Court of Appeals Tenth Appellate District of Texas
10-25-00047-CV
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children
On appeal from the 82nd District Court of Robertson County, Texas Judge Bryan F. Russ, Jr., presiding Trial Court Cause No. 24-05-21858-CV
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
Following a bench trial, the parental rights of the father of A.K., E.K.,
E.K., J.K., D.K., and D.K. (Father) were terminated. 1 The trial court found by
clear and convincing evidence that Father had violated Family Code
subsections 161.001(b)(1)(D) and (E) and that termination was in the children’s
best interest. See TEX. FAM. CODE ANN. § 161.001(b). In two issues, Father
contends that the evidence was legally and factually insufficient to support the
trial court’s termination findings. We will affirm.
1 Following a jury trial, the parental rights of the mother of A.K., E.K., E.K., J.K., D.K., and
D.K. (Mother) were also terminated, but she has not appealed. The standards of review for legal and factual sufficiency of the evidence
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)
(legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency).
In a bench trial, the trial court, as factfinder, is the sole judge of the witnesses’
credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
In a proceeding to terminate the parent-child relationship brought under
section 161.001 of the Family Code, the Department of Family and Protective
Services (the Department) must establish by clear and convincing evidence two
elements: (1) that the respondent parent committed one or more acts or
omissions enumerated under subsection (b)(1), termed a predicate violation,
and (2) that termination is in the best interest of the child. TEX. FAM. CODE
ANN. § 161.001(b); In re J.F.-G., 612 S.W.3d 373, 381 (Tex. App.—Waco 2020)
(mem. op.), aff’d, 627 S.W.3d 304 (Tex. 2021). Proof of one element does not
relieve the petitioner of the burden of proving the other. J.F.-G., 612 S.W.3d
at 381.
PREDICATE VIOLATIONS
Father first contends that the evidence was insufficient to support the
trial court’s findings that he violated Family Code subsections 161.001(b)(1)(D)
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 2 and (E). 2 We begin with Father’s argument that the evidence was insufficient
to support the trial court’s finding that he violated subsection (E).
Termination under subsection (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 the child to loss or injury, to jeopardize. Tex. Dep’t
of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The relevant
inquiry under subsection (E) is whether sufficient evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s
conduct, including acts, omissions, or failures to act. In re E.M., 494 S.W.3d
209, 222 (Tex. App.—Waco 2015, pet. denied).
Scienter is not required for a parent’s own acts to constitute
endangerment under subsection (E). See In re L.S., No. 10-22-00119-CV, 2022
WL 3655395, at *2 (Tex. App.—Waco Aug. 24, 2022, no pet.) (mem. op.). It is
also 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 the child’s well-being may be inferred from the parent’s misconduct
2 In the statement of his issues in his initial appellant’s brief and then again in his reply brief,
Father additionally asserts that the evidence was insufficient to support a finding by the trial court that he violated Family Code subsection 161.001(b)(1)(O); however, the trial court did not find that Father violated subsection (O). Accordingly, we need not address this contention by Father.
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 3 alone. Id. Furthermore, we may consider conduct both before and after the
child’s removal in an analysis under subsection (E). In re S.R., 452 S.W.3d
351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
The relevant evidence presented here was as follows: Father and Mother
married in 2010, and although Father testified that he did not intend to remain
married to Mother, they were still married at the time of trial in November
2024. At the time of trial, their daughters A.K. and D.K. were thirteen and six
years old, respectively, while their sons E.K., E.K., J.K., and D.K. were twelve,
eleven, ten, and seven years old, respectively. Mother testified that the
family’s first interaction with the Department was around March 2024, after
A.K. had run away from the family’s apartment home in Hearne. A.K. was
found at a McDonald’s and taken to the police department. A police officer and
someone from the Department returned A.K. home. Mother testified that A.K.
denied any abuse at that time. A.K. then ran away from home a second time.
She was later found at a gas station and returned home by the police. Mother
stated that the Department closed its case at that time but provided her
information about a program and therapy services for A.K. Mother did not
utilize those resources, however, because she could not afford them.
Lidia Chandler Davis testified that she was then called to a certain
restaurant in Hearne at about 7:45 a.m. on May 9, 2024, after the junior high
principal had seen A.K. there. Davis was employed by Hearne ISD at the time
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 4 and had been A.K.’s academic adviser when A.K. had been enrolled in school
there for about a week. Mother testified that she had enrolled the children in
school at Hearne ISD but that the children had only stayed there for about a
week because she did not like the school system. Mother thereafter
homeschooled all the children.
Davis testified that she arrived at the restaurant and talked with A.K.
A.K. was “cold, dirty, bruised, and hungry” and appeared scared. Davis bought
A.K. five tacos, and she ate them all. Davis believed that A.K. needed help;
therefore, she drove A.K. to the HealthPoint clinic where A.K. was assessed.
Ashley Richardson, a family nurse practitioner at Hearne HealthPoint,
testified that it was her understanding that when school personnel brought
A.K. into the clinic on May 9, 2024, A.K. had been found walking or running
down the street. A.K. arrived at the clinic not wearing any shoes, but she was
wearing a trench coat and a beanie despite it being summertime. A.K. was
cold and trembling and would not make eye contact. Richardson opined that
A.K. did not look like a thirteen-year-old girl. Due to abuse concerns,
Richardson examined A.K.
Richardson testified that on the way back to the examination room, they
paused to determine A.K.’s height and weight. At that time, A.K. weighed in
at only sixty-three pounds. Richardson noted at trial that she remembered
that number because her own seven-year-old daughter weighed sixty-seven
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 5 pounds at that time. Richardson explained that the typical weight for a
thirteen-year-old female is about one hundred pounds. Richardson continued
that even the fifth percentile for weight for a thirteen-year-old female is about
seventy-six to eighty pounds; therefore, A.K. was underweight. Richardson
further noted that A.K. was short but that, even considering A.K.’s short
stature, A.K. was underweight because a body mass index (BMI) that is below
18.0 is considered underweight, and A.K.’s BMI was 13.5. Richardson
additionally recounted that A.K. was eating when she arrived at the clinic, and
Richardson kept having to tell A.K. that she needed to slow down, or she would
throw up. A.K. told Richardson that she had not eaten since Tuesday. 3 A.K.
also kept saying, “Secret stash. Secret stash.” When Richardson questioned
A.K. about what she meant, A.K. asked Richardson if she had a secret stash of
hidden food.
Richardson testified that she then performed a head-to-toe assessment
of A.K. As she began her evaluation, the first thing that struck Richardson
was that A.K. had periorbital ecchymosis or “raccoon eyes.” Richardson
explained that raccoon eyes are typically the result of a lack of sleep. Once
A.K.’s beanie was removed, Richardson then noticed blood and a patch of hair
missing from A.K.’s scalp. Richardson asked A.K. what had happened, and
3 May 9, 2024, was a Thursday.
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 6 A.K. responded that she had flipped her hair, which Mother “looked at to be
sexual in front of [Father],” so Mother had “ripped her dreads out.” Richardson
also observed bruising underneath A.K.’s left eye and scabbing of an abrasion
above her left eyebrow. When Richardson asked A.K. what had happened
there, A.K. responded that she was “getting a whooping” from Mother with a
belt when she tried to run but stumbled and hit the dresser. Richardson
additionally noted that A.K.’s left ear was full of dried blood. When she asked
A.K. what had happened there, A.K. responded, “Momma stuck something in
my ear.”
Richardson then testified that as she pulled up the long, dingy white
shirt that A.K. was wearing, A.K. stated that she had not been allowed to go
to the restroom. A.K. said, “Well, they had me locked from the inside, so I just
had to pee. Whatever I needed to do, I had to do in the room.” Richardson
stated that A.K. had different types of healing bruising on her upper chest
cavity and arms. A.K. explained to Richardson that those were additional
injuries from falling and hitting the dresser. Richardson then noted that A.K.
was very bony. Richardson observed that A.K.’s abdomen was “kind of caved
in” and that you could see her ribs. Richardson also observed desquamation or
shedding of the skin all the way down A.K.’s legs. Richardson explained that
skin shedding is usually the result of dehydration or malnourishment.
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 7 Richardson testified that A.K. also had abrasions on her knees. When
Richardson asked A.K. what had happened there, A.K. explained that she had
received the abrasions when she was coming down from the second floor of the
building to get away. Richardson observed at that point that A.K. also had
“tight markings” on her wrists where something had been tight on her arms.
Richardson observed the same marks around A.K.’s ankles. A.K. told
Richardson that she had been tied up in a bedroom. Richardson asked A.K. if
she had been sexually abused in any way, and A.K. replied, “No. They only hit
me.” Richardson therefore determined, based on her examination of A.K., that
A.K. had been physically, emotionally, and psychologically abused.
Melanie Shiminski, a forensic nurse at Baylor Scott & White in College
Station, testified that she also assessed A.K. on May 9, 2024, when A.K. was
brought into the emergency room. Shiminski noted that when she first
encountered A.K., A.K. appeared disheveled and extremely malnourished with
poor dress and hygiene. A.K. had a quiet demeanor and did not maintain eye
contact. A.K. also flinched when Shiminski made any sudden movements
toward her. Shiminski further observed that A.K. smelled like she had not
showered in some time, which A.K. confirmed to her. A.K. also reported to
Shiminski that she had urinated on herself the day before because she had
been unable to hold it. A.K. reported to Shiminski that she had been having
trouble falling asleep and that it had been “a while” since she had had proper
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 8 sleep. Shiminski stated that this was supported by the darkness around A.K.’s
eyes and the fact that her eyes were sunken in. When Shiminski then asked
A.K. about her eating habits, A.K. stated, “I eat, but [Mother] makes me work
for it.” A.K. discussed with Shiminski how she had to do chores to get food.
Shiminski then testified that A.K. reported that she was afraid of
Mother. A.K. reported to Shiminski that some months before, she had been
threatened by a gun but stated that she did not know if the gun was loaded.
A.K. also described to Shiminski an incident where Mother punched her in the
stomach because Mother got mad at her for asking a question. A.K. then talked
to Shiminski about being abused by Mother by being hit with a belt on her face
and her body. Additionally, A.K. described an incident from about two weeks
before Shiminski’s evaluation of her when Mother was mad at A.K. and
“shoved something from her makeup stuff” into A.K.’s ear. A.K. reported to
Shiminski that her ear had been bleeding ever since. When Shiminski then
asked A.K. if, in addition to the actual abuse committed, there had also been
threats of harm, A.K. said that Mother told her that she wished her dead. A.K.
further reported that she had had thoughts of suicide but that she had never
acted on those thoughts.
Shiminski testified that A.K. then reported that the night before, she and
Mother had had a disagreement and that Mother “kind of went overboard.”
A.K. explained that Mother pulled her hair and then choked her and lifted her
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 9 up off the ground with her hand to the point that A.K. could not breathe, had
blurry vision, and felt dizzy. A.K. stated that Mother finally released her just
when A.K. was about to pass out. A.K. reported that Mother then dragged her
to a bedroom, tied her arms behind her back, tied her feet together, and left
her lying on her stomach on the floor all night. A.K. stated that in the morning,
she had been able to untie herself and had escaped through the window. At
that point, Shiminski asked A.K. if anything like that had happened before.
A.K. reported that Mother had tied her up on three previous occasions. When
Shiminski asked A.K. if Father had also been involved in the physical abuse,
A.K. replied, “My dad would do the same things when he’s really, really mad;
but he usually doesn’t do much.”
Shiminski then testified that A.K. “had a significant amount of injuries
to her body.” Some of the injuries appeared to be more recent while others had
healed and scarred. A.K. explained that the healed scarring that she had all
over her body, including on her face, were from previous instances of Mother
hitting her with a belt. When Shiminski asked A.K. about two specific healed
scars on her hand, A.K. stated that she did not really want to talk about it but
noted that “it bled a lot when it happened.” Shiminski further noted that A.K.
had multiple areas with carpet burn-type injuries. A.K. explained to
Shiminski that she had received those injuries from being dragged. Shiminski
then noted that A.K. had markings on her wrist, which A.K. reported were
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 10 where she had had her hands tied with the belt. Shiminski also noted that the
skin on A.K.’s legs was extremely dry and flaking and had multiple small
pinpoint lesions going down them. A.K. reported that that was because she
had not “been able to take a good bath in about two weeks” and because Mother
did not let her use the soap.
Shiminski then finally testified that there was no medical reason that
she could ascertain for the general condition of A.K.’s body. Shiminski also
stated that she did not believe that any of A.K.’s injuries were self-inflicted.
When asked at trial if, based on her evaluation of A.K., Shiminski had
determined whether A.K. had experienced abuse or neglect, Shiminski replied
that she had made a determination. When asked what her determination was,
Shiminski stated:
Based on what I saw, it was obvious that she had, you know, injury - - significant amount of injury over her body. That would not be normal for an average 13-year-old. As well as her body - - she was extremely malnourished. And you could tell that just the size and physical appearance of her body is not the normal appearance of a normal 13-year-old healthy child.
Gabriel Milam, the Department’s primary caseworker assigned to this
case, testified that all six of Mother’s and Father’s children were thereafter
removed from their care. All six children were found to be “medically
significantly malnourished.” All six children were also able to provide
eyewitness accounts of the “discipline” that A.K. was receiving, which
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 11 “absolutely” amounted to emotional abuse of the children. There were also
reports that all five of the younger children were trained to participate in
“disciplining” A.K.
In her testimony, Mother admitted to participating in some of the
conduct that A.K. described to Richardson and Shiminski. Mother admitted to
grabbing A.K. by the hair and to hitting A.K. in the stomach. Mother
acknowledged that the injury around A.K.’s eye occurred when A.K. was
getting a spanking. Mother stated that A.K. had “hit the floor” after A.K. was
“wiggling and moving around.” Mother also admitted to choking A.K. and to
putting her hands around A.K.’s throat. Mother explained that she and A.K.
were arguing because A.K. “wants to be part of the family and she’s sorry for
what she was doing, and I didn’t want to hear it.” A.K. then bit Mother, and
in response, Mother “put [her] hand around [A.K.’s] neck and . . . got her down
to the ground.” Mother denied that it hurt A.K., stating, “I didn’t stay there
long enough for it to hurt her.” Mother nevertheless admitted that she knew
that it was inappropriate discipline and was a situation that endangered the
health or well-being of A.K. Additionally, Mother admitted that she owned a
gun that she kept in the home, but she denied ever displaying the gun to A.K.
Mother also testified that about a month before the children were
removed, Father had caught A.K. trying to sneak out of the house. By that
time, A.K. had already run away from home twice before; therefore, Mother
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 12 and Father decided to do something more to try to keep A.K. in the home.
Mother stated that it was Father’s idea to restrain A.K. by tying her in her
room so that she would stop running away, and Mother thought that that was
a good idea. Mother thereafter “locked [A.K.] in her room with a cord that goes
from the vacuum cleaner.” Mother also tied A.K.’s hands together with a belt.
Mother admitted that she restrained A.K. in this manner on four different
occasions. When asked if she was aware that the restraints had caused
bruising to A.K.’s wrists, Mother replied that A.K. had caused the bruising to
herself because she was trying to get out of the restraints. Mother further
noted that she told Father that A.K. was causing bruising to her wrists and
that both she and Father participated in restraining A.K.
Mother testified that during this time, A.K. was allowed to use the
bathroom and to take a shower whenever she wished but that Mother would
escort her to do so. When A.K. needed to go to the bathroom, she would “yell
out.” Mother would then untwine the cord from the vacuum cleaner and open
the door to the room in which A.K. had been locked. Mother would then make
sure that A.K. was not bringing anything into the bathroom with her before
closing the bathroom door. Once A.K. was done, Mother would take A.K. back
to the room. Mother testified that A.K. was getting mad because she could not
go to the bathroom on her own, so she started purposely urinating in her
clothes. Mother stated that A.K. would then take other clothes and clean up
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 13 the mess, so she would not get caught. Mother said that she had to throw away
A.K.’s clothes because they had been sitting in the back of Father’s vehicle and
smelled like urine.
Mother testified that A.K. was also initially allowed to come out of the
room to do chores and to participate in what the rest of the family was doing.
Mother acknowledged that she then began excluding A.K. from family
activities. When asked what kind of activities A.K. was excluded from, Mother
replied that A.K. “liked learning a lot. . . . So because I knew that she liked it,
that’s something that I took away.” Mother further explained that A.K. was
running away so often because she could not get what she wanted. When asked
what A.K. wanted, Mother stated that A.K. “wanted to be part of her other
siblings and doing and participating in things that they was [sic] doing.”
Mother testified that in addition to running away, A.K. was also
disciplined because she “had been stealing for a long time.” Mother described
an incident where she had to take A.K. out of school because A.K.’s teacher had
seen A.K. “stealing all the kids’ snacks” in the classroom. Mother also stated
that A.K. would put things in her pocket at the grocery store. When Mother
was then asked if she had told anyone that she had to use handcuffs on A.K.
because A.K. had stolen food out of the refrigerator after not being fed for two
days, Mother replied, “Yes. I handcuffed her because I told her this is how it
feels when you sit there and steal, and you keep on stealing.” Mother
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 14 additionally stated that she told a Department investigator that she had taken
away A.K.’s meals because A.K. “was taking the food that was supposed to be
for me.” Mother explained that she had not eaten in days, and A.K. “was in
there taking my food. So because she ate, and ate mine, then her food was
withheld.” Mother also admitted that A.K. was digging food out of the
trashcan, and Mother acknowledged that A.K. got in trouble on one occasion
for stealing a piece of bread and cheese. Mother explained that the bread had
been found underneath the couch and had been there for a couple of days but
that the youngest child came and told Mother that A.K. was in the refrigerator
trying to take the cheese. Mother stated that A.K. was thereafter disciplined
by being locked in her room.
Mother testified that she taught the other children to watch A.K. to make
sure that A.K. was not doing anything that she was not supposed to be doing.
Mother further acknowledged that she had shown the other children how to
lock A.K. in her room with the vacuum cord. Mother stated that the other
children also witnessed A.K. getting a spanking with a belt. Mother said that
this happened “twice a week; that’s if I even felt like talking to her.” Mother
additionally testified that the other children did not want to be around A.K.
The other children talked about how badly A.K. smelled. The other children,
mainly the oldest son, referred to A.K. as “trash.” The other children also
called A.K. “dumb-dumb,” “nasty,” “ugly,” and “lizard feet.”
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 15 Mother testified that because of all the problems with A.K., she and
Father had discussed possibly sending A.K. with Father on the road while he
was truck driving for work. Mother stated that Father thought that that would
be the best thing for A.K., but Mother was not in favor of it and did not agree
to it. Mother testified that she kept A.K. away from Father because he “would
listen to her side of the story.” Mother further admitted that she did not tell
Father about punching A.K. in the stomach or putting her hand around A.K.’s
throat and putting her on the ground. Father later confirmed in his testimony
that he did not know that Mother had punched or choked A.K. Father
additionally stated that he thought that A.K. herself never told him what was
truly going on when he was away at work or out of the house because A.K. was
afraid of how Mother would react. Father described an incident where Mother
told him that A.K. was acting inappropriately with him, but he believes that
A.K. “had been trying to run up under [him] as a shield” for protection and that
Mother did not want him shielding her.
However, Father also testified that he knew that A.K. was being
physically restrained. Father testified that he did not like Mother locking A.K.
in her room and binding her hands and feet and that he and Mother “would
argue and fight about it.” But Father admitted at trial that he did nothing to
stop it.
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 16 Father testified that, contrary to Mother’s testimony, it was not his idea
to physically restrain A.K. but that, about a week or two before the children
were removed, Mother told him over the phone about physically restraining
A.K. Father explained that he was driving a truck for work at that time. The
plant for which he drove was located about fifteen minutes from his home, and
he would drive a truck back and forth about an hour and a half from the plant.
Father acknowledged at trial that he was also aware that Mother was escorting
A.K. to the bathroom for urination, defecation, and showering. Father further
admitted that Mother told him that the other children were being taught how
to secure the room so that A.K. could not get out, and he admitted that he had
heard the other children calling A.K. nicknames. Father additionally testified
that he believed that the other children had witnessed Mother’s abuse of A.K.,
and he admitted that it endangered the children. Father ultimately
acknowledged at trial that he had “failed as a father.”
Father testified that he last saw A.K. the day before she snuck out in
May 2024. Father admitted that in the photos of A.K. at the time of removal
in May 2024, A.K. did not look like a thirteen-year-old who was safe and well
taken care of. When asked if he was not concerned about how small and thin
A.K. was at that time, Father replied:
I was a little. But, like [Mother] said, we was [sic] going through a rough patch at the time and all of us were struggling. My wife and I, we both skipped meals in order to make sure [the children]
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 17 had something to eat. So, in my opinion, we were all a little underweight.
Father nevertheless acknowledged that when Mother went to have a
psychological, she had admitted to drinking at least a beer a day for the last
five years and that her drinking had increased in the two months before the
children were removed. Father stated that, in his opinion, Mother was
drinking a lot at that time. Father also acknowledged that Mother smoked.
Father therefore admitted that while they were missing meals because he and
Mother did not have enough food for themselves and the children, Mother was
spending money on alcohol and tobacco for herself. Father then further
admitted that he had also spent money on alcohol and tobacco for himself
during this time. And Father acknowledged that this endangered the children.
Father argues that the evidence is insufficient to show that he engaged
in conduct, or knowingly placed the children with persons who engaged in
conduct, that endangered their physical or emotional well-being because the
evidence shows that he was not directly involved in the abuse of the children
and was not aware of Mother’s abuse of the children until a week or two before
the children were removed. However, in his own testimony, Father admitted
that when he was made aware of Mother’s abuse of the children, he did nothing
to stop it. He stated only that he argued and fought with Mother about it. See
E.M., 494 S.W.3d at 222 (stating that parent may violate subsection (E)
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 18 through conduct including acts as well as omissions or failures to act).
Furthermore, the evidence, as outlined above, indicates that Father not only
failed to act but that, at times, he participated in acts that endangered the
physical or emotional well-being of the children. During the forensic nurse’s
assessment of A.K., A.K. told her that Father physically abused her when he
was “really, really mad.” Mother also testified that both she and Father
participated in the restraining of A.K. And Father admitted in his own
testimony that he had spent money on alcohol and tobacco for himself when
his children did not have enough food to eat.
Considering all the evidence presented in this case in the light most
favorable to the trial court’s finding and considering the evidence as a whole,
we conclude that the evidence was legally and factually sufficient to establish
that Father engaged in conduct that endangered the physical or emotional
well-being of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
Father points out that the trial court’s written findings of fact include
that he “plead[ed] guilty in Cause# 24-07-22260-CR in the 82nd District Court
for Robertson County, Texas on December 11, 2024 to the charge of Injury to a
Child, Elderly or Disabled Individual and was placed on 10 years Deferred
Adjudication” and “plead[ed] guilty in Cause# 24-07-22260-CR in the 82nd
District Court for Robertson County, Texas on December 11, 2024 to the charge
of Abandoning a Child and was placed on 10 years Deferred Adjudication.”
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 19 Father argues that the trial court improperly relied on such evidence to
support its termination findings because the record was closed on November
21, 2024. But even if the trial court erred in considering such evidence, the
error was harmless. See TEX. R. APP. P. 44.1(a)(1). Even without considering
the complained-of evidence, the overwhelming evidence, as outlined above,
supports the trial court’s finding that Father engaged in conduct or knowingly
placed the children with persons who engaged in conduct that endangered the
physical or emotional well-being of the children. See TEX. FAM. CODE ANN. §
161.001(b)(1)(E). Thus, we cannot conclude that such alleged error caused the
rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); New Process
Steel, L.P. v. Sharp Freight Sys., Inc., No. 01-04-00764-CV, 2006 WL 947764,
at *4 (Tex. App.—Houston [1st Dist.] Apr. 13, 2006, no pet.) (mem. op.) (“While
an erroneous finding of fact on an ultimate fact issue is harmful error, an
immaterial finding of fact is harmless and not grounds for reversal.”).
Moreover, having concluded that the evidence was legally and factually
sufficient to support the trial court’s finding that Father violated subsection
(E), we need not address Father’s argument that the evidence was legally and
factually insufficient to support the trial court’s finding that he violated
subsection (D). See In re N.G., 577 S.W.3d 230, 232–33, 237 (Tex. 2019) (per
curiam).
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 20 BEST INTEREST OF THE CHILDREN
Father next contends that the evidence was insufficient to support the
trial court’s finding that termination was in the best interest of the children.
In determining the best interest of a child, several factors have been
consistently considered, which were set out in the Texas Supreme Court’s
opinion of Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Holley
factors include: (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. Id. This list is not exhaustive but simply identifies factors that
have been or could be pertinent in the best-interest determination. Id. at 372.
There is no requirement that all these factors be proven as a condition
precedent to parental termination. See C.H., 89 S.W.3d at 27. The absence of
evidence about some factors does not preclude a factfinder from reasonably
forming a strong conviction that termination is in the child’s best interest. Id.
In fact, while no one factor is controlling, the analysis of a single factor may be
adequate in a particular situation to support a finding that termination is in
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 21 the child’s best interest. In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied).
The Holley factors focus on the best interest of the child, not the best
interest of the parent. Dupree v. Tex. Dep’t of Protective & Regul. Servs., 907
S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). And evidence relating to the
predicate grounds under subsection 161.001(b)(1) may be relevant to
determining the best interest of the child. See C.H., 89 S.W.3d at 28.
As stated above, at the time of trial, A.K. E.K., E.K., J.K., D.K., and D.K.
were thirteen, twelve, eleven, ten, seven, and six years old, respectively. None
of the children testified, but Department caseworker Gabriel Milam testified
that although the children had expressed a desire to speak with their parents,
the children had requested to stay at their current placement.
Regarding the emotional and physical needs of the children now and in
the future, the need for permanence is the paramount consideration. In re
A.R.C., 551 S.W.3d 221, 227 (Tex. App.—El Paso 2018, no pet.); Dupree, 907
S.W.2d at 87. A parent’s incarceration is relevant to his ability to meet the
children’s present and future physical and emotional needs. A.R.C., 551
S.W.3d at 227. A parent’s incarceration at the time of trial makes the
children’s future uncertain. Id. Here, Milam testified that the children could
not be returned to Father at the time of trial because Father was currently
incarcerated.
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 22 Regarding the emotional and physical danger to the children now and in
the future, evidence of past misconduct or neglect can be used to measure a
parent’s future conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex.
App.—Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex.
App.—Waco 1992, no writ) (“Past is often prologue.”); see also In re V.A., No.
13-06-00237-CV, 2007 WL 293023, at *5–6 (Tex. App.—Corpus Christi–
Edinburg Feb. 1, 2007, no pet.) (mem. op.) (considering parent’s past history of
unstable housing, unstable employment, unstable relationships, and drug
usage). We already discussed above that the evidence, as outlined above,
indicates that Father not only failed to act but that he participated at times in
acts that endangered the physical or emotional well-being of the children.
Regarding the plans for the children by the individuals or agency seeking
custody and the stability of the home or proposed placement, the factfinder
may compare the parent’s and the Department’s plans for the child and
consider “whether the plans and expectations of each party are realistic or
weak and ill-defined.” In re J.D., 436 S.W.3d 105, 119–20 (Tex. App.—Houston
[14th Dist.] 2014, no pet.). A parent’s failure to show that he or she is stable
enough to parent children for any prolonged period entitles the factfinder “to
determine that [the] pattern would likely continue and that permanency could
only be achieved through termination and adoption.” In re B.S.W., No. 14-04-
00496-CV, 2004 WL 2964015, at *9 (Tex. App.—Houston [14th Dist.] Dec. 23,
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 23 2004, no pet.) (mem. op.). A factfinder may also consider the consequences of
its failure to terminate parental rights and that the best interest of the children
may be served by termination so that adoption may occur rather than the
temporary foster-care arrangement that would result if termination did not
occur. In re B.H.R., 535 S.W.3d 114, 124 (Tex. App.—Texarkana 2017, no pet.).
The goal of establishing a stable, permanent home for a child is a compelling
state interest. Dupree, 907 S.W.2d at 87.
Mother testified that she, Father, and the children had “moved around a
lot” over the years. Around the time that A.K. was born, they lived in an
apartment in Ocworth, Georgia. After living there about a year, they moved
to an extended stay motel “because of income.” When their second child was
born, Mother and Father were then living in a home in Biloxi, Mississippi.
When their third child was born, Mother and Father had then moved to
Cartersville, Georgia. Around that time, Father was “starting to become a
truck driver” and “was the main one that was working.”
Mother testified that they then ended up moving back to Mississippi
where their fourth child was born. When asked how many different places they
lived in Mississippi during that time, Mother replied, “I’m not sure.” When
asked if it was more than one place, Mother said, “Most likely.” Mother
testified that they had then moved back to Georgia by the time that their fifth
child was born. Mother then acknowledged that they were homeless three
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 24 times after their last child was born. Mother testified that during those times
Father “was in between little jobs, like, working at the temp services.” During
those times, they lived in their vehicle or stayed in homeless shelters.
Mother testified that the family moved to Texas around 2016 or 2017.
The family moved to Texas for Father to work in the oil industry. They were
then living at a motel in Bryan, and Father was making about $1,700 per week.
The family then moved to a home in Killeen where they stayed for three years.
At that time, Father stopped working in the oilfield and began working for a
cement company. Father worked for the cement company for years, off and on.
Mother testified that after COVID-19 happened, however, they moved back to
the motel in Bryan where Father worked for a trucking company. They then
moved to a manufactured home in Elmendorf for less than a year and then
back to the motel in Bryan. Eventually, they moved to Hearne and had been
living in the apartment there for about seven months when the children were
removed.
Father confirmed Mother’s testimony about the number of times that
they moved and the struggles that he had with providing for the family. Father
admitted that the children were struggling and that it was not good for them
to be living in a vehicle. Furthermore, Mother testified that Father had
attempted suicide around 2020 because she had been talking about divorce.
Mother stated that on the night of the incident, she left the children in the
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 25 vehicle while she went inside and found Father in the bathtub with a knife in
his hand, threatening to take his own life. Mother said that she stayed with
Father for about an hour that night while the children stayed in the vehicle.
Mother testified that Father also made a second attempt to commit suicide
while they were living in Killeen by overdosing on sleeping pills. When asked
why Father was so distraught that he was trying to commit suicide, Mother
replied that Father was “[j]ust dealing with life.” Mother said that Father was
just overwhelmed with everything, including dealing with six children, trying
to stay up on the bills, and helping her around the house. Mother stated that
Father was not getting any counseling, however. When asked why, Mother
replied, “Just dealing with it on our own.” As stated above, Milam also testified
that the children could not be returned to Father at the time of trial because
Father was currently incarcerated.
On the other hand, Milam testified that the children were doing
“[f]abulously” and “absolutely thriving” in their current placement. Milam
stated:
[The children] are healthy, up-to-date on all medical, dental appointments. They receive weekly individual therapy. They are involved in numerous extracurricular activities that include karate, horseback riding, swimming, game nights, movie nights.
Outside of campus activities, they attend school every weekday; of course, other than the holidays.
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 26 They have great relationships with other children at the same placement. They have great relationships with the caregivers at that placement.
Milam further testified specifically that A.K. had gained a healthy
amount of weight. Her bruises were gone, and her hair had begun to grow back
where it was pulled out. Her teeth were whiter. She also had been given
corrective lenses for her vision. Milam stated that when he first met A.K., she
would seclude herself, give only one-word answers, and refuse to make eye
contact. At the time of trial, however, A.K. talked to Milam in full sentences,
smiled, and did not hesitate to request what she wanted.
Milam testified that the Department’s plan for the children was for them
to continue at their current placement while exploring the possibility of
unrelated adoption. When asked if unrelated adoption meant that the children
could be separated, Milam replied that the Department would conduct
extensive research to make sure that the children would not have to be
separated.
There is a strong presumption that it is in the child’s best interest to
preserve the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). However, considering all the evidence
here in the light most favorable to the trial court’s finding and considering the
evidence as a whole, we hold that a reasonable factfinder could have formed a
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 27 firm belief or conviction that termination of Father’s parental rights was in the
best interest of all the children.
Moreover, as above, even if the trial court improperly considered
evidence that Father pleaded guilty in December 2024 to the offenses of injury
to a child, elderly, or disabled individual and abandoning a child and that he
was placed on ten years’ deferred adjudication for each offense, such error was
harmless. See TEX. R. APP. P. 44.1(a)(1). Even without considering the
complained-of evidence, the overwhelming evidence, as outlined above,
supports the trial court’s finding that the termination of Father’s parental
rights was in the best interest of the children. See TEX. FAM. CODE ANN. §
161.001(b)(2). Thus, we cannot conclude that such alleged error caused the
rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); New Process
Steel, L.P., 2006 WL 947764, at *4.
In light of the foregoing, we overrule Father’s issues and affirm the trial
court’s order of termination.
MATT JOHNSON Chief Justice
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 28 OPINION DELIVERED and FILED: August 14, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed CV06
In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 29