in the Interest of J.L v.
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Opinion
In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00316-CV __________________
IN THE INTEREST OF J.L.V.
__________________________________________________________________
On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. CV1813005 __________________________________________________________________
MEMORANDUM OPINION
In this accelerated appeal, both Mother and Father challenge the trial court’s
termination of their parental rights to their seven-year-old son, Jack.1 After a bench
trial, the trial court entered an order terminating Mother’s parental rights finding
clear and convincing evidence supporting termination under subsections
161.001(b)(1)(D), (E), and (O) of the Family Code and that termination of her rights
1 We identify children and their family members in parental-rights termination cases by using either initials or an alias to protect the identity of the children. See Tex. R. App. P. 9.8(a), (b). 1 was in Jack’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O),
(2). The trial court also terminated Father’s parental rights after finding clear and
convincing evidence supporting termination under subsection 161.001(b)(1)(Q) of
the Family Code and that termination of his rights was in Jack’s best interest. See id.
§ 161.001(b)(1)(Q), (2). Mother and Father timely appealed.
In four issues, Mother challenges the sufficiency of the evidence supporting
the trial court’s statutory predicate findings and the finding that termination of her
parental rights was in Jack’s best interest. In three issues, Father challenges the
sufficiency of the evidence supporting the trial court’s predicate finding and the
finding that termination of his parental rights was in Jack’s best interest. We affirm
the trial court’s judgment in part and reverse and remand in part.
I. Background
On February 16, 2018, the Department of Family and Protective Services (the
Department) filed an Original Petition to terminate the parental rights of Mother and
Father. Department Investigator Chantelle Miller’s Affidavit in Support of Removal,
attached to the Original Petition, contained these allegations:
On February 11, 2018, the Department of Family and Protective Services received a referral alleging Neglectful Supervision of [Jack],
2 age 6, oldest victim by Caregiver [Mother’s boyfriend’s mother] and Marcus [(Mother’s boyfriend)].2
The following intake was received:
Mother is in jail and Father is in prison. Victim child resides with mother’s boyfriend’s parents. Caregiver lets mother’s boyfriend have access to victim child even though mother’s boyfriend is not supposed to be around victim child, which may place victim child in unsafe situations. The reason mother’s boyfriend should not be around victim child was not provided. The victim child also out cried that the caregivers would withhold food when the child was reported to be bad at school.
The Affidavit also stated that a Department caseworker spoke with the
Assistant Principal of Jack’s school and that the Assistant Principal was concerned
because Jack had “severe behavior issues” and Marcus’s mother told her that Jack
had slept at Marcus’s residence. According to the Affidavit, “There was a previous
case which closed on January 22, 2018 where [Marcus] was to only have supervised
contact with [Jack] due to concerns for [Marcus] testing positive for
methamphetamines and physical abuse of [Jack].”
According to the Affidavit, Miller interviewed Jack at school on February 14,
2018, and he did not appear to be malnourished. That same day, Miller visited
Marcus’s parents’ residence, Marcus’s parents denied withholding food from Jack,
2 Our discussion of the Affidavit is limited solely for background information and will not be discussed in our analysis. 3 and Miller observed plenty of food in the home. Marcus’s parents expressed
concerns about Jack telling lies about them. The Affidavit noted that Marcus’s
mother wrote Mother a letter “telling her about [Jack’s] behavior and that she wanted
to get him on medication[]” but that when Marcus spoke to Mother about it, Mother
got upset because she did not want Jack on medication. Miller stated in the Affidavit
that on February 15, 2018, Marcus’s parents decided that they would turn Jack over
to the Department because they were concerned that Jack would “lie about more
things[.]”
The Affidavit detailed Mother’s CPS history before the current removal,
noting the Department’s involvement in 2012 and for three separate dates in 2014
with allegations against Mother as to both of her children, but the notation suggested
these cases were closed. The Affidavit also included notations of an incident
involving Mother in 2015 alleging she left her young toddlers alone at home while
she went to the store to buy cigarettes. The Affidavit noted that there were immediate
concerns Mother would leave the children unattended again. According to the
Affidavit, after the police responded it was ultimately concluded that Mother
knowingly left her children in the apartment alone, and the case was closed when
the children were placed with Mother’s daughter’s paternal grandparents. The
Affidavit also stated that Mother was convicted for abandonment/child
4 endangerment and noted that Mother received three years’ probation for the offense.
The Affidavit also contained an allegation about a report in 2016 against Mother as
to Jack that “[t]he mother of a 4 year old is unable to adequately supervise the young
vulnerable child. The mother is being arrested and there is no appropriate caregiver.
Law Enforcement is requesting immediate contact from CPS.” Jack was removed
upon Mother’s arrest because he had no safe place to go.
The Affidavit concluded that, considering Marcus’s parents’ decision that
they would no longer care for Jack, Mother’s current incarceration for probation
violations, and Father’s current incarceration, the Department should be named
Jack’s temporary managing conservator because Jack “has no one that is able to
provide a safe and stable home environment for him.”
II. Evidence at Trial
Department Investigator Miller testified to initial allegations that Jack was left
unsupervised around Marcus, who had a history of drug use, and that there was a
concern that Jack’s caregivers were withholding food from Jack when he had bad
behavior at school. According to Miller, at the time of the investigation, both Mother
and Father were incarcerated. Miller testified that Father had only seen Jack “once
or twice in his life.” Miller testified that Mother had voluntarily placed Jack with
Marcus’s parents because Mother had been arrested and taken to jail in Anderson
5 County for probation violations relating to her felony child endangerment conviction
and a failure to pay child support for her daughter who does not live with her. Miller
initially interviewed Jack, but the interview was “chaotic” because the child was
hard to speak with and he was “very hyper and all over the place.” Miller then
interviewed the caregivers, Marcus’s parents, and they denied that they withheld
food from Jack. According to Miller, Jack also told her that whenever Marcus was
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In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00316-CV __________________
IN THE INTEREST OF J.L.V.
__________________________________________________________________
On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. CV1813005 __________________________________________________________________
MEMORANDUM OPINION
In this accelerated appeal, both Mother and Father challenge the trial court’s
termination of their parental rights to their seven-year-old son, Jack.1 After a bench
trial, the trial court entered an order terminating Mother’s parental rights finding
clear and convincing evidence supporting termination under subsections
161.001(b)(1)(D), (E), and (O) of the Family Code and that termination of her rights
1 We identify children and their family members in parental-rights termination cases by using either initials or an alias to protect the identity of the children. See Tex. R. App. P. 9.8(a), (b). 1 was in Jack’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O),
(2). The trial court also terminated Father’s parental rights after finding clear and
convincing evidence supporting termination under subsection 161.001(b)(1)(Q) of
the Family Code and that termination of his rights was in Jack’s best interest. See id.
§ 161.001(b)(1)(Q), (2). Mother and Father timely appealed.
In four issues, Mother challenges the sufficiency of the evidence supporting
the trial court’s statutory predicate findings and the finding that termination of her
parental rights was in Jack’s best interest. In three issues, Father challenges the
sufficiency of the evidence supporting the trial court’s predicate finding and the
finding that termination of his parental rights was in Jack’s best interest. We affirm
the trial court’s judgment in part and reverse and remand in part.
I. Background
On February 16, 2018, the Department of Family and Protective Services (the
Department) filed an Original Petition to terminate the parental rights of Mother and
Father. Department Investigator Chantelle Miller’s Affidavit in Support of Removal,
attached to the Original Petition, contained these allegations:
On February 11, 2018, the Department of Family and Protective Services received a referral alleging Neglectful Supervision of [Jack],
2 age 6, oldest victim by Caregiver [Mother’s boyfriend’s mother] and Marcus [(Mother’s boyfriend)].2
The following intake was received:
Mother is in jail and Father is in prison. Victim child resides with mother’s boyfriend’s parents. Caregiver lets mother’s boyfriend have access to victim child even though mother’s boyfriend is not supposed to be around victim child, which may place victim child in unsafe situations. The reason mother’s boyfriend should not be around victim child was not provided. The victim child also out cried that the caregivers would withhold food when the child was reported to be bad at school.
The Affidavit also stated that a Department caseworker spoke with the
Assistant Principal of Jack’s school and that the Assistant Principal was concerned
because Jack had “severe behavior issues” and Marcus’s mother told her that Jack
had slept at Marcus’s residence. According to the Affidavit, “There was a previous
case which closed on January 22, 2018 where [Marcus] was to only have supervised
contact with [Jack] due to concerns for [Marcus] testing positive for
methamphetamines and physical abuse of [Jack].”
According to the Affidavit, Miller interviewed Jack at school on February 14,
2018, and he did not appear to be malnourished. That same day, Miller visited
Marcus’s parents’ residence, Marcus’s parents denied withholding food from Jack,
2 Our discussion of the Affidavit is limited solely for background information and will not be discussed in our analysis. 3 and Miller observed plenty of food in the home. Marcus’s parents expressed
concerns about Jack telling lies about them. The Affidavit noted that Marcus’s
mother wrote Mother a letter “telling her about [Jack’s] behavior and that she wanted
to get him on medication[]” but that when Marcus spoke to Mother about it, Mother
got upset because she did not want Jack on medication. Miller stated in the Affidavit
that on February 15, 2018, Marcus’s parents decided that they would turn Jack over
to the Department because they were concerned that Jack would “lie about more
things[.]”
The Affidavit detailed Mother’s CPS history before the current removal,
noting the Department’s involvement in 2012 and for three separate dates in 2014
with allegations against Mother as to both of her children, but the notation suggested
these cases were closed. The Affidavit also included notations of an incident
involving Mother in 2015 alleging she left her young toddlers alone at home while
she went to the store to buy cigarettes. The Affidavit noted that there were immediate
concerns Mother would leave the children unattended again. According to the
Affidavit, after the police responded it was ultimately concluded that Mother
knowingly left her children in the apartment alone, and the case was closed when
the children were placed with Mother’s daughter’s paternal grandparents. The
Affidavit also stated that Mother was convicted for abandonment/child
4 endangerment and noted that Mother received three years’ probation for the offense.
The Affidavit also contained an allegation about a report in 2016 against Mother as
to Jack that “[t]he mother of a 4 year old is unable to adequately supervise the young
vulnerable child. The mother is being arrested and there is no appropriate caregiver.
Law Enforcement is requesting immediate contact from CPS.” Jack was removed
upon Mother’s arrest because he had no safe place to go.
The Affidavit concluded that, considering Marcus’s parents’ decision that
they would no longer care for Jack, Mother’s current incarceration for probation
violations, and Father’s current incarceration, the Department should be named
Jack’s temporary managing conservator because Jack “has no one that is able to
provide a safe and stable home environment for him.”
II. Evidence at Trial
Department Investigator Miller testified to initial allegations that Jack was left
unsupervised around Marcus, who had a history of drug use, and that there was a
concern that Jack’s caregivers were withholding food from Jack when he had bad
behavior at school. According to Miller, at the time of the investigation, both Mother
and Father were incarcerated. Miller testified that Father had only seen Jack “once
or twice in his life.” Miller testified that Mother had voluntarily placed Jack with
Marcus’s parents because Mother had been arrested and taken to jail in Anderson
5 County for probation violations relating to her felony child endangerment conviction
and a failure to pay child support for her daughter who does not live with her. Miller
initially interviewed Jack, but the interview was “chaotic” because the child was
hard to speak with and he was “very hyper and all over the place.” Miller then
interviewed the caregivers, Marcus’s parents, and they denied that they withheld
food from Jack. According to Miller, Jack also told her that whenever Marcus was
around him, Marcus’s mother was also there.
Miller testified that she was going to close the case because her investigation
revealed no evidence to support the allegations, but the day after she visited
Marcus’s parents, she received a telephone call from them because “they were
concerned that [Jack] was going to lie [about] them[,]” and they requested that CPS
take custody of Jack. Miller asked them to keep Jack one extra night while the
Department tried to find a placement. Miller testified she spoke to the Mother and
Father on the telephone that day and they gave her some suggestions for placement,
but none of the suggested people were available or none of them “panned out.”
Father suggested his sister who had several children of her own and said she would
prefer for someone else to take Jack, and Father’s brother could not help. Mother
suggested her daughter’s grandmother, but, after several attempts, Miller was unable
to contact the grandmother. According to Miller, Jack was placed in a foster home,
6 but there was an incident at the foster home and Jack became aggressive, hit the
foster mother, threw toys, said he said he wanted to die, and attempted to put his
hands around his own throat to choke himself.
Jack was then taken to Kingwood Pines, a psychiatric hospital, for evaluation.
Miller stated that Marcus’s parents had not suggested that Jack had been suicidal
while in their care, but Miller testified that she had been advised that Jack had ADHD
and she agreed that “the Department was aware there were some issues, maybe not
suicidal tendencies, but there [were] issues to be addressed.” Miller acknowledged
that the Department had been told that Jack had issues at school and behavior
outbursts. According to Miller, Mother was aware of Jack’s behavioral issues, did
not want Jack on medication, and was trying to treat him through “alternative
methods[,] . . . using . . . oils . . . like lavenders and things like that.”
Department Supervisor Chris Vien testified that she had been assigned to
Jack’s case from the time Jack came into the Department’s care. Vien testified that
Jack was then currently in a group home because he cannot be placed in foster care
due to his behavioral issues and the level of care he requires. Vien testified that when
Jack was relinquished to the Department, Mother provided a few relative or fictive
kin placement suggestions, but when contacted by the Department, the potential
caregivers declined to take Jack. One placement recommended by Mother,
7 Michaela, complied with a home study, but the Department had concerns that Jack
had not been in her home “in quite some time[,]” she did not know of the extent of
Jack’s behavioral issues “or what his diagnoses are[,]” she had a one-year-old and a
five-year-old, and there was a question about her income because her expenses
exceeded her income by $269 a month. Vien testified that the Department “tried and
tried and tried[]” to reach out to Michaela to discuss the concerns but that Michaela
would not respond for months. According to Vien, the Court Appointed Special
Advocate (CASA) assigned to the case reported having the same “resistance” from
Michaela, and it was not until the month of trial that Michaela reached out to the
Department and the Department could “briefly go over some of the stuff[]” with her.
Vien testified that the Department did not discuss the concerns in depth enough for
her to feel comfortable placing Jack with Michaela. According to Vien, she is the
one that decides to approve a home placement, and she needed more information
about Michaela. The home study completed on Michaela was admitted into
evidence.
Vien testified about the difference in the Department pursuing a permanent
placement for Jack if the Department had permanent managing conservatorship
without termination of parental rights, as opposed to the Department having
permanent managing conservatorship with termination of the parents’ rights:
8 Our hands are tied when we still have parental rights intact as far as seeking permanent placements. We would only -- if parental rights are not terminated, the only options for long-term placement would be [Michaela]. So if he came back into care, we would have -- because she couldn’t handle him or for whatever reason, we would be going through the same thing we are right now of him being in a foster home, and when his behaviors get out of control, the foster -- that foster home or whoever putting in their notice and us having to move him. With parental rights terminated, some of the avenues that are taken, we can broadcast him. Do a broadcast for -- it’s for foster parents who only want to adopt, and they get to pick and choose their -- their kids.
Or if this placement with [Michaela] worked, and she was able to adopt, she -- it would give her financial -- some financial income in regards to caring for [Jack] to help her.
Vien testified that termination of parental rights would increase the potential
placements for Jack and that she believed it was in Jack’s best interest to increase
the odds that there would be a permanent placement found. Vien testified that it was
in Jack’s best interest to continue to have visitation with Mother until a potentially
permanent adoptive placement is available. Vien also acknowledged that Mother
reported she would financially support Jack if he was placed with Michaela.
Department caseworker Sharonda Easley stated that she worked with Mother
on her service plan for about four months. Easley stated that Mother completed her
parenting certification, her psychological assessment, maintained consistent contact
with the Department, and had been working at a fast food restaurant for nine months
at the time of trial. Easley testified that Mother had not cooperated with the
9 Department because Mother failed to appear for required drug tests, and Mother
failed to identify family members for potential caregiver placements. In addition,
Mother failed to obtain housing and to provide proof of individual or family therapy.
Easley stated that at the time of trial, Mother had moved in with her friend, Michaela.
Easley had not personally observed Michaela’s home but testified that she reviewed
the report of Michaela’s home study and had the same concerns as her coworker
Vien in placing Jack with Michaela. However, Easley stated that she addressed
Jack’s behaviors with Michaela and Michaela still expressed interest in taking Jack.
According to Easley, Mother attended all the meetings with the Department
and visited her son consistently since her release from jail. Easley observed visitation
between Mother and Jack and noted that Mother acted appropriately with Jack, the
two were bonded, and that Jack was happy to see his Mother. Easley stated that
although she believed it is in Jack’s best interest to continue having visitation with
his Mother, she also believed that termination of parental rights of both parents was
in Jack’s best interest for “long-term placement[,]” even if termination meant Jack
would not get to see Mother.
The CASA testified that she had been assigned to the case for a little over a
year and Jack had been in foster placement the entire time, except for when he was
in the psychiatric hospital. The CASA stated that Mother did not provide any family
10 members for Jack’s potential placement, and the first time she heard about Michaela
was at a previous court hearing. According to the CASA, Jack was doing “about the
same[]” at the time of trial as when she first saw him. The CASA testified that Jack
has diagnoses of “ADHD[,] . . . aggression[,] and a mood behavior.” The CASA
testified that Jack was in his third placement at the time of trial in a “boys home[]”
and had been there for three months. The CASA explained that there were many
adults there, but none were specially trained, and, although it was not the best
environment for Jack because his behavior was better when he has one-on-one
attention, the placement was “definitely better than his previous [foster] placement.”
The CASA believed adoption was in Jack’s best interest but also did not
believe that Jack’s parents’ rights should be terminated. The CASA clarified this by
explaining that “what is best for this child is to be in a stable environment, to not be
moved from place to place, which is what he’s done his whole life. He needs a stable
environment with someone who loves him unconditionally.” The CASA
acknowledged that some of “him being bounced around” was due to his psychiatric
hospitalizations for his behaviors and the inability of the placement to control those
behaviors. The CASA testified that she feared if the parents’ rights were terminated,
Jack would remain in the Department’s care for years because of his behavior issues.
The CASA testified that she “couldn’t say” whether she believed Mother could
11 provide Jack with a safe and stable environment, and the CASA did not think it was
a good idea for Jack to be placed with Mother after the trial. The CASA did not
believe that Mother was financially stable or emotionally stable.
The CASA observed one visit between Mother and Jack almost a year before
trial. The CASA testified that Jack “seems to want to see [Mother]” and “definitely
wants to have a relationship with her.” The CASA testified that at one of the visits
she was concerned because Mother’s boyfriend, Marcus, was with Mother at the
visit and the CASA “felt like [Jack] didn’t want to be near him or with him in that
visit[,]” and it concerned the CASA that Mother was still living with Marcus.
According to the CASA, Mother approached her and told her “there was some
domestic violence going on[,]” the CASA and a Department representative offered
to help Mother or get her to a shelter, but Mother did not take them up on their offers.
Although the CASA did not believe it would be appropriate for Jack to live with
Mother, she believed that “as long as [Mother] is willing to stay in his life and be
supportive of him, then it would benefit him.” The CASA agreed that the
Department had no plan of a foster home or parent available to adopt Jack, if the
parents’ rights were terminated the Department would leave Jack with no family and
no options at the moment, and that the only people interested in Jack were the parents
and Michaela.
12 The CASA also had reservations about Jack being placed with Michaela. The
CASA was provided the home assessment done on Michaela the day of trial, and
because of this, the CASA had not talked to Michaela about placement or had time
to follow up on any issues or concerns, which led to her reservations about
placement. The CASA testified that she did not believe Michaela knew the extent of
Jack’s issues or behaviors and the CASA wanted “to discuss that with her before she
takes this on.” The CASA testified that the “glaring concerns” she had with the home
assessment on Michaela was that “she continually stated that she didn’t know of any
-- any behavior issues with [Jack]. And -- and as being as that she has other children
in the home, young children, that to me is a glaring issue.” Another concern the
CASA expressed was that Jack needed a lot of therapy and, because Michaela had
other children and worked full time, the CASA assumed it would be difficult for
Michaela to take him to and from those kinds of appointments. The CASA agreed
that another concern was that the placement might not work out, and then it would
be “yet another failed placement for this child[.]”
The CASA agreed that neither Father nor Mother could address Jack’s needs
and the CASA recommended that CPS maintain permanent custody, with the parents
maintaining supervised parental rights. The CASA testified that she believed Mother
should have limited supervised court-ordered access to Jack and that, once Father
13 was released from prison, the court could assess at that time appropriate contact and
visitation between Jack and Father. The CASA explained that Jack wanted to
continue to see Mother but had not expressed a desire to see Father because he did
not know Father.
Mother testified that Father was incarcerated when Jack was born. According
to Mother, when the case started in February 2018, she was incarcerated for failure
to pay child support and for violating probation she was serving for felony
abandonment and endangerment of her two children. Mother testified about the
felony abandonment and endangerment charge and explained that her children were
asleep when she asked a neighbor to watch them while she went to the store behind
their apartments and the neighbor, who Mother later learned was high at that time,
called the police on Mother. According to Mother, she pleaded guilty to the charge,
but she claimed she only left the children under the supervision of her neighbor for
less than twenty minutes. She explained that she could not fight the charges.
Mother testified she was placed on three years’ probation in 2015 for child
endangerment and she was incarcerated from December 2017 to May 2018 after she
violated her probation by failing to notify her probation officer in Anderson County
that she moved to Liberty County. She testified that she placed her son with Marcus’s
parents when she was arrested and that she had an agreement with them. Mother
14 testified that she also had a daughter and that her daughter’s father had custody of
her. Mother explained that she had court-ordered visitation with her daughter “every
other week . . . for the weekend[,]” but that she had not had her daughter for a
weekend in “a couple years.” Mother testified that she was ordered to pay $213 a
month in child support for her daughter but that “there’s more being paid” because
Mother was in arrears.
Mother explained that Marcus was her boyfriend when the case started in 2018
and that the relationship ended in March 2019. According to Mother, at the time of
the trial Marcus was in a drug rehab for methamphetamines and alcohol. Mother
testified that the last time she used methamphetamines was seven years ago. Mother
testified that she had discussed Marcus hitting her or domestic violence with the
CASA or the caseworker and that Marcus last hit her in March, less than six months
before trial. Mother testified that she was given numbers to shelters and options, but
she did not use them. Instead, Mother temporarily lived in her car and with a
coworker before moving back to Athens and living with her friend, Michaela.
Mother admitted that while Jack was living with Mother and before her relationship
with Marcus, another boyfriend had hit her. According to Mother, that was “the
pinpoint of where [Jack’s] behavior [issues] started[.]” Mother testified that Jack had
15 behavior issues when he lived with her, she had enrolled him in behavioral health
services with Tri County in 2017, and she used essential oils to calm him down.
Mother’s service plan was admitted into evidence. Mother testified that she
completed the parenting class and provided her certificate of completion to her
caseworker. Mother testified that she also underwent a psychological assessment as
required by the service plan. Mother testified that the service plan required her to
secure employment and that, once she was released from incarceration, she worked
at Sonic for almost nine months. According to Mother, the service plan required her
to find safe and stable housing, and upon her release she had lived with Marcus until
March 23, 2019. Mother testified that at the time of trial she was living with
Michaela, and Mother was starting a new full-time “warehouse type job[]” in Tyler
the following week making $11 an hour. She testified her service plan required her
to submit to requested drug tests. According to Mother, she took “four or five”
requested drug tests and most recently took one in June or July 2019, but she
acknowledged that during 2019 she did not show up for “80 percent” of the drug
tests because she was working. Mother testified that she had never been informed
that she tested positive on any drug test she took during the case. Mother explained
that she had been involved for six years with “Celebrate Recovery[,]” a “faith based
recovery program[.]” Mother agreed that she used drugs in the past and that, because
16 she did not take all the required drug tests during the case, “there’s not proof to this
Court that [she was] actually clean and sober for the entirety of this case.” Mother
testified that her service plan required her to visit Jack every other week, that she
visited him regularly, that the visits went “[p]retty good[,]” that she and her son are
bonded, and that every visit they were happy to see each other.
According to Mother, after Marcus’s parents asked the Department to take
custody of Jack, Mother was physically unable to take care of Jack because she was
still incarcerated. Mother testified that she remembered Miller calling to inform her
that CPS was seeking for a placement for Jack but Mother “couldn’t think of
anybody who could actually take him.” When asked why she did not provide
Michaela’s name to the caseworker as a potential placement, Mother testified, “I just
didn’t think of her name at that time[]” and because Michaela did not live nearby.
Mother testified that Michaela was her former neighbor, that Michaela’s mother
“took [her] in as a daughter[,]” and that Mother provided Michaela’s name to the
caseworker at “[t]he last hearing[]” in February. According to Mother, she and Jack
lived with Michaela right after Jack was born until he was “a year or two[,]” and
Jack calls Michaela his “aunty[.]”
Mother testified that she wanted to maintain her parental rights, she believed
it was in Jack’s best interest for him to be placed in Michaela’s home in Athens, she
17 was confident Michaela could care for Jack if placed there, and she wanted Michaela
to be Jack’s permanent managing conservator. Mother testified that she had a good
relationship with Michaela, was willing to cooperate with Michaela, and was
prepared to move out of Michaela’s house if the court placed Jack there. However,
she testified that she would need to get a couple of paychecks from her new job
before she could afford her own place, which could mean the Department could take
permanent custody of Jack because he may not be able to be placed immediately
with Michaela. According to Mother, she would be able to participate in the care of
her son and had researched schools, physicians, and resources in Athens for her son.
Mother testified that she was willing to pursue counseling and behavioral therapy in
Athens for Jack.
Mother testified she was prepared to support her child financially and to make
monthly child support payments to Michaela for Jack’s care if ordered to do so.
Mother also testified that she was unable to provide financial support for the nine
months she had been out of jail and been employed and Mother said she “was never
told” to provide Jack financial support while he was in the Department’s care.
Father agreed that the court in Anderson County ruled that he was Jack’s
father. Father testified that he was then serving a fifteen-year sentence for aggravated
robbery, and a copy of his judgment showing his sentence started just a few months
18 before Jack was born was admitted into evidence. Father testified that he would be
eligible for parole in early 2020, but agreed that in a “worst case scenario,” he would
not be out of jail until 2026. According to Father, while he had been incarcerated, he
had participated in classes relating to gang rehabilitation, substance abuse, anger
management, and cognitive intervention skills.
Father testified that he understood the Department was asking the trial court
to terminate his parental rights to Jack. When asked whether Father believed the
termination would be in Jack’s best interest, Father answered, “I can’t true --
truthfully answer that question.” Father stated that he had only seen Jack twice, when
his sister brought Jack to see him in prison. Father testified that he recommended
several people for potential placement, including his sister, his brother, and a friend
from high school, Michaela. Father admitted that before he was incarceration, he had
substance abuse issues, and that his drugs of choice were methamphetamine and
marijuana. Father testified he used drugs with Mother and they both liked
methamphetamine and marijuana. Father testified that he was a member of a gang
while he was out of prison and while he had been in prison. Father testified that he
had drugs offered to him in prison, but he had turned them down. According to
Father, he sent some letters and cards to Jack during the case. Father stated that
although he made mistakes, he wanted the opportunity to be a father to Jack. Father
19 also testified that he had been in foster care and in his son’s position, and Father
understood what Jack was going through. He testified that he understood “not
knowing my real father,” and he wanted to provide emotional support to Jack and
be present in his life.
Michaela testified that she had known Jack since birth, considered herself
Jack’s “adoptive aunt” but acknowledged that she had not had contact with Jack
since 2016. Michaela confirmed that Mother lived with her at the time of trial and
that Mother would be required to move out of Michaela’s home if Jack was placed
in her household. Michaela agreed she could “turn [Mother] away” if Mother
attempted to violate any terms of a court order. Michaela testified that it would be
her intention to be a permanent long-term placement for Jack and that she was
prepared to have Jack in her home. Michaela acknowledged that Jack was a
“challenging kid[]” and that she had been informed of his behavioral issues by his
caseworker and his Mother. Michaela stated that although she has two other children
living in her household, she believed that she could adequately provide for Jack’s
needs including taking him to counseling for his behavioral issues. Michaela stated
that she lived in a two-bedroom apartment with her two children, she worked at an
assisted living facility, and she could care for all three children. Michaela also
testified that her extended family was willing to act as a support system for Jack.
20 Michaela did not believe it would be in Jack’s best interest to have Mother’s and
Father’s parental rights terminated but stated that the parents would have to
demonstrate that they could be responsible parents. Michaela assured the court that
she would protect Jack.
III. Standard of Review
The decision to terminate parental rights must be supported by clear and
convincing evidence—“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 Ann. § 101.007; In re J.L., 163 S.W.3d 79, 84
(Tex. 2005). The movant must show that the parent committed one or more predicate
acts or omissions and that termination is in the child’s best interest. See Tex. Fam.
Code Ann. § 161.001(b); In re J.L., 163 S.W.3d at 84. “The petitioner must prove
both prongs and may not rely solely on a determination that termination is in the best
interest of the child. In re R.W., No. 01-11-00023-CV, 2011 WL 2436541, at *5
(Tex. App.—Houston [1st Dist.] June 16, 2011, no pet.) (citing Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).
In reviewing the legal sufficiency of the evidence in a parental rights
termination case, we must consider all the evidence in the light most favorable to the
finding to determine whether a reasonable factfinder could have formed a firm belief
21 or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344–45 (Tex.
2009) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so, and we disregard all evidence that a reasonable factfinder could have
disbelieved. Id. In a factual sufficiency review, an appellate court must weigh
whether the disputed evidence is such that a reasonable factfinder could not have
resolved conflicts in favor of the finding. In re A.C., 560 S.W.3d 624, 631 (Tex.
2018). We give due consideration to evidence the factfinder could reasonably find
clear and convincing. In re J.F.C., 96 S.W.3d at 266. Stated another way, the Texas
Supreme Court has explained that a review of factual sufficiency
requires weighing disputed evidence contrary to the finding against all the evidence favoring the finding. In a factual-sufficiency review, the appellate court must consider whether disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the finding. Evidence is factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true.
In re A.C., 560 S.W.3d 624, 631 (Tex. 2018) (citing In re H.R.M., 209 S.W.3d 105,
108 (Tex. 2006); In re J.F.C., 96 S.W.3d at 266).
Only one predicate finding under section 161.001(b)(1) is necessary to
support a judgment of termination when there is also a finding that termination is in
the child’s best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (applying 22 previous version of the statute). Generally, we will affirm the termination order if
the evidence sufficiently establishes any statutory ground that the trial court relied
on in terminating parental rights as well as the best interest finding. See id. However,
due process requires a heightened standard of review of a trial court’s finding under
subsections 161.001(b)(1)(D) or (E), even when another ground is sufficient for
termination, because of the potential consequences for parental rights to a different
child. See In re N.G., 577 S.W.3d 230, 235 (Tex. 2019). Because subsection
161.001(b)(1)(M) alone provides a sufficient basis to terminate parental rights based
on a previous subsection 161.001(b)(1)(D) or (E) finding, due process concerns and
the requirement for a meaningful appeal require that, if a court of appeals affirms
the termination on either of these grounds, it must provide the details of its analysis.
Id. at 234-37. (citing U.S. Const. Amend. XIV, § 1; Tex. Const. art. I, § 19; In re
S.K.A., 236 S.W.3d 875, 890 (Tex. App.—Texarkana 2007, pet. denied)).
IV. Father’s Predicate Finding – Subsection 161.001(b)(1)(Q)
In his first issue, Father argues that the evidence is factually insufficient to
support termination under subsection 161.001(b)(1)(Q). See Tex. Fam. Code Ann.
§ 161.001(b)(1)(Q). Subsection Q focuses on the parent’s future incarceration and
on the parent’s inability to care for the child. In re H.R.M., 209 S.W.3d 105, 109–10
(Tex. 2006); In re N.R.T., 338 S.W.3d 667, 675 (Tex. App.—Amarillo 2011, no
23 pet.). “In In re A.V., we decided that [subsection Q] of the Texas Family Code applies
prospectively and said, ‘Thus, if the parent is convicted and sentenced to serve at
least two years and will be unable to provide for his or her child during that time, the
State may use subsection Q to ensure that the child will not be neglected.’” In re
H.R.M., 209 S.W.3d at 108 (quoting In re A.V., 113 S.W.3d 355, 360 (Tex. 2003)).
Subsection Q applies when the parent will be incarcerated for periods exceeding two
years after a termination proceeding begins. See In re A.V., 113 S.W.3d at 360–61.
We employ a burden-shifting analysis to assess an incarcerated parent’s ability to care for a child. The party seeking termination must first establish that the parent will remain in confinement for the requisite period. The burden then shifts to the parent to produce “some evidence” as to how he would provide or arrange to provide care for the child during his incarceration.
In re C.D.L.R., No. 13-19-00008-CV, 2019 WL 2608776, at *9 (Tex. App.—Corpus
Christi June 26, 2019, no pet.) (citations omitted).
While the Texas Supreme Court has explained that evidence of parole is
relevant in determining the applicability of subsection Q to incarcerated parents, it
has also stated that parole is “inherently speculative[]” and that a parent
demonstrating the “mere possibility of parole” to prevent termination under
subsection Q would “impermissibly elevate the burden of proof from clear and
convincing to beyond a reasonable doubt.” In re H.R.M., 209 S.W.3d at 109. So, we
must weigh all the evidence and not just the parent’s testimony of the possibility of 24 parole in our analysis. Id. In that analysis we “give due deference to the [factfinder’s]
factfindings[],” instead of substituting our judgment for that of the factfinder. Id.
Father testified that he had been incarcerated since 2011 and he was currently
serving a fifteen-year sentence for aggravated robbery. The record shows that the
termination petition was filed in February 2018. Father testified that he was eligible
for parole in February 2020, but if denied parole, his projected release date would
be 2026. Father stated he was going to seek parole in “six to seven months[]” and
confirmed he had a parole hearing scheduled for January or February 2020. While
incarcerated, Father had participated in drug rehabilitation classes and gang
rehabilitation programs.
Father testified that since being incarcerated in 2013, he had not provided any
financial support for Jack, but Father testified that he asked his sister to help take
care of Jack. Although Father testified that he believed his sister would take care of
Jack on his behalf if requested, his sister did not testify and when the Department
contacted Father’s sister, she declined to take Jack. There was testimony that
Michaela was willing to care for Jack, but Father testified that he had last
communicated with Michaela in 2011 and Father had not asked Michaela to care for
Jack.
25 After considering the evidence in its entirety, we conclude that the disputed
and conflicting evidence is not so significant that a reasonable factfinder could not
have resolved it in favor of its finding that Father’s rights should be terminated.
Father’s testimony about the possibility of parole is mere speculation and would not
prevent a factfinder from forming a firm belief or conviction that he would be
incarcerated for longer than two years at the time of trial. See id. at 109; see also In
re K.R.L., No. 14-10-00187-CV, 2010 WL 4069351, at *6 (Tex. App.—Houston
[14th Dist.] Oct. 19, 2010, no pet.) (mem. op.) (explaining that although the appellant
anticipated early release, his belief was speculative, and he provided no
documentation to the trial court to support his belief). Likewise, the evidence is
factually sufficient to show that Father’s incarceration would prevent Father from
caring for Jack and Father had not provided care for Jack while he was incarcerated.
When the incarcerated parent has indicated that the support of the child will come
from the incarcerated parent’s family, there must be evidence of an agreement
between the parties to assume the obligation to care for the child on the parent’s
behalf. See Hampton v. Tex. Dep’t of Protective & Regulatory Servs., 138 S.W.3d
564, 567 (Tex. App.—El Paso 2004, no pet.); see also In re H.R.M., 209 S.W.3d at
110–11 (stating that the record must contain evidence that the caregiver agreed to
care for the child on incarcerated parent’s behalf); In re Caballero, 53 S.W.3d 391,
26 396 (Tex. App.—Amarillo 2001, pet. denied). There is no evidence that any of
Father’s relatives had agreed to care for Jack. We overrule Father’s first issue.
V. Mother’s Predicate Findings – Subsections 161.001(b)(1)(D), (E), and (O)
In her first, second, and third issues, Mother challenges the legal and factual
sufficiency of the evidence to support the trial court’s finding on predicate grounds
D, E and O. Since an affirmative finding of endangerment under subsection D or E
has potential consequences for a parent’s rights to different children in future
proceedings, we review these findings first. See In re N.G., 577 S.W.3d at 235; In re
C.M.C., 554 S.W.3d 164, 171 (Tex. App.—Beaumont 2018, no pet.).
Subsection D permits the termination of a parent’s rights if the trier of fact
finds by clear and convincing evidence that the parent has “knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which endanger
the physical or emotional well-being of the child[.]” Tex. Fam. Code Ann.
§ 161.001(b)(1)(D). Subsection E permits the termination of a parent’s rights if the
trier of fact finds by clear and convincing evidence that the parent has “engaged in
conduct or knowingly placed the child with persons who engaged in conduct which
endangers the physical or emotional well-being of the child[.]” Id.
§ 161.001(b)(1)(E).
27 “Endangerment under subsection (D) arises from a child’s environment and a
parent’s disregard for the potential for danger created by the environment.” In re
I.V.H., No. 01-19-00281-CV, 2019 WL 4677363, at *5 (Tex. App.—Houston [1st
Dist.] Sept. 26, 2019, no pet.) (mem. op.) (citing Jordan v. Dossey, 325 S.W.3d 700,
721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)). Subsection D’s focus is the
child’s environment; however, parental conduct may create an endangering
environment. Id. (citing In re M.T.W., No. 01-11-00162-CV, 2011 WL 6938542, at
*12 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, no pet.) (mem. op.)). Under
subsection D, parental rights may be terminated based on a parent’s single act or
omission. In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet.
denied).
A finding under subsection E can be “evidenced not only by the parent’s acts,
but also by the parent’s omissions or failures to act.” In re S.K., 198 S.W.3d 899,
902 (Tex. App.—Dallas 2006, pet. denied). “Endangerment under subsection (E)
arises when a parent’s course of conduct jeopardizes the child’s emotional or
physical health.” In re I.V.H., 2019 WL 4677363, at *5 (citing In re A.J.H., No. 01-
18-00245-CV, 2019 WL 190050, at *7 (Tex. App.—Houston [1st Dist.] Jan. 15,
2019, no pet.) (mem. op.)). Termination under subsection E requires more than a
single act or omission and “a ‘voluntary, deliberate, and conscious course of conduct
28 by the parent is required.’” In re L.E.S., 471 S.W.3d 915, 923 (Tex. App.—
Texarkana 2015, no pet.) (quoting Perez v. Tex. Dep’t of Protective & Regulatory
Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004, no pet.)). An inference of
danger to a child’s well-being may come from parental misconduct. See Tex. Dep’t
of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re K.P., 498 S.W.3d
157, 171 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). “A parent’s past
endangering conduct may create an inference that the parent’s past conduct may
recur and further jeopardize a child’s present or future physical or emotional well-
being.” In re M.M.M., No. 01-17-00980-CV, 2018 WL 1954178, at *10 (Tex.
App.—Houston [1st Dist.] Apr. 26, 2018, pet. denied) (mem. op.) (citing In re D.M.,
58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.)).
Since evidence of statutory grounds D and E is often interrelated, we may
consolidate our review of the evidence supporting these grounds. See In re M.Y.G.,
423 S.W.3d 504, 510 (Tex. App.—Amarillo 2014, no pet.); see also In re A.J.H.,
2019 WL 190050, at *8. “Both subsections D and E of section 161.001(1) use the
term ‘endanger.’” In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.]
2014, pet. denied) (addressing previous version of the statute). “To ‘endanger’
means to expose a child to loss or injury or to jeopardize a child’s emotional or
physical health.” Id. (citations omitted). In examining endangerment under
29 subsection D, we look to the child’s environment, including when a parent is aware
of the danger and “consciously disregards[]” the danger or conduct by others that
creates an environment that endangers the child’s emotional or physical well-being.
Id. (citations omitted). This inquiry considers the child’s environment before he was
in custody of the Department. Id. “Under subsection E, however, courts may
consider conduct both before and after the Department removed the child from the
home.” Id. “It is not necessary that the parent’s conduct be directed at the child or
that the child actually be injured; rather, a child is endangered when the environment
or the parent’s course of conduct creates a potential danger which the parent is aware
of but disregards.” In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th
Dist.] 2005, no pet.).
The evidence at trial established that Mother had two children, a daughter and
her son, Jack. Mother’s daughter currently lives with the daughter’s biological
father. Mother testified that she does not have custody of her daughter. Mother
testified that she was charged with child endangerment and abandonment of Jack
and of her daughter in 2015. Mother explained that she left her children in her
apartment while she went to the store and that she asked a neighbor to watch her
children. She testified that she was unaware her neighbor was “high[,]” that she was
gone no longer than twenty minutes, but “there was no way I could fight [the
30 charges].” Mother testified the reason Jack ended up in the care of her boyfriend’s
parents who later surrendered him to the Department was because she was
incarcerated for violation of her probation for child endangerment and abandonment
and “a child support case[.]”
Mother also testified that she was involved in at least two abusive
relationships and that Jack was with her when she was in one of the relationships.
Mother testified that she believed that Jack’s behavioral issues developed after he
witnessed one of Mother’s boyfriends being abusive to her. Testimony also
established that Mother was living with another abusive boyfriend, Marcus, after
Jack was in the Department’s custody and although Department employees offered
to help Mother leave Marcus, she did not accept the help. Mother stated that before
trial she left Marcus, she lived in her car, stayed with a coworker and eventually
moved in with her friend Michaela. Mother also testified that Marcus had a problem
with methamphetamines and alcohol.
Easley testified that although Mother had remained in contact with the
Department and generally been cooperative, Mother did not cooperate with the
Department’s drug testing requests. Mother testified that she did not attend her drug
testing about “80 percent” of the time because she was working when the
Department called her to take tests. Mother admitted that in the past she did
31 methamphetamines, but she insisted that she had not done drugs in seven years.
Mother testified that during this case she was employed, and after leaving her
abusive boyfriend, Mother lived with a coworker and in her car for a short period.
Finally, Mother testified that although she was starting a job the next week, she was
living with Michaela and that she would have to find a place to live if the trial court
placed Jack with Michaela but she did not then have the funds to pay for her own
place.
Considering the entire record, we conclude that the trial judge could have
reasonably formed a firm belief or conviction that termination of Mother’s parental
rights was proper under subsections D and E. See In re J.F.C., 96 S.W.3d at 264–
65. There was testimony that Mother had been convicted of felony child
endangerment and abandonment of Jack, that she was placed on probation for her
conviction, and later she was incarcerated for probation violations and for
nonsupport of her other child. The trial court could have reasonably believed that
Mother had engaged in conduct that endangered Jack by exposing him to a life of
uncertainty and instability and that she had jeopardized his emotional or physical
health. See In re S.R., 452 S.W.3d at 360 (subsections D and E both use the term
“endanger[,]” which means “to expose a child to loss or injury or to jeopardize a
child’s emotional or physical health[]”).
32 Because we have concluded that the evidence was legally and factually
sufficient to establish predicate grounds for termination under (D) and (E), we need
not address the sufficiency of the evidence to support a violation of subsection O.
See In re A.V., 113 S.W.3d at 362; In re D.S., 333 S.W.3d 379, 388 (Tex. App.—
Amarillo 2011, no pet.) (“If multiple predicate grounds are found by the trial court,
we will affirm based on any one ground because only one is necessary for
termination of parental rights.”).
We overrule Mother’s first three issues.
VI. Best Interest Findings Under Subsection 161.001(b)(2)
In Father’s second and third issues, he argues termination of his parental rights
is not in Jack’s best interest. In Mother’s fourth issue, she argues termination of her
parental rights is not in Jack’s best interest. “[T]here 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); see also Tex. Fam. Code Ann. § 153.131(b). In
reviewing whether termination is in a child’s best interest, we consider a non-
exhaustive list of factors: (1) desires of the child; (2) emotional and physical needs
of the child now and in the future; (3) emotional and physical danger to the child
now and in the future; (4) parental abilities of the individuals seeking custody; (5)
programs available to assist these individuals to promote the best interest of the
33 child; (6) plans for the child by these individuals or by the agency seeking custody;
(7) stability of the home or proposed placement; (8) acts or omissions of the parent
which may indicate that the existing parent-child relationship is improper; and (9)
any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976).
The list is not exhaustive, but simply indicates considerations that have been
or could be pertinent. See id. at 372. However, the best-interest determination neither
requires proof of any unique set of factors nor limits proof to any specific factors. In
re D.M., 58 S.W.3d at 814 (citing Holley, 544 S.W.2d at 371-72). There is no
requirement that the party seeking termination prove all nine factors. In re C.H., 89
S.W.3d 17, 27 (Tex. 2002). Undisputed evidence relating to one single factor may
be adequate in some cases to support a finding that termination is in the best interest
of the child. Yonko v. Dep’t of Family & Protective Servs., 196 S.W.3d 236, 243
(Tex. App.—Houston [1st Dist.] 2006, no pet.). Evidence supporting the termination
of parental rights under subsection 161.001(b)(1) is also probative of best interest.
In re C.H., 89 S.W.3d at 28. “On the other hand, and although we acknowledge the
trial court is the sole judge of a witness’s credibility, we may not disregard evidence
that does not support the trial court’s best interest finding.” In re E.D., 419 S.W.3d
615, 619 (Tex. App.—San Antonio 2013, pet. denied).
34 A. Best Interest Finding as to Father
1. Desires of the Child
Jack was seven years old at the time of trial and he did not testify as to his
desires for placement. Testimony showed that the only personal contact that Jack
has had with Father was early in his life when Father’s sister brought Jack to prison
to visit his Father. Father testified that he sent Jack cards and drawings in the mail.
2. Emotional and Physical Needs and Danger to Jack
Father stated that he was then serving a fifteen-year sentence for aggravated
robbery, but that he may be eligible for parole in February 2020. Father stated he
was unaware that Mother was pregnant with Jack when he committed his crime.
Father testified that he had not been able to work in prison and had not provided
support for Jack. Father stated that if he was released from prison, he would go live
with his sister and would take any job he could get to support his child. Father stated
that although he did not work in prison because of the heat, once he was released
from prison, he believed he could work construction jobs. Although Father believed
he would be eligible for parole soon, this testimony was based on speculation and
Father did not provide any evidence that he could provide support for Jack or that
other members of his family had agreed to care for and support Jack.
35 3. Father’s Parenting Abilities and Proposed Placement for Jack
Father stated that although he was in prison, he had tried to maintain contact
with his son and believed that he could provide emotional support for his child even
if he was in prison. Father testified he was aware of Jack’s behavioral issues and he
believed he could provide a unique perspective and support for his child. According
to Father, his own experience in foster care would help him to relate to his son and
provide emotional support for Jack. Father also stated that he had taken rehabilitative
classes in prison including drug rehabilitation and gang renouncement. Father also
stated that he believed his sister or Michaela could care for Jack while he finished
his prison sentence.
4. The Department’s Plan for Jack, Programs Available, and Stability of Proposed Placement
Testimony revealed that Jack suffered from severe behavioral issues and,
according to the CASA, he was doing “about the same[]” at the time of trial as when
she first saw him. Testimony showed that Jack was then placed in a group home and
that he was not receiving specialized care at the group home. The CASA testified
that once Father was released from prison the court could assess at that time
appropriate contact and visitation between Jack and Father, and that possible
placement with Father in the future should not necessarily be ruled out.
36 Viewing the evidence in the light most favorable to the judgment, we conclude
that there was legally sufficient evidence to terminate Father’s parental rights. A
reasonable factfinder could form a firm belief or conviction that Father had provided
merely speculative testimony about his parole eligibility and his proposed
placements for the child, and the evidence firmly satisfied at least two of the Holley
factors—the plans for the child by the individuals or the agency seeking custody and
the stability of the home or proposed placement. See Yonko, 196 S.W.3d at 243 (The
trial court may find it legally sufficient and in the child’s best interest to terminate
the parent-child relationship based on a single finding under the Holley factors).
Examining all the evidence, both supporting and contrary to the judgment, we
also conclude that the evidence was factually sufficient to support the trial court’s
finding that termination of Father’s rights was in Jack’s best interest. See In re J.F.C.,
96 S.W.3d at 266 (explaining that the appellate court’s analysis should determine
whether the fact finder, under a clear and convincing standard of proof, could have
formed a firm belief or conviction). Given all of the evidence before the trial court,
including the incarceration of Father, the child’s need for continued treatment for
behavioral issues, the testimony that Father had not been present in Jack’s life, and
that Jack did not have a relationship with his Father, Father had only met the child a
couple of times, and Father may not be released from prison until the child is a
37 teenager, we conclude that a reasonable factfinder could have formed a firm belief
or conviction that termination of Father’s parental rights was in Jack’s best interest.
See A.S. v. Tex. Dep’t. of Family & Protective Servs., 394 S.W.3d 703, 714–16 (Tex.
App.—El Paso 2012, no pet.) (holding that evidence was legally and factually
sufficient to show termination was in the child’s best interest when the father was
incarcerated, his “sentence and incarceration established that [father] is unable to
meet [the child’s] emotional or physical needs, presently or in the future[,]” the pair
did not have a bond, and that although he stated he would “be there” for the child,
he had only met the child once). We overrule Father’s second and third issues.
B. Best Interest Finding as to Mother
Jack was seven years old at the time of trial and he did not testify as to his
desires for placement. Testimony at trial established that Jack and Mother have a
bond, and Mother exercised her visitation with Jack. The caseworker stated the visits
were appropriate.
The CASA stated that the child wants to have a relationship with his Mother,
asks about her, and it would be beneficial to the child to have visitation with Mother.
Moreover, the CASA testified that it was not in the child’s best interest for Mother’s
38 rights to be terminated. Mother regularly visited the child, and the Department
caseworker described the visits as appropriate and loving.
2. Emotional and Physical Needs and Dangers to Jack
Mother stated that, other than her first case with the Department when she left
her children alone in her apartment, Jack has lived with her his entire life. The
testimony established that Jack has a history of exhibiting emotional and behavioral
problems. Mother acknowledged that Jack’s behavioral issues could stem from an
abusive relationship Mother had with a boyfriend that Jack witnessed. Although
Mother claimed she had left that boyfriend, she also had another abusive relationship
with another boyfriend, Marcus, with whom she was involved at the time of her
probation revocation and testified that the abuse started after Jack’s removal. The
CASA testified that Mother had not shown any evidence that she could provide Jack
with a safe and stable environment, and the CASA did not think it was a good idea
for Jack to be placed with Mother after the trial. The CASA and the Department
representatives testified that adoption would be in Jack’s best interest, and adoption
could only occur if the parents’ rights were terminated. The CASA also testified that
she believed Mother should have some supervised court-ordered access to Jack. The
CASA also agreed that the Department had no plan of a foster home or parent
available to adopt Jack, if the parents’ rights were terminated the Department would
39 leave Jack with no family and no options at the moment, and the only people
interested in Jack were the parents and Michaela.
Mother testified that before her incarceration, she had Jack in counseling,
behavioral therapy, and used essential oils to address the child’s needs. Additionally,
Mother testified that she made arrangements for the child to stay with her boyfriend’s
parents during her incarceration. The Department was going to leave Jack with her
boyfriend’s parents until the boyfriend’s parents relinquished care to the
Department. Mother testified that she told the temporary caregivers about the child’s
behavioral issues before she went to jail. Mother testified that she would continue to
seek treatment for the child if her rights were not terminated. While she had recently
relocated to a different city, she also testified that she believed there was counseling
and providers for the child in the new location.
The CASA testified that the child’s behavior has not improved while in the
Department’s care, and that after being moved and transferred three times during the
pendency of this case, his behavior is the same. The evidence established that while
in the Department’s care, the child made a threat of self-harm and was actually
hospitalized for psychiatric treatment.
40 3. Mother’s Parental Abilities
Testimony established that Mother has two children, Jack and his sister. She
stated that Jack had lived with her his entire life, other than a brief time when the
Department removed the children relating to the child endangerment and
abandonment charges. Mother pleaded guilty to felony child endangerment and
abandonment, was placed on probation, and violated her probation. Mother stated
that she was previously in an abusive relationship and that Jack’s behavioral issues
started after that relationship. Mother testified that she then left the abusive
relationship and was in a relationship with Marcus. Mother testified that Marcus was
a drug addict, and he became physically abusive towards her after Jack was placed
in the Department’s custody. Mother acknowledged that a child should not be around
domestic violence. Mother testified that she was aware of Jack’s behavioral issues,
he was enrolled in counseling and behavioral therapy, and she had treated him with
oils like lavender.
The CASA testified that she “couldn’t say” whether she believed Mother
could provide Jack with a safe and stable environment, and the CASA did not think
it was a good idea for Jack to be placed with Mother after the trial. The CASA did
not believe that Mother was then currently able to be financially stable or
emotionally stable. The CASA observed one visit between Mother and Jack almost
41 a year before trial. The CASA testified that Jack “seems to want to see [Mother]”
and “definitely wants to have a relationship with her.” The CASA testified she was
concerned because Mother’s boyfriend, Marcus, was with Mother at the visit and the
CASA “felt like [Jack] didn’t want to be near him or with him in that visit[,]” and it
concerned the CASA that Mother was still living with Marcus during part of the
pendency of the case.
4. Mother’s Plans for Jack, The Department’s Plans for Jack, and Stability of Proposed Placement
Mother requested that Jack be placed with fictive kin, Michaela. Mother was
confident that Michaela could care for him, and Mother testified that Jack’s
placement with Michaela was in his best interest. Testimony established that Jack
previously lived with Michaela when he was much younger. Mother acknowledged
at the time of trial she was living with Michaela. Michaela testified that she would
ask Mother to move out if Jack was placed with Michaela. Mother also agreed that
she would move out and find her own place if Jack was placed with Michaela.
Mother testified that she did not support Jack during the entire nine months after
she was released from jail and stated that she was “never ordered or told to” support
him. Mother testified that she provided Jack’s clothes and belongings when she was
released from jail. According to Mother, she would be starting a job in Tyler, Texas,
making $11 per hour and believed that in a couple of months she could support 42 herself and find housing on that income. Mother testified that she would help pursue
therapy for Jack if he was placed with Michaela. Mother stated that she wanted Jack
to have a permanent placement and she would financially support Jack if he was
placed with Michaela.
The Department representatives testified that currently there were no adoptive
options for Jack, and Jack’s behavioral issues have prevented him from being placed
in a foster home. The Department confirmed that Jack is currently in a group home,
and by terminating Mother’s rights, it would possibly open more adoption options
for Jack. Jack, however, had expressed a desire to have visitation with his Mother
and that it would be in Jack’s best interest to continue visitation with Mother, at least
until a permanent placement could be found for Jack.
5. Programs Available to Assist Jack
Testimony established that since coming into the Department’s care, Jack had
been placed in several foster homes, treated in a psychiatric hospital, and finally
placed in a group home. While in the group home, Jack was not receiving one-on-
one care. The CASA testified that she did not believe Jack’s behaviors had improved
and she feared that Jack would remain in the Department’s care and not be adopted
because of his behavioral issues.
43 6. Acts or Omissions of the Mother
Mother acknowledged that she had been in violent domestic relationships, she
left those relationships, and she knew that Jack should not be around domestic
violence. Testimony established that Mother missed some of her mandatory drug
tests, and Mother testified that about “80 percent” of the time when the call for the
test was made, she was working. 3 Mother stated that the drug tests she completed
were negative. The Department did not put the results of the completed drug tests
into the record. Mother testified that she had not used drugs in seven years and that
she attends a faith-based recovery program. Mother admitted that even after her
release from her incarceration, she was living with her boyfriend, Marcus, who used
methamphetamines and alcohol and abused her after Jack’s removal. When
questioned about her felony child endangerment and abandonment conviction,
Mother acknowledged that she left Jack and his sister alone in her apartment while
she went to the store but stated that she asked a neighbor to watch the children while
she was gone. Mother testified she was unaware the neighbor was “high” and that
the neighbor had called the police after Mother left. Mother acknowledged that she
3 A refusal to submit to a drug test allows a reasonable inference that the person knew he or she would test positive for drug use. In re C.R., 263 S.W.3d 368, 374 (Tex. App.—Dallas 2008, no pet.); In re J.T.G., 121 S.W.3d 117, 131 (Tex. App.—Fort Worth 2003, no pet.). 44 did not financially support Jack during the pendency of this case but claimed that
she was unaware she had to support him. Mother stated that she knew that she would
have to financially support Jack if her rights were not terminated. Mother testified
that she had provided clothes and belongings to Jack after she was released from jail.
7. Other Considerations
(a) Overview of the Child’s Situation
Testimony at trial established that Jack has a long history of behavioral issues,
which began after he observed Mother in an abusive relationship. Mother testified
she addressed the child’s behavior issues with behavioral therapy, counseling, and
alternative medicine. Mother stated she told the caregivers during her incarceration
of Jack’s behavioral issues. The evidence established that since Jack has been placed
in the care of the Department, Jack was removed from several foster homes,
hospitalized, and ultimately placed in a group home. Department witnesses testified
that there are no foster homes available at this time for the child and that no one
desires to adopt him. The child’s guardian ad litem testified she fears if the parents’
rights are terminated, the child will not be adopted and will remain in the
Department’s care for the remainder of his minor years.
45 (b) Guidance From Other Cases
In Yonko v. Dep’t of Family & Protective Servs., the Houston First Court of
Appeals held that the evidence was factually insufficient to support termination
under section 161.001(b)(2) because the facts demonstrated that it would
psychologically damage the child not to be with the mother, the mother
demonstrated a willingness and ability to parent the child in the near future, and the
State’s “scant evidence” regarding termination did not overcome the unique situation
of the child’s emotional and psychological issues that would result with termination.
196 S.W.3d at 249. Other courts have held similarly when addressing cases seeking
termination of parental rights involving children with behavioral issues and a lack
of evidence to demonstrate an improved benefit toward stability and future plans for
potential adoptability. See In re J.N., 301 S.W.3d 429, 434–35 (Tex. App.—
Amarillo 2009, pet. denied) (acknowledging that the Department is not required to
provide “definitive plans” for the child’s future but holding there was no
“compelling benefit” by severing parents’ parental rights to the child); see also In re
Z.B., No. 07-16-00026-CV, 2016 WL 3922936, at *18–20 (Tex. App.—Amarillo
July, 12, 2016, no pet.) (mem. op.) (holding evidence was factually insufficient to
show best interest when the Department failed to establish that aparent was unfit and
“[c]onsidering that there was no foreseeable adoption for the children and no chance
46 of a permanent and stable home on the horizon, the Department’s action to
irrevocably terminate [father’s] relationship with his children was an extreme
measure”); Gibbs v. Tex. Dep’t of Family and Protective Servs., No. 03-11-00320-
CV, 2012 WL 2979048, at *12 (Tex. App.—Austin July 19, 2012, no pet.) (mem.
op.) (ruling evidence was factually insufficient to terminate parent’s rights because
of “overwhelming weight of the evidence, mostly through uncontroverted testimony
by objective, uninterested expert witnesses, [ ]that it is in the children’s best interest
for [parent] to maintain his rights to them[,]” and the only contrary testimony is “that
permanent adoptive home, the likes of which had not been located, would be
preferable”); In re J.P., No. 02-10-00448-CV, 2012 WL 579481, at *9–10 (Tex.
App.—Fort Worth Feb. 23, 2012, no pet.) (mem. op.) (holding evidence factually
insufficient to support that termination of parent’s parental rights was in the child’s
best interest considering child’s extreme behavioral issues, there was no foster
family interested in adopting the child at time of trial, the child and parent had a
strong bond, and parent was the only consistent presence in the child’s life; evidence
of the parent’s unstable housing, his views on domestic violence, and continued drug
usage was not enough to overcome the strong presumption to maintain the parent
child relationship); In re R.W., No. 01-11-00023-CV, 2011 WL 2436541, at *12–13
(Tex. App.—Houston [1st Dist.] June 16, 2011, no pet.) (mem. op.) (stating evidence
47 was factually insufficient because parent’s failure to comply with service plan was
not due to “indifference or malice,” and “[g]iven the nature of the [parent’s]
offending behavior and the bond between her and her children, coupled with the
children’s uncertain future in regard to an adoptive placement, the factfinder could
not have reasonably formed a firm belief that terminating the parental rights of the
person with whom the children have the best chance of being a family together, is in
their best interest”). 4
Other termination cases have affirmed on the best interest element when the
child had behavioral problems. For example, in In re K.C., 219 S.W.3d 924, 929–30
(Tex. App.—Dallas 2007, no pet.), the Dallas Court of Appeals affirmed the
termination and noted that the child had special behavioral needs that were
4 The Texas Supreme Court has held that lack of definitive plans regarding the child’s adoptability or potential placement in the future is not dispositive to demonstrate that termination is not in the best interest of the child. See In re C.H., 89 S.W.3d 17, 28–29 (Tex. 2002). In In re C.H., the Supreme Court explained that the child was in foster care and that a lack of testimony from the foster family about adopting the child does not reach an inference that the family was not considering adopting the child or a lack of potential placement. Id. at 28. The lack of evidence regarding the child’s future cannot be regarded as a sole ground for reversal. Id. In re C.H. is distinguishable from the case currently before us today because the evidence showed that the C.H. was in foster care and “developing normally and that he was an emotionally stable, happy boy.” Id. at 21. Here, testimony demonstrated that Jack’s behavior had not improved while in the Department’s care, and he has bounced around between placements, including several hospitalizations, ultimately ending up in a group home, and there are no current prospects of a foster placement or of being adopted. 48 improving, the child was progressing in his foster home, and the child could be
“adoptable under continued care[.]”Similarly, in J.K. v. Tex. Dep’t. of Family &
Protective Servs., No. 03-18-00814-CV, 2019 WL 1646268, at *3–4 (Tex. App.—
Austin Apr. 17, 2019, pet. denied) (mem. op.), The Austin Court of appeals found
the evidence was factually sufficient on best interest where children with severe
behavioral problems had improved in foster care, there was someone who planned
to adopt them, and the children were going to be enrolled in therapy. See also In re
S.J.N., 14-18-00529-CV, 2018 WL 6494256, at *8–9 (Tex. App.—Houston [14th
Dist.] Dec. 11, 2018, pet. denied) (mem. op.) (explaining that it was in the child’s
best interest to terminate father’s parental rights because although the Department
did not have proposed permanent placements for the children and the children were
in a group home, the group home was meeting all their needs and the children were
performing well). We find each of these cases distinguishable because in each case,
the evidence presented by the Department showed the children were performing well
and the current placements had shown to be beneficial to the children. In the case at
bar, the evidence has shown no improvement or benefit to the child.
Nevertheless, under a legal sufficiency review, an examination of the Holley
factors demonstrates some evidence that termination is in the child’s best interest:
(1) Mother’s prior acts of neglect; (2) an abusive relationship with her former
49 boyfriend with whom she and the child lived; (3) the missed drug tests; (4) lack of
her own housing and inconsistent employment, as well as lack of parenting skills.
Therefore, viewing the evidence in a light favorable to the trial court’s findings, there
was legally sufficient evidence to support the finding. See In re J.F.C., 96 S.W.3d at
266.
That said, we must still examine the factual sufficiency. In reviewing the
factual sufficiency of the evidence, we must give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing. Id. We are
required to consider the disputed evidence and determine whether a reasonable
factfinder could have resolved that evidence in favor of the finding. Id. “If, in light
of the entire record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not reasonably
have formed a firm belief or conviction, then the evidence is factually insufficient.”
Id. Examining all the evidence, both favorable and contrary to the trial court’s best
interest finding, we conclude that a reasonable fact finder could not have formed a
firm belief or conviction that termination of Mother’s parental rights was in the
child’s best interest at this time. See id.; see also In re A.C., 560 S.W.3d at 631.
The Department failed to meet its burden to establish by clear and convincing
evidence that terminating Mother’s rights would be in Jack’s best interest. This is
50 particularly true considering the trial judge’s expressed reservations at the
conclusion of the first day of trial that the Department had met its burden under the
best interest prong. There was overwhelming evidence presented by both the
Department and the CASA that the child needed to maintain a relationship with
Mother, such as some type of supervised visitation. The Department representatives
as well as the CASA stated that it would be detrimental for the child not to maintain
some type of a relationship with Mother. Evidence showed that there was no current
placement available for the child other than a group home that was not addressing
his behavioral issues, that Jack experienced continued problems while in the
Department’s care, and that having a relationship with Mother was in the child’s best
interest. Although the evidence established that Mother had been placed on
probation for child endangerment in 2015, the Department did not seek to terminate
her rights for that conviction at that time and returned the child to Mother. In light
of the child’s emotional and behavioral condition, the testimony that Mother and her
child are bonded, that the child could be placed with fictive kin, that Mother had
agreed to continue therapy for the child, and considering the testimony from both
the Department and the CASA that it would be beneficial for Jack to maintain
contact with Mother, we conclude in light of the entire record, the disputed evidence
that a reasonable factfinder could not have credited in favor of the finding is so
51 significant that a factfinder could not reasonably have formed a firm belief or
conviction. See In re A.C., 560 S.W.3d at 631. Thus, the evidence is factually
insufficient to show that termination of Mother’s parental rights is in Jack’s best
interest. See id.; In re J.F.C., 96 S.W.3d at 266.We sustain Mother’s fourth issue.
VII. Conclusion
We affirm the trial court’s termination of Father’s parental rights. We also
affirm the trial court’s factual findings that Mother violated the predicate acts under
section 161.001(1)(b)(D) and (E). As neither Mother nor Father challenged the trial
court’s determination of conservatorship, we affirm the trial court’s appointment of
the Department as Jack’s managing conservator. But having concluded that the
evidence is factually insufficient to support that termination of Mother’s parental
rights is in Jack’s best interest, we reverse and remand to the trial court for a
determination of possessory conservatorship rights, visitation, child support,
medical support and any other necessary orders as to Mother. See In re N.L.D., 412
S.W.3d 810, 825 (Tex. App.—Texarkana 2013, no pet.).
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
_________________________ CHARLES KREGER Justice
52 Submitted on January 6, 2020 Opinion Delivered March 11, 2020
Before Kreger, Horton and Johnson, JJ.
53 CONCURRING AND DISSENTING OPINION
To the extent the majority sustains Mother’s fourth issue, I respectfully
dissent. In my view, the trial court could reject the scant evidence Mother offered to
show she has the skills and the ability to successfully parent “Jack.” 1 And here, the
difference between the holding I propose and the resolution the Court reaches turns
mainly on a difference in opinion about what inferences the trial court could
reasonably have made based on evidence showing that Mother abandoned Jack and
has not, during the periods he lived with her, shown she can provide Jack a safe and
stable home. I would affirm the judgment terminating Mother’s rights to Jack.
Because the majority does not, I dissent.
As is relevant here, the record shows that in 2015, a court in Anderson
County, Texas convicted Mother for abandoning or endangering Jack.2 In the
hearing at issue in the appeal, Mother testified that in 2015, a court placed her on
1 The majority has used the pseudonym “Jack” to refer to the child who is the subject of the termination proceedings at issue in the appeal. For convenience, I also use that name to refer to the child is the subject of this appeal. 2 See Tex. Penal Code Ann. § 22.041 (Abandoning or Endangering Child). From the testimony, it is impossible to determine whether the criminal court handling Mother’s criminal case convicted Mother of a Third-Degree or a State-Jail felony. Either way, however, the conviction is a felony. The State failed to provide the trial court with a copy of the judgment of conviction or the indictment, so it is not in the record on appeal. 1 probation for a period of three years after she was convicted of felony abandonment,
an offense which involved Jack.
What inferences could the trial court reasonably make from the evidence
showing Mother had a 2015 conviction for abandoning Jack? In my opinion, the trial
court could have inferred Mother intentionally abandoned Jack in a place that, under
the circumstances, exposed him “to an unreasonable risk of harm.” 3 The majority
appears to agree with that, as it affirms the trial court’s finding that Mother engaged
in conduct that endangered Jack.4
The conviction for abandonment also supports the inference that Mother left
Jack in a location where no reasonable adult would have left him, given his age.5
While Mother denied that is what occurred, the trial court, as the factfinder, could
have rejected Mother’s account claiming she left Jack at home while under the care
of another adult. 6 In my opinion, the majority either disregards Mother’s conviction
3 Id. § 22.041(b) (describing the elements of the offense of felony abandonment of a child). 4 See Tex. Fam. Code Ann. § 161.001(2)(b)(1)(E). 5 See Tex. Penal Code Ann. § 22.041(a) (defining abandon to mean leaving “a child in any place without providing reasonable and necessary care for the child, under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability”).
2 for abandonment or places little weight on it when it reviews the evidence admitted
in the trial relevant to Jack’s best interest. In other words, the majority seems to
accept Mother’s account downplaying the factual circumstances that led to her
conviction on the abandonment charge. But the trial court did not have to accept
Mother’s account about what occurred in 2015.7
Mother’s conviction for abandoning Jack is relevant evidence the trial court
could consider in evaluating Jack’s best interest.8 When reversing a trial court’s best-
interest finding, the reviewing court’s opinion must explain why the trial court could
not have formed a firm conviction about the best-interest finding a parent has
challenged in the appeal.9 In the best-interest discussion the majority provides us, it
mentions Mother’s felony-abandonment conviction only in passing when describing
Mother’s ability as a parent. Even then, the reference appears merely as background
about how Mother, as a historical matter, parented Jack. The opinion fails to explain
whether the majority concludes the evidence about Mother’s conviction was not
6 See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (explaining that as the sole judge of the credibility of the witnesses, the factfinder “may choose to believe one witness and disbelieve another”). 7 Id. 8 See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). 9 Id. 3 relevant or weighed too heavily when the majority reviews the evidence in the record
about Jack’s best interest. In my view, the standard of review requires the reviewing
court to assume the trial court weighed the evidence heavily against Mother when it
conducted its analysis, and the evidence supports the trial court’s view based on the
other evidence that tends to show Mother’s ability as a parent is extremely poor.
Even if the majority gave the abandonment conviction some weight in its review,
the opinion does not tell us how much. Nor, does the opinion explain why the trial
court did not have the right to give the evidence a great deal of weight.
Other evidence in the record provides more support for the trial court’s
decision terminating Mother’s rights to Jack. In general, the evidence allowed the
trial court to conclude Mother cannot provide Jack a safe, stable, and drug-free
home. For instance, the record shows that Mother has not lived up to her obligations
to her daughter as her non-custodial parent. Mother explained she has visitation
rights to her daughter. She also has an obligation to pay her daughter child support.
Mother explained her daughter’s father will not allow her to take that child to see
Jack. The daughter’s father requires Mother to exercise her visitation rights to that
child in his home. Mother pays $213 a month in child support based on a court order
in support for her daughter, but Mother agreed in the trial she is and has been in
arrears. According to Mother, the family law court handling her daughter’s case had
found her in contempt following a child support hearing where she failed to appear. 4 Mother admitted the family judge handling her daughter’s case had sentenced her to
jail for contempt. In my opinion, the evidence showing that Mother has not complied
with the duties she owes her daughter is more evidence the trial court could have
relied on when concluding Mother lacks the parenting skills, ability, and resources
to provide Jack a safe, stable home.
Other evidence in the record shows Mother has not provided Jack with a stable
home. When Mother was indicted and convicted on the charge of felony
abandonment, she and Jack were living in Anderson County with a man named
Leon. When Leon physically abused Mother, in Jack’s presence, Mother left
Anderson County with Jack. They moved to Liberty County, where Mother and Jack
began living with a man named Marcus. Marcus was living on property owned by
his parents. The record does not show what Marcus or Mother did to earn money
while Mother lived with him. While in Liberty County, authorities from Anderson
County arrested Mother for violating the conditions of her parole. By violating the
conditions, Mother left Jack without having an available parent to raise him after
Mother went to jail.
Mother downplayed the parole violation during this trial. The majority
appears to view the violation as minor, as it apparently accepts the explanation
Mother provided about the reason the violation occurred. But as the finder of fact,
the trial court did not have to accept Mother’s explanation. And the trial court had 5 the right to weigh the evidence of the violation heavily against Mother by, viewing
the conduct as all the more reckless because Mother knew no other relatives were
available to care for Jack if she violated her parole. Given Mother’s lack of choices
about where to place Jack, she placed him with Marcus’s parents while she went to
jail. Marcus’s parents decided they could not manage Jack and they turned him over
to the Department. Thus, the choices Mother made to violate her parole left Jack a
ward of the State.
Finally, the majority’s best-interest analysis appears to rely heavily on the
evidence that tends to show the Department has no concrete adoptive options for
Jack at the current time. While evidence about placement plans and adoption are
relevant to a trial court’s decision about what is in a child’s best interest, “the lack
of evidence about definitive plans for permanent placement and adoption cannot be
the dispositive factor; otherwise, determinations regarding best interest would
regularly be subject to reversal on the sole ground an adoptive family has not yet
been located.” 10 Our job, however, is not to determine whether the options the
Department offered are better than the options proposed by Mother. Instead, we must
decide whether the evidence allowed the trial court to “reasonably form a firm
conviction or belief that termination of the parent’s rights would be in the child’s
10 Id. 6 best interest—even if the agency is unable to identify with precision the child’s
future home environment.” 11 Witnesses from the Department explained in the
hearing they were awaiting the trial court’s decision in the case to move forward
with finding Jack a more permanent home.
The evidence described when viewed in the light that favors the trial court’s
finding allowed the trial court to form a strong belief or conviction that Mother
cannot provide stable housing for herself or a child. Even after leaving prison in May
2018, Mother continued to show that she cannot provide herself with housing on her
own. In May 2018, Mother returned to Marcus’s home. Marcus, however, began
hitting Mother after she moved back in. Yet Mother stayed with Marcus until March
2019, around nine months after she moved back in. According to Mother, Marcus
uses drugs and alcohol and his abuse of these substances led him to abuse her.
Mother was aware Marcus used illegal substances and did so in the home. According
to Mother, Marcus has substance abuse problems. Mother described Marcus’s
problems as significant, explaining Marcus is currently in an in-patient drug rehab
program. According to Mother, drug treatment is something Marcus “absolutely
needs[.]” Upon leaving Marcus, Mother had nowhere to go. She chose to live with
a coworker from March 2019 until shortly before the trial in late-July 2019. After
11 Id. 7 moving out, Mother moved in with her friend Michaela. But according to Mother,
she plans to find her own place to live if the trial court required her to do so and if
the court would adopt the plan she proposed asking the court to give Michaela
custodial rights, on a temporary basis, to Jack.
And, the trial court could have inferred from the testimony that Mother uses
men and her friends to provide her a home. The testimony in the case shows Mother
has lived in only two homes with Jack. Neither home proved stable. In both, Mother
lived with men who began abusing her, one while Jack was living in the home.
Mother then moved to Liberty County but chose to live with a man she learned was
using illegal drugs. After Jack was no longer there, that man also began abusing her.
Since then, Mother has lived with her friends because she is without the resources
she needs to rent a place of her own.
All this evidence together with the evidence showing Mother abandoned Jack
in 2015 in a place that exposed him to an unreasonable risk of harm is evidence
relevant to the trial court’s best-interest finding. Evidence about a parent’s past
conduct is probative and relevant to such a finding.12 To reverse, the majority must
clearly explain why the trial court could not reasonably rely on this evidence to
12 See In re J.D., 436 S.W.3d 105, 119 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (explaining a parent’s decisions that affect the stability of the home the parent has provided in the past is relevant when reviewing a trial court’s best- interest finding). 8 decide Mother has exhibited a pattern of conduct “that is inimical to the very idea of
childrearing.”13 The majority opinion fails to clearly explain why the trial court
could not rely on this evidence, so the opinion we issue must be reversed given the
standards that apply to reviewing a trial court’s decision terminating a parent’s
rights.14
In conclusion, giving proper deference to the trial court’s best-interest finding,
the trial court could have reasonably formed a firm belief or conviction that
terminating Mother’s rights is in Jack’s best interest. I agree with the opinion to the
extent that we affirm the judgment as to Father’s appeal. To the extent the majority
reverses the ruling terminating Mother’s parental rights, I respectfully dissent for the
reasons explained above.
_________________________ HOLLIS HORTON Justice
Concurrence/Dissent Delivered March 11, 2020
13 In re C.H., 89 S.W.3d at 28. 14 Id. at 28-29. 9
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