in the Interest of M.R.H., a Child

IN THE
TENTH COURT OF APPEALS
No. 10-21-00231-CV
IN THE INTEREST OF M.R.H., A CHILD
From the 413th District Court
Johnson County, Texas
Trial Court No. DC-D202000896
MEMORANDUM OPINION
After a bench trial, the parental rights of B.C.H. and L.A.L. were terminated as to
their child, M.R.H. Only B.C.H. has appealed. In six issues, B.C.H. challenges the
sufficiency of the evidence supporting the three predicate findings, the sufficiency of the
evidence supporting the best-interest finding, the trial court’s rejection of his affirmative
defense to subsection 161.011(b)(1)(O) of the Texas Family Code, and the trial court’s
failure to grant a motion to extend the dismissal deadline in this case. Because we
overrule all of B.C.H.’s issues, we affirm.
The Three Predicate Findings
In his first three issues, B.C.H. contends that the record does not contain legally or
factually sufficient evidence to support the trial court’s predicate findings under sections
161.001(b)(1)(D), (b)(1)(E), and (b)(1)(O). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),
(b)(1)(E), (b)(1)(O).
STANDARD OF REVIEW
The standards of review for legal and factual sufficiency in cases involving the
termination of parental rights are well established and will not be repeated here. See In
re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002); In re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009);
see also In re J.F.-G., 612 S.W.3d 373, 381-82 (Tex. App.—Waco 2020), aff’d, 627 S.W.3d 304(Tex. 2021). If multiple predicate violations are found by the factfinder, we will affirm
based on any one finding because only one finding is necessary for termination of
parental rights. See In re J.S.S., 594 S.W.3d 493, 503 (Tex. App.—Waco 2019, pet. denied).
Moreover, we give due deference to the factfinder’s findings and must not substitute our
judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The
factfinder is the sole judge “of the credibility of the witnesses and the weight to give their
testimony.” Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied).
In the Interest of M.R.H. Page 2
DISCUSSION
Termination under section 161.001(b)(1)(E) requires clear and convincing evidence
that the parent has “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.”
TEX. FAM. CODE ANN. § 161.001(b)(1)(E). To endanger means to expose to loss or injury,
to jeopardize. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see In re
M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam). An endangerment finding often
involves physical endangerment, but it is not necessary to show that the parent’s conduct
was directed at the child or that the child suffered actual injury. Boyd, 727 S.W.2d at 533.
The specific danger to a child’s physical or emotional well-being need not be established
as an independent proposition, but it may be inferred from parental misconduct. Id. In
our endangerment analysis pursuant to section 161.001(b)(1)(E), we may consider
conduct both before and after the Department removed the children from their parent.
In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
In the instant case, L.A.L., M.R.H.’s mother, testified that she was in a relationship
with B.C.H. for a year-and-a-half and that the relationship culminated with the birth of
M.R.H.1 L.A.L. recalled that there were incidents of domestic violence between B.C.H.
and her. Specifically, L.A.L. stated that:
1L.A.L. executed an affidavit of voluntary relinquishment prior to trial. She does not challenge the
termination of her parental rights to M.R.H.
In the Interest of M.R.H. Page 3
The abuse started while I was pregnant. I was five months pregnant. I had
caught him cheating and I was trying to leave and he put his hands around
my neck and shoved me up against the wall. I pushed him away and he
fell back and broke a glass coffee table. I tried to run out, he grabbed my
arm, left a bruise. I had no clothes on. I just had a shirt and no underwear.
I was pregnant in Arlington. I had to walk the streets for hours until I felt
safe enough to come back.
L.A.L. feared for her life because of the incident.
When asked if there had been any other incidents of domestic violence, L.A.L.
responded,
Yes. I believe [M.R.H.] was just barely a few weeks old and I was holding
him in my arms. I don’t remember what the argument was about, but I was
trying to call the police because he was threatening me. He grabbed my
tablet and my phone and he smashed them. I got on the laptop and I texted
my mom and told her to call 911. The police came, they investigated and
they didn’t do anything to arrest him. I didn’t want to press charges.
L.A.L. denied that B.C.H. caused her any physical injury during this incident. However,
she recounted that:
I was sitting on the couch holding [M.R.H.] in my arms and he was coming
towards me to take [M.R.H.] from me, and I was worried that he was going
to do something to him or me, so I was in the course of protecting my baby.
So I just hit him and kicked him and scratched him in the face and the police
came and they just said that that was defense marks and that [B.C.H.] had
agreed that I was defending myself against him.
Later, L.A.L. testified about an incident of animal abuse involving B.C.H.
According to L.A.L., B.C.H. got mad at the family cat for urinating on the carpet and
attempted to drown the cat. B.C.H. also punched the cat in the face, breaking the cat’s
In the Interest of M.R.H. Page 4
teeth. L.A.L. emphasized that B.C.H. engaged in animal abuse on over ten occasions.
L.A.L. also stated that B.C.H. told her that he was going to kill her if she ever left him.
Domestic violence, want of self-control, and propensity for violence may be
considered as evidence of endangerment. See In re B.J.B., 546 S.W.2d 674, 677 (Tex. Civ.
App.—Texarkana 1977, writ ref’d n.r.e.); see also Sylvia M. v. Dallas County Child Welfare
Unit, 771 S.W.2d 198, 201-04 (Tex. App.—Dallas 1989, no writ). Abusive or violent
conduct by a parent or other resident of a child’s home may produce an environment that
endangers the physical or emotional well-being of a child. In re K.A.S., 131 S.W.3d 215,
222 (Tex. App.—Fort Worth 2004, pet. denied); see Ziegler v. Tarrant County Child Welfare
Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.) (noting that
violent or abusive conduct by someone within the household is an environment that
endangers children).
L.A.L.’s testimony described several instances of domestic violence and animal
abuse that B.C.H. engaged in, which demonstrates a propensity for violence that may be
considered as evidence of endangerment. See Sylvia M., 771 S.W.2d at 201-04; see also
Ziegler, 680 S.W.2d at 678; In re B.J.B., 546 S.W.2d at 677. This is of particular importance
given the reason that four-month-old M.R.H. was removed from the home. The record
shows that B.C.H. was alone with M.R.H. for approximately forty-five minutes while
L.A.L. was out of the house, and when she returned, the paramedics were at the house
treating M.R.H. for an apparent seizure. When examined by a doctor, M.R.H. was
In the Interest of M.R.H. Page 5
discovered to have “several hematomas, ligament injuries, as well as fractures on his
vertebrae, spinal hemorrhage and healing fractures to his ribs.” B.C.H. was arrested and
ultimately charged for the injuries sustained by M.R.H.
Moreover, S.M.B., L.A.L.’s mother, recalled speaking to B.C.H. on the phone
several times on the day that M.R.H. had a seizure. S.M.B.’s first conversation with B.C.H.
involved him asking where L.A.L. was. S.M.B. described B.C.H. as “upset because he
couldn’t find her. He didn’t know where she was.” During this conversation, B.C.H. was
alone with M.R.H. S.M.B. called L.A.L., but was unable to get ahold of her. S.M.B.
informed B.C.H. that she could not reach L.A.L. S.M.B. heard M.R.H. “cooing, not crying
or anything, but just kind of cooing in the background, and I said, just take care of
[M.R.H.] and I’ll keep trying to find her and I’ll let you know if I hear anything.” As
S.M.B. informed B.C.H. of her subsequent efforts to reach L.A.L., B.C.H. became “furious.
He started making all kinds of allegations that she’s cheating on me, I know she’s cheating
on me. She needs to get back here and take care of this kid . . . .” In S.M.B.’s next
conversation with B.C.H. approximately ten minutes later, B.C.H. “was hysterical and
said [M.R.H.] is not breathing. What do I do?”
S.M.B. also testified that she observed B.C.H. to have a “hot temper” and that she
“heard him and [L.A.L.] fighting constantly, like several times per week, and eventually,
I said no, no more. I’m not going to let him do that, so I asked him to leave [S.M.B.’s
house].” Both S.M.B. and L.A.L. are fearful of B.C.H.’s temper.
In the Interest of M.R.H. Page 6
Additionally, CPS caseworker Brandi Jones testified that B.C.H. tested positive for
marihuana in November 2020, while this case was pending. See In re J.T.G., 121 S.W.3d
117, 125 (Tex. App.—Fort Worth 2003, no pet.) (noting that illegal narcotics use supports
a finding that a child’s surroundings endanger his physical and emotional well-being);
see also In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied) (stating
that a history of illegal drug use is conduct that subjects a child to a life that is uncertain
and unstable, thus endangering his physical and emotional well-being). Jones further
testified that B.C.H. failed to complete his family service plan, including failing to
undergo a psychological examination; failing to complete individual counseling; failing
to complete the Batterers’ Intervention Prevention Program; failing to meet with Jones in
person or allow her to do a home visit; refusing to provide Jones with proof of
employment, although he was allegedly employed for three months of this case; and
refusing to provide verification of housing. See In re R.F., 115 S.W.3d 804, 811 (Tex.
App.—Dallas 2003, no pet.) (considering, as part of the endangering-conduct analysis, a
parent’s failure to complete a service plan).
Based on the foregoing evidence, we conclude the evidence is sufficiently clear
and convincing to support the trial court’s findings under section (b)(1)(E). Looking at
the evidence in the light most favorable to the finding of the trial court, we conclude that
a reasonable factfinder could have formed a firm conviction that B.C.H. “engaged in
conduct or knowingly placed the child with persons who engaged in conduct which
In the Interest of M.R.H. Page 7
endangers the physical or emotional well-being of the child.” TEX. FAM. CODE ANN. §
161.001(b)(1)(E); see In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266. Moreover,
the disputed evidence on the matter is not so significant that the factfinder could not have
formed a firm conviction or belief that its finding was true. See TEX. FAM. CODE ANN. §
161.001(b)(1)(E); see also In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266-67.
Moreover, because only one finding is necessary for the termination of parental
rights, we need not address B.C.H.’s complaints regarding the predicate grounds under
sections (b)(1)(D) and (b)(1)(O). See TEX. R. APP. P. 47.1, 47.4; see also In re J.S.S., 594 S.W.3d
at 503; In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (requiring a review of findings under
sections (b)(1)(D) or (b)(1)(E), if such findings were made by the trial court). Accordingly,
we overrule B.C.H.’s first three issues.
B.C.H.’s Affirmative Defense to Section 161.001(b)(1)(O)
In his fourth issue, B.C.H. argues that the evidence is legally and factually
insufficient to establish that: (1) he did not prove by a preponderance of the evidence
that he was unable to comply with the specific provisions of the family service plan under
section 161.001(b)(1)(O); (2) he failed to make a good-faith effort to comply with the
family service plan; and (3) any failure to comply is not attributable to any fault of his
own. Again, because only one predicate finding is necessary for termination of parental
rights, see In re J.S.S., 594 S.W.3d at 503, and because we have already concluded that the
In the Interest of M.R.H. Page 8
record contains legally and factually sufficient evidence to support the trial court’s
finding under section 161.001(b)(1)(E), we overrule B.C.H.’s fourth issue.
The Best-Interest Finding
In his fifth issue, B.C.H. complains that the evidence is legally and factually
insufficient to support the finding that termination of his parental rights to M.R.H. is in
M.R.H.’s best interest. We disagree.
APPLICABLE LAW
In determining the best interest of the child, a number of factors are considering,
including (1) the desires of the child, (2) the emotional and physical needs of the child
now and in the future, (3) the emotional and physical danger to the child now and in the
future, (4) the parental abilities of the individuals seeking custody, (5) the programs
available to assist these individuals, (6) the plans for the child by these individuals, (7)
the stability of the home, (8) the acts or omissions of the parent that may indicate the
existing parent-child relationship is not a proper one, and (9) any excuse for the acts or
omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re E.N.C.,
384 S.W.3d 796, 807 (Tex. 2012). The Department need not prove all the Holley factors as
a “condition precedent” to termination, and the absence of evidence of some factors does
not bar the factfinder from finding by clear and convincing evidence that termination of
parental rights is in the child’s best interest. In re C.H., 89 S.W.3d at 27; see Spurck v. Tex.
Dep’t of Family & Protective Servs., 396 S.W.3d 205, 222 (Tex. App.—Austin 2013, no pet.).
In the Interest of M.R.H. Page 9
Furthermore, the Holley factors focus on the best interest of the child, not the best interest
of the parent. Dupree, 907 S.W.2d at 86.
DISCUSSION
In the instant case, M.R.H. was four months old at the time of removal and
approximately fifteen months old at the time of trial; thus, he was too young to express
his desires. However, the child has been placed with a foster family since removal, and
this placement is safe and stable with the child being cared for appropriately. See In re
L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (noting
that when a child is too young to express his or her desires, the court may consider the
quality and extent of his or her relationships with prospective placements, and evidence
that a child is well cared for and is bonded with the foster family and has spent minimal
time in the presence of his or her parents). The foster mom emphasized that M.R.H. is
bonded to her and that her family would like to adopt him. See In re S.H.A., 728 S.W.2d
73, 92 (Tex. App.—Dallas 1987, writ ref’d n.r.e.) (en banc) (stating that the need for
permanence is a paramount consideration for a child’s present and future physical and
emotional needs). Moreover, Jones noted that despite the numerous injuries sustained
by M.R.H. and his continued need for physical therapy, M.R.H. is doing well in his
current placement and that all of his needs are being met.
The record also demonstrates several instances of domestic violence and animal
abuse, some of which transpired in M.R.H.’s presence. See Williams v. Williams, 150
In the Interest of M.R.H. Page 10
S.W.3d 436, 451 (Tex. App.—Austin 2004, pet. denied) (noting that evidence of past
misconduct or neglect can be used to measure a parent’s future conduct); Ray v. Burns,
832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past is prologue.”); see also In re
A.M., 385 S.W.3d 74, 82-83 (Tex. App.—Waco 2012, pet. denied) (concluding that
evidence of Mother’s history of neglecting or endangering children by exposing them to
domestic violence supported the trial court’s finding that termination was in the child’s
best interest).
Furthermore, Jones recounted that B.C.H. made little progress on his family
service plan and that he tested positive for marihuana while this case was pending. See
Wilson v. State, 116 S.W.3d 923, 925 (Tex. App.—Dallas 2003, no pet.) (noting that a
parent’s poor parenting skills and lack of motivation to “learn how to improve those
skills” supports a finding that termination is in the child’s best interest); In re N.J.H., 575
S.W.3d 822, 832 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (stating that illegal
drug use is a circumstance that can contribute to an unstable lifestyle and is relevant in
determining present and future danger to a child’s physical and emotional well-being);
In re E.R.W., 528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“The
fact finder can give great weight to the significant factor of drug-related conduct.”
(internal citations & quotations omitted)). Additionally, B.C.H. refused to allow CPS to
conduct a home study on where he was staying, and B.C.H. did not maintain stable
housing or employment throughout this case. See In re M.R., 243 S.W.3d 807, 821 (Tex.
In the Interest of M.R.H. Page 11
App.—Fort Worth 2007, no pet.) (“Evidence of a parent’s unstable lifestyle can also
support a factfinder’s conclusion that termination is in the child’s best interest.”). Nor
does the record reflect that B.C.H. has future plans for his living situation and
employment should his parental rights to M.R.H. not be terminated. In fact, B.C.H.
stands charged for the injuries sustained by M.R.H. on the day in question. And because
of his pending charges, B.C.H. has not seen M.R.H. since his removal more than a year
ago.
Based on our review of the record, we find that the above-mentioned evidence
addresses several of the Holley factors and that those factors weigh in favor of the trial
court’s order of termination. See 544 S.W.2d at 371-72. We therefore conclude that the
evidence presented in legally and factually sufficient for a factfinder to form reasonably
a firm belief or conviction that termination of B.C.H.’s parental rights is in the best interest
of M.R.H. Accordingly, we overrule B.C.H.’s fifth issue.
B.C.H.’s Motion to Extend the Dismissal Deadline
In his sixth issue, B.C.H. asserts that the trial court erred by failing to grant his
motion to extend the dismissal deadline of this case.
We review a trial court’s decision to grant or deny an extension of the dismissal
deadline under an abuse-of-discretion standard. See In re M.S., 602 S.W.3d 676, 679 (Tex.
App.—Texarkana 2020, no pet.); see also In re D.W., 249 S.W.3d 625, 647 (Tex. App.—Fort
Worth 2008, pet. denied). Pursuant to section 263.401(a), a termination suit filed by the
In the Interest of M.R.H. Page 12
Department is automatically dismissed on the first Monday after the first anniversary of
the date a trial court renders a temporary order appointing the Department as temporary
managing conservator if the trial court has neither commenced the trial on the merits nor
granted an extension. TEX. FAM. CODE ANN. § 263.401(a). The trial court may grant an
extension of up to 180 days if it finds that “extraordinary circumstances necessitate the
child remaining in the temporary managing conservatorship of the [D]epartment and
that continuing the appointment of the [D]epartment as temporary managing
conservator is in the best interest of the child. Id. § 263.401(b). The focus is on the needs
of the child, whether extraordinary circumstances necessitate the child remaining in the
temporary custody of the Department, and whether continuing such is in the best interest
of the child. Id.; see In re M.S., 602 S.W.3d at 679.
In his first amended motion for a de novo hearing and motion for new trial and at
the de novo hearing, B.C.H. argued that the dismissal date should have been extended to
allow him to resolve his criminal matter to participate more fully in the termination case.
In addition, B.C.H. asserted that the dismissal date should have been extended to
complete a social study on his cousin, to allow him to participate in mediation, and to
allow him more time to complete his family service plan.
The record reflects that, despite his pending criminal charges, B.C.H. could
participate in services without making admissions that could be used against him later
and that these services would be paid for by the Department. Jones testified regarding
In the Interest of M.R.H. Page 13
these services, many of which were available by Zoom or the telephone. However, Jones
emphasized that B.C.H. “refused to cooperate.” Jones further noted that B.C.H. failed to
undergo a psychological examination; failed to complete individual counseling; failed to
complete the Batterers’ Intervention Prevention Program; failed to meet with Jones in
person or allow her to do a home visit; refused to provide Jones with proof of
employment, although he was allegedly employed for three months of this case; and
refused to provide verification of housing during the pendency of this case.
Regarding B.C.H.’s criminal case, the Department stated at the de novo hearing
that the criminal case is set for January 2022, but there is no guarantee that the case would
be resolved by then. Accordingly, the Department mentioned “we may find ourselves in
the exact same position we’re in today, waiting for a criminal case to resolve so that we
can get this case started, what will then be a year-and-a-half after [M.R.H.] came in to the
Department’s care.” Furthermore, the State alleges that B.C.H.’s confinement is the result
of his actions, and “‘[a]ctions that are considered to be the parent’s fault will generally
not constitute extraordinary circumstances.’” In re M.S., 602 S.W.3d at 680 (quoting In re
J.S.S., 594 S.W.3d at 501); see, e.g., In re A.S., No. 10-12-00104-CV, 2016 Tex. App. LEXIS
10697, at *6 (Tex. App.—Tyler Sept. 30, 2016, no pet.) (mem. op.) (“A parent’s
[confinement or] incarceration is generally considered to be the parent’s fault and not an
extraordinary circumstance.”).
In the Interest of M.R.H. Page 14
With respect to the social study on B.C.H.’s cousin, the record indicates that the
Department did not consider her initially because the Department explored placements
with the mother’s family first. The cousin testified that she was eventually considered on
April 8, 2021. She also acknowledged that the Department did a home study that lasted
four-and-a-half hours. However, the Department decided to not place M.R.H. with the
cousin because her fiancée failed to meet with the Department or attend three scheduled
visits. The Department determined that it could not make any recommendation
regarding the cousin without meeting all adult home members.
And finally, mediation in this case was scheduled for the day prior to trial.
However, Jones testified that B.C.H. had not contacted her since early July 2021—about
two months prior to trial. And despite the Department’s ability to accommodate, B.C.H.
did not request that mediation be conducted via Zoom, nor did he request transportation
assistance. Rather, he simply chose not to attend mediation.
Based on the foregoing, the trial court could determine that B.C.H. failed to
demonstrate extraordinary circumstances and that it would be in M.R.H.’s best interests
for the extension to be granted. Section 263.401’s “clear preference is to complete the
process within the one-year period . . . . Because the statutory language prefers finality
to suit and because we cannot say that the trial court abused its discretion in denying
[the] extension,” we overrule B.C.H.’s sixth issue. In re A.J.M., 375 S.W.3d 599, 604-05
(Tex. App.—Fort Worth 2012, pet. denied); see In re M.S., 602 S.W.3d at 680.
In the Interest of M.R.H. Page 15
Conclusion
Having overruled all of B.C.H.’s issues on appeal, we affirm the trial court’s order
of termination.
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson,
and Justice Smith
Affirmed
Opinion delivered and filed December 1, 2021
[CV06]
In the Interest of M.R.H. Page 16