In the Interest of B.B., S.B. and J.B., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 26, 2025
• Docket: 10-25-00044-CV
• Status: Published

Opinion

Court of Appeals Tenth Appellate District of Texas

10-25-00044-CV

In the Interest of B.B., S.B., and J.B., Children

On appeal from the 52nd District Court of Coryell County, Texas Judge Cheryll Mabray, presiding Trial Court Cause No. DC-24-55657

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

The father of B.B., J.B., and S.B. (Father) appeals from the trial court’s

order terminating his parental rights. 1 Following a bench trial, the trial court

determined that Father had violated Family Code subsections

161.001(b)(1)(D), (E), (N), and (O) and that termination was in the children’s

best interest. See TEX. FAM. CODE ANN. § 161.001(b). In his sole issue, Father

contends that the evidence was legally and factually insufficient to support the

trial court’s finding that termination was in the children’s best interest. We

will affirm.

1 The parental rights of the mother of B.B., J.B., and S.B. were also terminated, but she has

not appealed. Authority

The standards of review for legal and factual sufficiency of the evidence

in cases involving the termination of parental rights are well established and

will not be repeated here. See In re J.F.C., 96 S.W.3d 256, 264–68 (Tex. 2002)

(legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency).

The trial court, as factfinder, is the sole judge of the witnesses’ credibility and

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

In a proceeding to terminate the parent-child relationship brought under

section 161.001 of the Family Code, the Department of Family and Protective

Services (the Department) must establish by clear and convincing evidence two

elements: (1) that the respondent parent committed one or more acts or

omissions enumerated under subsection (b)(1), termed a predicate violation,

and (2) that termination is in the best interest of the child. TEX. FAM. CODE

ANN. § 161.001(b); In re J.F.-G., 612 S.W.3d 373, 381 (Tex. App.—Waco 2020)

(mem. op.), aff’d, 627 S.W.3d 304 (Tex. 2021). Proof of one element does not

relieve the petitioner of the burden of proving the other. J.F.-G., 612 S.W.3d

at 381.

In this appeal, Father challenges the legal and factual sufficiency to

support the trial court’s finding regarding only the second element, i.e., that

termination was in the children’s best interest. Accordingly, we need only

address that element.

In the Interest of B.B., J.B., and S.B, Children Page 2 In determining the best interest of a child, several factors have been

consistently considered, which were set out in the Texas Supreme Court’s

opinion of Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Holley

factors include: (1) the desires of the child; (2) the emotional and physical

needs of the child now and in the future; (3) the emotional and physical danger

to the child now and in the future; (4) the parental abilities of the individuals

seeking custody; (5) the programs available to assist these individuals; (6) the

plans for the child by these individuals; (7) the stability of the home; (8) the

acts or omissions of the parent that may indicate the existing parent-child

relationship is not a proper one; and (9) any excuse for the acts or omissions of

the parent. Id. This list is not exhaustive but simply identifies factors that

have been or could be pertinent in the best-interest determination. Id. at 372.

There is no requirement that all these factors be proven as a condition

precedent to parental termination. See C.H., 89 S.W.3d at 27. The absence of

evidence about some factors does not preclude a factfinder from reasonably

forming a strong conviction that termination is in the children’s best interest.

Id. In fact, while no one factor is controlling, the analysis of a single factor

may be adequate in a particular situation to support a finding that termination

is in the children’s best interest. In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied).

In the Interest of B.B., J.B., and S.B, Children Page 3 The Holley factors focus on the best interest of the children, not the best

interest of the parent. Dupree v. Tex. Dep’t of Protective & Regul. Servs., 907

S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). And evidence relating to the

predicate grounds under subsection 161.001(b)(1) may be relevant to

determining the best interest of the children. See C.H., 89 S.W.3d at 28.

Discussion

Father argues that the Department failed to present evidence of the

needs and desires of the children, despite the children’s ages and verbal ability

to express their desires. Father further asserts that the evidence “focus[ed] on

things that had happened years ago [and] not on how the changes the parents

made now reduced the likelihood of relapse in the future.” Father contends

that the Department has therefore failed to present sufficient evidence to rebut

the strong presumption that the best interest of the children will be served by

preserving his relationship with his children. We disagree.

The first factor that we consider is the desires of the children. See Holley,

544 S.W.2d at 371–72. At the time of trial in January 2025, B.B., S.B., and

J.B. were seven, five, and three years old, respectively. The children did not

testify at trial, but the evidence indicated that they were bonded to both Father

and the fictive kin parents with whom they had been placed. The CASA

testified that S.B. has a “really good bond” with his fictive kin father and calls

him “Dad.” The CASA also stated that S.B. was sad about being removed from

In the Interest of B.B., J.B., and S.B, Children Page 4 his parents’ care in April 2024. S.B. was very upset and crying about the

experience. S.B. had nightmares following being removed from his parents’

care, but the nightmares seemed to subside after the first few weeks. The

caseworker for the Department further testified that before Father was

incarcerated on October 20, 2024, S.B. asked to see him.

The second factor that we consider is the emotional and physical needs

of the children now and in the future. See id. The CASA testified that when

the children were removed from the parents’ care in April 2024, seven-year-old

B.B. was mostly nonverbal. By the time of trial, B.B. was more vocal but still

not talking in full sentences. B.B. was also not yet fully potty-trained.

Therefore, at that time, B.B. was in special-education classes at school, where

he received occupational, physical, and speech therapy.

As for S.B., he was described at trial by the CASA as “a very traditional

five-year-old” who is very talkative and sweet. The CASA further stated that

she has seen S.B. flourish by having the very defined routine that he has at

the fictive kin placement. The CASA said that S.B. seems more secure and

comfortable. Finally, the CASA testified that by the time of trial, three-year-

old J.B. was babbling and playing with his siblings and had really blossomed

since being removed from his parents’ care.

On the other hand, at the time of trial, Father had been in the Coryell

County Jail since October 20, 2024. Father explained that he was jailed after

In the Interest of B.B., J.B., and S.B, Children Page 5 the State filed a motion to revoke his probation. He had previously received a

ten-year sentence, probated for ten years, for the offense of manufacture or

delivery of a controlled substance. Furthermore, at the time of trial, Father

had a new charge for manufacture or delivery of a controlled substance in

addition to the motion to revoke.

The need for permanence is the paramount consideration for the

children’s present and future physical and emotional needs. In re A.R.C., 551

S.W.3d 221, 227 (Tex. App.—El Paso 2018, no pet.); Dupree, 907 S.W.2d at 87.

A parent’s incarceration is relevant to his ability to meet the children’s present

and future physical and emotional needs. A.R.C., 551 S.W.3d at 227. Further,

a parent’s incarceration at the time of trial makes the children’s future

uncertain. Id.

The third factor that we consider is the emotional and physical danger

to the children now and in the future. See Holley, 544 S.W.2d at 371–72.

Regarding this factor, Father asserts that the record does not include any

evidence of the present emotional and physical danger to the children. But

evidence of past misconduct or neglect can be used to measure a parent’s future

conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin

2004, pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992,

no writ) (“Past is often prologue.”); see also In re V.A., No. 13-06-00237-CV,

2007 WL 293023, at *5–6 (Tex. App.—Corpus Christi–Edinburg Feb. 1, 2007,

In the Interest of B.B., J.B., and S.B, Children Page 6 no pet.) (mem. op.) (considering parent’s past history of unstable housing,

unstable employment, unstable relationships, and drug usage).

As stated above, Father has not challenged the sufficiency of the

evidence supporting the predicate findings, which included finding that Father

knowingly placed or knowingly allowed the children to remain in conditions or

surroundings that endangered their physical or emotional well-being and

finding that Father engaged in conduct or knowingly placed the children with

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

emotional well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). While

these unchallenged findings do not relieve the Department of its burden to

prove best interest, the evidence supporting these findings may also be

probative of best interest. See C.H., 89 S.W.3d at 28.

The caseworker in this case testified that the parents’ history with the

Department dates to 2017. B.B. was removed from the parents’ care at that

time because of medical neglect and drug use. The parents thereafter worked

their service plan, and B.B. was eventually returned to the parents’ care. In

2022, all three children were then removed from the parents’ care because S.B.

and J.B. tested positive for methamphetamines. However, again, the parents

worked their service plan, and the children were eventually returned to the

parents’ care. But in April 2024, all three children were again removed from

the parents’ care. At that time, S.B. and J.B., along with the parents, tested

In the Interest of B.B., J.B., and S.B, Children Page 7 positive for methamphetamines. It is well established that a parent’s use of

illegal drugs and drug-related criminal activity may qualify as conduct that

endangers a child’s physical and emotional well-being. A.R.C., 551 S.W.3d at

227; see J.O.A., 293 S.W.3d at 345.

Father testified that during the time leading up to the children being

removed from his care, he was living in a home with the children, his wife who

is also the mother of the children, his parents, A.H. who had been Father’s

girlfriend when she first moved in, A.H.’s children, and A.H.’s babysitter.

Father further admitted that all the adults in the home except for his parents

were using methamphetamines. Father stated at trial that he would not refer

to A.H.’s babysitter as a drug dealer, but Father admitted that A.H.’s

babysitter provided drugs to him, his wife, and A.H. Father further explained

that he did not use drugs in front of his children but that the adults did use

methamphetamines in the garage of the home. When asked if the garage was

a separate structure from his home, Father replied that it was not; the garage

was connected to the home.

The evidence further showed that not only did Father use illegal drugs

before the children were removed from his care but that Father continued to

use illegal drugs during the pendency of this case. When the children were

removed from his care in April 2024, Father’s nail drug test results were

positive for amphetamines, methamphetamines, and marijuana. In July 2024,

In the Interest of B.B., J.B., and S.B, Children Page 8 Father’s hair-follicle drug test results were again positive for amphetamines,

methamphetamines, and marijuana. In August 2024, Father’s hair-follicle

drug test results were then positive for amphetamines and

methamphetamines. And in October 2024, Father’s hair-follicle drug test

results were positive for methamphetamines even though the caseworker

testified that Father had completed inpatient rehab on October 7, 2024. Father

testified that he had last used methamphetamines about ten months before

the date of trial and had no explanation for how he could have tested positive

in October 2024.

The fourth and fifth factors that we consider are the parental abilities of

the individuals seeking custody and the programs available to assist those

individuals. See Holley, 544 S.W.2d at 371–72. Father asserts that the record

is devoid of evidence regarding his ability to care for the children. However, in

reviewing the parental abilities of a parent, a factfinder can consider the

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

of the children. In re I.D.G., 579 S.W.3d 842, 854 (Tex. App.—El Paso 2019,

pet. denied). A factfinder “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.).

In the Interest of B.B., J.B., and S.B, Children Page 9 The evidence in this case showed that Father had a history of drug abuse

and that the children had twice been removed from Father’s care because they

had tested positive for methamphetamines. Furthermore, at the time of trial,

Father had been in the Coryell County Jail since October 2024. The

caseworker testified that before going to jail, Father had worked some services.

He had attended therapy and protective parenting. But even evidence of a

recent improvement does not absolve a parent of a history of irresponsible

choices. In re A.M., 385 S.W.3d 74, 83 (Tex. App.—Waco 2012, pet. denied).

The caseworker further testified that Father had completed a

psychological evaluation that indicated that Father did not demonstrate the

skills necessary to provide proper parenting care to his children. Regarding

Father’s parenting abilities, the evaluation noted that Father lacked insight

into his problems. The evaluation further stated that Father did not

demonstrate the skills necessary to provide proper parental care to his children

due to his failure to deal with his anger, drug abuse, and marital problems.

The psychologist therefore stated in the evaluation that he could not at that

time, nor in the future, foresee Father becoming competent or minimally

adequate to parent a child.

On the other hand, the caseworker testified that the children were placed

with fictive kin who were family friends through church. The caseworker

stated that although the fictive kin parents had nine children in their care at

In the Interest of B.B., J.B., and S.B, Children Page 10 the time of trial, the fictive kin parents had done a great job of providing for

the children. The CASA also testified that the fictive kin parents had been

dedicated to working with the children, and the CASA detailed how each of the

children had grown and “blossomed” in the care of the fictive kin parents.

The sixth and seventh factors that we consider are the plans for the

children by the individuals or agency seeking custody and the stability of the

home or proposed placement. See Holley, 544 S.W.2d at 371–72. The factfinder

may compare the parent’s and the Department’s plans for the child and

consider “whether the plans and expectations of each party are realistic or

weak and ill-defined.” J.D., 436 S.W.3d at 119–20. A parent’s failure to show

that he or she is stable enough to parent children for any prolonged period

entitles the factfinder “to determine that [the] pattern would likely continue

and that permanency could only be achieved through termination and

adoption.” In re B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *9 (Tex.

App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.). A factfinder

may also consider the consequences of its failure to terminate parental rights

and that the best interest of the children may be served by termination so that

adoption may occur rather than the temporary foster-care arrangement that

would result if termination did not occur. In re B.H.R., 535 S.W.3d 114, 124

(Tex. App.—Texarkana 2017, no pet.). The goal of establishing a stable,

In the Interest of B.B., J.B., and S.B, Children Page 11 permanent home for a child is a compelling state interest. Dupree, 907 S.W.2d

at 87.

Here, the caseworker testified that the fictive kin parents are willing to

adopt all three children. On the other hand, as stated above, at the time of

trial, Father had been in the Coryell County Jail since October 2024. Father

nevertheless argues in his brief that his parents’ home “shows signs of

providing continued stability for the children.” But the caseworker confirmed

at trial that the children had been living in that very home on both occasions

when two of the children tested positive for methamphetamines, causing all

three children to be removed from their parents’ care.

The eighth and ninth factors that we consider are the acts or omissions

of the parent that may indicate the existing parent-child relationship is not a

proper one and any excuse for the acts or omissions of the parent. See Holley,

544 S.W.2d at 371–72. The evidence discussed above indicates that Father’s

relationship with B.B., S.B., and J.B. is not a proper one, and any excuses for

Father’s acts or omissions have been discussed above.

There is a strong presumption that it is in the child’s best interest to

preserve the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.

App.—Houston [1st Dist.] 2003, no pet.). However, considering all the evidence

here in the light most favorable to the trial court’s finding and considering the

evidence as a whole, we hold that a reasonable factfinder could have formed a

In the Interest of B.B., J.B., and S.B, Children Page 12 firm belief or conviction that termination of Father’s parental rights was in the

children’s best interest. Accordingly, we overrule Father’s sole issue and affirm

the trial court’s order of termination.

MATT JOHNSON Chief Justice

OPINION DELIVERED and FILED: June 26, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed CV06

In the Interest of B.B., J.B., and S.B, Children Page 13