Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-26-00125-CV
IN THE INTEREST OF A.V.
From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2024PA01040 Honorable Norma Gonzales, Judge Presiding
Opinion by: Adrian A. Spears II, Justice
Sitting: Lori I. Valenzuela, Justice Adrian A. Spears II, Justice Velia J. Meza, Justice
Delivered and Filed: August 12, 2026 AFFIRMED Father appeals the trial court’s order terminating his parental rights to A.V., 1 arguing that the evidence is legally and factually insufficient to support the trial court’s findings under subsections (D), (E), and (N). See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (N). Father also argues that the evidence is legally and factually insufficient to support the trial court’s finding that termination of his parental rights is in A.V.’s best interest. See id. § 161.001(b)(2). We affirm.
1 To protect the identity of the minor child, we refer to the parties by fictitious names, initials, or aliases. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
BACKGROUND
On June 24, 2024, the Department filed a petition seeking the termination of Father’s parental rights to his two-year-old son, A.V. On December 19, 2025, the case proceeded to a trial before the bench. After the Department began questioning one witness, the trial court continued the trial to January 29, 2026. On January 29, 2026, Father’s attorney announced, “Not ready,” stating that he had not had any recent contact with Father and that Father had failed to appear “during day one [of trial] as well.” The trial court denied the “not ready” announcement and proceeded with the bench trial.
Millie Pecina, a caseworker with the Department’s family-based safety services, testified that the referral prompting the Department’s involvement in this case alleged domestic violence between the parents and drug use by the mother. After the Department completed its investigation, the case was transferred to family-based safety services and a safety plan was implemented. When the safety plan was violated and the Department could not find an appropriate safety monitor, the Department filed a petition to remove the children and to terminate the rights of the parents. Pecina testified that during this timeframe, the Department had not worked with Father “because of the severity of the domestic violence between” him and the mother.
The mother testified that in July 2023, she was using methamphetamine while A.V. was sleeping. The mother’s use of methamphetamine was “off and on” during mid-2023, and she relapsed in November 2025. According to the mother, she was A.V.’s primary caregiver. The mother testified about the domestic violence she endured by Father:
Q: And were you a victim of abuse in your relationship with [A.V.]’s dad?
A: Yes.
Q: And you need to say it out loud so the court reporter can hear you.
A: Yes.
Q: Were you a victim of very frightening domestic violence in that relationship?
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A: Correct. Yes.
Q: Okay. And why is he—is he currently incarcerated?
A: I have no clue. I don’t think so.
Q: Okay. Did you ever apply for a protective order or anything of that nature against him?
A: Yes.
Q: Okay. And were you injured at the hands of [A.V.]’s dad?
A: Yes.
The mother testified that Father verbally abused her while she was pregnant with A.V. and then, after A.V. was born, he physically assaulted her.
Q: How often would that happen that he would get physically violent with you?
A: When he would get upset.
Q: While [A.V.] was still in your care, did dad ever assault you while [A.V.]
was present?
A: No. Just like—like, again, verbally.
******
Q: How many times did he physically assault you after you gave birth to [A.V.]
before you left him?
Ms. Dye: Objection, Your Honor. Asked and answered.
Court: Overruled. You can answer, ma’am.
A: Like a lot. I don’t remember.
Q: Okay. And what would the physical violence consist of? Would he punch you? Slap you? Pull your hair?
A: Yes. Yeah, punch me, slap me, push me.
Q: And so did you believe him to be a very violent individual?
A: Towards me, yes.
The mother testified that she believed Father should have access to A.V. only if the visits were supervised.
Antonia Alfaro, the Department’s caseworker, testified that service plans were created for both parents. The service plans were approved and made an order of the trial court. Father was required to complete parenting and anger management classes, a family violence assessment, a psychological assessment, a drug/alcohol assessment, and submit to random drug testing. At the time of trial, Father had not completed the drug assessment or submitted to drug testing. He had completed the psychological assessment but had not gone to therapy as requested. He was working
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through an eighteen-week BIPP program with optimal counseling but had not been consistent with his attendance. Alfaro testified that he was going to be unsuccessfully discharged if he missed one more session.
According to Alfaro, A.V. did not have a strong bond with Father. Alfaro testified that during the first parent-child visit in October 2025, she took A.V. to meet Father and had to introduce A.V. to him because A.V. did not know who he was. Alfaro testified that Father had not been consistent with his parent-child visits, having completed only eight visits out of approximately sixty.
Alfaro testified that she has had a hard time engaging with Father. She testified that Father would claim he wanted to engage in services but would then state he had to leave and did not have time to discuss his case with her. Alfaro testified that referrals have remained in place so that if Father wanted to engage in services, he had the opportunity to do so. Alfaro testified that Father told her he had been involved in a motorcycle accident, had “experienced some head trauma,” and “forgets things.”
Alfaro testified that A.V. was doing great in his placement with his paternal half-sister.
A.V.’s sister, who is in her twenties, is very responsible and has a lot of support, including grandparents who help care for A.V. and pick him up from daycare. Alfaro testified that at the beginning of this case, A.V. “was having issues” and had been asked not to return by “a few daycares.” In his current placement with his adult sister, A.V. attends daycare and is “doing really well.” He was even in a recent Christmas pageant with a singing role. Alfaro testified that A.V. is currently in a safe environment with a caregiver who wants to adopt him and wants to continue to care for him. According to Alfaro, A.V. and his adult sister are very bonded, and his adult sister is protective of him.
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After hearing all the evidence, the trial court terminated Father’s parental rights, named the Department as managing conservator, and named the mother as a possessory conservator. Father then appealed. 2 SUFFICIENCY STANDARDS OF REVIEW To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department has the burden to prove by clear and convincing evidence that parental rights should be terminated pursuant to one of the predicate grounds in subsection 161.001(b)(1) and that termination of parental rights is in the best interest of the child. TEX. FAM. CODE § 161.001(b)(1), (2). In reviewing the legal sufficiency of the evidence to support these findings by the trial court, we “look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In re K.N., No. 24-0881, 2026 WL 1614378, at *6-7 (Tex. June 5, 2026) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). “To give appropriate deference to the factfinder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” In re J.F.C., 96 S.W.3d at 266. “A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.” Id.
“When the factual sufficiency of the evidence is challenged, only then is disputed or conflicted evidence under review.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). “In a factual sufficiency review,” we “must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.” In re J.F.C., 96 S.W.3d at 266. We “consider
2 The mother did not appeal.
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whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding.” Id. “If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” Id. Under these standards, the trial court, as factfinder, is the sole judge of the weight and credibility of the evidence. In re J.O.A., 283 S.W.3d at 346.
DISCUSSION
Father argues that the evidence is legally and factually insufficient to support the trial court’s predicate findings under subsections (D), (E), and (N). We first address whether the evidence is legally and factually sufficient to support the trial court’s endangerment findings under subsections (D) and (E). Subsection (D) allows termination of parental rights based on a finding that the parent has “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(D). Subsection (E) allows termination of parental rights based on a finding 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.” Id. § 161.001(b)(2)(E). “Endanger” means “to expose to loss or injury; to jeopardize.” J.G. v. Tex. Dep’t of Fam. & Prot. Servs., 592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no pet.). “Endangerment encompasses ‘more than a threat of metaphysical injury or the possible ill effects of a less-than- ideal family environment,’ but it is not necessary that the conduct was directed at the child or that the child actually suffered injury.” Id. (quoting In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)).
“Subsections (D) and (E) differ in respect to the source of the danger to the child.” Id.
“Subsection (D) focuses on the child’s physical environment, ‘although the environment produced
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by the conduct of the parent[] bears on the determination of whether the child’s surroundings threaten his well-being.” Id. (quoting In re M.D.M., 579 S.W.3d 744, 764 (Tex. App.—Houston [1st Dist.] 2019, no pet.)) (alteration in original); see also In re E.A.G.C., No. 04-24-00322-CV, 2024 WL 4614579, at *2 (Tex. App.—San Antonio Oct. 30, 2024, pet. denied) (explaining that parent’s conduct can create environment that endangers child’s physical or emotional well-being). “In contrast, subsection (E) focuses on danger posed by the parent’s conduct.” J.G., 592 S.W.3d at 524. “A single act or omission can support termination under subsection (D), but termination under subsection (E) must be based on ‘a voluntary, deliberate, and conscious course of conduct.’” Id. (quoting In re M.D.M., 579 S.W.3d at 764).
“As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child.” In re J.O.A., 283 S.W.3d at 345 n.4 (quoting In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied)). “Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment.” In re P.W., 579 S.W.3d 713, 727 (Tex. App.—Houston [14th Dist.] 2019, no pet.). “Violent conduct by a parent toward the other parent may produce an environment that endangers the physical or emotional well-being of a child.” Id. Thus, “[e]vidence of domestic violence is [] relevant to endangerment, even if the violence is not directed at the child.” J.G., 592 S.W.3d at 524; see In re P.W., 579 S.W.3d at 727 (“A parent’s abusive or violent conduct can produce a home environment that endangers a child’s well-being.”). Additionally, evidence that a parent “has engaged in abusive and violent conduct in the past permits an inference that the [parent] will continue to engage in violent behavior in the future.” In re M.D.M., 579 S.W.3d at 765. Accordingly, evidence of domestic violence can support findings under both subsection (D) and (E). See J.G., 592 S.W.3d at 524 (explaining that domestic violence may produce an environment
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that endangers the physical or emotional well-being of a child supporting termination under subsection (D)); In re P.W., 579 S.W.3d at 727 (“Evidence of domestic violence may be considered as evidence of endangerment under subsection (E)).
At trial, there was evidence that the Department did not initially work with Father during the family-based services because of the severity of the domestic violence between him and the mother. The mother testified that while Father was verbally abusive while she was pregnant, he became physically abusive after A.V. was born. She testified that she was punched, slapped, and pushed by Father and that she was abused so often she could not remember how many times the abuse occurred. She testified that she had been injured by Father and had sought a protective order against him. She also testified that Father should only be able to visit with A.V. if he was supervised. We hold the evidence is legally sufficient to support the trial court’s findings under subsections (D) and (E).
We note that Father emphasizes that there was no evidence that he physically assaulted the mother while A.V. was present. However, as noted, evidence of domestic violence is relevant to endangerment “even if the violence is not directed at the child.” J.G., 592 S.W.3d at 524. Father further stresses that the mother, in her testimony, did not state the specifics of what had happened, when it had happened, whether the police had been called, or whether anyone had been arrested. Father’s argument, however, goes to the weight and credibility of the testimony, which is the sole province of the jury as factfinder. See In re J.O.A., 283 S.W.3d at 346. In reviewing all the evidence, we conclude that the evidence is factually sufficient to support the trial court’s findings under subsections (D) and (E). See id. 3
3 Having determined there is legally and factually sufficient evidence to support the trial court’s findings under subsections (D) and (E), we need not consider appellant’s sufficiency arguments with respect to subsection (N). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (explaining that only one predicate finding is necessary to support a judgment of termination when there is also a finding that termination is the child’s best interest).
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BEST INTEREST
Father also argues that the evidence is legally and factually insufficient to support the trial court’s best-interest finding. There is a presumption that the child’s best interest is served by keeping him with his parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). There is also a presumption that the prompt and permanent placement of the child in a safe environment is in his best interest. TEX. FAM. CODE § 263.307(a). When determining if a parent is willing and able to provide a child with a safe environment, the trial court should consider the relevant factors contained in section 263.307. See TEX. FAM. CODE § 263.307(b). 4 A factfinder may also consider the factors articulated by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). 5 “The Holley factors are neither all-encompassing nor does a court need to find evidence of each factor before terminating the parent-child relationship.” In re E.A.R., 672 S.W.3d 716, 721-
4 These factors include (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of outof -home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the Department; (5) whether the child is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with: (A) minimally adequate health and nutritional care; (B) care, nurturance, and appropriate discipline consistent with the child’s physical and psychological development; (C) guidance and supervision consistent with the child’s safety; (D) a safe physical home environment; (E) protection from repeated exposure to violence even though the violence may not be directed at the child; and (F) an understanding of the child’s needs and capabilities; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. TEX. FAM. CODE § 263.307(b). 5 These factors include, but are not limited to, the following: (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the child’s best interest; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent’s acts or omissions that may indicate the existing parent-child relationship is improper; and (9) any excuse for the parent’s acts or omissions. In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013) (citing Holley, 544 S.W.2d at 371-72).
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22 (Tex. App.—San Antonio 2023, pet. denied). The predicate grounds for termination may also be probative of the child’s best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
Here, there was evidence that Father committed domestic violence against A.V.’s mother, which the factfinder may consider in determining Father’s future conduct. See In re Z.R.M., 665 S.W.3d 825, 829 (Tex. App.—San Antonio 2023, pet. denied) (explaining that in determining whether termination of the parent-child relationship is in the child’s best interest, a factfinder may judge a parent’s future conduct by her past conduct). There was also evidence that Father failed to complete his court-ordered service plan to address the reasons for A.V.’s removal. See In re A.J.D.- J., 667 S.W.3d 813, 824 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (explaining that “the purpose of a family service plan is to remedy parental shortcomings so any child removed from the parent’s care may be returned” and that “when a parent does not try to abide by the plan, the factfinder may reasonably infer the parent is indifferent to the goal of family reunification”); In re O.N.H., 401 S.W.3d 681, 687 (Tex. App.—San Antonio 2013, no pet.) (“Non-compliance with a service plan is probative of a child’s best interest.”). At trial, there was evidence that (1) before removal, the mother was A.V.’s primary caregiver; (2) A.V. did not know who Father was at the beginning of the case; (3) Father participated in only eight parent-child visits out of approximately sixty possible visits; and (4) Father and A.V. did not have a strong bond. “Parental absence or lack of involvement is especially telling with respect to the best interest of very young children, like babies and toddlers, due to their inherent vulnerability and particular need for parental attention and nurturing.” In re A.J.D.-J., 667 S.W.3d at 824. “[I]ndifference is inimical to the parent-child relationship,” and “significant evidence of parental indifference weighs heavily in favor of a factfinder’s finding that termination is in a child’s best interest.” Id. at 823. In addition to the evidence that Father failed to complete his service plan, was not present in his child’s life such that
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his child did not recognize him, appeared at a fraction of possible parent-child visits, and did not have a strong bond with his child, Father also failed to appear both days at trial. “In general, when a parent fails to attend trial in a parental-termination case without a valid excuse for his or her failure to do so, the factfinder may reasonably infer that the parent is indifferent to the outcome.” Id. at 826. “This inference is permissible because one who desires to retain [his] parental rights would not knowingly miss a hearing in which those rights will be adjudicated once and for all, unless [he] has a good excuse to be absent.” Id. Here, the record reflects that after announcing “not ready,” Father’s counsel stated that he had not had any recent contact with Father. We note that Father did not file a motion for new trial or other pleading after trial presenting a valid excuse for failing to appear at trial.
With regard to A.V.’s present placement, there was evidence that A.V. has developed a strong bond with his adult sister, who is his older adult sibling from his paternal side. In his current placement, A.V. has been thriving, and his adult sister is meeting all his needs and is providing A.V. with a safe and stable home. We hold the evidence is legally and factually sufficient to support the trial court’s finding that termination of Father’s parental rights is in the best interest of the child.
CONSERVATORSHIP
Father also challenges the trial court’s conservatorship finding. However, his argument is conditioned upon the trial court’s termination order being reversed. Because we are affirming the trial court’s termination order, we need not address the conservatorship issue. See In re C.J.Y., No. 04-20-00009-CV, 2020 WL 3441248, at *7 (Tex. App.—San Antonio June 24, 2020, pet. denied).
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CONCLUSION
Having determined that there is legally and factually sufficient evidence to support the trial court’s predicate findings under subsections (D) and (E) and that there is legally and factually sufficient evidence to support the trial court’s best-interest finding, we affirm the trial court’s order terminating Father’s parental rights.
Adrian A. Spears II, Justice