in the Interest of C.A.G., AKA C.G., J.P.G., AKA J.G., Children

Affirmed and Memorandum Opinion filed October 2, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00368-CV
IN THE INTEREST OF C.A.G., AKA C.G.; J.P.G., AKA J.G., CHILDREN
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2016-05227J
MEMORANDUM OPINION
The trial court terminated the parental rights of A.G. (Mother) and appellant
L.G. (Father) to their children, Carlos and Jana,1 and appointed the Texas
Department of Family and Protective Services (the Department) to be the children’s
managing conservator. Father challenges the sufficiency of the evidence to support
termination. Mother does not appeal. We affirm.
1
Carlos and Jana are pseudonyms. Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
BACKGROUND
A. Background
The Department received a referral in July 2016 alleging physical abuse of
then-18-month-old Jana by an unknown perpetrator. According to the referral, Jana
had facial injuries reportedly caused by a fall. The Department was told Carlos and
Jana were in the care of a woman named Yolanda because Mother was incarcerated.
When the Department spoke to Mother, she denied the children were with Yolanda,
insisting she left them with Father. The children were located with Father a month
later.2 At that time, Jana did not appear to have bruises or marks, and Carlos denied
any abuse or neglect.
In September 2016, the Department filed its original petition for protection of
the children, seeking managing conservatorship of the children and termination of
Mother’s and Father’s parental rights. The Department sought removal of the
children. Following a full adversary hearing, the trial court found there was sufficient
evidence of a continuing danger to the children’s physical health or safety and
allowing them to remain with Mother or Father was contrary to their welfare. Based
on that and other findings, the trial court ordered the children to be removed from
Mother’s and Father’s care and named the Department as their temporary managing
conservator.
B. Trial
The case went to trial in 2018. The Department presented testimony from
caseworker Jessike’a Ledesma, Child Advocate Dave Gutacker, and Mother. Father
testified on his own behalf but did not call other witnesses. The Department’s
documentary evidence included Father’s family service plan and the court order
2
The record suggests the delay was due in part to staffing issues within the Department
rather than acts or omissions by either parent.
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adopting it; written reports by Ledesma and Gutacker; Father’s drug tests results;
and judgments of Father’s criminal convictions. Father’s evidence included
certificates of his completion of a parenting course and a drug-and-alcohol course.3
1. Evidence about the children
Carlos had just begun first grade when he was removed from the home.
According to Ledesma, he was “not able to read and write properly” at that time and
appeared to have had no social interaction. She testified Carlos “did not know his
colors” or any letters. Father disagreed, testifying he had “worked with” Carlos
before removal. The children were placed together in a foster-to-adopt home. Almost
eight years old at the time of trial, Carlos had improved greatly. He had to repeat
first grade, but the school provided him extra support and he was progressing well.
In a permanency report to the court, Ledesma described Carlos as “very energetic,
outgoing, playful, talkative, and not afraid to ask a lot of questions.” Jana, then three
years old, was said to be “very engaging, friendly, and affectionate.” Ledesma noted
both children interacted well with others and displayed age appropriate social skills.
Child Advocates recommended termination of Father’s parental rights based
on his long criminal history. Gutacker said the foster parents ensured Jana received
an Early Childhood Intervention (ECI) evaluation and arranged for Carlos to
undergo testing for attention deficit hyperactivity disorder (ADHD) and other
conditions. The foster parents planned to adopt Carlos and Jana if the parents’ rights
were terminated. Gutacker believed both children had assimilated well and
characterized the foster family as a “good long term solution” for them. Gutacker
testified Carlos recently told him he wanted to stay with his foster parents.
3
Because Mother has not appealed, we discuss evidence about her only when relevant to Father.
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2. Evidence about Father’s criminal history
The record reflects more than 20 years of steady criminal activity by Father,
beginning in 1996. In addition to nine convictions for theft, Father was convicted of
making a terroristic threat, possession of a controlled substance (twice), possession
of a dangerous drug, failure to stop and provide identification, possession of an
unlawful weapon, and harassment. The harassment charge alleged Father threatened,
in writing, to murder Mother. Even though he pleaded guilty to that offense, at trial
both Father and Mother denied he made such a threat.
Father was convicted twice of driving while intoxicated with a child younger
than 15 years old in the car. The child underlying each of those convictions was
Carlos, first when he was 18 months old and again when he was almost five.
In total, Father has been sentenced to almost eight years’ confinement. Nearly
six of those years were the result of the eight crimes Father committed when Mother
was pregnant with Carlos or after Carlos was born. He began his most recent
sentence—two years’ confinement for theft—about seven months after the children
were removed. He was scheduled to be released very soon after trial, less than a year
into his sentence.
The trial court found (1) Father engaged in the conduct described in
subsections E and O of section 161.001(b)(1) of the Family Code, and
(2) termination of his parental rights was in the children’s best interest. The trial
court appointed the Department to be the children’s managing conservator.
ANALYSIS
Father raises two issues on appeal. First, he contends the evidence is legally
and factually insufficient to support the trial court’s finding under subsection O of
section 161.001(b)(1) of the Family Code. Second, he contends the evidence is
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factually insufficient to support the trial court’s best-interest finding.
I. Burden of proof and standards of review
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980);
In re J.E.M.M., 532 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). However, the child’s emotional and physical interests must not be sacrificed
to preserve parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Parental rights can be terminated if clear and convincing evidence shows
(1) the parent committed an act described in section 161.001(b)(1) of the Family
Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001(b)(1), (2). Only one predicate finding under section 161.001(b)(1), along
with the best-interest determination, is necessary to support termination. In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003). “‘Clear and convincing evidence’ means the
measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.” Tex.
Fam. Code Ann. § 101.007. This high burden reflects the severity of termination.
The heightened burden of proof results in heightened standards of review for
evidentiary sufficiency:
 Legal sufficiency. We consider all the evidence in the light most
favorable to the finding to determine whether a reasonable fact finder
could have formed a firm belief or conviction that its finding was true.
We assume the fact finder resolved disputed facts in favor of its finding
if a reasonable fact finder could do so, and we disregard all evidence a
reasonable fact finder could have disbelieved. In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002).
 Factual sufficiency. We consider and weigh all the evidence, including
disputed or conflicting evidence, to determine whether a reasonable fact
finder could have formed a firm belief or conviction that its finding was
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true. We consider whether disputed evidence is such that a reasonable
fact finder could not have resolved that dispute in favor of its finding.
C.H., 89 S.W.3d at 25.
The fact finder is the sole arbiter when assessing the credibility and demeanor
of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re H.R.M., 209 S.W.3d
105, 109 (Tex. 2006) (per curiam). We may not second-guess the fact finder’s
resolution of a factual dispute by relying on disputed evidence or evidence the fact
finder “could easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003).
II. Predicate ground for termination: Endangerment
A. Legal standards
Section 161.001(b)(1)(E) of the Family Code requires 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.” Tex. Fam. Code Ann. § 161.001(b)(1)(E). “To endanger” means
to expose a child to loss or injury or to jeopardize a child’s emotional or physical
health. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); In re S.R., 452 S.W.3d 351,
360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). “Conduct” includes acts
and failures to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). The parent’s conduct both before and after the Department removed the
child from the home is relevant to a subsection E inquiry. S.R., 452 S.W.3d at 361
(considering parent’s criminal behavior and imprisonment before and after removal).
A finding of endangerment under subsection E requires evidence the
endangerment resulted from the parent’s conduct, including acts, omissions, or
failures to act. Id. at 360. Termination under subsection E must be based on more
than a single act or omission; the statute requires a voluntary, deliberate, and
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conscious course of conduct by the parent. Id. at 361. A court properly may consider
actions and inactions occurring both before and after a child’s birth to establish a
“course of conduct.” In re S.M., 389 S.W.3d 483, 491–92 (Tex. App.—El Paso 2012,
no pet.). While endangerment often involves physical endangerment, the statute does
not require that conduct be directed at a child or that the child actually suffer injury.
Rather, the specific danger to the child’s well-being may be inferred from the
parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,
533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738–39 (Tex. App.—Fort Worth 2004,
pet. denied). A parent’s conduct that subjects a child to a life of uncertainty and
instability endangers the child’s physical and emotional well-being. In re A.L.H.,
515 S.W.3d 60, 92 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
A parent’s criminal conduct, convictions, or imprisonment is relevant to the
question of whether the parent engaged in a course of conduct that endangered the
well-being of the child. S.R., 452 S.W.3d at 360–61; A.S. v. Tex. Dep’t of Family &
Protective Servs., 394 S.W.3d 703, 712–13 (Tex. App.—El Paso 2012, no pet.).
Imprisonment alone is not an endangering course of conduct but is a fact properly
considered on the endangerment issue. Boyd, 727 S.W.2d at 533–34. Routinely
subjecting a child to the probability he will be left alone because his parent is in jail
endangers the child’s physical and emotional well-being. S.M., 389 S.W.3d at 492.
B. Application
Father concedes the evidence is legally and factually sufficient to support the
trial court’s finding of endangerment under Family Code section 161.001(b)(1)(E).
Unchallenged findings bind us “unless the contrary is established as a matter of law,
or if there is no evidence to support the finding.” McGalliard v. Kuhlmann, 722
S.W.2d 694, 696 (Tex. 1986); see In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013)
(affirming termination based on unchallenged findings supported by record).
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We agree the record supports the finding of endangerment. Through his
criminal activity, Father routinely subjected the children to the probability they
would be left alone because their parent was in jail. That endangered the children’s
physical and emotional well-being. Further, two of his convictions resulted from
conduct that directly endangered Carlos’ life—driving while intoxicated with Carlos
in the car. We conclude the evidence is legally and factually sufficient to support the
trial court’s finding under subsection E.
Though he concedes the subsection E finding, Father challenges the
evidentiary sufficiency of the subsection O finding because the facts underlying that
finding are relevant to the best-interest analysis. We address that challenge in our
discussion of best interest. We overrule Father’s first issue.
III. Best interest
A. Legal standards
Termination must be in the child’s best interest. Tex. Fam. Code Ann.
§ 161.001(b)(2). Texas courts presume two conditions to be in a child’s best interest:
(1) prompt, permanent placement in a safe environment, id. § 263.307(a); and
(2) remaining with the child’s natural parent. In re U.P., 105 S.W.3d 222, 230 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied).
Courts may consider these non-exclusive factors, known as the Holley factors,
in its best-interest analysis: the desires of the child; the physical and emotional needs
of the child now and in the future; the physical and emotional danger to the child
now and in the future; the parental abilities of the persons seeking custody; the
programs available to assist those persons seeking custody in promoting the best
interest of the child; the plans for the child by the individuals or agency seeking
custody; the stability of the home or proposed placement; acts or omissions of the
parent that may indicate the existing parent-child relationship is not appropriate; and
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any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976). This list of factors is not exhaustive, and evidence is not
required on all the factors to support a finding that termination is in the child’s best
interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012,
no pet.). The Family Code also identifies factors the court may consider in evaluating
a parent’s willingness and ability to provide the child with a safe environment. Tex.
Fam. Code Ann. § 263.307(b). Finally, evidence supporting the statutory predicate
of termination is relevant to the best-interest analysis. S.R., 452 S.W.3d at 366.
B. Application of relevant factors
1. The children
Desires. When a child is too young to express his desires, the fact finder may
consider that the child has bonded with the foster family, is well cared for by them,
and has spent minimal time with a parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied); In re J.D., 436 S.W.3d 105, 118
(Tex. App.—Houston [14th Dist.] 2014, no pet.). Uncontroverted evidence
demonstrates both children had adjusted well and bonded with their foster family.
Though Jana was too young to express her desires, Carlos told Gutacker he wanted
to stay with his foster parents.
Needs. The fact that Carlos had to repeat the first grade implies he needed
significant academic support. His school and the foster parents provided him the
help he required. The foster parents were arranging for Carlos to be evaluated for
ADHD and other conditions. They also ensured Jana received an ECI evaluation.
Stability of proposed placement. Both Ledesma and Gutacker believed the
foster parents would provide a safe and stable home for Carlos and Jana. The foster
parents planned to adopt both children if the parents’ rights were terminated.
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2. Father
Predicate grounds under Family Code section 161.001(b)(1). Evidence
supporting termination under the grounds listed in section 161.001(b)(1) can be
considered in support of a finding that termination is in the children’s best interest.
C.H., 89 S.W.3d at 27. Accordingly, the evidence of Father’s endangerment of the
children, discussed above, is relevant to the best-interest analysis.
History with the Department. Father came under investigation in 2012 and
2014, both times for negligent supervision of Carlos. The record does not reflect the
details of the investigations. The Department was unable to determine the veracity
of the 2012 allegations but found reason to believe the 2014 allegations.
Willingness and ability to parent. Father testified he wants his children back,
insisting he had “changed [his] whole life around.” He did everything the
Department asked of him, he said, all while working. He contended his children were
doing well at the time of removal and should not have been removed. He said he
would return to his previous job and live in a halfway house when he got out of
prison. Father’s professed willingness to parent his children cannot be divorced from
the fact that he committed—and pleaded guilty to—at least eight crimes during his
children’s lifetimes, two of which directly endangered Carlos’ life. The sentences
for those offenses totaled nearly six years.
3. Conclusion on best interest
Considering all the evidence in the light most favorable to the best-interest
finding, we conclude the trial court reasonably could have formed a firm belief or
conviction that termination of Father’s parental rights was in the children’s best
interest. J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. Further, we conclude the
disputed evidence would not prevent a reasonable fact finder from making this
finding. D.R.A., 374 S.W.3d at 531. Accordingly, the evidence is legally and
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factually sufficient to support the trial court’s finding that termination is in Carlos’
and Jana’s best interest. We overrule Father’s second issue.
CONCLUSION
We affirm the trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Christopher, Jamison, and Brown.
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