as in November 1985. This affidavit
also referred to J.K.’s criminal history. At trial, Hodde testified that the criminal
history listed in the removal affidavit was that of J.K., Jr., not Jeffrey. Samantha
Miller, the DFPS caseworker, also testified at trial that the criminal history listed in
the removal affidavit for “[J.K.]” did not belong to Jeffrey.
6
Hodde’s interview with Tamara. Among other requirements, the service plan
required J.K. to complete a drug and alcohol assessment, to maintain a safe and
stable home, to maintain a stable income, to provide proof of employment, to submit
to random drug tests, to contact the caseworker twice per month, to “live a criminal
free lifestyle and take care of pending charges,” and to complete a psychosocial
evaluation. Jeffrey signed the family service plan on February 20, 2018. Jeffrey also
attended a status hearing before the trial court on this date and signed an order
following the hearing. At this hearing, Jeffrey requested the appointment of an
attorney, but he never completed the required affidavit of indigency. This was the
last court appearance Jeffrey made.
On October 23, 2018, the trial court appointed an attorney ad litem to
represent “[J.K.]” This order did not indicate whether it referred to J.K., Sr. or J.K.,
Jr. On November 1, 2018, DFPS filed a “Supplemental Petition to Correct
Identification of Parties” and alleged that its original petition incorrectly identified
J.K., Jr., born in November 1985, as Jennifer’s alleged father. Instead, J.K., Sr.—
Jeffrey—born in January 1966, was Jennifer’s alleged father. The record does not
include a return of service for this supplemental petition, although the supplemental
petition’s certificate of service stated that the pleading was sent by e-mail to the
attorney ad litem appointed to represent “[J.K.]”
7
The trial court held the final hearing on December 4 and 6, 2018. The court
issued a bench warrant for Truman, and he appeared in person along with his court-
appointed counsel. Jeffrey did not appear in person, although the attorney ad litem
appointed in October 2018 appeared on his behalf. Ad litem counsel explained
during opening statements that Jeffrey had not been able to take off from work to
attend the final hearing. Counsel also argued that Jeffrey was a “non-offending
father,” that he had “not done anything that has jeopardized” Jennifer, and that he
“is very interested in continuing his relationship with his daughter.”
Samantha Miller, a DFPS conservatorship worker, testified that she was
assigned the case approximately one week before the adversary hearing in January
2018. She attended the adversary hearing and spoke with Dierdre and Jeffrey, and
she observed Hodde reviewing the Department’s original petition with Jeffrey.
Miller obtained a phone number and an address for Jeffrey, and she also requested
that he complete a drug test, which he did, and which was “clean.” She let Jeffrey
know that she would be in contact with him to schedule supervised visitation
between him and Jennifer. Miller testified that Jeffrey contacted her once during the
pendency of the case and that she was never able to set up supervised visitation
between him and Jennifer “because he never responded as to what day, what time”
even though she reached out to him on a monthly basis.
8
Miller testified that, at the time of the adversary hearing, she believed that it
was in the best interests of the children for them to be placed with Dierdre during
the pendency of the case. Her opinion “was reaffirmed” after she had a chance to
visit the children at Dierdre’s house approximately one week after the adversary
hearing. She testified that she made “multiple attempts to make an appointment
with” Jeffrey to visit his home, and while he would occasionally respond to her text
messages by saying that he was “busy or not available,” he “was for the most part
unresponsive” to Miller. At a February 2018 status hearing, Miller met with Jeffrey
and he acknowledged his paternity of Jennifer and signed a family service plan,
which she then filed with the court. During the pendency of the case, Jeffrey
informed Miller that he believed he did not need to be subject to random drug tests,
that he did not need to contact her to schedule supervised visitation with Jennifer,
that he did not need to meet with Miller, and that he did not need to complete his
service plan. Miller testified that she had not had contact with Jeffrey since August
2018.
Miller also testified concerning Jeffrey’s visitation with Jennifer during the
pendency of the case. She stated:
I wanted to go ahead and set up weekly visitations between [Jeffrey]
and his daughter, [Jennifer], at the Bryan CPS office initially. And after
being able to observe that relationship, after a couple of visits, then I
would, if [Dierdre] were comfortable, allow her to supervise that. He
had not contacted her in about six months. He’s shown up once or twice
at [Dierdre’s] old apartment complex that she resided at, but he doesn’t
9
know where she resides now. He’s contacted her once or twice and
asked for a visit, and she’s directed him to me, and he’s been
unresponsive. He’s not contacted me for a visit.
Miller agreed with Jeffrey’s ad litem counsel that Jeffrey was a “non-offending
parent,”4 but she testified that Dierdre had asked her and the Department to “step in”
and supervise any visitation between Jeffrey and Jennifer. Miller stated that the
Department was “happy to step in and allow the father and the child to see each
other.” Miller also stated that the Department initially “wanted to put the child with
the father,” but that was not Jeffrey’s “preference at the time.” Miller drove by
Jeffrey’s home, and she agreed with ad litem counsel that the home was “apparently
okay from the outside.” She also agreed that there was “nothing in any record that
he is a danger” to Jennifer.
Hodde likewise testified that, during her investigation, she did not find any
evidence that Jeffrey “did anything to hurt or harm” Jennifer, but he did “allow
[Jennifer] to go with [Mother] as often as she would like.” Hodde stated that, at the
adversary hearing, she witnessed Jeffrey interacting with Jennifer, and “there
seemed to be somewhat of a relationship” between the two of them. She did not,
4
Upon questioning by the ad litem attorney for the children, Miller agreed that a
parent could be considered “non-offending” under the Department’s definition of
that term, but that “doesn’t clear them of all liability under a CPS suit.” A “non-
offending” parent could be someone who “allowed their child to remain in the
custody of someone who is a detriment to the child’s safety,” left their child “in the
custody of someone who is using drugs,” or “allow[ed] their child to remain in the
custody of someone that’s abusing that child.”
10
during the course of her investigation, make an effort to visit Jeffrey’s home. She
testified that, based on the facts she obtained during her investigation, it was in the
children’s best interest for them to remain in Dierdre’s home.
Jeffrey’s ad litem counsel asked Miller if she could name one thing Jeffrey
had done to endanger Jennifer. Miller stated, “He knowingly, willingly and
intentionally allowed his child to be placed in the care of [Mother].” When asked if
she knew whether Jeffrey was aware of Mother’s behavior around the children,
Miller stated, “Yes, because he expressed a strong desire asking me to never allow
his child to go back to her mother[’s] care.”
With respect to Truman, the trial court admitted certified copies of five
judgments and sentences dated August 3, 2017, or approximately five months before
the car accident that brought the children to DFPS’s attention. These judgments
reflected that Truman had pleaded guilty to and been convicted of: (1) the first-
degree felony offense of assault on a family member—impeding breathing or
circulation—previous conviction; (2) the second-degree felony offense of injury to
a child; (3) the second-degree felony offense of participation in a riot; and (4) the
second-degree felony offense of assault on a family/household member—previous
conviction. The criminal court assessed Truman’s punishment at twelve years’
confinement for each offense, to run concurrently. Also on August 3, 2017, the
11
criminal court revoked Truman’s community supervision5 for the state jail felony
offense of engaging in organized criminal activity and assessed his punishment at
two years’ confinement, to run concurrently with his other four sentences.
On June 20, 2018, while Truman was incarcerated, Miller spoke with Truman
by phone and discussed a family service plan, the conditions of which would be
imposed on Truman once he was released from confinement.6 During this
conversation, Truman mentioned his desire to possibly relinquish his parental rights,
telling Miller that he had a “very positive relationship” with Dierdre and that he
knew Tamara would be safe at Dierdre’s house. Miller testified that it was her
understanding that Truman did not have a set date for his release from confinement.
Miller did not know if Truman was eligible for parole. She also testified that she had
not had any communication with Truman since June 2018.
Miller had one conversation with Joe, Truman’s father, early in the summer
of 2018, in which he asked if Tamara could spend a long weekend with him. Based
on a conversation with Tamara, Miller did not allow this visitation to occur. Joe
5
Truman pleaded true to the allegations in the State’s motion to revoke his
community supervision, which included allegations that, on May 14, 2017, Truman
committed the offenses of aggravated assault with a deadly weapon, injury to a
child/intentional bodily injury, simple assault, and interference with an emergency
call.
6
Miller testified that Truman was required to complete one condition of the family
service plan while incarcerated, and that condition was to contact her, the DFPS
conservatorship worker, once per month by mail.
12
made no other requests for visitation with Tamara to Miller, and neither did any
other member of Truman’s family. During the pendency of the case, Joe assisted in
transporting Michael and Tamara to and from their equine therapy appointments. In
September 2018, Tamara began having increased behavioral problems, and Tamara
informed Miller that she wanted Miller and her Court Appointed Special Advocate
(CASA) caseworker to be her “primary transporters” to equine therapy. Miller then
contacted Joe and requested that he no longer assist in transporting the children.
Miller stated that Joe and Dierdre typically worked out between themselves when
Joe could see Tamara without Miller’s intervention and that Joe and Tamara have a
“positive relationship.”
Miller testified that it was the Department’s opinion that the termination of
Truman’s and Jeffrey’s parental rights was in the best interest of Tamara and
Jennifer. She stated that the termination of rights would allow the children, including
Michael, to be adopted together by Dierdre, “which would allow them what they
need as far as to have their needs being met.” She also stated that, every time she
sees the children, they tell her that they wish to stay with Dierdre. Miller testified
that the Department visits Dierdre’s home at least once per month—sometimes as
frequently as three or four times per month—and there have been no concerns with
the children’s placement in Dierdre’s home. She testified:
[Dierdre] very quickly moved into a much larger apartment to
accommodate the children’s needs so that [Michael] has his own room.
13
The girls are sharing a room, but it’s a much larger room. It’s a better
school district. It’s in a better area of the community. It’s better
accessible to the children’s therapists. Whether it’s their play therapists,
their doctors, their schools, better school district, like I said. Everything
that [Dierdre] does is for the best interest of the children.
Miller stated that, since being in Dierdre’s care, the children have made all of their
scheduled doctor’s appointments and that Dierdre “has exceeded the expectations of
the Department in meeting these children’s needs.” Miller also testified concerning
some of the benefits that the children would have if all three of them were adopted
together by Dierdre, including staying on the state’s Medicaid program until at least
age twenty-one, receiving an adoption subsidy through age eighteen, and receiving
free tuition at a state public university.
Dierdre testified that Michael and Jennifer do not have special needs, but
Tamara has dyslexia, and Dierdre had been working with her school to learn more
about what accommodations she would need and whether Dierdre would need any
special training. She stated that she planned on adopting the children and that her
plans were “[t]o take care of them to the best of [her] knowledge like [she has] been
doing and get them as much help as [she] can do.”
Dierdre testified that she has not received any support for Tamara from
Truman or Truman’s family, although she does allow Tamara to see Truman’s
family and to call them. She stated that Tamara last saw Truman’s family for around
an hour on Thanksgiving 2018, which was approximately two weeks before the final
14
hearing. Tamara’s ninth birthday had been earlier in November, but she did not
receive any presents from Truman or his family. With respect to Jeffrey, he had
spoken to Dierdre’s sister the week before the final hearing, and he asked how
Jennifer was doing. In terms of support for Jennifer, Dierdre had received around
four packs of diapers and $15 from Jeffrey. She stated that the Attorney General’s
Office had given her a debit card that Jeffrey was supposed to place money on for
Jennifer’s support, but he had not placed any money on this card.
Dierdre testified that she had been concerned about Mother raising the
children since before the car accident that occurred in December 2017. Dierdre was
aware that Mother had been using drugs, and she routinely asked Mother to allow
her to have custody of the children, but Mother refused. She spoke to both Truman
and to Michael’s father about Mother’s behavior, and she tried to enlist their
assistance in getting the children out of Mother’s house. She stated that she told both
men that she thought Mother was using drugs and that “they knew it just as well.”
According to Dierdre, Truman told her that he would help, but then nothing
happened.
Dierdre testified that she had a similar conversation with Jeffrey, telling him
that she believed that Mother was using drugs and Mother’s house was not safe for
Jennifer. Dierdre stated: “And with a lot of drama, back and forth, getting into it,
[Jeffrey] just told me [Mother’s] crazy, your daughter’s crazy. And that was it.”
15
Jeffrey did not do anything to assist Dierdre in removing Jennifer from Mother’s
house. Dierdre testified that she had had conversations with Jeffrey about Mother,
and Jeffrey told Dierdre that Mother “had hit his vehicle and he called [the police]
on her, and that wasn’t the first or second time he did it.” She stated that Jeffrey told
her that that argument with Mother concerned Mother not allowing Jeffrey to see
Jennifer and Jeffrey’s failure to provide some support money that he had supposedly
promised to Mother.
Dierdre testified that, even if the trial court terminated Truman’s and Jeffrey’s
parental rights, she would allow them to visit their daughters. With respect to Jeffrey,
Deirdre stated that she would allow him to see Jennifer “as long as he’s right,”
meaning “[a]s in without drugs.” She stated that she opposed sharing custody of the
children with their fathers because she wanted to adopt them. Dierdre testified that
she would allow Truman to speak with Tamara during his incarceration and that,
upon his release from confinement, she would allow Tamara to stay overnight with
Truman if she thought he was safe. She also stated that, while Truman was
incarcerated, she would allow his family to visit with Tamara. Dierdre did not
believe that Truman was a danger to Tamara.
Dierdre also testified concerning how often Truman and Jeffrey had contact
with their daughters. Dierdre testified that, prior to his incarceration, Truman would
see Tamara when Dierdre would go to Brenham, which occurred “[m]aybe twice at
16
the most.” Since Jennifer has been in Dierdre’s home, Jeffrey has seen her “maybe
six times at the most.” She stated that she has a “fine” relationship with Jeffrey and
that, prior to his incarceration, she “got along with [Truman] good.”
Dierdre stated that, prior to the children coming into her care, Michael and
Tamara were both struggling in school, in part because they missed a large number
of school days. In the 2016–2017 school year, Tamara missed half of the school year,
and Michael missed “40 something days.” She agreed with the children’s ad litem
attorney that the children were behind in school because “they didn’t have parents
to take them to school.” Dierdre testified that Tamara started living with her in
August 2017, at Tamara’s request, before the start of the 2017–2018 school year.
Truman testified concerning his criminal history and the offenses that led to
his incarceration. He stated that, with respect to his convictions for assault/family
violence, Mother was the victim of those offenses, and, with respect to his conviction
for injury to a child, Michael was the victim of that offense. Truman testified that he
bit Michael’s finger, causing him injury. Truman stated that he had had a parole
hearing on July 18, 2018, but the parole board “sent [him] off for a year” due to his
criminal history. He stated that his projected release date was, at the latest, July 30,
2029, and that his next parole hearing would be in May 2019, after he had completed
the two years’ confinement for his state jail felony offense of engaging in organized
17
criminal activity. Truman stated that “[t]here’s a high chance I will make this next
parole.”
Truman testified that he has stayed in contact with his family while he has
been incarcerated, but he has not been in touch with Tamara in part because he does
not have Dierdre’s address. He agreed that his family could get Dierdre’s address
for him and that “with a little effort” he could be in touch with Tamara.
Truman also agreed that he had a conversation with Dierdre in which she told
him that he needed to assist her in getting the children away from Mother. He stated
that he could not do anything to help because he had an open child support case at
the time, and therefore he could not get Tamara away from Mother because he
“would be going against [his] Court order.” He agreed that he believed Tamara was
in danger in Mother’s care, and, according to Truman, he spoke with Dierdre about
it, but Dierdre never did anything.
On examination by his appointed counsel, Truman testified that he wanted to
have phone calls with Tamara and he wanted to be able to send her gifts. He did not
have a problem with Tamara staying with Dierdre during the week, but he expressed
the desire to have Tamara spend the weekends with him after he was released from
confinement. He stated that, upon release, he planned to live with his father, Joe, and
his step-mother, who had a three-bedroom trailer that would have room for both
Truman and Tamara. Truman believed that he had a good relationship with Tamara,
18
but he felt as though Tamara was being kept away from him, stating, “I feel like as
much as I can get in contact with them, they can get in contact with me. It’s not hard
to look me up.” Truman agreed that there are classes available through the prison
system that could help him for when he is released—such as AA classes, anger
management classes, and cognitive intervention classes—and that these classes are
mandatory for him to be released on parole, but he had not started them yet. He
planned to start these classes in May 2019, after he finished serving the sentence for
his state jail felony offense.
The children’s ad litem attorney asked Truman how often he saw Tamara prior
to his incarceration, and he responded, “[W]henever her mother wasn’t just being
mad at me for no reason, I could go get her every weekend when I wasn’t working.”
He testified that he celebrated every one of Tamara’s birthdays with her “if [he]
wasn’t incarcerated.” He also stated that he had had a few conferences with Tamara’s
principal during the 2016–2017 school year and that he was aware that Tamara was
missing too many days of school and was not meeting Texas attendance standards.
Truman testified that he was unaware that Mother was using drugs while the children
were in her care.
During closing argument, the appointed ad litem attorney for Jeffrey argued
that the trial court lacked personal jurisdiction over Jeffrey because he had never
been properly served with a petition seeking to terminate his rights. Counsel argued
19
that she had been appointed to represent J.K., Jr. and that, after the Department
supplemented its petition to make clear that it was seeking to terminate Jeffrey’s
parental rights to Jennifer, there was no change in the order appointing her to clarify
that she was now appointed to represent Jeffrey. Counsel argued that the Department
knew Jeffrey’s address, but it never attempted service on him and never put him on
notice that it was seeking to terminate his rights. Counsel did not file a special
appearance on Jeffrey’s behalf. After arguing that the trial court lacked personal
jurisdiction over Jeffrey, counsel argued that the Department had failed to establish
that Jeffrey was a danger to Jennifer and had not met its burden to establish that
Jeffrey’s parental rights should be terminated.
The trial court signed a written order terminating Truman’s parental rights to
Tamara and terminating Jeffrey’s parental rights to Jennifer. The trial court
terminated Truman’s rights on the basis of Family Code subsections
161.001(b)(1)(D), (E), (N), and (Q), and it terminated Jeffrey’s rights on the basis
of Family Code subsections 161.001(b)(1)(D), (E), and (O). The court also found
that termination of the fathers’ parental rights was in Tamara’s and Jennifer’s best
interests. Both Truman and Jeffrey filed motions for new trial which were overruled
by operation of law. This appeal followed.
20
Service of Process on Jeffrey
In his first issue, Jeffrey contends that the trial court never acquired personal
jurisdiction over him because DFPS did not properly serve him with process and,
therefore, the order terminating his parental rights violates due process.
A. Governing Law
Establishing personal jurisdiction over a defendant requires valid service of
process. In re P. RJ E., 499 S.W.3d 571, 574 (Tex. App.—Houston [1st Dist.] 2016,
pet. denied); see In re E.R., 385 S.W.3d 552, 563 (Tex. 2012) (“Personal jurisdiction,
a vital component of a valid judgment, is dependent ‘upon citation issued and served
in a manner provided for by law.’”) (quoting Wilson v. Dunn, 800 S.W.2d 833, 836
(Tex. 1990)). “If service is invalid, it is ‘of no effect’ and cannot establish the trial
court’s jurisdiction over a party.” In re E.R., 385 S.W.3d at 563; In re P. RJ E., 499
S.W.3d at 574. A complete failure of service deprives a litigant of due process and
deprives the trial court of personal jurisdiction; any resulting judgment is void and
may be challenged at any time. In re E.R., 385 S.W.3d at 566; In re P. RJ E., 499
S.W.3d at 574–75. At a minimum, “due process requires ‘notice and an opportunity
to be heard.’” In re P. RJ E., 499 S.W.3d at 575.
However, complaints regarding service of process can be waived: a party
waives a complaint regarding service of process if he makes a general appearance.
In re D.M.B., 467 S.W.3d 100, 103 (Tex. App.—San Antonio 2015, pet. denied);
21
see TEX. R. APP. P. 120a (setting out procedure for making special appearance,
providing that special appearance “shall be made by sworn motion filed prior to
motion to transfer venue or any other plea, pleading or motion,” and stating that
“[e]very appearance, prior to judgment, not in compliance with this rule is a general
appearance”). A party enters a general appearance when he (1) invokes the judgment
of the court on any question other than the court’s jurisdiction, (2) recognizes by his
acts that an action is properly pending, or (3) seeks affirmative action from the court.
In re D.M.B., 467 S.W.3d at 103 (quoting Exito Elecs. Co. v. Trejo, 142 S.W.3d 302,
304–05 (Tex. 2004) (per curiam)); see In re R.A.G., 545 S.W.3d 645, 655 (Tex.
App.—El Paso 2017, no pet.); TEX. R. CIV. P. 120 (providing that defendant may, in
person or by attorney, enter appearance in open court and this appearance “shall have
the same force and effect as if the citation had been duly issued and served as
provided by law”).
In determining whether a general appearance has occurred, the emphasis is on
affirmative action by the party, not on whether the party seeks affirmative relief. In
re D.M.B., 467 S.W.3d at 104. “[A] party’s request for affirmative action constitutes
a general appearance because such a request recognizes a court’s jurisdiction over
the parties, whereas the mere presence by a party or his attorney does not constitute
a general appearance.” Id. at 103. In the termination of parental rights context, courts
have held that when an attorney ad litem attends a hearing and announces “not
22
ready,” but participates in the hearing by taking such actions as objecting to the
admissibility of evidence or 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. See id. at
103–04 (holding that parent generally appeared through attorney ad litem when
attorney appeared at adversary hearing, announced “not ready,” but made repeated
objections to Department’s request for temporary restraining order and to
admissibility of evidence); see also In re R.A.G., 545 S.W.3d at 655 (holding that
party generally appeared by filing answer, attending trial by telephone, and attorney
questioned witnesses and made final argument); 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.) (holding that party generally appeared when ad litem attorney attended
termination hearing and announced “not ready,” but questioned sole witness at
hearing about information relevant to termination of rights and stated during
argument that parent “has indicated that he would like whatever is in his child’s best
interests”).
B. Analysis
Jeffrey, born in 1966, and his adult son, born in 1985, share the same name.
The Department’s original petition in this case, filed on January 5, 2018, listed
“[J.K.],” without a designation of Sr. or Jr., as Jennifer’s alleged father, but stated
23
J.K., Jr.’s birthdate. Hodde’s affidavit in support of removal, filed with the original
petition, also listed J.K., Jr.’s birthdate and J.K., Jr.’s criminal history. Hodde and
Miller both acknowledged at trial that the criminal history listed in this affidavit was
not Jeffrey’s and that the original petition erroneously referred to J.K., Jr. instead of
Jeffrey as Jennifer’s alleged father. The Department filed an amended petition on
January 11, 2018, but this petition likewise named “[J.K.]” as Jennifer’s alleged
father and stated J.K., Jr.’s birthdate. Neither of these petitions were served on
Jeffrey.
Jeffrey, however, attended the adversary hearing on January 18, 2018, and he
was the only father of the children who attended this hearing. He appeared before
the bench and met with the trial court and Department caseworkers in chambers,
where he acknowledged being Jennifer’s father. During the meeting in chambers,
Jeffrey expressed his desire for Jennifer to remain with Dierdre. Miller witnessed
Hodde reviewing the Department’s original petition with Jeffrey at the adversary
hearing. He also submitted to a drug test at the Department’s request, which came
back negative. Jeffrey signed a “Temporary Order Following Adversary Hearing”
that required “[J.K.]” to submit to a paternity test, to undergo a psychological
evaluation, to participate in parenting classes and drug and alcohol assessments, and
to comply with each requirement in a family service plan.
24
Jeffrey also attended a status hearing on February 20, 2018. On this date,
Jeffrey signed a family service plan that was created for “[J.K.],” but the service
plan, like the Department’s original and amended petitions, did not specify whether
it was for J.K., Sr. or J.K., Jr. Jeffrey requested the appointment of an attorney, but
he never completed the required affidavit of indigency that was necessary for the
trial court to appoint an attorney for him. Jeffrey did not attend any other hearings,
even though Miller testified that the Department mailed a notice of each hearing to
him at the address that he had provided to the caseworkers.
On October 23, 2018, the trial court signed an order appointing an attorney ad
litem to represent “[J.K.]” This order did not specify whether the ad litem attorney
was to represent J.K., Sr. or J.K., Jr. Shortly thereafter, the Department filed a
supplemental petition acknowledging the mistake in naming J.K., Jr. as Jennifer’s
alleged father and correcting the petition to name Jeffrey as Jennifer’s father. The
record does not include a return of service reflecting that Jeffrey was personally
served with a copy of this petition, although the certificate of service contained in
the supplemental petition reflects that it was served by e-mail on the ad litem
attorney.
Jeffrey did not appear in person at the final hearing on December 4 and 6,
2018, but the appointed ad litem attorney appeared. Counsel did not file a special
appearance on Jeffrey’s behalf. Counsel made a brief opening statement in which
25
she acknowledged the initial confusion regarding the Department naming J.K., Jr. as
Jennifer’s alleged father, rather than Jeffrey, and the ambiguity regarding who she
had been appointed to represent. She then stated that she believed the evidence
would demonstrate that Jeffrey had not done anything to jeopardize Jennifer, that
the children were before the court because of Mother’s actions, and that Jeffrey was
“very interested in continuing his relationship with his daughter.”
Counsel participated in the final hearing by questioning witnesses, focusing
on the Department’s mistakes in identifying Jeffrey and his son as Jennifer’s father
in its petitions and on any actions of Jeffrey that allegedly caused harm to Jennifer,
making objections to admissibility of evidence, and questioning Dierdre on voir dire
concerning her knowledge of instances in which Jeffrey had called the police on
Mother and her knowledge of Jeffrey’s financial situation. Counsel also requested
that the trial court take judicial notice of the court’s entire file for the case,
specifically pointing out that, at the time Jeffrey signed a service plan, he was not a
named party in the proceedings. During closing argument, counsel focused on the
failure to serve Jeffrey, arguing that this failure deprived the trial court of personal
jurisdiction over him, and the fact that she had been appointed to represent J.K., Jr.,
not Jeffrey. Counsel also argued that, if the court finds that it has jurisdiction over
Jeffrey, termination of his parental rights to Jennifer was not appropriate because the
26
Department did not establish that he was a danger to Jennifer or that he had ever
done anything to endanger Jennifer.
Rule 120a requires a special appearance to be made “by sworn motion filed
prior to motion to transfer venue or any other plea, pleading or motion” and provides
that “[e]very appearance, prior to judgment, not in compliance with this rule is a
general appearance.” TEX. R. CIV. P. 120a. Although ad litem counsel argued during
closing arguments that the trial court lacked personal jurisdiction over Jeffrey
because he had never been served with process, counsel also questioned witnesses,
elicited testimony that Jeffrey had not directly harmed Jennifer by his actions,
objected on multiple occasions to the admissibility of evidence, questioned a witness
on voir dire, requested that the trial court take judicial notice of its entire file, and
argued that the Department had not met its burden of establishing, by clear and
convincing evidence, that Jeffrey had endangered Jennifer and that termination of
his parent rights was in her best interest.
Ad litem counsel’s actions at the final hearing “invoked the judgment of the
court on a question other than the court’s jurisdiction, recognized that the action was
properly pending in Texas, and sought affirmative action from [the trial] court.” See
In re D.M.B., 467 S.W.3d at 104; see also Beistel v. Allen, No. 01-06-00246-CV,
2007 WL 1559840, at *3 (Tex. App.—Houston [1st Dist.] May 31, 2007, no pet.)
(mem. op.) (holding that party made general appearance through counsel when, at
27
hearing to determine whether to terminate wage-withholding obligation, counsel
objected to admission of other party’s exhibit, which was affirmative action that
impliedly recognized court’s jurisdiction over party). We hold that Jeffrey generally
appeared through ad litem counsel and, therefore, has waived his complaint that the
Department violated his due process rights by failing to serve him with process. See
In re R.A.G., 545 S.W.3d at 655 (holding that party generally appeared when party
answered, appeared at trial by telephone, and his attorney questioned witnesses and
made final argument); In re D.M.B., 467 S.W.3d at 103–04 (holding that party
generally appeared when ad litem attorney attended adversary hearing and made
objections to Department’s request for temporary restraining order and to
admissibility of evidence).
We overrule Jeffrey’s first issue.
Sufficiency of the Evidence
In Jeffrey’s second, third, and fourth issues, and in Truman’s first, second,
third, and fourth issues, the fathers contend that the Department failed to present
sufficient evidence that they committed one of the statutory predicate grounds for
termination of their parental rights. In both of their fifth issues, Truman and Jeffrey
argue that the Department failed to present sufficient evidence that termination of
their parental rights was in the best interest of Tamara and Jennifer, respectively.
28
A. Standard of Review
A trial court may order termination of the parent-child relationship if DFPS
proves, by clear and convincing evidence, one of the statutorily enumerated
predicate findings for termination and that termination of parental rights is in the
best interest of the children. TEX. FAM. CODE ANN. § 161.001(b); see In re E.N.C.,
384 S.W.3d 796, 802 (Tex. 2012) (stating that federal due process clause and Texas
Family Code both mandate “heightened” standard of review of clear and convincing
evidence in parental-rights termination cases). DFPS must prove both elements—a
statutorily prescribed predicate finding and that termination is in the children’s best
interest—by clear and convincing evidence. In re E.N.C., 384 S.W.3d at 803. The
Family Code defines “clear and convincing evidence” as “the measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as
to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.
§ 101.007; In re E.N.C., 384 S.W.3d at 802.
In a legal sufficiency review, we look at all of the evidence in the light most
favorable to the trial court’s finding to determine whether a reasonable trier of fact
could have formed a firm belief or conviction that the finding was true. In re E.N.C.,
384 S.W.3d at 802 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)); see In re
K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). We must give appropriate deference to
the factfinder’s conclusions, which means we must assume that the factfinder
29
resolved disputed facts in favor of its finding if a reasonable factfinder could do so.
In re E.N.C., 384 S.W.3d at 802 (quoting In re J.F.C., 96 S.W.3d at 266). We should
disregard all evidence that a reasonable factfinder could have disbelieved or found
to have been incredible, but this does not mean that we must disregard all evidence
that does not support the finding. Id. (quoting In re J.F.C., 96 S.W.3d at 266).
Disregarding undisputed facts that do not support the finding could skew our
analysis of whether clear and convincing evidence exists. In re J.F.C., 96 S.W.3d at
266. “In cases requiring clear and convincing evidence, even evidence that does
more than raise surmise and suspicion will not suffice unless that evidence is capable
of producing a firm belief or conviction that the allegation is true.” In re K.M.L., 443
S.W.3d at 113. If we determine that no reasonable factfinder could have formed a
firm belief or conviction that the matter that must be proven is true, we must
conclude that the evidence is legally insufficient. In re E.N.C., 384 S.W.3d at 802
(quoting In re J.F.C., 96 S.W.3d at 266).
When a parent challenges the factual sufficiency of the evidence supporting
the trial court’s findings, we review all of the evidence, including disputed or
conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). We should
inquire whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction about the truth of the allegations. In re H.R.M., 209 S.W.3d 105,
108 (Tex. 2006) (per curiam) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)).
30
“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.” In re J.O.A., 283 S.W.3d at 345 (quoting In re J.F.C., 96 S.W.3d at
266). In applying this standard, our review “must not be so rigorous that the only
factfindings that could withstand review are those established beyond a reasonable
doubt.” In re H.R.M., 209 S.W.3d at 108 (quoting In re C.H., 89 S.W.3d at 26); see
also In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (stating that we must still provide
due deference to decisions of factfinder, who had full opportunity to observe witness
testimony and was sole arbiter of assessing witness credibility and demeanor).
B. Statutory Predicate Findings: Endangerment
“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.,
—S.W.3d—, No. 18-0508, 2019 WL 2147263, at *1 (Tex. May 17, 2019) (per
curiam). In In re N.G., the Texas Supreme Court pointed out that because an order
terminating a parent’s rights under subsections 161.001(b)(1)(D) or (E) can be used
as a basis to terminate the parent’s rights to another child under subsection (M),
terminating rights under (D) and (E) has “significant” collateral consequences. See
id. at *2; see also TEX. FAM. CODE ANN. § 161.001(b)(1)(M) (providing that court
31
may terminate parent’s rights if court finds, by clear and convincing evidence, that
parent has had his “parent-child relationship terminated with respect to another child
based on a finding that the parent’s conduct was in violation of Paragraph (D) or (E)
or substantially equivalent provisions of the law of another state”). A parent has due
process rights regarding the care, custody, and control of his children, and due
process requires a heightened standard of review of a trial court’s finding under
subsections (D) and (E), “even when another ground is sufficient for termination,
because of the potential consequences for parental rights to a different child.” In re
N.G., 2019 WL 2147263, at *2–3; In re Z.M.M., —S.W.3d—, No. 18-0734, 2019
WL 2147266, at *1 (Tex. May 17, 2019) (per curiam) (“Because only one ground is
required to terminate parental rights and section 161.001(b)(1)(D) has consequences
for termination of parental rights as to children in a future proceeding under section
161.001(b)(1)(M), terminating parental rights under section 161.001(b)(1)(D)
implicates significant due process concerns for a parent’s care, custody, and control
of his children.”).
The Texas Supreme Court reasoned that when a parent challenges the trial
court’s findings under subsection (D) or (E) on appeal, but the appellate court
reviews a finding under another predicate ground and does not review the (D) and
(E) findings, the appellate court “deprives the parent of a meaningful appeal and
eliminates the parent’s only chance for review of a finding that will be binding as to
32
parental rights to other children.” In re N.G., 2019 WL 2147263, at *3. In
determining that due process requires appellate courts to review a trial court’s
(D) and (E) findings when challenged on appeal by a parent, even when other
predicate grounds support the trial court’s termination order, the court balanced
(1) the parent’s interest in the fundamental right to raise her child, a liberty interest
that was “of the highest importance,” (2) the risk that, by failing to review (D) and
(E) findings, the parent will be automatically denied the right to parent other children
even if insufficient evidence supports the (D) and (E) findings, and (3) the state’s
interest in allowing certain predicate grounds to remain unreviewed on appeal. Id. at
*4.
The court therefore concluded:
[T]he parent’s fundamental liberty interest at stake outweighs the
state’s interest in deciding only what is necessary for final disposition
of the appeal. Allowing section 161.001(b)(1)(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.
Id. The supreme court also held that because subsection (M) provides a basis to
terminate parental rights due to a prior (D) or (E) finding, “the due process concerns,
coupled with the requirement for a meaningful appeal,” require that if we affirm a
termination order based on a (D) or (E) finding, we “must provide the details of [our]
analysis.” Id.; In re Z.M.M., 2019 WL 2147266, at *2 (citing In re N.G. and stating
33
that due process requires appellate court to review and detail its analysis concerning
subsections (D) and (E) when challenged on appeal).
In this case, Truman challenges the sufficiency of the evidence to support the
trial court’s finding that termination of his parental rights was justified under
subsections 161.001(b)(1)(D), (E), (N), and (Q). Jeffrey challenges the sufficiency
of the evidence to support the trial court’s findings under subsections (D), (E), and
(O). Because both fathers challenge the trial court’s findings under subsections (D)
and (E), thus implicating due process concerns, we begin our sufficiency of the
evidence analysis with these two subsections. See In re N.G., 2019 WL 2147263, at
*4; In re Z.M.M., 2019 WL 2147266, at *2.
Family Code section 161.001(b)(1)(D) provides that the trial court may order
termination of the parent-child relationship if it finds by clear and convincing
evidence 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 ANN. § 161.001(b)(1)(D). Section
161.001(b)(1)(E) provides that the trial court may 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).
34
This Court has previously held that “[i]nappropriate, abusive, or unlawful
conduct by persons who live in the child’s home or with whom the child is compelled
to associate on a regular basis in the home is a part of the ‘conditions or
surroundings’ of the child’s home under section D.” Jordan v. Dossey, 325 S.W.3d
700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). An analysis of
endangerment under subsection (D) focuses on evidence of the child’s physical
environment, “although the environment produced by the conduct of the parents
bears on the determination of whether the child’s surroundings threaten his well-
being.” Id.; see In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.]
2014, pet. denied) (“‘Environment’ refers to the acceptability of living conditions,
as well as a parent’s conduct in the home.”). Termination is permissible under
subsection (D) if the Department proves that the parent’s conduct caused a child to
be placed or remain in an endangering environment, and, under subsection (D),
termination may be based upon only a single act or omission. Jordan, 325 S.W.3d
at 721.
With respect to subsection (E), the relevant inquiry is whether evidence exists
that a parental course of conduct endangered the child’s physical or emotional well-
being. Id. at 723. Termination under this subsection must be based on more than a
single act or omission; instead, “what is required is a voluntary, deliberate, and
conscious course of conduct.” Id. This conduct does not have to occur in the presence
35
of the child. Id. In determining whether the Department has established that the
parent engaged in an endangering course of conduct, we may consider evidence
concerning how a parent has treated another child or a spouse. Id. at 724. Under
subsection (E), we consider the child’s environment before the Department obtained
custody of the child. In re S.R., 452 S.W.3d at 360.
“Endanger” means “more than a threat of metaphysical injury or potential ill
effects of a less-than-ideal family environment,” but “endangering conduct need not
be directed at the child.” In re E.N.C., 384 S.W.3d at 803; see Jordan, 325 S.W.3d
at 721 (“It is not necessary that the parent’s conduct be directed towards the child or
that the child actually be injured; rather, a child is endangered when the environment
creates a potential for danger which the parent is aware of but disregards.”); In re
J.J.S., 272 S.W.3d 74, 78 (Tex. App.—Waco 2008, pet. struck) (stating that danger
to child’s physical or emotional well-being may be inferred from parental
misconduct). Endangerment can occur through both acts and omissions. In re N.S.G.,
235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.). Conduct demonstrating
awareness of an endangering environment is sufficient to show endangerment.
Jordan, 325 S.W.3d at 721.
“Conduct that subjects a child to life of uncertainty and instability endangers
the child’s physical and emotional well-being.” Id. at 723. A parent’s drug use and
its effects on the parent’s life and ability to parent may establish an endangering
36
course of conduct. In re A.J.H., 205 S.W.3d 79, 81 (Tex. App.—Fort Worth 2006,
no pet.) (quoting In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004,
pet. denied)). Abusive and violent criminal conduct by a parent can also produce an
endangering environment. Jordan, 325 S.W.3d at 724. Evidence that a person has
engaged in abusive and violent conduct in the past permits an inference that the
person will continue to engage in violent behavior in the future. Id.; see In re N.S.G.,
235 S.W.3d at 367 (stating that while imprisonment, standing alone, is insufficient
to constitute endangering course of conduct, it is factor to be considered on issue of
endangerment). A factfinder may also infer that a parent’s lack of contact with the
child and absence from the child’s life endangered the child’s emotional well-being.
In re R.A.G., 545 S.W.3d at 652.
The Department presented evidence that the children were removed from
Mother’s care following an incident in December 2017 in which Mother, who had
been pulled over for a routine traffic violation, tried to flee the scene after police
officers discovered that she had outstanding warrants and hit another patrol car “head
on.” Michael and Jennifer were sitting in the front seat, unsecured by seatbelts or car
seats. Jennifer was not quite two years old at the time, and because she was acting
lethargic and had bruising and lacerations on her face, officers escorted Mother and
the children to the hospital. Jennifer did not sustain serious injuries, but Mother was
37
placed in custody, and she remained in custody in the Brazos County Jail throughout
the pendency of the underlying termination proceedings.
After the car accident, Michael and Jennifer went to live with their maternal
grandmother, Dierdre, who had been caring for Tamara since August 2017.7 Several
days after the car accident, Hodde met with the children at Dierdre’s house, and she
interviewed Tamara, who told her about the living environment when the children
had lived with Mother. Specifically, Tamara told Hodde that she had observed
Mother using drugs, that Mother had physically abused the children, and that she
was afraid of Mother. Hodde testified:
In regards to drug use, [Tamara] described in detail marijuana use and
observing marijuana. She also described pills of various colors that she
had observed [Mother] take before and described an incident where
[Mother] took a bottle of pills while driving because she was being
stopped by officers.
Hodde also testified that Tamara told her that Mother was “very mean” to Dierdre
and had pushed Dierdre down before. Tamara also told her that Mother had hit her
and Michael on the back of the head, that Mother had caused Michael to have a
bloody nose, and that Mother had threatened to hang Tamara “the last time CPS
talked to [Mother].”
7
Language in Truman’s appellate brief suggests that Tamara went to live with
Dierdre in August 2017 at Truman’s behest. Dierdre testified, however, that Tamara
was the one who asked if she could live with Dierdre before the 2017–2018 school
year started.
38
Dierdre testified that she had been concerned about the children being in
Mother’s care since before the car accident in December 2017. She knew that Mother
was using drugs, and she requested on numerous occasions that Mother allow
Dierdre to keep the children with her, but Mother refused. Dierdre testified that she
spoke with each of the children’s fathers about Mother’s behavior and asked for their
help in getting the children out of Mother’s care, but they did not assist her.
Dierdre testified that she told Truman and Jeffrey that Mother was using drugs
and that the children were not safe in Mother’s home. She stated that when she had
that conversation with Jeffrey, there was “a lot of drama, back and forth, getting into
it, he just told me [Mother’s] crazy, your daughter’s crazy. And that was it.” She also
testified that she had had a conversation with Jeffrey in which he told her that Mother
had “hit his vehicle and he called the [police] on her, and that wasn’t the first or
second time he did it.” Jeffrey told Dierdre that that altercation occurred “[b]ecause
he was supposed to be getting [Jennifer], and he didn’t, and he promised [Mother]
some money.”
Furthermore, although there was no evidence presented that Truman had ever
been violent towards Tamara directly, the Department presented evidence that, on
August 3, 2017, Truman pleaded guilty to multiple offenses, including two counts
of assault–family violence against Mother and one count of injury to a child against
Michael. Truman was serving a twelve-year sentence for these, and other, offenses
39
at the time of the final hearing. The Department also presented evidence that, even
before his incarceration, Truman saw Tamara only sporadically, that Jeffrey had
seen Jennifer perhaps six times since Jennifer was placed in Dierdre’s care, and that
Dierdre had received minimal support for the children from Truman and Jeffrey.
Dierdre estimated that, during the pendency of the case, Jeffrey had provided around
four packs of diapers and $15 for Jennifer, but he never placed any money for
Jennifer’s care on a debit card provided to Dierdre by the Attorney General’s Office
for that purpose. Miller testified that Jeffrey was supposed to contact her to set up
weekly visitation with Jennifer, but he had been “for the most part unresponsive” to
Miller, and he did not respond to any of her text messages seeking to set up visitation
except to respond that he was busy or unavailable.
The Department thus presented evidence that while neither Truman nor
Jeffrey directly harmed their children, the children were subjected to a life of
instability and uncertainty while they lived with Mother, who used drugs in the
children’s presence, who was violent towards the children and towards Dierdre, who
threatened Tamara with violence, and who was involved in multiple altercations with
Jeffrey that led to him calling the police on Mother. See Jordan, 325 S.W.3d at 723–
24; In re A.J.H., 205 S.W.3d at 81 (stating that parent’s drug use may establish
endangering course of conduct). The Department presented evidence that Dierdre
informed Truman and Jeffrey of the unsafe environment in Mother’s household,
40
including informing them that Mother was using drugs, and requested that they help
her remove the children from Mother’s care, but neither Truman nor Jeffrey
provided any assistance. See Jordan, 325 S.W.3d at 721 (stating that child is
endangered when environment creates potential for danger which parent is aware of
but disregards). The record includes evidence that Truman pleaded guilty to
committing acts of violence against Mother and Michael. See id. at 724 (stating that
abusive and violent criminal conduct can produce endangering environment); see
also In re E.N.C., 384 S.W.3d at 803 (stating that endangering conduct need not be
directed toward child). The record also includes evidence that both Truman and
Jeffrey had, at most, sporadic contact with their children, that they provided minimal
financial support for the children, and that Jeffrey was unresponsive to requests by
Department personnel seeking to set up visitation with Jennifer. See In re R.A.G.,
545 S.W.3d at 652 (stating that factfinder can infer from parent’s lack of contact
with child and parent’s absence from child’s life that that behavior endangered
child’s emotional well-being).
We conclude that, viewing the evidence in the light most favorable to the trial
court’s findings, a reasonable factfinder could have formed a firm belief or
conviction that the Department’s allegations that Truman and Jeffrey “knowingly
allowed the child[ren] to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child[ren]” and “knowingly placed the
41
child[ren] with persons who engaged in conduct which endangers the physical or
emotional well-being of the child[ren]” were true. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D), (E); In re E.N.C., 384 S.W.3d at 802 (setting out standard of
review in termination of parental rights cases). We hold that legally sufficient
evidence supports the trial court’s findings that both Truman and Jeffrey committed
these statutory predicate grounds for termination of their parental rights to Tamara
and Jennifer, respectively.
Truman argues that the Department failed to present legally and factually
sufficient evidence under subsections (D) and (E) with respect to him because, at the
time of Mother’s car accident and the removal of Michael and Jennifer from
Mother’s home, Tamara was already living with Dierdre, and there was no evidence
that Dierdre’s house was not an appropriate placement for Tamara or that that
placement endangered Tamara’s physical or emotional well-being because, in fact,
the Department’s goal for Tamara and the children was their adoption by Dierdre.
Subsections (D) and (E), however, do not require courts to look solely to the child’s
environment or endangering conduct occurring at the precise time DFPS became
involved with the child and removed the child from the home. Instead, we are to
consider the child’s environment before the Department’s removal of the child. See
In re S.R., 452 S.W.3d at 360. The trial court therefore permissibly considered the
environment present in Mother’s household when Tamara lived with Mother, as well
42
as the endangering conduct Tamara was exposed to when she lived with Mother, in
determining that Truman knowingly allowed Tamara to remain in Mother’s care
despite the danger to Tamara’s physical and emotional well-being. Neither the trial
court nor this Court on appeal is required to confine our analysis to the circumstances
that existed solely at the time of removal.
In conducting a factual sufficiency review of the trial court’s findings that
termination of Truman’s and Jeffrey’s parental rights was appropriate under
subsections (D) and (E), we review all of the evidence, including disputed or
conflicting evidence, to determine whether a factfinder could reasonably form a firm
belief or conviction about the truth of the allegations. See In re J.O.A., 283 S.W.3d
at 345; In re H.R.M., 209 S.W.3d at 108. At the final hearing, Truman testified that
he was unaware that Mother had been using drugs while the children were in her
care and that, although he spoke with Dierdre about the need to remove the children
from Mother, he asked Dierdre to take action, and she was the one who did not
follow through, contradicting Dierdre’s testimony on this matter. See In re A.B., 437
S.W.3d at 503 (stating that even with heightened standard of review, we must still
give deference to factfinder, which observed witness testimony and was sole arbiter
of assessing witness credibility and demeanor). Although the record contains
conflicting evidence concerning Truman’s knowledge of the environment in
Mother’s household, the evidence contradicting the trial court’s finding is not so
43
significant that the trial court could not have reasonably formed a firm belief or
conviction that Truman was aware that Mother was using drugs and had engaged in
violence towards the children, but allowed Tamara to remain in Mother’s care. We
therefore conclude that the Department presented factually sufficient evidence to
support the trial court’s findings under subsection (D) and (E) with respect to
Truman.
With respect to Jeffrey, Jeffrey argues that the Department’s evidence that he
once called Mother “crazy” in a conversation with Dierdre and that Tamara had
reported that Mother had been violent towards Michael did not establish Jennifer’s
living conditions in the time period leading up to Jennifer’s removal from Mother’s
household. As we have discussed above, the Department presented more evidence
concerning Mother’s household and Mother’s conduct than just Mother having hit
Michael and that Jeffrey once called Mother “crazy.” Furthermore, the endangering
conduct “need not be directed at the child.” In re E.N.C., 384 S.W.3d at 803; see
Jordan, 325 S.W.3d at 721 (“It is not necessary that the parent’s conduct be directed
towards the child or that the child actually be injured; rather, a child is endangered
when the environment creates a potential for danger which the parent is aware of but
disregards.”). The Department presented evidence that Mother used drugs in the
children’s presence, that she was violent towards both Michael and Tamara, that she
had threatened Tamara with violence, that she was violent towards Dierdre, and that
44
Jeffrey himself had called the police on Mother due to her behavior, including on at
least one occasion in which Jeffrey and Mother had a dispute over Jennifer. All of
this evidence is relevant to Jennifer’s living environment and conditions, and the fact
that the Department did not present evidence of a specific act directed towards
Jennifer herself does not render the Department’s evidence legally or factually
insufficient. See Jordan, 325 S.W.3d at 724 (“Evidence as to how a parent has
treated another child or spouse is relevant regarding whether a course of conduct
under section E has been established.”). We therefore conclude that factually
sufficient evidence supports the trial court’s findings under subsection (D) and (E)
with respect to Jeffrey.
We overrule Truman’s first and second issues and Jeffrey’s second and third
issues.8
8
Because we hold that legally and factually sufficient evidence supported the trial
court’s findings on two statutory predicate grounds, subsections (D) and (E), with
respect to both Truman and Jeffrey, we need not address Truman’s third and fourth
issues—that the Department failed to present legally and factually sufficient
evidence that Truman constructively abandoned Tamara under subsection (N) and
that Truman would be incarcerated for two years and would be unable to care for
Tamara during his incarceration under subsection (Q)—or Jeffrey’s fourth issue—
that the Department failed to present legally and factually sufficient evidence that it
removed Jennifer from him for abuse or neglect, as required to sustain a finding that
he violated subsection (O). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (stating
that only one statutory predicate ground is necessary to support termination finding);
In re N.R., 101 S.W.3d 771, 775 (Tex. App.—Texarkana 2003, no pet.) (stating
same); see also In re N.G., —S.W.3d—, No. 18-0508, 2019 WL 2147263, at *1, *4
n.1 (Tex. May 17, 2019) (per curiam) (holding that, although appellate court may
affirm termination order based on one statutory predicate ground, due process
requires appellate court to review trial court’s findings under subsections (D) and
45
C. Best Interest of the Children
“[T]he prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a).
There is a strong, but rebuttable, 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); see TEX. FAM. CODE ANN. § 153.131(b); Jordan, 325 S.W.3d at 729 (noting
that parent-child relationship has constitutional underpinnings, but courts must not
sacrifice child’s emotional and physical interests “merely to preserve that right”).
The Texas Supreme Court has 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 danger to
the child; (4) the parental abilities of the person seeking custody; (5) whether
programs are available to assist the person seeking custody in promoting the best
interests of the child; (6) the plans for the child by the person seeking custody; (7) the
stability of the home; (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
(E) if challenged by parent on appeal, and noting that appellate court’s decision, in
affirming termination order, to review findings under (D) and (E) but not other
predicate grounds challenged by parent on appeal is permissible because “due
process demands no more” than addressing challenged (D) and (E) findings).
46
the parent. 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 of these factors “as a
condition precedent to parental termination.” In re C.H., 89 S.W.3d at 27. The
absence of evidence concerning some of the factors does not preclude a factfinder
from forming a firm belief or conviction that termination is in the children’s best
interest. In re A.C., 394 S.W.3d at 642.
Proof concerning the statutory predicate findings under section 161.001(b)(1)
does not relieve DFPS of its burden of proving that termination is in the children’s
best interest, but “the same evidence may be probative of both issues.” In re C.H.,
89 S.W.3d at 28; Jordan, 325 S.W.3d at 729. The best-interest analysis may consider
circumstantial evidence, subjective factors, and the totality of the evidence as well
as the direct evidence. 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.” Id.; 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).
Miller testified that she visits Dierdre’s home at least once per month and that
every time she sees the children, Michael and Tamara, who was nine at the time of
47
the final hearing, tell her that they wish to stay with Dierdre. Truman had not been
in contact with Tamara since his incarceration in August 2017, in part because he
did not have Dierdre’s current contact information, but Dierdre acknowledged that,
before his incarceration, Truman would see Tamara when she would visit Brenham.9
She estimated that this happened “[m]aybe twice at the most.” Tamara had had
contact with Truman’s family, including his father Joe, who had seen Tamara on the
day of Mother’s car accident in December 2017, on Thanksgiving 2018, and who
had been involved in transporting Tamara and Michael to and from equine therapy
for a time in late summer 2018. In June 2018, Joe had asked Miller if Tamara could
spend a long weekend with his family, but after consulting with Tamara, Miller did
not allow this request. See Holley, 544 S.W.2d at 372 (listing desires of child as
factor to be considered in best-interest analysis).
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. In re R.A.G., 545 S.W.3d at 653;
In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied) (stating same in case in which child was too young to articulate her desires
9
Truman testified that, before he was incarcerated, he could see Tamara every
weekend if Mother was not mad at him and if he was not working.
48
concerning placement). Jennifer, who was two at the time of the final hearing, was
unable to express her desires, but the Department presented evidence that she was
being well-cared for by Dierdre, who was meeting all of the children’s needs, and
that the Department had no concerns with the children’s placement in Dierdre’s
home. Miller testified that Dierdre has exceeded the Department’s expectations in
meeting the children’s needs.
Dierdre estimated that, since Jennifer had been in her care, Jeffrey had seen
her approximately six times. Hodde witnessed Jeffrey interact with Jennifer at the
adversary hearing that occurred in January 2018, and she agreed that “there seemed
to be somewhat of a relationship” between them. Miller testified, however,
concerning her attempts to set up weekly visitation between Jeffrey and Jennifer,
and although Jeffrey had contacted Dierdre on a few occasions asking for a visit,
when Dierdre referred him to Miller, Jeffrey was largely unresponsive to the text
messages that Miller sent him. Miller’s last contact with Jeffrey was in August 2018,
four months before the final hearing. See In re R.J., 568 S.W.3d 734, 752 (Tex.
App.—Houston [1st Dist.] 2019, no pet. h.) (stating that parent’s minimal visitation
and lack of emotional bond with child is relevant to parent’s parenting abilities,
emotional needs of child now and in future, and whether parent-child relationship is
proper). He never responded to her text messages seeking an opportunity to visit his
home, so she was unable to testify as to its suitability for a young child, although
49
Miller did testify that she had driven by Jeffrey’s house and it was “apparently okay
from the outside.”
The Department did not present evidence that Jennifer had any special needs.
Tamara had been diagnosed with dyslexia during the pendency of the case, and at
the time of the final hearing, Dierdre was involved with Tamara’s school as they
worked to formulate plans for any accommodations that Tamara would need as well
as whether Dierdre would need any special training to help her. See id. (considering
foster family’s steps to meet child’s needs, including participating in program to
remedy development delays). Tamara, along with Michael, participated in therapy,
including equine therapy and anger management. Dierdre believed that the
children’s therapy was necessary due to the events that occurred while the children
lived in Mother’s household, before they came into Dierdre’s care.
The Department had no concerns for the children while they were in Dierdre’s
care and did not believe that the children were in any future danger. See In re Z.C.,
280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied) (stating, in context
of best-interest analysis, that “[s]tability and permanence are paramount in the
upbringing of a child”). As we have discussed above, the Department presented
evidence that the children were exposed to drug use and violence when they lived in
Mother’s household and that, although Dierdre informed Truman and Jeffrey of the
danger to the children, they took no steps to remove their daughters from Mother’s
50
care or to assist Dierdre in persuading Mother to allow the children to stay with
Dierdre. See Jordan, 325 S.W.3d at 729 (stating that same evidence used to support
statutory predicate findings may also be probative to best interest finding). Truman
testified that he could not do anything to help because he had an open child support
case at the time and trying to get Tamara away from Mother “would be going against
[his] Court order.” See Holley, 544 S.W.2d at 372 (considering any excuse for acts
or omissions of parent).
The Department also presented evidence that Truman’s criminal history
included recent convictions for family violence against Mother and injury to a child
against Michael, and Truman’s family violence convictions were felony convictions,
indicating that he had previous convictions for family violence. See, e.g., TEX.
PENAL CODE ANN. § 22.01(b)(2), (b-2) (providing that assault is typically Class A
misdemeanor, but it is third-degree felony if committed against person with whom
defendant has dating relationship and defendant has previous family violence
conviction, and it is second-degree felony if committed against person with whom
defendant has dating relationship, defendant has prior family violence conviction,
and offense is committed by impeding complainant’s normal breathing or
circulation); see also In re R.J., 568 S.W.3d at 754 (stating that evidence of domestic
violence in home is relevant to several Holley factors including emotional and
physical danger to child now and in future, parental abilities, and stability of home);
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Jordan, 325 S.W.3d at 724 (“Evidence that a person has engaged in abusive conduct
in the past permits an inference that the person will continue violent behavior in the
future.”).
The Department presented evidence that neither Truman nor Jeffrey availed
themselves of any parenting classes or other programs that would assist them in
promoting their daughters’ best interests. Truman, although incarcerated,
acknowledged that there are classes available through the prison system that can help
him—such as AA classes, anger management classes, and cognitive intervention
classes—and that completion of such classes was mandatory for him to be released
on parole, but he testified that he had not started any of those classes. Miller testified
that Jeffrey had expressed to her that he believed he did not need to complete any of
the requirements of the service plan, which included a requirement that he participate
in counseling and parenting classes.
Truman testified that, upon his release from prison, which will occur by July
2029, at the latest, he plans to move into his father Joe’s house. He expressed a desire
for Tamara to continue living with Dierdre during the week, but on weekends,
Tamara could stay with him at Joe’s house, where she would have her own room.
Although Jeffrey’s ad litem counsel stated during her opening statement that Jeffrey
was “very interested in continuing his relationship” with Jennifer, there is no
indication in the record of what plans, if any, Jeffrey has for Jennifer. Instead, Jeffrey
52
informed both Hodde and Miller during the pendency of the case that he wanted
Jennifer to remain in Dierdre’s care and that he did not want her returned to Mother.
There is no indication in the record that he ever expressed an interest in having
custody of Jennifer. Dierdre testified that she had not received any support for
Tamara from Truman or his family, and she had received around four packs of
diapers and $15 from Jeffrey for Jennifer. She stated that the Attorney General’s
Office had given her a debit card that Jeffrey was to place money on for Jennifer’s
care, but he did not do so.
Dierdre testified that she wanted to adopt all three children, and the
Department agreed that this was their preferred outcome for the children. Miller
testified that the Department had assisted Dierdre in moving to a bigger apartment
to accommodate the children and in providing necessities for the children, such as
beds and bedding. Miller testified that the children would receive financial benefits
if they were adopted by Dierdre, including remaining on the state Medicaid program
until at least age twenty-one, free tuition to Texas public universities, and an
adoption subsidy. Miller also testified that, since being in Dierdre’s care, the children
have attended all of their doctor’s appointments and that Dierdre “has exceeded the
expectations of the Department in meeting these children’s needs.” Dierdre testified
that her plans were “[t]o take care of [the children] to the best of [her] knowledge
like [she has] been doing and get them as much help as [she] can do.” See Holley,
53
544 S.W.2d at 372 (stating that factors relevant to best interest finding include
child’s current and future physical and emotional needs, parental abilities of person
seeking custody, programs available to assist person seeking custody in promoting
best interest of child, and plans for child by person seeking custody); In re R.J., 568
S.W.3d at 751.
The Department acknowledged that neither Truman nor Jeffrey had ever taken
any actions that directly harmed Tamara and Jennifer, and Hodde, Miller, and
Dierdre all testified that they did not believe Truman and Jeffrey were a danger to
Tamara and Jennifer. Dierdre testified that, even if the trial court terminated
Truman’s and Jeffrey’s parental rights, she would allow both men to visit their
daughters as long as they were safe and not using drugs. She also stated that she
would allow Truman’s family to continue speaking with and seeing Tamara.
Although this evidence weighs against a finding that termination of Truman’s and
Jeffrey’s parental rights is in Tamara’s and Jennifer’s best interests, the Department
also presented evidence that the children had been exposed to an endangering
environment when they lived with Mother, that Truman and Jeffrey knew about this
dangerous environment, and that they provided no assistance in improving the
children’s living situation. The Department also presented evidence that both
Truman and Jeffrey have provided scant support for the children and that they have
had sporadic contact with the children. The record reflects that Jeffrey, in particular,
54
has expressed little desire in acting as a parent to Jennifer, informing DFPS
caseworkers that it was not his preference to have custody of Jennifer, but she should
instead remain with Dierdre. See In re S.C.F., 522 S.W.3d 693, 702 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied) (considering facts that father left children with
neglectful mother, he “called on the Department to take custody of his children rather
than caring for them himself,” he visited children only when Department scheduled
visits, and he offered no reason for why he left children in unsafe environment with
mother).
We therefore conclude that, considering the evidence in the light most
favorable to the trial court’s finding and considering all of the evidence, including
disputed and conflicting evidence, a factfinder could have reasonably formed a firm
belief or conviction that termination of Truman’s parental rights to Tamara and
Jeffrey’s parental rights to Jennifer was in the children’s best interests. See TEX.
FAM. CODE ANN. § 161.001(b)(2); In re E.N.C., 384 S.W.3d at 802; In re H.R.M.,
209 S.W.3d at 108. We hold that the Department presented legally and factually
sufficient evidence to support the trial court’s best interest finding.
We overrule Truman’s and Jeffrey’s fifth issues.
55
Conclusion
We affirm the judgment of the trial court terminating Truman’s parental rights
to Tamara and terminating Jeffrey’s parental rights to Jennifer.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Kelly, and Goodman.
56