in the Interest of A.M and H.M., Children

• Court: Court of Appeals of Texas
• Decided: July 25, 2019
• Docket: 02-19-00023-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00023-CV ___________________________

IN THE INTEREST OF A.M AND H.M., CHILDREN

On Appeal from the 235th District Court Cooke County, Texas Trial Court No. CV17-00557

Before Sudderth, C.J.; Bassel and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

Mother and Father each appeal the trial court’s February 4, 2019 order

terminating their parental relationships with their daughters A.M. and H.M.1 We

affirm the trial court’s order.

II. BACKGROUND

Mother and Father are the biological parents of A.M. and H.M. At the time of

trial in January 2019, A.M was almost four years old, and H.M. was eighteen months

old.

A. Report/Investigation

Father was incarcerated at the time of H.M.’s birth in August 2017. In mid-

August 2017, the Texas Department of Family and Protective Services (“the

Department”) received a referral regarding Mother who, one month earlier, had tested

positive for benzodiazepines, opiates, and codeine during a prenatal doctor’s

appointment.

Investigator Kathleen Matthies conducted a post-referral interview with

Mother on August 18, 2017. At the time of Matthies’s visit, A.M. was approximately

two years and five months old and H.M. was a few days old. Mother told Matthies

1 To protect the parties’ privacy in this case, we identify the children by their initials and their parents simply as Father and Mother. See Tex. Fam. Code Ann. § 109.0029(d).

2 that she was a recovering methamphetamine addict and that Father was incarcerated

in Oklahoma. Mother admitted that she had used methamphetamine in the past and

had been using marijuana since she was sixteen years old. She denied using

methamphetamine during her pregnancy with H.M. and claimed that she had not used

methamphetamine for almost one year, but admitted that she had used hydrocodone

throughout her pregnancy. After observing Mother interact with her children and

having determined that H.M. and Mother did not test positive for any illegal or

nonprescribed controlled substances, and finding that the home was clean and

adequate, Matthies determined that no further action was required.

Approximately one month later, Mother called Matthies. Mother seemed

confused and informed Matthies that she felt disturbed, might need to be “admitted,”

and had asked her father to watch the children for a week but he was unavailable.

Mother had called Matthies to inform her that she was moving because her “mother-

in-law” was moving “dopeheads” into Mother’s home.2 Although Matthies was

Mother’s caseworker, Mother also stated to Matthies that she believed “her

caseworker”—a person other than Matthies—was following her. There was only one

investigative unit in Cooke County, and Matthies would have known—but was

unaware—of any reason for another caseworker to be involved in Mother’s case.

When Matthies met Mother at her father’s house, Mother admitted she had taken a

Mother and Father were not married, but Mother referred to Father’s mother 2

as “mother-in-law.”

3 nonprescribed Xanax. After Matthies administered a drug test to Mother and

informed her of the results,3 Mother confessed that she had used methamphetamine

less than a week before.

B. Removal of Children and Petition for Protection and Conservatorship of Children and Termination of Parent–Child Relationships

Matthies consulted her supervisor. Because Father was still incarcerated and

because it was not possible to appropriately place the children without removal, the

Department removed the children from Mother’s home.

On September 19, 2017, the Department filed a petition for protection of the

children, conservatorship, and termination of Mother’s and Father’s parental rights.

The trial court signed an emergency order removing the children from Mother’s home

and appointed the Department temporary sole managing conservator of the children.

After their removal, one of Matthies’s coworkers bathed the children. A.M. had

matted hair, “a whole lot of bug bites and scratches and stuff all over her

body . . . legs, arms, back and feet,” a tick behind her left ear, a black sticky substance

on her neck, and scabs on her scalp. The disposable diaper that H.M. was wearing

was “so full of crystals that it was stuck to her bottom,” and the bath water was

“extremely filthy.”

3 By agreement, the results of the test were not admitted in evidence.

4 C. Parental Service Plans

Spencer Brown was the Department’s conservatorship worker tasked with

preparing and explaining the service plans to Mother and Father, monitoring the

children’s access to services, and making a recommendation regarding the children.

Brown prepared family service plans for each parent, which required that Mother and

Father complete participation in certain services and perform specified tasks as set

forth in their respective plans. On November 9, 2017, the trial court made the service

plans an order of the court and noted that the plans established the actions necessary

for each parent to obtain the return of the children as set forth in section

161.001(b)(1)(O) of the Texas Family Code. See Tex. Family Code Ann.

§ 161.001(b)(1)(O).

1. Mother

Mother’s service plan required that she (1) attend a substance abuse support

group; (2) maintain contact with and keep the caseworker informed of service

progress, case details, and pertinent changes; (3) obtain and maintain a suitable living

arrangement for six consecutive months; (4) provide child support; (5) submit to

random drug testing; (6) successfully complete a parenting class; (7) attend and

participate in weekly individual counseling sessions; (8) complete a drug and alcohol

assessment; (9) attend all scheduled case appointments; (10) avoid criminal activity,

including the use of illegal substances; (11) obtain and demonstrate a legal and

5 verifiable income for six consecutive months; and (12) complete a mental health

evaluation and follow all recommendations.

2. Father

Father’s October 11, 2017 service plan required him to (1) contact the

caseworker after his release from incarceration; (2) participate in any proactive

services available to him such as counseling and classes and complete caseworker-

issued parenting packets and assignments; and (3) maintain monthly contact with the

caseworker. The plan also encouraged Father to “write to his children (draw pictures,

etc[.]).”

D. Trial Proceedings

In its petition, the Department sought termination of Mother’s parental

relationships with the children based on the predicate termination grounds set forth in

subsections D, E, F, O, and P of section 161.001(b)(1) of the Texas Family Code.4

Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (F), (O), (P). The petition sought

termination of Father’s parental relationship with the children based on the predicate

termination grounds set out in subsections D, E, N, O, and Q.5 Id.

§ 161.001(b)(1)(D), (E), (N), (O), (Q).

The Department abandoned the predicate termination grounds it had alleged 4

under subsections K and N as to Mother. Tex. Fam. Code Ann. § 161.001(b)(1)(K), (N).

The Department obtained the trial court’s permission to amend its petition to 5

allege constructive abandonment against Father under subsection N, which it had 6 1. Mother

Trial was to a jury. During her testimony, Mother acknowledged that she had

failed to comply with the requirements of her court-ordered service plan by failing to

refrain from criminal activity, to complete her drug treatment program, to secure safe

and stable housing for six months, to secure and maintain a stable income, and to pay

child support. Mother admitted that she had relapsed and had continued using

methamphetamine.

Brown confirmed that Mother had made a reasonable effort in the months

before trial to satisfy her service plan but noted that before those recent efforts,

Mother had been using drugs and breaking the law and, although her counseling was

ongoing, Mother had failed to be successfully discharged by a counselor. He also

noted that Mother had failed to follow through with drug and alcohol assessment

recommendations, to avoid criminal conduct, and to secure and maintain stable

income and housing. When asked whether he had seen twenty-three certificates that

Mother may have received from intensive outpatient counseling, Brown answered that

he had not seen any and agreed that Mother did not benefit from any intensive

outpatient counseling she did complete.

Bryce Kennedy, an officer of the Cooke County Sheriff’s Office narcotics unit,

arrested Mother on July 24, 2018. Acting as the middleman between a buyer and

inadvertently omitted from the petition, and it abandoned the predicate termination grounds that it had alleged under subsections F, K, and P. Tex. Fam. Code Ann. § 161.001(b)(1)(F), (K), (N), (P). 7 seller of methamphetamine, Mother had advised the buyer regarding what was

available for purchase and then drove the seller, a recently-paroled prison gang

member, to meet the buyer. Kennedy testified that Mother’s name had appeared in

multiple cell phones as a buyer, seller, or negotiator of drug sales and that she had

been arrested on prior drug charges. After her July 24, 2018 arrest, Mother admitted

to using methamphetamine that day. At the time of that arrest, Mother appeared to

be under the influence of methamphetamine and possibly a depressant of some kind

because she had slow or delayed reactions. Kennedy knew that Mother was involved

with a “narcotics gang,” but he acknowledged that he had no information that Mother

or Father was a member of any other kind of gang. Mother was charged with

engaging in organized criminal activity manufacturing or delivering a controlled

substance in penalty group 1, a first-degree felony offense with a punishment range of

confinement between five and ninety-nine years or life.

At trial, Father admitted that he did not write to Brown every month but

asserted that he had done his best to communicate with him. Father claimed that he

took advantage of all services available to him in prison and would disagree if

someone said that he did not. According to Father, Brown had visited him on a

single occasion about five weeks before trial and had informed him that Mother’s

rights would likely be terminated, but Brown had also told him that the Department

8 would attempt to permit Father to seek some kind of rights with his children. Father

believed that his incarceration was not a basis for terminating his parental relationship.

Brown testified that his ability to work with Father was limited because of

Father’s incarceration in Oklahoma and restrictions on Brown’s ability to perform

work in another state. Brown agreed that he first met with Father approximately five

weeks before trial for fifteen minutes and discussed the legal proceedings, told Father

about his children, and asked Father what he had done while incarcerated. Brown

denied that he had informed Father that the Department would not be seeking to

terminate his parental rights, which had been the Department’s goal since February

2018. Brown did not know whether the Department had ever sought to reunify the

children with Father, and he explained that Father was provided a service plan

because he had a right to attempt to do his best and sometimes circumstances change.

Brown could not recall whether Father had expressed to him a desire to retain his

relationship with the children.

Before they met, Brown had provided Father a minimal service plan which

required that he maintain monthly contact with Brown at the address listed on the

plan and seek and provide verification of his participation in any service or

rehabilitative function offered to him while incarcerated. Father did not successfully

complete all of his services. Father failed to stay in contact with Brown as required,

had written to him only seven times during the fifteen- or sixteen-month period, and

had sent a single letter addressed to one or both children. Father did not send to 9 Brown any birthday, Christmas, or Easter cards addressed to his children. Although

Brown attempted to confirm with prison personnel whether Father had completed all

services available to him during his incarceration, Brown was not successful. Brown

acknowledged that Father eventually provided to him certificates regarding Father’s

participation in some activities while incarcerated.

3. Findings

After considering this and other evidence, the jury determined that the parent–

child relationships between Mother, Father, and the children should be terminated.

The jury found that the Department had proven by clear and convincing evidence

that Mother had (1) knowingly placed or knowingly allowed the children to remain in

conditions or surroundings which endangered their physical or emotional well-being,

pursuant to subsection D; (2) engaged in conduct or knowingly placed the children

with persons who engaged in conduct which endangered the children’s physical or

emotional well-being, pursuant to subsection E; (3) failed to support the children in

accordance with her ability during a period of one year ending within six months of

the date of the filing of the petition, pursuant to subsection F; (4) failed to comply

with the provisions of a court order that specifically established the actions necessary

for Mother to obtain the return of the children who had been in the permanent or

temporary managing conservatorship of the Department for not less than nine

months as a result of the children’s removal from Mother under Chapter 262 for the

abuse or neglect of the children, pursuant to subsection O; and (5) used a controlled 10 substance, as defined by Chapter 481, Health and Safety Code, in a manner that

endangered the health or safety of the children, and (a) failed to complete a court-

ordered substance abuse treatment program or (b) after completion of a court-

ordered substance abuse treatment program, continued to abuse a controlled

substance, pursuant to subsection P. Id. § 161.001(b)(1)(D), (E), (F), (O), (P).

The jury found that the Department had proven by clear and convincing

evidence that Father had (1) knowingly placed or knowingly allowed the children to

remain in conditions or surroundings which endangered their physical or emotional

well-being, pursuant to subsection D; (2) engaged in conduct or knowingly placed the

children with persons who engaged in conduct which endangered the children’s

physical or emotional well-being, pursuant to subsection E; (3) constructively

abandoned the children who had been in the permanent or temporary managing

conservatorship of the Department for not less than six months when (a) the

Department had made reasonable efforts to return the children to Father, (b) Father

had not regularly visited or maintained significant contact with the children, and

(c) Father had demonstrated an inability to provide the children with a safe

environment, pursuant to subsection N; (4) failed to comply with the provisions of a

court order that specifically established the actions necessary for Father to obtain the

return of the children who had been in the permanent or temporary managing

conservatorship of the Department for not less than nine months as a result of the

children’s removal from Father under Chapter 262 for the abuse or neglect of the 11 children, pursuant to subsection O; and (5) knowingly engaged in criminal conduct

that had resulted in Father’s being convicted of an offense and confinement or

imprisonment and inability to care for the children for not less than two years from

the date when the petition was filed, pursuant to subsection Q. Id. § 161.001(b)(1)(D),

(E), (N), (O), (Q).

The jury also found that termination of the parent–child relationships was in

the children’s best interest. Based on the jury’s findings, the trial court thus

terminated the parent–child relationships between Mother, Father, and the children

and appointed the Department as the children’s managing conservator.

III. DISCUSSION

A. Mother’s Appeal

Mother’s appointed appellate counsel has filed a motion to withdraw. In his

Anders brief in support of the motion, Mother’s appellate counsel asserts that he is

unable to identify errors warranting reversal of the trial court’s termination order and

acknowledges that there is legally and factually sufficient evidence to support the five

predicate grounds for termination identified in the trial court’s order terminating

Mother’s relationship with the children, as well as the “best interest” determination.

See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493

(1967); In re K.M., 98 S.W.3d 774, 777 (Tex. App.—Fort Worth 2003, no pet.)

(holding that Anders procedures apply to termination of parental rights appeals when

12 court-appointed counsel has concluded that there are no nonfrivolous issues for

appeal).

The brief satisfies Anders’s requirements by presenting a professional evaluation

of the record and demonstrating why there are no arguable grounds to be advanced

on appeal. See Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App. 2014) (“The

purpose of the Anders brief is to satisfy the appellate court that the appointed

counsel’s motion to withdraw is, indeed, based upon a conscientious and thorough

review of the law and facts . . . .”); see also In re P.M., 520 S.W.3d 24, 27 (Tex. 2016)

(order) (noting that counsel in termination appeal may satisfy obligation to client by

“filing an appellate brief meeting the standards set in Anders v. California[] and its

progeny” (footnote omitted)). Although advised by counsel of her right to obtain the

appellate record and file a pro se response, Mother has not filed a pro se response to

the Anders brief or counsel’s motion to withdraw. The Department has declined to

file a brief in response to the Anders brief of Mother.

After an appellant’s court-appointed attorney files a motion to withdraw on the

ground that the appeal is frivolous and fulfills the requirements of Anders, this court is

obligated to undertake an independent examination of the record to determine if any

arguable grounds for appeal exist. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.

App. 1991); Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.––Fort Worth 1995, no

pet.). When analyzing whether any grounds for appeal exist, we consider the record,

13 the Anders brief, and any pro se response. In re Schulman, 252 S.W.3d 403, 408–09

(Tex. Crim. App. 2008) (orig. proceeding).

We have reviewed the appellate record and find no arguable grounds for

Mother’s appeal. See In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet.

denied) (citing Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005)). Having

carefully reviewed counsel’s brief and the appellate record, we find no reversible error

and agree with counsel that this appeal is without merit. Therefore, we affirm the trial

court’s order terminating Mother’s relationship with the children.

Because counsel’s motion to withdraw does not show good cause for the

withdrawal independent from counsel’s conclusion that the appeal is frivolous, we

deny the motion. See P.M., 520 S.W.3d at 27–28; In re C.J., 501 S.W.3d 254, 255 (Tex.

App.––Fort Worth 2016, pet. denied). Accordingly, counsel remains appointed in this

appeal through proceedings in the supreme court unless otherwise relieved from his

duties for good cause. See Tex. Fam. Code Ann. § 107.016(3)(C); P.M., 520 S.W.3d at

27.

B. Father’s Appeal

1. Father’s Sole Issue

For a trial court to terminate a parent–child relationship, the Department must

prove two elements by clear and convincing evidence: (1) that the parent’s actions

satisfy one ground listed in family code section 161.001(b)(1); and (2) that termination

is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re E.N.C., 14 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence

is clear and convincing if it “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; E.N.C., 384 S.W.3d at 802.

Father concedes that the evidence is legally and factually sufficient to support a

finding by clear and convincing evidence that he failed to comply with the provisions

of the court’s order specifically establishing the actions necessary for him to obtain

the return of his children under section 161.001(b)(1)(O),6 and he does not challenge

the evidence supporting the jury’s findings under subsections D, E, N, or Q as

independent grounds to reverse the judgment. Tex. Fam. Code Ann.

§ 161.001(b)(1)(D), (E), (N), (Q). But he does challenge the sufficiency of the

evidence to support the other four predicate findings in the context of his sole issue:

6 The trial court’s orders specified that Father was ordered to comply with each requirement set out in the Department’s service plan. The service plan required that Father “participate in any proactive services available to him,” “provide verification of participation/completion of these services via mail[] to the caseworker,” “complete any parenting packets[] and similar assignments[] sent to him by the caseworker,” “complete any releases of information,” “maintain monthly contact with the caseworker[] by mail” at the address provided in the plan, and encouraged Father “to write his children (draw pictures, etc[.])” at the address provided. Reviewing the evidence under the applicable standards, we conclude the evidence is legally and factually sufficient to support the trial court’s finding (1) that Father failed to comply with the provisions of a court order specifically establishing the actions necessary for him to obtain the return of his children and (2) that Father failed to prove by a preponderance of evidence that he was unable to comply with specific provisions of a court order and that he made a good-faith effort to comply with the order and that his failure to comply was not his fault. See Tex. Fam. Code §§ 161.001(b)(1)(O), 161.001(d).

15 that the evidence is legally and factually insufficient to support the jury’s

determination that termination of his parental rights is in the best interest of the

children. In other words, Father contends that because the evidence is insufficient to

support those grounds, we cannot consider them in our best-interest analysis and,

therefore, the evidence is insufficient to prove that termination is in the children’s

best interest.

2. Standards of Review

To determine whether the evidence is legally sufficient in parental-termination

cases, we look at all the evidence in the light most favorable to the challenged finding

to determine whether a reasonable fact finder could form a firm belief or conviction

that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume that

the fact finder settled any evidentiary conflicts in favor of its finding if a reasonable

fact finder could have done so. Id. We disregard all evidence that a reasonable fact

finder could have disbelieved, and we consider undisputed evidence even if it is

contrary to the finding. Id. That is, we consider evidence favorable to the finding if a

reasonable fact finder could, and we disregard contrary evidence unless a reasonable

fact finder could not. See id. The fact finder is the sole judge of the witnesses’

credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

We must perform “an exacting review of the entire record” in determining the

factual sufficiency of the evidence supporting the termination of a parent–child

relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due 16 deference to the jury’s findings and do not supplant its findings with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide

whether a fact finder could reasonably form a firm conviction or belief that the

termination of the parent–child relationship would be in the children’s best interest.

Tex. Fam. Code Ann. § 161.001(b)(2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the

fact finder reasonably could form such a firm conviction or belief, then the evidence

is factually sufficient. C.H., 89 S.W.3d at 18–19.

3. Applicable Law

Evidence probative of a child’s best interest may be the same evidence that is

probative of a subsection (1) ground. In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013);

C.H., 89 S.W.3d at 28. In making our determination, we must employ a strong

presumption that keeping a child with a parent serves the child’s best interest. In re

R.R., 209 S.W.3d 112, 116 (Tex. 2006). We also consider the evidence in light of

nonexclusive factors that the trier of fact may apply in determining the child’s best

interest:

(A) the child’s desires;

(B) the child’s emotional and physical needs, now and in the future;

(C) the emotional and physical danger to the child now and in the future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote the child’s best interest; 17 (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement;

(H) the parent’s acts or omissions indicating that the existing parent– child relationship is not a proper one; and (I) any excuse for the parent’s acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249

(stating that in reviewing a best-interest finding, “we consider, among other evidence,

the Holley factors” (footnote omitted)); E.N.C., 384 S.W.3d at 807. These factors are

not exhaustive, and some listed factors may not apply to some cases. C.H., 89 S.W.3d

at 27. Furthermore, undisputed evidence of just one factor may be sufficient to

support a finding that termination is in the child’s best interest. Id. On the other

hand, the presence of scant evidence relevant to each factor will not support such a

finding. Id.

4. Analysis

a. Expanded Sufficiency Review Under Subsections D and E

The Supreme Court of Texas has recently held that “[w]hen a parent has

presented the issue on appeal, an appellate court that denies review of a section

161.001(b)(1)(D) or (E) finding deprives the parent of a meaningful appeal and

eliminates the parent’s only chance for review of a finding that will be binding as to

parental rights to other children.” Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); In re

N.G., No. 18-0508, 2019 WL 2147263, at *3 (Tex. May 17, 2019). After examining

18 the evidence addressed below, including but not limited to Father’s long and

persistent methamphetamine use, long criminal history, and repeated incarcerations,

we conclude that the evidence is legally and factually sufficient to support the jury’s

endangerment findings under subsections D and E by clear and convincing evidence.

See, e.g., In re J.W., No. [0]2-08-[00]211-CV, 2009 WL 806865, at *4 (Tex. App.—Fort

Worth Mar. 26, 2009, no pet.) (mem. op.).

When evaluating whether termination of his parental relationship is in the best

interest of the children, Father asserts that we should disregard any argument that he

endangered his children by knowingly placing or knowingly allowing them to remain

in conditions or surroundings that endangered their physical or emotional well-being

because ground D provides no basis for termination if a parent is unaware of the

endangering environment. Tex. Fam. Code Ann. § 161.001(b)(1)(D). Father similarly

argues that a reasonable fact finder could not have formed a firm belief or conviction

that he 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 pursuant to subsection E because there is no evidence that he engaged in

conduct endangering his children. Id. § 161.001(b)(1)(E). We disagree.

Both subsections D and E use the term “endanger.” Id. § 161.001(b)(1)(D),

(E). In this context, endanger means to expose 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); A.S.

v. Tex. Dep’t of Family & Protective Servs., 394 S.W.3d 703, 711–12 (Tex. App.—El Paso 19 2012, no pet.). “Endanger” means 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 be directed at the child or that the child suffers actual injury. Jordan v.

Dossey, 325 S.W.3d 700, 721–23 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

The endangerment must be the result of a voluntary, deliberate, and conscious course

of conduct by the parent rather than a single act or omission. Id. at 723; In re J.T.G.,

121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). To determine whether

termination is necessary, courts look to parental conduct both before and after the

child’s birth. In re J.T.G., 121 S.W.3d at 125.

Inappropriate, abusive, or unlawful conduct by persons who live in the child’s

home or with whom the child is compelled to associate on a regular basis in the home

is a part of the “conditions or surroundings” of the child’s home under subsection D.

See Jordan, 325 S.W.3d at 721. When termination of parental rights is based on

subsection D, the endangerment analysis focuses on the evidence of the child’s

physical environment, but the environment produced by the conduct of the parents

bears on the determination of whether the child’s surroundings threaten his well-

being. Id. at 722.

Father is correct that subsection D is not a basis for terminating parental rights

if the parent was unaware of the endangering environment. In re S.M.L., 171 S.W.3d

472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Endangerment can be

exhibited by both actions and failures to act. Id. at 477 (citing In re U.P., 105 S.W.3d 20 222, 233 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)). It is not necessary

that the parent’s conduct be directed towards the child or that the child actually suffer

injury; rather, a child is endangered when the environment creates a potential for

danger of which the parent is aware but disregards. S.M.L., 171 S.W.3d at 477. A

parent need not know for certain that the child is in an endangering environment:

awareness of such a potential is sufficient. Id. (citing In re Tidwell, 35 S.W.3d 115, 119–

20 (Tex. App.—Texarkana 2000, no pet.) (explaining that it is not necessary for a

parent to have certain knowledge that a criminal offense actually occurred; it is

sufficient that the parent was aware of the potential for danger to the children and

disregarded that risk by leaving the children in that environment.)). “Parental and

caregiver illegal drug use and drug-related criminal activity likewise supports the

conclusion that the children’s surroundings endanger their physical or emotional well-

being.” J.T.G., 121 S.W.3d at 125. The relevant time frame under this subsection is

prior to the child’s removal. In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana

2013, pet. denied).

Between 2007 and 2018, Father had been convicted in Texas for possession of

methamphetamine, burglary of a motor vehicle, and five theft offenses. The

sentences for these offenses ranged from community supervision to confinement in

county jails, state jails, and prison for periods ranging from fifteen days to four years.

Father had also been convicted in the state of Oklahoma for the offenses of

21 knowingly concealing stolen property and possession of a stolen vehicle, for which he

was sentenced to concurrent four-year terms of confinement.

At the time of trial, Father was thirty four years old and was still serving a four-

year sentence for theft of a motorcycle in Texas after having served his sentence in

Oklahoma for knowingly concealing stolen property. Father expected to be paroled

within the year but admitted that if he were not released on parole, his sentence would

not end until 2021.

In this case, there is sufficient evidence showing that Father was aware of the

potential for the environment to endanger his children. See S.M.L., 171 S.W.3d at

477. Father’s admissions that he had used methamphetamine with Mother and with

visiting friends before his incarceration, his knowledge that smoking

methamphetamine in the absence of a child posed a danger for children who might

later contact its residue, and his own criminal activity are evidence demonstrating

Father’s awareness of an environment sufficient to show endangerment under

subsection D. Tex. Fam. Code Ann. § 161.001(b)(1)(D); S.M.L., 171 S.W.3d at 477–

79 (noting that whether father neglected child or merely observed neglect, fact finder

could have reasonably inferred that father had knowledge of endangering

environment before departing for jail and holding that evidence that father went to jail

and failed to act to prevent child from remaining alone in an unfit home environment

with a mother who was unable to care for the child supported termination of father’s

relationship under subsection D); J.T.G., 121 S.W.3d at 125. 22 Subsection E authorizes termination if the parent engaged in conduct or

knowingly placed the child with persons who engaged in conduct that endangered the

physical or emotional well-being of the child. Tex. Fam. Code Ann.

§ 161.001(b)(1)(E). The relevant inquiry under this subsection is whether there is

evidence that a parent’s acts, omissions, or failures to act endangered the child’s

physical or emotional well-being. See Jordan, 325 S.W.3d at 723; J.T.G., 121 S.W.3d at

125.

Conduct that subjects a child to a life of uncertainty and instability endangers

the child’s physical and emotional well-being. Jordan, 325 S.W.3d at 723; In re R.W.,

129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). The commission of

criminal conduct by a parent may support termination under subsection E because it

exposes the child to the possibility that the parent could be imprisoned. See In re

M.C., 482 S.W.3d 675, 685 (Tex. App.—Texarkana 2016, pet. denied); In re A.W.T.,

61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no pet.) (stating that intentional

criminal activity which exposes the parent to incarceration is relevant evidence

tending to establish a course of conduct endangering the emotional and physical well-

being of the child). While criminal violations and incarceration are not enough to

show endangerment by themselves, they can be evidence of endangerment if shown

to be part of a course of conduct that is endangering to the child. In re R.A.G.,

545 S.W.3d 645, 651–52 (Tex. App.—El Paso 2017, no pet.) (citing Tex. Dep’t of

Human Servs v. Boyd, 727 S.W.2d 531, 533–34 (Tex. 1987)). Likewise, a fact finder may 23 infer that a parent’s lack of contact with the child and absence from the child’s life

endangered the child’s emotional well-being. See U.P., 105 S.W.3d at 236.

Here, the evidence showed that Father and Mother used methamphetamine

before removal of the children from the home and that Father had been convicted of

and was incarcerated for committing multiple criminal offenses. As a result,

Appellant was incarcerated before H.M. was born and remained incarcerated at trial.

Father had been absent for all of H.M.’s life and for a significant portion of A.M.’s

life. While incarceration is not sufficient, standing alone, to support a finding under

subsection E, these facts are part of Father’s overall course of conduct and are

sufficient to establish a firm conviction or belief in the mind of the fact finder that

Father engaged in conduct that endangered the children’s physical or emotional well-

being under subsection E. See R.A.G., 545 S.W.3d at 651–52. Therefore, we

conclude the evidence is legally and factually sufficient to support the jury’s

subsections D and E findings and will not disregard the evidence supporting those

findings when analyzing whether termination is in the children’s best interest.

b. Holley Factors

i. Present and future needs and danger

We next address the Holley factors, which we discuss out of order for ease of

discussion. Holley, 544 S.W.2d at 371–72. The second and third factors concern the

children’s emotional and physical needs now and in the future, and the emotional and

physical danger to the children now and in the future, which we consider together. Id. 24 at 371–72. The need for permanence is a paramount consideration for a child’s

present and future physical and emotional needs. In re T.D.C., 91 S.W.3d 865, 873

(Tex. App.—Fort Worth 2002, pet. denied); see also In re Z.C., 280 S.W.3d 470, 476

(Tex. App.—Fort Worth 2009, pet. denied) (“Stability and permanence are paramount

in the upbringing of a child.”).

On appeal, Father admits that he is unable to provide for his children’s needs

and will require support to provide for their needs when he is released from

incarceration. He acknowledges that to rebuild his relationship with his daughters he

will need to demonstrate to a court that he is not using drugs or committing criminal

offenses. He contends, however, that this admission does not support a finding that

termination is in the best interest of his children.

When Father testified at trial, he was thirty four years old. He had begun using

methamphetamine when he was sixteen years old and had last used the drug in 2017.

Father admitted that he was using methamphetamine with Mother before he went to

prison in Oklahoma.

Father initially explained his belief that it is possible to be a good parent while

using methamphetamine if the children are not present but stated that he did not

intend to use the drug after being released from prison. Father agreed that his past

use of methamphetamine was a basis for concern and that it would be improper to

place his children in his care unless he could establish that he was not using

methamphetamine again and could support them. He explained that in the past, he 25 had used methamphetamine when friends would bring the drug during visits, and he

claimed that A.M. was never exposed to the drug during those times because she was

with his mother or Mother’s parents and was never present during his use. Father

acknowledged, however, that his sister and Mother’s father, mother, brother, and

niece have histories of methamphetamine use.

Father subsequently asserted that although he previously thought it was “no big

deal” to use methamphetamine as long as the children were not present, after gaining

sobriety, he knows that it is not good for the children and declared that “[It’s] not

going to happen ever again.” Father acknowledged that before his incarceration, he

had tried to quit using methamphetamine for a long time. He also quit using the drug

a least once but had relapsed when a friend brought the drug to him during a visit.

Father agreed that it is not good for children to grow up in a home with

parents who use drugs and are periodically in jail because this could expose the

children to dangerous situations and because sometimes people who use

methamphetamine can become violent. Father acknowledged that when

methamphetamine is smoked, a residue is left that endangers children even if children

are not present when the drug is being smoked. While Father initially stated that his

past behavior had not shown danger to his children, he later agreed that being in and

out of prison causes them trouble. Further, he agreed at trial that it would not be

appropriate for the court or jury to place the children in his care at that time. Father

acknowledged that he could not then provide a safe home for his children due to his 26 circumstances and that his past behavior and repeated confinement had endangered

the emotional, mental, and physical well-being of his children. He acknowledged that

he would not immediately recover custody of his children after his release from

confinement and, to regain custody of them, he would need to demonstrate that he

could support his children and was not using methamphetamine.

Father recalled that he met Mother when he accidentally shot himself with a

small gun as he attempted to place it in his pocket. As a result, he lost a toe but

explained that he no longer had the gun and did not have guns before he was arrested

or while the children were at home. He noted that he and Mother had been together

since that event and that Mother had “stuck by [his] side the whole time.” Father was

aware that A.M. had made sexual outcries against Mother, and although he did not

think A.M. would “make it up,” he believed “it’s something that’s been put in her

head.”

The foster mother testified that when H.M. was first delivered to the foster

family, she was asleep in a car seat and very lethargic, her head stayed turned to the

right, and she did not eat well or have many wet diapers for two days. H.M. did not

make eye contact, had no startle reaction to sound or anything visual, and stared off

into the distance. The foster parents would position H.M.’s head to require that she

look to the left during feedings. The foster parents took H.M. to occupational and

physical therapy. Over three to four months, H.M. wore a cranial helmet for twenty-

three hours a day to reshape her head. At the time of trial, H.M. was crawling 27 unconventionally by dragging her left leg and using her right leg to scoot herself

forward, was learning to stand, and was late in learning to walk.

When A.M. first arrived at the foster home, she was scared, dirty, and smelled,

and she had scabies, sties around her eyes, a purplish color under her eyes, yellow-

green drainage emerging from her nose, and a cough. A.M. had very aggressive

temper tantrums, causing her foster family concern that she would hurt herself or

someone else. A.M. became hysterical during bath time and would hit, kick, bite,

scratch, and throw herself about. Eventually, she began acting inappropriately during

bath time by “sticking her fingers into her private parts or toys up by her private

parts.” After placing a baby monitor in A.M.’s room, the foster parents observed that

A.M. would also act out sexually at bedtime and naptime by sitting on dolls’ faces and

acting like she was having sex with the dolls, and “moving around sexually.” If the

dolls were removed, A.M. would put her hands in her pants or sit on her hand or

another object, “move around sexually,” and play with her breasts or other parts of

her body.

At night, A.M. was hypervigilant. While keeping herself awake, she would

barricade and sit by her door and bang on it or scream, or she would rock back and

forth in the middle of the room and stare off into space for twenty minutes or longer.

Other times, A.M. would hide between a dresser and a wall and say she was scared of

monsters. A.M. would also poke herself in the eyes—with her eyes open—using

blankets or sunglasses and showed no apparent pain sensation; when the foster family 28 would attempt to redirect her attention, A.M. would smile and say, “I like it.” A.M.

stated that she poked or covered her eyes because she did not want to see and that

she was scared. The foster mother believed these acts may have been the source of

A.M.’s eye sores.

A.M. would eat without a sense of when to stop, would sneak food, and would

get up in the night to get food. The foster parents acted to reassure or correct A.M.’s

behavior in accordance with her play and behavior therapists’s guidance. The foster

mother began recording A.M.’s behavior because she had not seen this behavior

before. When the foster mother asked A.M. why she was acting as she did, A.M.

would say, “Visit mommy showed me how to do this,” or “[V]isit mommy do this.”

The foster mother clarified that the term “visit mommy” arose from A.M.’s reference

to Mother or “Mommy from visit.” Foster mother notified the Department about

A.M.’s strange behaviors. Since being in foster care, A.M. had attended play,

behavioral, and occupational therapy, and it was ongoing at the time of trial.

Brown noted that behavioral and play therapy is common for children that

have been abused or neglected. Brown did not believe that Mother and Father could

meet the children’s physical, mental, and emotional needs.

A.M.’s behavioral therapist, Tiffany LeBlanc, explained that A.M. had

demonstrated behaviors that are more extreme than those of a child who did not have

the same experiences that A.M. had faced and had needed therapy for on-the-floor

tantrums, defiance, very drastic mood changes, and verbal and physical aggression. 29 LeBlanc noted that A.M. was one of her first clients who had shown very low self-

esteem “at such a young age.” LeBlanc agreed that these behaviors were all “much

worse in [A.M.] than you would expect in a normal 3-year-old.” Because A.M. had

shown regression after advancement, LeBlanc estimated at the time of trial that A.M.

would need years of therapy.

LeBlanc acknowledged that a parent who uses methamphetamine or is

constantly in and out of jail can have a negative effect on the emotional and mental

health of a child. Recognizing that reunification between a parent and child is

important, LeBlanc nevertheless observed that many times it should not occur

because placing a child with a parent who has not adequately addressed his drug

problem is not beneficial to a child’s mental or emotional health.

A fact finder may infer from a parent’s past inability to meet a child’s physical

and emotional needs an inability or unwillingness to meet a child’s needs in the future.

In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A

fact finder may infer that past conduct endangering the well-being of a child may

recur in the future if the child is returned to the parent. Id. Although the children’s

physical and emotional conditions, and A.M.’s behaviors, appear to be directly the

result of Mother’s care, Father’s incarceration left the children solely in Mother’s care.

Based on the evidence of the children’s physical and emotional conditions at the time

of removal and while in care, the fact finder could infer that Father’s repeated drug

use, arrests, and incarcerations would continue to be a danger to the children’s 30 physical and emotional needs and well-being in the future. Id.; see also R.A.G.,

545 S.W.3d at 652, 653 (citation omitted) (stating that fact finder could infer that

parent’s lack of contact with child and absence from child’s life endangered the child’s

emotional well-being when parent was arrested for drug-trafficking, was subsequently

absent for the first four years of child’s life due to incarceration, and had failed to

engage with child after removal). The second and third factors weigh in favor of the

trial court’s best-interest finding.

ii. Parenting abilities

The fourth factor is the parenting abilities of the individuals seeking custody of

the children. In reviewing the parenting abilities of a parent, a fact finder can consider

the parent’s past neglect or past inability to meet the physical and emotional needs of

the children. J.D., 436 S.W.3d at 118.

At trial, Father agreed that he could not parent well while in jail and that a child

whose parent repeatedly returns to jail does not have a stable life, which is not good

for the child. Father also agreed that if he continued to return to jail, he could not

properly parent his children.

Father acknowledged that he has three other children who were removed from

his custody during the Department’s case involving his ex-wife. Father explained that

the removal occurred because he began using methamphetamine after he and his ex-

wife fought and separated. Father claimed that his ex-wife reported his drug use to

the Department. After he was “swabbed,” Father informed the caseworkers that he 31 had used methamphetamine, and the children were removed from his custody.

Father asserted that he had retained his rights to those children, who were in the

custody of their grandmother, and could obtain custody of them after proving himself

to the court after his release from prison.

Father acknowledged that if he were convicted of another felony criminal

offense, his sentence could be enhanced so that he would be subject to confinement

for life. He declared that this possibility scared him and was a reason why he would

not offend again. The trial court admitted Father’s certificates showing the courses he

had completed during his incarceration, which included “Inside Out Dad,” “Managing

My Anger,” “A Sense of Family,” “Christians Against Substance Abuse,” and

“Manufacturing Principles.”

Father testified that he did not believe that Mother’s rights should be

terminated and felt that she deserved to be with their children. Father also hoped to

resume his relationship with Mother after his release from incarceration. When

subsequently asked whether he believed A.M.’s sexual abuse outcries which implicated

Mother, Father expressed his belief that someone had coached A.M.

A.M.’s therapist LeBlanc declared that A.M.’s behavioral issues for which she

was receiving therapy were not the result of being removed and placed with the foster

family, but rather were a display of A.M.’s feelings and emotions resulting from her

life with her biological parents. LeBlanc indicated that she probably would not have

needed to help teach certain skills to A.M. if she had learned them from her parents 32 before she was placed in foster care. LeBlanc also noted that children whose parents

are constantly in and out of jail and constantly use narcotics, methamphetamine,

marijuana, and other substances are very likely to learn that this is acceptable behavior

and are more likely to become drug users and criminals as well.

Brown agreed with Father that methamphetamine is highly addictive and

affects a person’s mental functioning, thought patterns, memory, decision making,

and character and poses a danger to children whose parents use it. Brown noted that

a person cannot be a good parent while using methamphetamine. According to

Brown, parents who use methamphetamine are unable to keep themselves or their

children safe. Although the children could not protect themselves and make a choice

to not be exposed to methamphetamine and drug dealers, Brown noted that Father

and Mother could have made those choices. He agreed that because Father had

allowed his children to stay in the home where he and Mother had used

methamphetamine, Father was not capable of protecting his children. Brown agreed

that A.M. was going to need ongoing counseling and also needed to be with someone

who would take her sexual abuse history as seriously as the foster parents did.

Brown had no concerns about the children after they entered foster care. The

foster parents had taken the children to all of their therapy, medical, and dental

appointments and were clothing, feeding, and protecting the children. The children’s

physical, mental, emotional, and safety needs were being met, and A.M. had informed

Brown that she felt safe in her foster home. The foster parents were seeking custody 33 of the children and were willing to adopt the children together if it was determined

that termination of the parent–child relationship was in the children’s best interest.

At the time of trial, the children had been in foster care for over a year.

Although the foster mother had not been contacted by nor had she received

information from Father, she voluntarily sent pictures of the children to him. Father

did not request pictures of the children and never sent cards for the children.

While there is some evidence showing that father completed parenting-related

courses while in prison, the other evidence, including father’s trial testimony, supports

a conclusion that Father has poor parenting skills. This factor weighs in favor of the

best-interest finding.

iii. Children’s desires

The first Holley factor is the desire of the children. Holley, 544 S.W.2d at 371–

72. Father observes that there is no evidence of the children’s desires regarding

termination of his relationship to them. We agree. However, evidence that a child is

well-cared for by her foster family, is bonded to her foster family, and has spent

minimal time in the presence of a parent is relevant to the best interest determination

under the desires-of-the-child factor. See R.A.G., 545 S.W.3d at 653; U.P., 105 S.W.3d

at 230.

At trial, testimony established that the children were bonded to the foster

family and that the foster family was providing necessary care for the children. The

foster family had taken H.M. to medical and therapy appointments and had ensured 34 that H.M. wore a prescribed cranial helmet. H.M. was also attached to the foster

family’s sons. The foster parents had taken A.M. to see her doctor, dentist, and play

therapist and had accompanied her during dental surgery. Because the foster mother

had concerns that A.M. was acting out sexually, the foster mother had recorded

A.M.’s behaviors, notified the Department of A.M.’s claims of sexual abuse, and

ensured that A.M. attended behavioral therapy. The foster family also transported the

children to the Department for visitation with Mother.

On appeal, Father asserts that during the first two years of A.M.’s life, he and

Mother provided a relatively happy and safe home for her and asserts that he was an

active parent. He contends that he desires to maintain a relationship with his children

and that, despite his incarceration, he had attempted to build a relationship by sending

a letter and a drawing to his children.

A.M. was two years old when Father went to prison and was almost four years

old at the time of trial. Father had been incarcerated twenty months and admits on

appeal that he has no relationship with H.M. On a couple of occasions, A.M. had

asked her foster mother where Father was and why she could not see him, but the

foster mother testified that A.M. had never cried for her father. Five other witnesses

reported that A.M. never asked about Father in their presence. Based on all of this

evidence, the fact finder could have determined that this factor weighs in favor of the

35 iv. Programs available to Father

The fifth factor examines the programs available to assist the individuals

seeking custody to promote the children’s best interests. Father admits on appeal that

the evidence supported the termination of the relationship under subsection O, which

required his compliance with the provisions of the court’s order specifically

establishing as set forth in his service plan the actions necessary for him to obtain the

return of his children. Tex. Fam. Code Ann. § 161.001(b)(1)(O). At trial, Father

asserted that he had completed all services available to him while incarcerated. Brown

had attempted unsuccessfully to verify with prison personnel that Father had satisfied

this requirement of his service plan. No evidence was presented to show programs

available to Father on his release. This factor is neutral.

v. Plans for the children and stability of the home or proposed placement

The sixth factor examines the plans for the child by the individuals or the

agency seeking custody. The seventh factor examines the stability of the home or

proposed placement. We consider these factors together. The fact finder may

compare the parent’s and the Department’s plans for the children and determine

whether the plans and expectations of each party are realistic or weak and ill-defined.

J.D., 436 S.W.3d at 119–120.

At trial, Father did not identify his plans for the children but did address his

desire to reestablish his relationship with Mother. Father was uncertain of his future

with Mother but favored a relationship with her as long as they were “both strong 36 enough in [their] sobriety.” He expressed a willingness to commit to his family that

he would stay away from drugs, to move away to “start a new life,” and to remove his

family from their old friends. Father did not believe that Mother’s parental rights

should be terminated and felt that she deserved to be with their children. While

Father testified that he would seek custody of his other children on release from

prison, he did not express any plans for A.M. and H.M.

Father acknowledges that the Department proved at trial that he had been

convicted of the offenses of knowingly concealing stolen property, possession of a

stolen vehicle, and theft of property. However, he contends that the Department

failed to prove that he had been or would be confined from September 19, 2017, the

date on which the Department filed its petition, to September 19, 2019.7 He notes

that the evidence showed that he had been paroled from Oklahoma after discharging

his sentences there and that he was expected to be paroled in Texas in May 2019. He

therefore argues that no reasonable fact finder would have formed a firm belief or

conviction that he knowingly engaged in criminal conduct resulting in his conviction

and confinement or imprisonment and inability to care for his children for not less

than two years from the date of the filing of the petition pursuant to ground Q.

7 Father claims on appeal that his parole was approved on April 24, 2019, and that he is projected to be released from confinement on September 9, 2019. We may not consider evidence that was not before the trial court. See In re S.D., No. 05-18- 00809-CV, 2018 WL 6427646, at *4 (Tex. App.—Dallas Dec. 7, 2018, pet. denied) (mem. op.) (recognizing that appellate court could not consider document that was not in evidence).

37 Father argues that our evaluation of whether the termination of his relationship was in

the best interest of the children should disregard the argument that his confinement

“creates [an] inability” to care for his children.

Brown testified that Father had not expressed to him any plan for the children

if they were placed with him. The Department’s plan for the children was to

terminate the parent-child relationship and for the foster parents to adopt. The foster

parents’ plan was to adopt the children if Mother and Father’s parent–child

relationships are terminated.

There is evidence that A.M. has little or no attachment to Father. There is no

evidence that H.M. has any attachment to Father. However, there is evidence that the

children are well-bonded with the foster parents and their children.

The foster parents’ nanny testified that she had observed a good relationship

between the foster parents and the children and stated that the children are attached

to the foster parents. A.M. and H.M. have a very good, loving relationship with each

other. At the time of trial, H.M. was not walking or talking yet and had difficulty

crawling, but she had progressed since being with the foster family. A.M. called foster

mother, “Mommy,” and foster father, “Daddy.”

Several witnesses testified regarding the stability of the home or proposed

placement. Father agreed that being in prison was not good for his children and that

a parent who is in and out of prison cannot provide a stable life for his children.

LeBlanc testified that stability is important for a child and that both the movement of 38 a parent in and out of jail and of children from home to a foster home contributes to

instability.

Jennifer Ware was the conservatorship supervisor for the Department and is

Brown’s supervisor. Based on her review of the case, Ware believed it was proper to

terminate the parents’ rights. Ware expressed concern that if Father was convicted of

another criminal felony offense, his punishment could be enhanced to confinement

for up to ninety-nine years or life, which she noted was possible based on Father’s

prior criminal conduct. Ware believed the threat of such a long confinement would

present problems for the children. Ware was also concerned about the future of the

children if their parents’ rights were not terminated because children who remain in

foster care are essentially “stuck in a system of not having a forever home, [and] stuck

in a system . . . where they don’t always have that guarantee of their parents to fall

back on, because legally there’s not a parent . . . which is not a good environment for

the child.”

Court-appointed special advocate Rhonda Smithson served as the children’s

guardian ad litem and reports directly to the court. Smithson had visited the children

in their foster home or other locations on fifteen or sixteen occasions. Smithson had

originally hoped that the children would be able to go home but believed the foster

family had provided the children a safe and stable home and had met their emotional,

physical, and mental needs. She had discussed with the foster family the possibility of

adopting the children. Because of Mother and Father’s drug use, Father’s 39 incarceration for possibly up to two more years, and Father’s inability to provide a

home for the girls at the conclusion of trial, Smithson did not believe that Mother or

Father could meet the children’s needs or parent properly, particularly regarding

A.M.’s special needs. Smithson recommended that Father’s relationship with the

children be terminated because she thought termination would be in their best

interest.

From this evidence, the fact finder could have determined that the

Department’s plan for the children was realistic and that the proposed placement

would provide the children with a stable home. Each of these factors supports the

vi. Parent’s acts or omissions

The eighth factor examines the parent’s acts or omissions that may indicate that

the existing parent-child relationship is not a proper one. By his acts, Father

committed and was convicted of multiple criminal offenses which resulted in his

repeated incarceration and absence from his children, and he had a long history of

drug use as well as a drug conviction. Father admitted that while at home he had used

methamphetamine, which leaves a residue that endangers children even if children are

not present when the drug is being smoked. As Brown acknowledged, Father had

allowed his children to remain in the home where he and Mother had used

methamphetamine. By omission, Father failed to complete his service plan and made

few attempts to continue or develop a relationship with the children through 40 correspondence. Based on this evidence, the fact finder could have found that the

existing parent–child relationship between Father and the children is not a proper

one. This factor supports the best-interest finding.

vii. Excuse for the parent’s acts or omissions

Finally, the ninth factor is whether there is any excuse for the parent’s

acts or omissions. Father notes that he was provided only a single in-person

interaction with “the Department” one month prior to trial, that all other interaction

occurred by written correspondence, and that he was not present at any hearings

before trial. Because of the children’s ages, his limited contact with the Department,

his isolation, and his lack of necessary information regarding the importance of

ongoing communication with the children, Father asserts that it is reasonable to

assume that the exercise of writing letters to his illiterate children was a nonproductive

exercise. He also argues that he was never admonished regarding the potential loss or

restriction of his parental rights for noncompliance with the service plan and that he

understood only Mother’s rights would be terminated while he would be named a

possessory conservator with limited and supervised visitation. Father’s and Brown’s

testimony regarding the matters discussed during their meeting weeks before trial is in

conflict. Because there is conflicting evidence, this factor is neutral.

c. Conservatorship argument

Without citation to authority, Father argues that the Department failed to

produce any evidence that the children’s emotional and physical interest would be 41 sacrificed if Father was appointed possessory conservator with supervised visitation.

Father has not directed us to any authority requiring that the Department produce

such evidence, and we have found none. Cf. In re S.C., 02-18-00422-CV, 2019 WL

2455612, at *14 (Tex. App.—Fort Worth June 13, 2019, no pet. h.) (holding that

parent in termination case has no right to a conservatorship question in court’s

charge).

d. Factors Weigh in Favor of Best-Interest Finding

Father asserts that evidence supporting the predicate termination grounds set

forth in subsections D, E, N, and Q do not support a finding that termination is in

the best interest of the children. Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N),

(Q). In support of these assertions, Father also contends that when viewing the

entirety of the record, the findings based on subsections D, E, and Q are unsupported

by evidence and do not permit a fact finder to reasonably form a firm belief or

conviction that he violated those grounds. Id.

After considering the evidence related to the Holley factors and Father’s

arguments regarding the weight to be given the evidence supporting the predicate

termination grounds in performing our analysis of whether termination was in the

children’s best interest, we conclude under both the legal and factual sufficiency

standards of review that the fact finder could have reached a firm conviction or belief

that termination of Father’s parental rights is in the best interest of the children. We

overrule Father’s sole issue. 42 IV. CONCLUSION

Finding no arguable grounds for Mother’s appeal and having overruled Father’s

sole issue, the order terminating Mother’s and Father’s parental relationships with the

children is affirmed.

/s/ Dana Womack

Dana Womack Justice

Delivered: July 25, 2019