In the Interest of B. D. Z.; P. Jr. AKA B. M., a Child v. Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: December 16, 2025
• Docket: 01-25-00457-CV
• Status: Published

Opinion

Opinion issued December 16, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-25-00457-CV ——————————— IN THE INTEREST OF B.D.Z.P., JR. AKA B.M., A CHILD

On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2024-00823J

MEMORANDUM OPINION

Appellants S.M. aka S.M., S.B.G. (“Mother”) and J.B.G. aka J.B.B.

(“Father”) are the biological parents of B.D.Z.P., Jr. aka B.M. (“Ben”), their only

child together.1 On appeal from the trial court’s order terminating their parental

1 Both Mother and Father have other children with different partners. To preserve the parties’ privacy, we identify all parents by their initials and use pseudonyms for the child who is the subject of this termination appeal and his siblings. rights as to Ben, Mother and Father contend (1) the evidence is legally and factually

insufficient to find any predicate ground for termination or that termination is in

Ben’s best-interest, and (2) the Department of Family and Protective Services should

not have been appointed as Ben’s managing conservator. Additionally, Father, who

was incarcerated during trial, contends he was denied due process of law when the

trial court refused to grant a continuance of the first day of trial so that he could

appear in person after a bench warrant was signed. We affirm.

Background

Mother has three children with three fathers: Kamryn and Zachary, with

whom Mother lived in Oregon, and Ben, with whom she lived in Texas. Though

Kamryn and Zachary have been the subject of child welfare proceedings in Oregon,

only Ben is the subject of this appeal. Ben is also the only child whom Mother and

Father share. Father has seven other children with other women.

The Department received a request for public service regarding Ben after

Mother disclosed his birth to her therapist. The Department responded and noted

concerns that Mother was “mentally unstable,” was on parole for criminal

mistreatment of Zachary (and other offenses), did not have custody of Kamryn or

Zachary, and was not permitted to care for any children without the permission of

the Oregon Department of Human Services (“ODHS”). But the Department did not

immediately remove Ben.

2 Removal proceedings started about two months later, when the Department

received a referral alleging neglectful supervision. At the time, Mother was in

Oregon and left Ben with a woman she knew from church. The removal affidavit

states:

[Mother] is currently incarcerated. [Mother] has cognitive delays and mental health concerns. [She] is on probation for ID theft and tampering with a witness in Oregon. [She] waterboarded her 2-year-old child [Zachary] when the child was 8 weeks old. [Mother] moved to Texas and was not supposed to have contact with any children including her own. [Mother] left [Ben] with [a church acquaintance] and went to Oregon for a parole visit. [The church acquaintance] was under the assumption that [Mother] would only be gone for one day. [Mother] has been informed that she has to stay in Oregon and can’t have contact with [Ben]. [The church acquaintance] is not willing to be a foster parent or permanent placement for [Ben].

The removal affidavit also alleged that while Mother was in Oregon, she had allowed

her father to have access to Ben even though he had sexually abused Mother from

“childhood into adulthood.” ODHS believed Mother posed a safety risk to her

children. And the Department reached the same conclusion, stating in the removal

affidavit that Mother posed a “significant danger to children” because she had

engaged in “assault and deadly behaviors” against adults and children in the past.

The trial court appointed the Department as Ben’s temporary managing

conservator. At the time of removal and throughout the termination proceedings that

followed, Father was incarcerated.

3 The trial court approved family-services plans for Mother and Father. Among

other things, Mother’s plan required her to establish and maintain safe housing,

prove income, complete a parenting program, participate in substance abuse

screenings and assessments and follow all recommendations, and participate in and

complete psychological and psychosocial evaluations and follow all

recommendations. And among other things, Father had to refrain from engaging in

criminal activities, maintain safe and stable housing, participate in parenting sessions

through individual counseling, participate in and follow all recommendations from

a psychosocial assessment upon his release, and participate in and follow all

recommendations from a Battering Intervention and Prevention Program assessment

upon his release. Both Mother and Father worked on their services, with Mother

completing many of them in Oregon.

The Department ultimately proceeded on the petition to terminate Mother’s

and Father’s parental rights. About three weeks before trial, Father requested a

bench warrant so that he could appear in person. Because the bench warrant had not

been signed a week before trial, Father filed a written motion for continuance. The

trial court signed the warrant the same day, but when trial started six days later,

Father was not delivered to court. His counsel objected to proceeding in his absence

on due-process and other grounds and orally renewed the continuance motion. The

trial court questioned whether the warrant had been signed in time to facilitate

4 Father’s transfer from the facility where he was incarcerated in North Texas to

Houston and then recessed for about twenty minutes to secure Father’s attendance

by telephone instead. Father’s counsel renewed his objection, arguing that Father

being available only by telephone hindered their ability to communicate and

confront the Department’s witnesses. The trial court denied the continuance motion

and proceeded with the testimony over two days.

Although Father was not physically present on the first day of trial, he did

appear for the second day of trial pursuant to a second bench warrant. Mother was

present on the first day of trial but participated by telephone on the second day

because she was jailed in the interim due to a probation violation.

Oregon caseworker, Alicia Davis

Alicia Davis, a caseworker in Oregon, testified at trial that ODHS received a

report in October 2021 that Mother had threatened to “stick [Zachary and Kamryn]

outside in the cold,” “stick [Zachary] in the freezer,” and give Zachary and Kamryn

up for adoption to provoke a response from Zachary’s father, whom she was dating

at the time. When the October 2021 referral came in, however, ODHS already had

a file on Mother because of other referrals. Davis explained that there were as many

as thirteen referrals regarding Kamryn between 2018 and 2022. ODHS was

concerned that Mother had locked Kamryn in a closet that was covered in feces and

5 contained a mattress on the floor and a portable DVD player. Asked whether the

closet could be considered a small bedroom, Davis answered “no.”

Additional referrals were made regarding Zachary, including in utero

referrals. Only one of them was deemed “founded.” After an investigation, ODHS

concluded Mother had physically abused Zachary when she put his head under

running water when he was six-months old and threatened to harm Kamryn, who

was present.

ODHS began civil proceedings regarding the children, and criminal charges

were also pursued. Mother pleaded guilty to physically abusing Zachary in August

2023. Zachary eventually went to live with his father, K.N., so Mother’s parental

rights were not terminated because there was a safe parent. Mother’s parental rights

to Kamryn had also not been terminated, though the ODHS case was still pending.2

Because of the violence she inflicted on Zachary, Mother is prohibited from caring

for any children without ODHS’s permission, which ODHS has not given.

Davis testified that Mother was also subject to a no-contact order with K.N.

because of domestic violence between them. Davis described the domestic violence

as involving a “significant” number of incidents. But Davis overheard in a

conversation between Mother and her counsel on the first day of trial that Mother

and K.N. had been romantically involved a few weeks before trial, violating the

2 Kamryn was placed with a paternal relative in Houston. 6 terms of Mother’s probation. Additionally, Davis testified that although Mother’s

probation could end soon, Davis had been informed by Mother’s probation officer

that Mother’s probation may be extended because she had recently committed

identity theft.

Davis further testified that substance abuse had not been an issue for Mother

during the ODHS case. ODHS had asked Mother to complete a psychological

evaluation and follow up with the recommendations from the evaluation, which

included intensive outpatient group therapy and individual therapy. They also asked

her to take parenting classes, for which Mother provided a certificate. Davis

believed that Mother was engaged in individual therapy and a domestic-violence

program but was unsure about the intensive outpatient group therapy. Still, Davis

felt that Mother had tried to “get around services” throughout the ODHS case and

had not acknowledged “the impact of the harm that was done to her children while

they were in her care.” Mother had also not shown recent employment.

While acknowledging that Father was not involved in any of the incidents

related to Kamryn and Zachary, Davis expressed some concern about him. She

explained that Father had called the ODHS hotline to say he was going to kill Mother

and that he was with Mother and the child at the time, causing her to be concerned

for Father’s mental health. Davis also testified that Father has a “significant criminal

record.”

7 Zachary’s father, K.N.

K.N. testified about the October 2021 incident with Zachary. K.N. had been

living with Mother and Zachary for about a week when Mother asked him to leave

the home. K.N. described Mother as “having one of those episodes when her sugar

is too low and she’s just going off and, I guess, blacking out or whatever you might

call it.” He felt having a baby had been “a lot on [Mother].” She had not been

waking up when Zachary was crying to have his diaper changed. He wanted Mother

to get checked out.

Shortly after K.N. packed his belongings and left the house, Mother called

and told him to “come get” Zachary because she did not want him. Mother

threatened to put Zachary in the rain and leave him outside. She also called a family

friend and threatened to put Zachary in the freezer. K.N. called the police and started

to return home. As he was doing so, Mother called on video and could be seen

holding Zachary, then an infant, by his onesie “up in the air” with his neck

unsupported. K.N. described Mother running water from the showerhead “all over

[Zachary’s] face.” According to K.N., Mother said that she did not care if Zachary

died. The record contains photographs K.N. had taken with his phone during a

videocall with Mother which show Mother holding Zachary by his onesie with

shower water pouring over his face.

8 K.N. also described an incident in which Mother chased him with a knife as

he was preparing to leave the house. He squeezed by her, ran out of the house and

into the street, and a witness called the police. According to K.N., Mother “blacked

out, fake fainted, and just fell on the ground.” She also threw and broke glasses.

K.N. explained that although Mother received therapy for poor mental health, she

did not always take the medication she was prescribed.

K.N. claimed that Mother made several false accusations of domestic violence

against him, leading to him going to jail twice. But she later recanted those

allegations, and he was never convicted on any charges. K.N. denied that he had

seen Mother romantically before trial. He did not believe it would be safe to send

Zachary to live with Mother based on “incidents in Houston,” Mother “constantly

going to jail,” and “constantly being in domestic violence relationships.” K.N.

denied seeing Mother before trial.

Kamryn’s father, K.P.

Kamryn’s biological father, K.P., also testified. At the time, he was

incarcerated on a charge of human trafficking. He testified that he and Mother only

knew each other for a few months before Kamryn was born, and Mother had moved

back to Oregon during her pregnancy. After Kamryn’s birth, he and Mother kept in

touch mostly through social media unless Mother visited Houston, where he lived.

Like K.N., K.P. did not believe that Mother was a safe parent. Although Mother had

9 not committed any violence against him and he was not personally aware of any

violence she had committed against others, K.P. testified that Kamryn had “blurt[ed]

out” that Mother pushed him, kicked him, or hit him in the face. Mother had also

made threats regarding Kamryn—specifically, she threatened to leave Kamryn “in

the house in the cold to die”—after she and K.P. had a fight about money.

Mother

The record contains Mother’s psychological evaluation, taken in early 2023.

Mother reported that she experienced various forms of abuse throughout her life,

including sexual abuse by her father. As an adult, she was involved in several

relationships that involved physical or emotional abuse, including with K.N. She

stated that K.N. was physically abusive, though she admitted the physical assaults

were sometimes mutual. The evaluation recorded that Mother’s baseline

presentation was angry, severely anxious, and emotionally dysregulated. A clinician

who provided Mother’s psychotherapy sessions noted that Mother had an aptitude

to hide her mental-health symptoms from people she encountered.

At trial, Mother confirmed her incarceration in Oregon. She was sentenced to

fifteen months, with the possibility of parole, because her contact with K.N. violated

the terms of her probation. Mother denied the contact and claimed that Davis had

given the Oregon court false information. Mother acknowledged that because of her

incarceration she could not care for Ben or work while incarcerated. But she stated

10 that she had the opportunity to obtain housing upon her release through the Portland

Urban League. In Oregon, she had also completed parenting classes and individual

therapy, done some volunteer work, attended a support group for women with

postpartum depression, and participated in outpatient treatment.

Mother acknowledged that she was involved with child protective services

because of what happened with Zachary. But she denied that the abuse occurred and

that she pleaded guilty. Specifically, she denied that she ran water over Zachary’s

face, claiming that she was suffering from postpartum depression and had only

yelled and threatened to give him up for adoption.

Mother testified that she had placed Ben with someone from church who was

known to Ben and safe when she went back to Oregon for probation matters. When

Ben was removed from the church acquaintance’s home, there were no signs of

abuse or neglect. Mother claimed the Department had completed a home study on

the church acquaintance but not approved her for an unknown reason. She desired

for Ben to be placed with the church acquaintance, a family member, or Father.

She met Father in Oregon. She lived with Father for about a year, observed

him as a parent, and found him to be a responsible and loving father. During the

year she lived with him, Father cooked, cleaned, and worked. She had complications

in her pregnancy with Ben, and Father helped her out. When she moved to Houston,

Father moved with her for a short time.

11 Mother acknowledged a history of domestic violence involving Father. She

estimated there were three occasions of domestic violence between her and Father.

The first instance was around 2021, and the other instances were in 2023 when she

was pregnant and “having mood swings.”3 She served as the primary witness in

prosecuting Father for domestic violence in 2023. She claimed this incident of

domestic violence was her fault, as she struggled to control her anger, began

throwing and breaking things, and when Father tried to restrain her, she was hurt.

Mother admitted that she had cut Father with a wine glass.

Mother’s criminal history included other assaultive conduct. In 2012, Mother

was charged with murder by stabbing the victim with a knife. She was adjudged

guilty of aggravated assault with a deadly weapon for this offense and sentenced to

two years in prison, for which she received 782 days of jail credit. Then, in 2019,

police in Oregon responded to a disturbance between K.N. and Mother. K.N. had

torn clothing, scratches to his neck and chest, and a tiny puncture wound to his left

buttocks and hip area. Kamryn was inside the home. Officers interviewed K.N.,

who explained that during an argument, Mother struck him with a lamp, shattering

its glass. Mother then threatened to stab him with a knife, scratched his chest, and

poked him in the buttocks with the knife. Mother told the police that K.N. had been

3 Mother initially testified that the third incident of domestic violence happened in 2024 on a date after Ben was born. Asked about that at trial, she clarified the third incident also happened in 2023 when she was pregnant with Ben. 12 arrested a few days earlier for cutting her on the arm but later admitted that she cut

her arm herself.

Father

The Department presented evidence through Father’s testimony that there was

also violence in his relationship with Mother. Father confirmed that he was charged

with assaulting Mother and then violated a bond condition when he twice contacted

her despite being prohibited from doing so. After Father was convicted and

sentenced to two years for the bond violation, the State moved to dismiss the

underlying charge of “assault – family violence – 2nd offender.”4 Father denied that

he had actually assaulted Mother.

Beyond this offense, the Department presented evidence of other criminal

charges. Father also testified that he had been convicted five times before, with the

most recent conviction being the violated bond order. Father had previously been

charged in Houston for failure to identify himself. Before that, he was convicted for

stalking the mother of some of his other children in Oregon in 2021. Father testified

that his other convictions included unlawful use of drug paraphernalia in 2015 or

2016. And before that, tampering with a motor vehicle, DUI, and leaving the scene

of an accident in Missouri when he was seventeen years old.

4 The criminal complaint on the “assault – family violence – 2nd offender” charge alleged that Father was convicted previously of domestic assault on a family member in Missouri in 2010 13 Father asked for an opportunity to parent Ben. Though he had never met Ben,

Father has experience parenting other children. He explained that his eight children

live in four states. At the time of trial, four children lived in Oregon, two children

lived in Nevada, one child lived in Missouri, and Ben lived in Texas. Child services

became involved with his oldest child, but he was deemed a safe parent and awarded

custody of that child. Father had been ordered to pay child support for two children

but fell behind on the payments because of his incarceration. Still, he tried to stay

in touch with his children while he was in jail. Father described conversations with

his children focused on their interests, school, and future plans.

Father testified that, before his incarceration, he had been employed since the

age of sixteen and most recently worked as a liaison for a car dealership in Houston

and as a salesman for a mattress store in Oregon and earned $69,000 in 2023, and

$49,000 in 2024. He explained that his plans after release depended on the results

of the trial. If he is reunited with Ben, Father would stay in Houston, start a trucking

dispatch business, and work part-time while living with support from his parents

until stable.

Father testified that alternatively he desired for Ben to be placed with a

paternal relative or Mother. He believed that Mother can provide a safe and stable

home environment for Ben and worried only that she would be “too Christ like.” He

claimed not to recall telling the Department’s investigator that Mother carried a gun

14 and multiple knives. And he stated that Mother never assaulted him or threatened

him or Ben and that he lied when he claimed otherwise.

Father was confronted with a letter he wrote to the trial court in April 2024,

one month after Ben’s removal. Among other things, the letter stated:

I am being held on a falsified charge that was concocted by [Mother] in order to shirk her own charges of abuse towards me. There are plenty of police reports to back my claims. Not only will I clear my name but upon my release I will be filing a restraining order against [Mother.] At this point in time my concern is [Ben]. . . . During the pregnancy [Mother] threatened my sons life, there is a 911 call where I called to have HPD assist me and was being held against my will by [Mother] where she was recorded saying she would kill me and my son. I took this threat serious every time it was uttered because she has killed her ex before. She got out of doing time by claiming to be a sex trafficking victim which she has admitted to me she never was. She does practice sex work but its by her own free will. Her threats lead me to believe she will harm my son given the right motive and me as well. . . . She has cut me multiple times and persuaded me that my son’s life was in danger in order to get me to bond her out.

Asked about the veracity of the letter, Father claimed it contained false statements,

somebody else had written it, and he had merely signed it. He claimed that he made

statements against Mother under coercion when the Department told him that his

side of the family could gain custody of Ben if he did so. He claimed that he had

also given false statements about Mother’s violent behavior under oath in earlier

hearings. On cross-examination from the Department, Father denied that he and

Mother had struck a bargain before trial to give favorable testimony to avoid

termination.

15 Texas caseworker, Omesha Adams

The Department’s caseworker Omesha Adams testified that the Department’s

primary goal for Ben is unrelated adoption.

Adams testified that Mother has a history of violence and would be incapable

of providing a safe and stable environment for Ben. Adams agreed that Mother had

“done services” after the October 2021 incident in Oregon with Zachary, including

being in therapy “for a long time.” Because Mother had completed her services in

Oregon, the Department did not have much information about the quality of the

services or the service providers. But Adams testified that the services were

equivalent to things ordered in Texas. Still, several things remained outstanding on

Mother’s family service plan, including proof of six months of stable income, proof

that any apartment leased through the Portland Urban League was safe, and proof

that she completed the intensive outpatient group therapy recommended. Adams

opined that it would be dangerous to return Ben to Mother because Mother was

mentally unstable, had an angry attitude, and felt like “everyone wrongs her.”

Adams acknowledged that Father had “done what he could” on his family

service plan while incarcerated; however, his incarceration, lack of housing, and

unemployed status rendered him incapable of providing a safe and stable home for

Ben.

16 Adams confirmed that Father wished for Ben to be placed with a relative,

C.B.G. But the court had placed a no-move order on Ben, which required total

agreement from the caseworkers for placement changes. A study of C.B.G.’s home

had been conducted, but the caseworkers did not agree to move Ben. She explained

that Ben is hitting all milestones in his foster placement. He is current on checkups

and vaccinations in foster care. He does not have any special needs beyond

occupational therapy.

Child advocate, Gina Holder

When child advocate Gina Holder testified at trial she had not talked with

Mother or Father but had visited Ben. She explained that Ben has been in the same

foster home since removal, is doing well there, and has bonded with his foster

mother. Ben is developmentally on target, and his physical and emotional needs are

being met. Holder testified that Ben does not have any special needs, but when he

was a baby, he balled his fist and struggled with grip. That issue had improved with

Holder expressed no concerns for the care Ben was receiving in his foster

placement, and she recommended termination with adoption. Holder explained that

Ben’s foster placement is an adoptive placement, and she believed it would be a

good thing for Ben to be adopted there.

17 Holder was aware that C.B.G. had expressed a willingness to care for Ben and

that C.B.G.’s home study was approved, but she did not believe that C.B.G. had been

vetted by child advocates.

Foster mother

The foster mother testified that Ben had been living with her since he was

removed in March 2024. Foster mother was bonded with Ben, loved him, and

believed him to be happy. The household included foster mother, her partner, and

her twelve-year-old granddaughter. Her granddaughter got along well with Ben, and

they often played together. Ben also played with the children at his day care.

When asked about her plans for Ben, foster mother testified that she would

put him in a school where he will learn Mandarin and Spanish, give him the best life

possible, and love him. As for her and her partner’s parenting abilities, she testified

that she had cared for her two adult daughters and her granddaughter. Her partner

had raised a child with special needs and still cared for that child. And foster mother

had worked as a nanny for twenty-five years.

Paternal relative, C.B.G.

C.B.G. testified that she had known Father for a couple of years but did not

have contact with him because Father became incarcerated soon after they met.

When she learned of Ben and that he had been placed in foster care, she told her

brother (Father’s biological parent) that she was willing to adopt Ben and help in

18 any way she could, even if Father’s parental rights were terminated. She is a

stay-at-home wife, and her husband works outside the home. She testified that she

knows how to care for Ben because she raised five children and helps with

grandchildren. She further testified that she has the financial ability to meet Ben’s

needs without any contributions from the State. She stated that she understood the

Department may have left Ben with the foster mother because he is happy there, but

Ben should be with family. She acknowledged that she does not have a relationship

with any of Father’s other children, but she would try to facilitate one for Ben so

long as it was safe.

Trial court’s decision

At the close of evidence, the trial court took the case under advisement and

later issued an order terminating both Mother’s and Father’s parental rights to Ben.

The trial court found that termination was appropriate under three predicate grounds

because Mother and Father had:

• knowingly placed or knowingly allowed Ben to remain in conditions or surroundings which endangered Ben’s physical or emotional well-being, see TEX. FAM. CODE § 161.001(b)(1)(D);

• engaged in conduct or knowingly placed Ben with persons who engaged in conduct which endangered Ben’s physical or emotional well-being, see id. § 161.001(b)(1)(E); and

• constructively abandoned Ben, see id. § 161.001(b)(1)(N).

19 The trial court also found that termination of Mother’s and Father’s parental rights

was in Ben’s best interest and appointed the Department as Ben’s sole managing

conservator. See id. §§ 161.001(b)(2), .207(a). Both Mother and Father appealed.

Motion for Continuance

Father was incarcerated at the time of the trial on the Department’s petition to

terminate his parental rights. The trial court signed a bench warrant on March 7,

2025, ordering the sheriff to deliver Father for the trial scheduled to begin the next

week. When trial began on March 13, however, Father was not present. The record

does not make clear why Father was not delivered to trial, but the trial court

commented on the record that the bench warrant may not have been signed in time

to secure Father’s transport to Houston from the North Texas facility where he was

incarcerated. Father’s counsel moved in writing before trial and again orally when

trial began for a continuance to allow Father the opportunity to attend in person. The

trial court denied the continuance but recessed the proceedings for a short time to

secure Father’s participation by telephone before proceeding with the first day of

evidence. When trial recommenced for a second day in April, Father appeared in

person pursuant to a second bench warrant. In his first issue, Father contends the

trial court’s denial of his continuance motion on the first day of trial denied him the

opportunity to meaningfully participate in the proceedings that resulted in the

20 termination of his parental rights, thus violating his right to due process of law under

the United States Constitution. See U.S. CONST. amend. XIV, § 1.

In analyzing a claim for denial of due process, we determine whether the

complaining party has a liberty or property interest entitled to protection and, if so,

what process is due. In re D.W., 498 S.W.3d 100, 112 (Tex. App.—Houston [1st

Dist.] 2016, no pet.). In a proceeding to terminate parental rights, a parent who is

incarcerated has an interest that is entitled to protection. Id. (citing Hudson v.

Palmer, 468 U.S. 517, 523 (1984)); see also Santosky v. Kramer, 455 U.S. 745, 753

(1982) (parents have a fundamental liberty interest “in the care, custody, and

management of their child”). “At a minimum, due process requires notice and an

opportunity to be heard at a meaningful time and in a meaningful manner.” In re

D.W., 498 S.W.3d at 112. What process is due depends on the practical requirements

of the circumstances. Id. We weigh three factors: (1) the private interest affected

by the proceeding or official action; (2) the countervailing governmental interest

supporting use of the challenged proceeding; and (3) the risk of an erroneous

deprivation of the private interest due to the procedures used. Id. (referencing factors

developed by the Supreme Court of the United States in Mathews v. Eldridge, 424

U.S. 319, 335 (1976)).

Here, the first factor—the private interests of parents and children in the

accuracy and justice of the decision to permanently end their relationship—weighs

21 heavily in favor of providing Father an opportunity to participate in the proceedings

and communicate with his attorney during trial. Id. at 113; see also In re L.N.C.,

573 S.W.3d 309, 322–23 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).

For the second factor, the Department’s countervailing interest is the

protection of the child’s best interest and is best served by “an accurate

determination” as to whether Father “can and will provide a normal home.” In re

D.W., 498 S.W.3d at 113 (quoting In re M.S., 115 S.W.3d 534, 548–49 (Tex. 2003)).

The Department “also has an interest in an accelerated timetable and a final decision

that is not ‘unduly prolonged’ with negative psychological effects on [a child] left

in limbo.” Id. Expeditious proceedings in termination cases serve the child’s strong

interest in a final decision so that adoption to a stable home or return to the parents

is not unduly prolonged. Id.

The record on whether granting Father’s motion for continuance would have

harmed Ben’s or the Department’s interests is mixed. Trial began on March 13,

2025, only a little more than two weeks before the statutory dismissal deadline. See

TEX. FAM. CODE § 263.401(a) (requiring dismissal “unless the court has commenced

the trial on the merits or granted an extension . . . on the first Monday after the first

anniversary of the date the court rendered a temporary order appointing the

department as temporary managing conservator”). Father was not incarcerated

locally in Houston, and instead was in a facility in North Texas, adding to the time

22 required for transport. The Department and the guardian ad litem were already

recommending termination of Mother’s and Father’s parental rights and a permanent

placement with an adoptive family, rather than reunification, for Ben. Ben’s foster

placement was an adoptive placement, and testimony at trial suggested a home study

had been approved with Ben’s paternal relative. On the other hand, Ben’s placement

at the time of the trial with his foster family was stable and satisfactory. And

considering that Father was bench warranted but not brought to court, we find the

Department’s interest in beginning the case on March 13 cannot be given more

weight than the interests of Father and Ben in a just and accurate result. In re M.S.,

115 S.W.3d at 548; see also In re T.L.B., No. 07-07-0349-CV, 2008 WL 5245905,

at *3 (Tex. App.—Amarillo Dec. 17, 2008, no pet.) (mem. op.) (“[C]oncerns for

efficiency and economy are inferior to the private interest at stake as well as the risk

of an erroneous termination decision.”). Thus, the second factor also weighs in favor

of finding that Father did not receive due process, though not heavily.

But the third factor does not. That is, the risk of erroneously depriving Father

and Ben of their parent-child relationship was not so high as to conclude the trial

court abused its discretion and deprived Father of due process considering Father,

telephonically and through his counsel on the first day of trial and then in person on

the second day of trial, had the opportunity to challenge the Department’s evidence

and participate in his own defense.

23 On this point, it is useful to compare the circumstances of this case with those

in another decided by our sibling court in Houston. In L.N.C., the Fourteenth Court

held the trial court failed to give due process when it refused to continue a

termination trial after a bench warranted parent was not delivered to court. See 573

S.W.3d at 322–24. The court concluded that the third factor evaluating the risk of

an erroneous deprivation of parental rights weighed in favor of finding a due-process

violation because the incarcerated parent’s absence at trial meant that his counsel

could not communicate with him about cross-examining witnesses or rebutting the

Department’s evidence. Id. at 323 (holding parent was denied opportunity to

participate in the proceedings in violation of his right to procedural due process).

Distinguishable facts lead us to a different conclusion here. In L.N.C., the

termination trial was one-day long and the trial court refused to allow the father to

participate by telephone, video, or other means. Id. at 319–20 (noting the right to

cross-examination is “vital to a fair trial”). In contrast, here, the trial took place over

two days, only the first of which Father was physically absent from and the second

of which he attended in person. And unlike the parent in L.N.C., Father was not

entirely excluded from the proceeding on the day he was physically absent, as the

trial court facilitated his participation by telephone. The telephonic participation

was not without some difficulty. As Father points out in his brief, he could not see

the witnesses or exhibits and there was trouble with the audio connection when the

24 attorney ad litem began cross-examining him, which resolved quickly. But the

record also shows counsel vigorously cross-examining witnesses and objecting to

evidence, as well as Father participating directly in challenging the Department’s

evidence. For instance, when the Department offered evidence of Father’s criminal

history, Father challenged the veracity of the Department’s assertion about an

exhibit. He also assisted with the admission of his own exhibits by explaining to the

trial court how certificates for the classes he took in jail were awarded.

Additionally, much of the evidence presented on the first day of trial focused

on the Department’s allegations against Mother, with a caseworker from ODHS and

Zachary’s and Kamryn’s fathers testifying. The Department’s caseworker also

testified about the allegations against Father, and Father was called adversely by the

Department, but the first day of trial ended before counsel finished his direct

examination of Father. On the second day of trial, counsel had the opportunity to

meet with Father before concluding the examination, giving Father the opportunity

to discuss any specific points he wished to make during the examination. Father’s

own witnesses were also presented during the second day of trial while he was

present, giving him the opportunity to assist counsel in shaping his defense and

addressing any issues from the first day of trial that Father believed should be

25 addressed. Under these unique circumstances, we conclude the third factor weighs

against finding Father did not receive due process.5

Balancing all the factors, we hold that the denial of his motion for continuance

did not deprive Father of a meaningful opportunity to participate in the termination

proceedings and thus did not violate his right to procedural due process.

We overrule Father’s first issue.

Sufficiency of the Evidence

Both Mother and Father challenge the legal and factual sufficiency of the

evidence supporting each of the trial court’s predicate findings under Section

161.001(b)(1) of the Family Code—endangering conditions under Subsection (D),

endangering conduct under Subsection (E), and constructive abandonment under

Subsection (N)—as well as the finding that termination of their parental rights was

in Ben’s best interest under Section 161.001(b)(2). See TEX. FAM. CODE

§ 161.001(b)(1)–(2). We consider only the Subsection (E) and best-interest findings

because they are dispositive as to both parents.

5 Even had the trial court deprived Father of due process when it denied his motion for continuance, the error would not be reversible because the same unique facts preclude a conclusion that the error probably resulted in an improper judgment or probably prevented Father from presenting his case on appeal. See L.N.C., 573 S.W.3d at 323–24 (requiring appellant to show due-process error arising from denial of motion for continuance was reversible); see also TEX. R. APP. P. 44.1 26 A. Standard of review and applicable law

A parent’s rights to the “companionship, care, custody, and management” of

their child are constitutional interests “far more precious than any property right.”

Santosky, 455 U.S. at 758–59 (quotation omitted); see In re M.S., 115 S.W.3d at 547.

A termination decree is final, irrevocable, and permanently divests the parent of all

legal rights, privileges, duties, and powers as to the parent-child relationship, except

for the child’s right to inherit. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We

strictly scrutinize termination proceedings and construe the involuntary termination

statutes in the parent’s favor. Id. But parental rights “are not absolute” and “are

accorded only to those fit to accept the accompanying responsibilities.” In re A.V.,

113 S.W.3d 355, 361 (Tex. 2003) (quotation omitted). Recognizing that parents

may forfeit their parental rights by their acts or omissions, we focus on protecting

the child’s best interest. See id.

Because of the severity and permanency of the termination of parental rights,

the evidence supporting termination must be clear and convincing. TEX. FAM. CODE

§ 161.001(b); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing

evidence’ means the measure or degree of proof that will produce in the mind of the

trier of fact a firm belief or conviction as to the truth of the allegations sought to be

established.” TEX. FAM. CODE § 101.007. This is an intermediate standard that falls

between “preponderance of the evidence,” which is used in ordinary civil

27 proceedings, and “reasonable doubt,” which is used in criminal proceedings. State

v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam).

Due to the elevated burden of proof in a termination suit, we do not apply the

traditional formulations of legal and factual sufficiency on appeal. In re A.C., 560

S.W.3d 624, 630 (Tex. 2018). In a legal-sufficiency review in a termination case,

we cannot ignore undisputed evidence contrary to a finding, but we must otherwise

assume the factfinder resolved disputed facts in the finding’s favor. Id. at 630–31.

The evidence is legally insufficient if, viewing all the evidence in the light most

favorable to a finding and considering undisputed contrary evidence, a reasonable

factfinder could not form a firm belief or conviction that the finding is true. Id. at

631.

In a factual-sufficiency review, we must weigh disputed evidence contrary to

a finding against all the evidence in the finding’s favor. Id. The evidence is factually

insufficient if, in view of the entire record, the disputed evidence a reasonable

factfinder could not credit in the finding’s favor is so significant that the factfinder

could not have formed a firm belief or conviction that the finding is true. Id.

In reviewing for evidentiary sufficiency, we must not usurp the factfinder’s

role. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). Deciding whether and to what

degree to credit the evidence is the factfinder’s role, not ours. In re J.O.A., 283

28 S.W.3d 336, 346 (Tex. 2009). The factfinder is the sole arbiter of witness credibility.

Id.

A single predicate ground under Section 161.001(b)(1) of the Family Code

supports termination when there is also a finding that termination is in the child’s

best interest. In re A.V., 113 S.W.3d at 362. If the factfinder finds multiple predicate

grounds, we may affirm on any one ground. See In re T.G.R.-M., 404 S.W.3d 7, 13

(Tex. App.—Houston [1st Dist.] 2013, no pet.). But when termination is ordered

under the predicate grounds in Subsection (D) or (E), we must review those grounds

because they have special significance and can supply the predicate for future

terminations. See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (due process

mandates appellate review of Subsection (D) and (E) findings when the issue is

preserved, even if the termination could be affirmed on another ground); see also

TEX. FAM. CODE § 161.001(b)(1)(M) (allowing termination if parent has had rights

terminated with respect to another child under Subsection (D) or (E)).

B. The evidence was legally and factually sufficient to support termination of parental rights under Subsection (E) for endangering conduct

We start with Mother’s and Father’s second issues challenging the termination

of their parental rights under Subsection (E) for “engag[ing] in conduct or knowingly

plac[ing] the child with persons who engaged in conduct which endangers the

physical or emotional well-being of the child.” Id. § 161.001(b)(1)(E). Under

Subsection (E), endangerment encompasses “more than a threat of metaphysical

29 injury or the possible ill effects of a less-than-ideal family environment.” Tex. Dep’t

of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Instead, endanger means

to expose the child to loss or injury or to jeopardize his emotional or physical

well-being. Id.; Walker v. Tex. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608,

616–17 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The trial court must

determine whether evidence shows that the endangerment of the child’s emotional

or physical well-being was the direct result of the parent’s conduct, including acts,

omissions, or failures to act. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—

Houston [14th Dist.] 2005, no pet.). It is not necessary that the parent’s conduct be

directed at the child or that the child be injured. In re E.N.C., 384 S.W.3d 796, 803

(Tex. 2012). The factfinder may infer specific danger to the child’s well-being from

the parent’s misconduct alone. Boyd, 727 S.W.2d at 533.

However, termination under Subsection (E) must be based on more than a

single act or omission. In re E.G.A., Nos. 01-24-00204-CV, 01-24-00206-CV, 2024

WL 3941021, at *14 (Tex. App.—Houston [1st Dist.] Aug. 27, 2024, pet. denied)

(mem. op.); In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014,

pet. denied). The evidence must show a voluntary, deliberate, and conscious course

of conduct. In re S.R., 452 S.W.3d at 360; see also In re M.A.J., 612 S.W.3d 398,

407 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (op. on reh’g).

30 Evidence of criminal conduct, convictions, or imprisonment is relevant to a

review of whether a parent engaged in a course of endangering conduct. A.S. v. Tex.

Dep’t of Fam. & Protective Servs., 394 S.W.3d 703, 712–13 (Tex. App.—El Paso

2012, no pet.). Courts may further consider parental conduct that did not occur in

the child’s presence, including conduct before the child’s birth or after he was

removed from the parent’s care. Walker, 312 S.W.3d at 617. “Domestic violence,

want of self-control, and propensity for violence may be considered as evidence of

endangerment.” In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th

Dist.] 2003, no pet.); see also In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—

Eastland 2010, pet. denied) (“If a parent abuses or neglects the other parent or other

children, that conduct can be used to support a finding of endangerment even against

a child who was not yet born at the time of the conduct.”). “Texas courts routinely

consider evidence of parent-on-parent physical abuse in termination cases without

specifically requiring evidence that the conduct resulted in a criminal conviction.”

In re V.V., 349 S.W.3d 548, 556 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

1. As to Mother

Mother argues that the evidence is legally and factually insufficient to support

the trial court’s termination of her parental rights to Ben under Subsection (E)

because although evidence was presented at trial of her history with the criminal

courts and child protective services in Oregon, that evidence was outweighed by

31 other evidence that Ben, himself, had not been abused or neglected, that she may

have been suffering from post-partum depression when she held Zachary’s face

under shower water as an infant, and that she completed court-ordered services to

address such past endangering conduct. We disagree.

Evidence that Ben was physically abused or neglected by Mother was not

required under Subsection (E). The specific danger to the child’s well-being may be

inferred from parental misconduct, even if the conduct is not directed at the child

and the child suffers no actual injury. See Boyd, 727 S.W.2d at 533. And certainly,

evidence of how a parent has treated another child is relevant. Jordan, 325 S.W.3d

at 724 (evidence parent had abused another child allows an inference that parent’s

violent behavior will continue in future); see also In re P.N.T., 580 S.W.3d 331, 356

(Tex. App.—Houston [14th Dist.] 2019, pet. denied) (when reviewing an

endangerment finding under Subsection (E), “the parent’s treatment of other

children must be considered”); In re T.G.R.-M., 404 S.W.3d at 14–15 (considering

mother’s charge of felony offense of injury to sibling as evidence of endangering

conduct).

Here, there was evidence Mother had mistreated both of her other children.

More than one witness testified that Mother locked Kamryn in a closet, which the

Oregon caseworker described as having “feces everywhere.” According to

Kamryn’s father, Mother had threatened to leave Kamryn “in the house in the cold

32 to die,” and Kamryn had “blurt[ed] out” that Mother pushed, kicked, or hit him. And

Mother was enjoined from having any contact with children after pleading guilty in

July 2023 to a felony count of criminal mistreatment for “intentionally and

knowingly caus[ing] physical injury” to Zachary, an infant at the time, by running

water over his head and threatening to put him in a freezer or leave him outside.6

The record contains photographs showing Mother holding Zachary by his onesie

with shower water pouring over his face. Zachary’s father testified that Mother was

angry with him when she abused Zachry.

Mother offered post-partum depression as an explanation for her abuse of

Zachary. As factfinder, the trial court may not have found Mother’s explanation

credible, considering the other evidence of her inability to manage her anger,

propensity for violence, and assaultive conduct. See In re D.J.G., No.

01-22-00870-CV, 2023 WL 3513143, at *13 (Tex. App.—Houston [1st Dist.] May

18, 2023, no pet.) (mem. op.) (noting that domestic violence, want of self-control,

and a propensity for violence may also be considered as evidence of endangerment);

see also In re L.M., 572 S.W.3d 823, 834 n.4 (Tex. App.—Houston [14th Dist.]

2019, no pet.) (“Evidence of criminal conduct, convictions, imprisonment, and their

6 The charging document from Oregon also included one count of tampering with a witness and several counts of identity theft. 33 effects on a parent’s life and ability to parent, may establish an endangering course

of conduct.”).

Mother was charged with murder in 2012 for stabbing someone with a knife.

She ultimately was not convicted of that offense but was adjudicated guilty for

aggravated assault with a deadly weapon in 2023 in connection therewith and

sentenced to two years in prison, for which she received 782 days of jail credit. And

in 2019, police in Oregon responded to a disturbance between Mother and Zachary’s

father. The narrative in the police report describes a scene in which Mother was

lying outside the house “in the street unresponsive with fluttering eyelids,” and

Zachary’s father “had torn clothing[,] scratches to his neck and chest, and [a] tiny

puncture wound to his left buttocks hip area.” Officers went inside the house and

found Kamryn in an upstairs bedroom, as well as “shattered lamp glass all over the

floor and going up the stairs.” At trial, Zachary described Mother throwing and

breaking glass and chasing him with a knife, something Mother admitted.

Additionally, a criminal complaint admitted into evidence alleges that in

October 2023, she caused Father bodily injury by cutting him with a knife. An

emergency protective order was entered on Father’s behalf, but Mother was arrested

for violating it the next month. Father wrote to the trial court during the termination

proceedings that Mother had cut him multiple times and threatened to kill him and

Ben. Although Father recanted those allegations in his trial testimony, the trial court

34 could reasonably find the recantation was not credible because Father admitted that

he had lied under oath. And Mother admitted herself that while she was pregnant

with Ben, she got into fights with Father, had thrown and broken objects, and injured

Father with a wine glass. See In re A.K.T., No. 01-18-00647-CV, 2018 WL 6423381,

at *12 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, pet. denied) (mem. op.) (noting

that courts have routinely considered evidence of parent-on-parent physical abuse in

termination cases); see also In re D.C., No. 01-11-00387-CV, 2012 WL 682289, at

*9–10 (Tex. App.—Houston [1st Dist.] Mar. 1, 2012, pet. denied) (mem. op.)

(parent’s testimony other parent physically and mentally abused her supported

termination of other parent’s parental rights under Subsection (E)); Jordan, 325

S.W.3d at 724 (evidence of how parent treated other parent is relevant). In short,

evidence that a parent has engaged in abusive or violent conduct in the past permits

an inference that she will continue the violent behavior. Id.

In arguing that this evidence does not show she engaged in conduct that

endangered Ben’s physical or emotional well-being, Mother does not dispute that

she has “made some mistakes.” Instead, she argues the evidence that she is ready to

move on from past endangering conduct is so significant that the trial court could

not form a firm belief or conviction that she endangered Ben. In support, she

emphasizes the evidence that she completed the court-ordered services intended to

35 address her past behaviors.7 She reasons that if a parent’s failure to engage in or

complete services can be considered evidence of endangerment, particularly to the

extent it suggests that past endangering conduct remains unaddressed, “the opposite

must be true, i.e., that a parent’s successful completion of services can constitute

evidence that the parent’s past endangering conduct has been addressed and is

unlikely to persist in the future.”

Mother’s completion of court-ordered services is commendable and some

evidence the trial court could consider under Subsection (E), but it was not so

overwhelming as to preclude a Subsection (E) finding. Mother’s endangering

conduct in the past included multiple acts that subjected her to the possibility of

incarceration. See In re V.V., 349 S.W.3d at 554 (“Intentional criminal activity that

exposes a parent to incarceration is conduct that endangers the physical and

emotional well-being of a child.”). And that conduct continued, as shown by her

incarceration during the termination trial for violating the terms of her Oregon

probation by having contact with Zachary and his father despite a court order

prohibiting her from doing so. The contact occurred shortly before trial, when

Mother knew her parental rights were at risk, yet she continued to engage in activity

7 Mother also points to the evidence that the Oregon courts had not terminated her parental rights to Kamryn or Zachary. That evidence is not entitled to much weight, however, as the trial testimony established the Oregon case with respect to Kamryn was ongoing and the case with respect to Zachary had been dropped because Zachary had another safe parent. 36 that led to her being jailed in a different state.8 She also continued to deny

responsibility for her violent conduct toward Zachary at trial, even though court

records admitted into evidence reflected her plea. This, combined with the evidence

of physical abuse of other children and past criminal activity and domestic violence,

established clear and convincing proof of a voluntary, deliberate, and conscious

course of conduct that endangered Ben’s physical or emotional well-being.

Viewing the evidence in the light most favorable to the trial court’s judgment,

we conclude the evidence is legally sufficient to support the trial court’s finding of

endangerment under Subsection (E). See TEX. FAM. CODE § 161.001(b)(1)(E).

Further, considering entire record, we conclude the evidence to the contrary is not

so significant as to prevent the trial court from forming a firm belief or conviction

that termination was warranted under Subsection (E). See id. We therefore overrule

Mother’s second issue challenging the trial court’s predicate finding under

Subsection (E).

Because the evidence was legally and factually sufficient to support the

termination of Mother’s parental rights under Subsection (E), we need not address

the other predicate grounds for termination. See In re A.V., 113 S.W.3d at 362; see

also TEX. R. APP. P. 47.1.

8 Additionally, the Oregon caseworker testified that Mother’s probation was subject to being extended because of a recent charge of identity theft. 37 2. As to Father

Father contends the Subsection (E) finding cannot stand as to him because it

rests only on the evidence of his incarceration that left Ben in Mother’s care, which

he asserts is not enough. While imprisonment, alone, will not support a finding of

endangerment, evidence, including imprisonment, that demonstrates a course of

conduct that has the effect of endangering the child’s physical or emotional

well-being will. See Boyd, 727 S.W.2d at 534. And here, Father ignores other

evidence the trial court could reasonably consider under Subsection (E), such as the

evidence that he physically abused Mother. See In re C.A.B., 289 S.W.3d 874, 886

(Tex. App.—Houston [14th Dist.] 2009, no pet.) (“If a parent abuses the other parent

or children, that conduct can support a finding of endangerment even against a child

who was not yet born at the time of the conduct.”).

Although Mother testified at trial that she believed Father was a good parent

and that her own behavior created the conflict between them, she testified that they

engaged in three instances of domestic violence in the four years before trial. Two

of the three instances occurred when Mother was pregnant with Ben, and as Mother

acknowledged, one instance led to a criminal complaint of “assault – family violence

– 2nd offender” against Father. The trial court admitted the criminal complaint,

which described acts of physical violence against Mother by Father about eight or

nine months before Ben was born. The probable cause affiant, a detective with the

38 Houston Police Department’s Major Assault & Family Violence Division, attested

that he spoke with Mother about the incident, and she provided these details:

[Mother] stated that on May 13, 2023, she and [Father] were in her apartment . . . . [S]he was laying on the bed and had received a text message from a male . . . and [Father] asked her who was texting her. . . . [S]he did not want to tell him and create tension between them, but [Father] snatched her cell phone from her hand and saw the text message, which made him angry. [Mother] stated that [Father] thew her cell phone on the floor then got on top of her and started punching her face repeatedly. . . . [Mother] stated that she had a busted upper lip, swollen left eye, and knots on her forehead from [Father] punching her and was internally bleeding in her mouth (teeth and gums). [Mother] stated that [Father] then picked up the standing fan and hit her on her back few times, which broke the fan. [Mother] stated that due to the assault, she felt pain and had visible injur[i]es on her face and bruises and abrasions on her back. [Mother] stated that [Father] was holding her down where she was unable to get out of her apartment, but as she got a chance, she ran out of the apartment and called 911. Mother acknowledged at trial that the statements she made to the police were

truthful. The State ultimately moved to dismiss the charge after Father was

convicted of violating the terms of his bond issued in connection with the

assault-family-violence charge by twice contacting Mother. Father was still

incarcerated on this conviction at the time of trial.

Other evidence in the record supports an inference that the

assault-family-violence charge was not singular and that Father has engaged in other

violent or threatening acts against family members. For instance, Alicia Davis

testified that Father called the ODHS hotline to say he was going to kill Mother.

Additionally, the dismissed criminal complaint against him for assault family

39 violence includes a statement that Father was convicted of domestic assault on a

family member in Missouri in 2010, and Father testified at trial that he has also been

convicted of stalking the mother of some of his other children in Oregon in 2021.

Additionally, despite having previously accused Mother of committing

domestic violence against him and threatening his and Ben’s lives, Father stated that

Mother would be a safe parent for Ben. Although Father recanted his allegations

against Mother at trial, the trial court could disbelieve his recantation based on his

admitted untruthfulness and instead consider as part of its endangerment analysis

Father’s willingness to subject Ben to further instability with Mother. See In re

S.L.L., No. 13-19-00442-CV, 2020 WL 103862, at *6 (Tex. App.—Corpus Christi

Jan. 9, 2020, no pet.) (mem. op.) (willingness to tolerate and excuse erratic behavior

from a romantic partner at expense of a child’s physical and emotional well-being

can be considered in endangerment analysis). When considered collectively,

evidence of Father’s abuse toward Mother, failure to act on abuse by Mother toward

him, and past and continued criminal activities, as well as his imprisonment supports

a finding that Father engaged in a course of conduct that endangered Ben’s emotional

and physical well-being.

Viewing the evidence in the light most favorable to the trial court’s judgment,

we conclude the evidence is legally sufficient to support the finding of endangerment

under Subsection (E). See TEX. FAM. CODE § 161.001(b)(1)(E). Further,

40 considering the entire record, we conclude the evidence to the contrary is not so

significant as to prevent the trial court from forming a firm belief or conviction that

termination was warranted under Subsection (E). See id. We therefore overrule

Father’s second issue challenging the trial court’s predicate finding under Subsection

(E).

Because the evidence was legally and factually sufficient to support the

termination of Father’s parental rights under Subsection (E), we need not address

the other predicate grounds for termination. See In re A.V., 113 S.W.3d at 362; see

C. The evidence is legally and factually sufficient to find that termination of Mother’s and Father’s parental rights is in the child’s best interest.

We turn to Mother’s fourth issue and Father’s fifth issue challenging the trial

court’s finding that termination of their parental rights is in the child’s best interest.

See TEX. FAM. CODE § 161.001(b)(2). Along with a predicate violation, a party

seeking to terminate another’s parental rights must show by clear and convincing

evidence that termination is in child’s best interest. Id. The best-interest inquiry is

“child-centered and focuses on the child’s well-being, safety, and development.” In

re A.C., 560 S.W.3d at 631. There is a strong presumption that the best interest of a

child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116

(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]

41 2012, no pet.). Prompt and permanent placement of the child in a safe environment

is also presumed to be in the child’s best interest. TEX. FAM. CODE § 263.307(a).

A factfinder may consider several factors to determine a child’s best interest:

• the desires of the child; • the present and future physical and emotional needs of the child;

• the present and future emotional and physical danger to the child;

• the parental abilities of the persons seeking custody;

• the programs available to assist those persons seeking custody in promoting the best interest of the child; • the plans for the child by the individuals or agency seeking custody;

• the stability of the home or proposed placement; • acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate; and

• any excuse for the parent’s acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). This list of factors is not

exhaustive, and evidence is not required on all the factors to support a finding that

terminating a parent’s rights is in the child’s best interest. Id. at 372; In re D.R.A.,

374 S.W.3d at 533. But the lack of evidence cannot be used as if it were

clear-and-convincing evidence supporting a termination finding. In re E.N.C., 384

S.W.3d at 808. In some cases, undisputed evidence of only one factor may be

enough to support a finding that termination is in the child’s best interest; in other

cases, there could be “more complex facts in which paltry evidence relevant to each

42 consideration mentioned in Holley would not suffice” to support termination. In re

C.H., 89 S.W.3d 17, 27 (Tex. 2002).

In addition, the Family Code sets out factors for evaluating the parent’s

willingness and ability to provide the child with a safe environment, including:

• the child’s age and physical and mental vulnerabilities;

• whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home; • the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision; • the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable time; • whether the child’s family demonstrates adequate parenting skills, including providing the child with minimally adequate health and nutritional care, a safe physical home environment, and an understanding of the child’s needs and capabilities; and • whether an adequate social support system consisting of an extended family and friends is available to the child.

TEX. FAM. CODE § 263.307(b); In re R.R., 209 S.W.3d at 116.

Courts may consider circumstantial evidence, subjective factors, and the

totality of the evidence as well as the direct evidence when conducting the best-

interest analysis. See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio

2013, pet. denied). Evidence supporting termination under one of the predicate

grounds can also be considered in support of a finding that termination is in the

child’s best interest. See In re C.H., 89 S.W.3d at 28. A factfinder may infer that

43 past conduct endangering the child’s well-being may recur if the child is returned to

the parent when assessing the best interest of the child. In re D.M., 452 S.W.3d 462,

471 (Tex. App.—San Antonio 2014, no pet.); Jordan, 325 S.W.3d at 724.

Mother and Father contend that no rational factfinder could have formed a

strong conviction or belief that severing the parent-child relationship was in Ben’s

best interest. But several factors support the trial court’s finding.

There is no direct evidence about Ben’s desire because he was less than two

years old at the time of trial. See In re N.S.G., 235 S.W.3d 358, 369 (Tex. App.—

Texarkana 2007, no pet.) (involving a twenty-two-month-old child at time of trial).

Testimony from the child advocate and foster parent indicated that Ben has been in

the same foster home since his removal at two months old, does not have any special

needs, is meeting all developmental milestones, and is receiving appropriate

therapies. According to the child advocate, Ben has bonded with his foster mother,

who has confirmed a willingness to continue to care for Ben emotionally, physically,

and financially now and in the future. See In re J.D., 436 S.W.3d 105, 118 (Tex.

App.—Houston [14th Dist.] 2014, no pet.) (“When children are too young to express

their desires, the fact finder may consider that the children have bonded with the

44 foster family, are well-cared for by them, and have spent minimal time with [their]

parent.”).9

In contrast, both Mother and Father were incarcerated at the time of trial,

leaving them unable to care for Ben. And Mother is subject to an order preventing

her from caring for any children without the permission of ODHS, which ODHS had

not given. Since Ben’s birth, Mother has been on probation, violated her probation

twice, and was incarcerated. Mother’s inability to stay out of legal trouble evidences

her inability to provide a stable home for Ben. Although Mother testified that she

had secured a safe place for Ben to stay with someone she met from church before

returning to Oregon for probation-related issues, the record contains conflicting

information about whether that acquaintance was willing to care for Ben in the long

term.

Additionally, although Mother completed court-ordered services intended to

increase her stability and address harmful behaviors, other evidence supports at least

an inference that she did not meaningfully engage with the therapeutic services. Cf.

9 Mother and Father challenge whether there can be sufficient evidence that termination is in Ben’s interest based on placement in a non-relative foster home when placement with a family member may be possible. However, placement with a relative is not a required step for the Department. See Rogers v. Dep’t of Fam. & Protective Servs., 175 S.W.3d 370, 379 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d w.o.j.) (no duty to place child with relative before termination of parental rights). The trial court’s determination of where a child should be placed is a factor in determining the child’s best interest, but the fact that placement may be with non-relatives is not a bar to termination. See In re J.D., No. 06-18-00105-CV, 2019 WL 1302932, at *9 (Tex. App.—Texarkana Mar. 22, 2019, no pet.) (mem. op.). 45 In re S.R., 452 S.W.3d at 367 (considering parent’s failure to appreciate need for

treatment to combat history of mental instability and explaining trier of fact could

thus infer that parent’s mental-health issues would likely continue and further

jeopardize children’s well-being); In re E.R.G., No. 11-20-00248-CV, 2021 WL

1807332, at *3 (Tex. App.—Eastland May 6, 2021, no pet.) (mem. op.) (parent’s

failure to seek treatment or properly take medication for mental-health issues may

endanger child’s physical or emotional wellbeing). At trial, she refused to

acknowledge that she had physically abused Zachary or mistreated Kamryn.

For Father’s part, he has never met Ben but expressed a desire to parent him.

Father testified that he maintains relationships with his other children and, when not

incarcerated, has shared custody of them or has been their primary parent. Father

testified that even while he has been incarcerated, he has stayed in contact and

involved with his other children. As evidence of his ability to meet Ben’s future

needs, Father points to his testimony that he has assumed custody of his other

children when their other parent failed—such as when one daughter was abandoned

by her mother at a juvenile facility, after which he participated in a Nevada CPS case

and was deemed a fit parent—and cares for one child with special needs. Father also

testified that he maintained consistent housing and employment before his

incarceration and regularly used his earnings to support his children. Further, Father

testified that he would have help from family setting up a household in Houston

46 upon his release and could return to the car dealership where he had previously

worked in sales.

While not specifically tied to his testimony on his parenting abilities, the trial

court expressed doubt on the record about Father’s credibility and could have

concluded that Father’s aspirations for himself after his release were doubtful given

his willingness to falsify documents or testimony before the court. Father also failed

to recognize that instability and potential danger to Ben resulting from the history of

violence between Father and Mother and between Mother and others when he opined

that Mother would be a safe parent.

Again, the record shows a pattern of domestic violence and instability for both

Mother and Father, which the trial court could consider in assessing Ben’s best

interest. See In re Z.L.W., No. 01-12-00736-CV, 2013 WL 396270, at *4 (Tex.

App.—Houston [1st Dist.] Jan. 31, 2013, no pet.) (mem. op.) (“Evidence

establishing one of the predicate acts under [TEX. FAM. CODE § 161.001(b)](1) may

also be relevant to determining the best interest of the child.”). That evidence is

relevant, not only to Mother’s and Father’s parenting abilities and to the stability of

the home they would provide, but also to the emotional and physical needs of Ben,

now and in the future, and to the emotional and physical danger in which Ben could

be placed, now and in the future. And as described, both Mother and Father have

downplayed the risk of instability resulting from their respective histories of

47 domestic violence or other assaultive conduct, raising concerns for their ability to

care for Ben.

Giving due consideration to the evidence, the trial court reasonably could have

formed a firm belief or conviction about the truth of its findings that termination of

Mother’s and Father’s parental rights is in Ben’s best interest. See In re N.S.G., 235

S.W.3d at 369–70 (concluding evidence was legally and factually sufficient to

support a best-interest finding for child who was five days old when placed in care

of others and was twenty-two months old at trial).

Therefore, we overrule Mother’s and Father’s respective fourth and fifth

issues challenging the trial court’s best-interest finding.

Conservatorship of the Child

In their fifth and sixth issues, respectively, Mother and Father challenge the

trial court’s appointment of the Department as Ben’s sole managing conservator.

Because we have overruled Mother’s and Father’s challenges to the trial court’s

order terminating their parental rights, the order has divested Mother and Father of

their legal rights and duties related to Ben’s. See TEX. FAM. CODE § 161.206(b).

Consequently, Mother and Father lack standing to challenge the portion of the order

appointing the Department as Ben’s sole managing conservator. See In re R.J., 579

S.W.3d 97, 120–21 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (concluding

father could not challenge the Department’s appointment as sole managing

48 conservator after Court overruled father’s challenge to the termination of his parental

rights); In re J.D.G., 570 S.W.3d 839, 856 (Tex. App.—Houston [1st Dist.] 2018,

pet. denied) (explaining the Department’s appointment as sole managing conservator

was a “consequence of termination” after overruling parent’s challenge to a

termination order).

We overrule Mother’s fifth and Father’s sixth issues.

Conclusion

Having overruled the issues that are necessary to resolve Mother’s and

Father’s appeals, we affirm the trial court’s judgment terminating their parental

rights.

Andrew Johnson Justice

Panel consists of Justices Guerra, Guiney, and Johnson.