NUMBEPR 13-24-00453-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF J.T., A.P., L.P., CHILDREN
ON APPEAL FROM THE COUNTY COURT AT LAW NO.5 OF NUECES COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices West and Fonseca Memorandum Opinion by Justice West
Appellant P.P. Jr. (Father) appeals a judgment terminating his parental rights to
his son, L.P. 1 Father argues that the evidence is insufficient to support: (1) the statutory
termination grounds, and (2) that termination was in the child’s best interest. We affirm.
I. BACKGROUND
A. Pretrial Proceedings
1 To protect the identity of minor children in an appeal from an order terminating parental rights,
parents and children are referred to by their initials or an alias. See TEX. FAM. CODE ANN. § 109.002(d). According to an affidavit in support of emergency removal, on November 14, 2022,
appellee, the Department of Family and Protective Services (the Department), received
a report with concerns for neglectful supervision of two-year-old A.P. and his newborn
sibling, L.P. The report alleged that Father and Mother (K.P.) leave A.P. and L.P. “with an
unknown caregiver while both parents are out using drugs together.” A subsequent report
on November 22, 2022, included allegations that Mother “has been using opiates, Xanax,
and Lortabs daily and abusing alcohol on the weekends in the presence of the children.”
On December 5, 2022, friends of Mother brought A.P. to Driscoll Children’s
Hospital after they observed him acting strangely. At the hospital, A.P. tested positive for
amphetamines and ecstasy and “appeared to be high from drug exposure.” L.P., who was
about three months old at the time, was later brought to the hospital and tested positive
for cocaine. L.P. was “observed to have rapid breathing and shaky legs which nursing
staff stated was indicative of withdrawals.” When speaking to a Department investigator,
Mother “appeared to be under the influence” because her “speech was accelerated and
slurred,” “she struggled to answer questions[,] and was frequently repeating words.”
The removal affidavit included the couple’s history with the Department. It indicated
that Mother was validated for neglectful supervision of one of her children every year from
2016 to 2021, including A.P. in September 2020 and July 2021. On February 1, 2021, the
Department validated both parents for neglectful supervision of A.P. because Father
tested positive for cocaine; Mother tested positive for cocaine, amphetamines,
methamphetamines, and opiates; and Mother’s fourteen-year-old son, unrelated to
Father, was allegedly using drugs. On February 9, 2022, the Department received a
report that Father and Mother “engaged in a domestic dispute” and “ha[d] a history of
2 ongoing domestic violence.” The affidavit also included a summary of the couple’s
criminal histories, indicating that Father and Mother had multiple criminal charges dating
back to 2002 and 2003, respectively, and that Father had two prior convictions for drug
possession.
The trial court awarded the Department temporary managing conservatorship of
A.P. and L.P. Father alleged to be the father of both A.P. and L.P., but a court-ordered
paternity test established that A.P. was not his biological son. 2
B. Trial Record
The case proceeded to a bench trial starting on March 18, 2024. Natalie Canales-
Luevano, a Department specialist, testified that she met with Father to establish a family
plan of service. The plan required Father to attend and complete parenting classes,
substance abuse counseling, individual counseling, a psychological evaluation, domestic
violence intervention and prevention classes, and submit to randomized drug testing. To
complete his substance abuse counseling, Father was mandated to attend sixteen
individual substance abuse classes and thirty-six hours of group therapy. Father signed
the plan on January 18, 2023, and the court adopted it as an order.
Canales-Luevano testified that Father failed to complete the psychological
evaluation, parenting classes, domestic violence intervention and prevention classes, and
individual counseling sessions. As to substance abuse counseling, Canales-Luevano
testified that Father completed only six individual sessions and one group session. Out of
2 J.T., a child originally in this proceeding, is not Father’s biological child and was later severed out
of this case. 3 sixty-four randomized drug screenings the Department requested, Father submitted to
twenty-four, with four testing positive:
• On December 13, 2022, Father’s hair follicle screening tested positive for
cocaine and methamphetamine.
• On January 9, 2023, Father’s urinalysis (UA) screening tested positive for
hydromorphone and hydrocodone.
• On November 1, 2023, Father’s hair follicle screening tested positive for
amphetamine and methamphetamine.
• On February 3, 2024, Father’s UA screening tested positive for amphetamine
and methamphetamine.
As to Father’s relationship to L.P., Canales-Luevano testified that she did not
believe they were bonded. Prior to removal, Father told her “he had a very back and forth
relationship” with Mother, he was not taking care of A.P. and L.P., and he only saw them
when Pam, his nineteen-year-old daughter from a prior relationship, babysat them.
Canales-Luevano testified that from her understanding, Pam spent more time caring for
A.P. and L.P. than Father did. She also testified that Father visited A.P. and L.P.
frequently for three months after removal, but he had not visited either child for a year.
At the time of trial, L.P. was living in a licensed foster home with parents R.R. and
D.R., where he had been placed about two months after removal. Canales-Luevano
testified that L.P. “has a great bond” with R.R. and D.R., “[h]e refers to them as Mom and
Dad,” and “[h]e has blossomed in being in their care since he was first placed.” R.R., an
intervenor in this case, clarified that prior to removal, A.P. was raised primarily by her
family because Mother left A.P. in her care shortly after he was born. R.R. testified that 4 Mother only became involved with A.P. when everyone in R.R.’s family went to work. Prior
to removal, R.R. discussed potentially adopting A.P., but Mother did not want to
voluntarily terminate her parental rights. After the children were removed from Mother’s
care, R.R. made plans to adopt both A.P. and L.P. 3 She testified that she was “never
under the impression” that Father was L.P.’s biological father, and she never knew that
Father alleged to be A.P.’s father.
Darra Walker, an advocate supervisor for the Court Appointed Special Advocates
(CASA) of the Coastal Bend, became involved with A.P.’s and L.P.’s case in January
2024. Walker explained that CASA’s role is to represent the “best interest[s] of the
children.” She believed that it was in the children’s best interest to terminate Father’s
parental rights and for the children to remain with their foster family. However, she later
testified that she was not comfortable recommending termination because she believed
that “outside interference . . . may have hindered reunification” and recommended that
L.P. have a continuing or fostered relationship with Father’s family. Nevertheless, Walker
did not recommend reunification with Father and testified that termination “seems
reasonable.”
The trial court signed an order terminating Father’s parental rights pursuant to
Texas Family Code § 161.001(b)(1)(D), (E), (N), and (O). The trial court further found that
termination of Father’s parental rights was in L.P.’s best interests. See id. § 161.001(b)(2).
This appeal ensued.
3 On April 14, 2023, Mother voluntarily relinquished her parental rights to both children.
5 II. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review & Applicable Law
“Because the natural right between a parent and his child is one of constitutional
dimensions, Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985), termination proceedings
must be strictly scrutinized.” In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In parental
termination cases, our legal and factual sufficiency standards honor this elevated burden
of proof while respecting the factfinder’s role. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018)
(citing In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002)). “The distinction between legal and
factual sufficiency lies in the extent to which disputed evidence contrary to a finding may
be considered.” Id. In a legal sufficiency review, we “cannot ignore undisputed evidence
contrary to the finding, but must otherwise assume the factfinder resolved disputed facts
in favor of the finding.” Id. at 630–31 (citing In re J.F.C., 96 S.W.3d at 266). Thus,
“[e]vidence is legally sufficient if, viewing all the evidence in the light most favorable to the
fact-finding and considering undisputed contrary evidence, a reasonable factfinder could
form a firm belief or conviction that the finding was true.” Id. at 631 (citing In re J.F.C., 96
S.W.3d at 266).
Factual sufficiency, on the other hand, requires us to weigh disputed evidence
contrary to the finding against all the evidence favoring the finding. In re A.C., 560 S.W.3d
at 631. We “must consider whether disputed evidence is such that a reasonable factfinder
could not have resolved it in favor of the finding.” Id. (citing In re H.R.M., 209 S.W.3d 105,
108 (Tex. 2006)). Therefore, “[e]vidence is factually insufficient if, in light of the entire
record, the disputed evidence a reasonable factfinder could not have credited in favor of
6 a finding is so significant that the factfinder could not have formed a firm belief or
conviction that the finding was true.” Id. (citing In re J.F.C., 96 S.W.3d at 266).
To terminate parental rights, a court must find two elements by clear and
convincing evidence: (1) that the parent committed one of the statutory grounds for
termination found in § 161.001(b)(1) of the family code; and (2) that termination is in the
child’s best interest. TEX. FAM. CODE ANN. § 161.001(b); In re E.N.C., 384 S.W.3d 796,
803 (Tex. 2012). Because of the fundamental rights at issue, due process requires that
parental termination be supported by clear and convincing evidence. In re S.M.R., 434
S.W.3d 576, 580 (Tex. 2014); In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). Clear and
convincing evidence is “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; see also In re J.F.C., 96 S.W.3d at 264.
B. Statutory Grounds
In his first issue, Father argues there is legally and factually insufficient evidence
supporting each termination ground. “To affirm a termination judgment on appeal, a court
need uphold only one termination ground—in addition to upholding a challenged best
interest finding—even if the trial court based the termination on more than one ground.”
In re N.G., 577 S.W.3d 230, 232–33 (Tex. 2019) (per curiam). The Texas Supreme Court
has held that, regardless of whether other grounds for termination are unchallenged on
appeal, an appellate court must always review issues alleging the evidence was
insufficient to support findings of endangerment under parts (D) or (E) of § 161.001(b)(1)
of the family code. Id. at 234, 237; see also In re X.J.R., No. 04-20-00368-CV, 2021 WL
112175, at *3 (Tex. App.—San Antonio Jan. 13, 2021, pet. denied) (mem. op.) (“Because
7 grounds (D) and (E) implicate due process and due course of law requirements, we ‘must
provide the details of [our] analysis’ for either of these grounds which we affirm.” (quoting
In re N.G., 577 S.W.3d at 237)). Therefore, we will first address the sufficiency of the
evidence supporting the trial court’s (D) and (E) findings.
1. (D) & (E) Grounds
Subsection 161.001(b)(1)(D) allows termination when the evidence proves by
clear and convincing evidence that the parent knowingly placed or knowingly allowed the
child to remain in conditions or surroundings which endanger the child’s physical or
emotional well-being, and subsection 161.001(b)(1)(E) allows termination if the parent
has engaged in conduct, or knowingly placed the child with persons who engage in
conduct, which endangers the child’s physical or emotional well-being. TEX. FAM. CODE
ANN. § 161.001(b)(1)(D), (E). “Subsection (D) addresses the child’s surroundings and
environment rather than parental misconduct, which is the subject of subsection (E).” In
re A.L.H., 624 S.W.3d 47, 56 (Tex. App.—El Paso 2021, no pet.) (quoting In re B.C.S.,
479 S.W.3d 918, 926 (Tex. App.—El Paso 2015, no pet.)). Subsection (D) permits
termination based on only a single act or omission. In re V.A., 598 S.W.3d 317, 329 (Tex.
App.—Houston [14th Dist.] 2020, pet. denied). In contrast, subsection (E) requires
evidence of a “voluntary, deliberate, and conscious course of conduct by the parent” and
generally more than a single act or omission. In re D.L.W.W., 617 S.W.3d 64, 78 (Tex.
App.—Houston [1st Dist.] 2020, no pet.) (quoting In re J.T.G., 121 S.W.3d 117, 125 (Tex.
App.—Fort Worth 2003, no pet.)).
Under both subsection (D) and (E), “‘endanger’ means to expose the child to loss
or injury or to jeopardize her emotional or physical health.” Id. (citing Tex. Dep’t of Human
8 Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). “Although ‘endanger’ means more
than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family
environment, it is not necessary that the conduct be directed at the child or that the child
actually suffers injury.” In re G.C.S., 657 S.W.3d 114, 128 (Tex. App.—El Paso 2022, pet.
denied) (quoting In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)); see also Boyd, 727
S.W.2d at 533. “As a general rule, conduct that subjects a child to a life of uncertainty and
instability endangers the physical and emotional well[-]being of a child.” In re S.A., 665
S.W.3d 59, 70 (Tex. App.—Tyler 2022, pet. denied) (citations omitted).
2. Analysis
Father argues that there was insufficient evidence that he “knowingly allowed [L.P.]
to remain in conditions or surroundings which endangered his physical or emotional well-
being.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(D). He argues that the Department
failed to present evidence that L.P. “was living in a dangerous condition” or that Father
was aware of L.P.’s current living conditions.
Endangering conduct may include the parent’s actions before the child’s birth and
the parent’s conduct with older children. See In re J.O.A., 283 S.W.3d 336, 345 (Tex.
2009) (citing Boyd, 727 S.W.2d at 533). Father’s conduct prior to L.P.’s birth, including
Father’s care of A.P. and any conditions or surroundings which endangered A.P.’s
physical or emotional well-being, was relevant in this case, particularly because L.P. was
only about three months old at the time of removal. See id.; In re I.G., 383 S.W.3d 763,
770 (Tex. App.—Amarillo 2012, no pet.) (“If a parent abuses or neglects the other parent
or a child, that conduct can be used to support a finding of endangerment even against a
child who was not yet born at the time of the conduct.” (citation omitted)).
9 There was sufficient evidence that L.P. was living in conditions or surroundings
which endangered his physical or emotional well-being. The Department received reports
that Mother was “using opiates, Xanax, and Lortabs daily and abusing alcohol on the
weekends in the presence of the children”; it learned that Father and Mother leave A.P.
and L.P. “with an unknown caregiver while both parents are out using drugs together”;
and A.P. and L.P. tested positive for drugs at the hospital. See In re S.R., 452 S.W.3d
351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (“Inappropriate, abusive, or
unlawful conduct by a parent or other persons who live in the child’s home can create an
environment that endangers the physical and emotional well-being of a child as required
for termination under subsection D.” (citation omitted)).
While Father claims he was not caring for A.P. or L.P. prior to removal, there was
sufficient evidence that he “knowingly” left the children in these conditions. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(D). Evidence at trial established that Father had an “on and
off again” relationship with Mother, the couple had a history of domestic violence, the
couple used drugs together, and the couple engaged in neglectful supervision of A.P. due
to drug use. See id.; In re J.O.A., 283 S.W.3d at 346 (concluding that father’s history of
domestic violence and drug use constituted “evidence of endangerment on which a
reasonable factfinder could have formed a firm belief or conviction of endangerment”).
Mother has an extensive history with CPS and was validated for neglectful supervision of
A.P. and her other children multiple times prior to this case, and Father continued to allow
the children to reside in her care. See In re S.R., 452 S.W.3d at 360.
Father next argues that there is insufficient evidence to support the predicate
grounds for termination under subsection (E) because “the Department failed to show
10 that [he] engaged in a course of conduct that endangered [L.P.] physically or emotionally,”
or that he “knew of dangerous conditions created by [Mother],” or knowingly placed the
children “with dangerous persons.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
As previously stated, Father and Mother used drugs together, had a history of
domestic violence, and had previously been validated for neglectful supervision of A.P.
There was sufficient evidence for a factfinder to infer that Father knew of Mother’s
substance abuse issues and past neglectful conduct of her children, and he consciously
disregarded those concerns when he when he left his child in Mother’s care. See id.; In
re S.R., 452 S.W.3d at 360 (“A child is endangered when the environment creates a
potential for danger that the parent is aware of but consciously disregards.”).
Additionally, there was sufficient evidence of Father’s separate conduct that
endangered the child’s physical and emotional well-being. “Because the inquiry under
both subsections D and E includes the conduct of the parent, evidence of criminal
conduct, convictions, or imprisonment is relevant to a review of whether a parent engaged
in a course of conduct that endangered the well-being of the child.” In re S.R., 452 S.W.3d
at 360–61 (citation omitted).
Father has two prior drug possession convictions and a history of domestic
violence. Father has a history of substance abuse dating back to 2002. “[A] parent’s use
of narcotics and its effect on his ability to parent may qualify as an endangering course of
conduct.” In re J.O.A., 283 S.W.3d at 345. “Continued illegal drug use after a child’s
removal is conduct that jeopardizes parental rights and may be considered as
establishing an endangering course of conduct.” In re S.R., 452 S.W.3d at 361–62
(citation omitted). Father used illegal substances prior to removal and continued to use
11 drugs during the pendency of this case. Father tested positive four times for different
types of drugs between December 2022 to February 2024. And, a factfinder could
reasonably infer that his failure to submit to other requested drug screenings indicated
that he was using illegal drugs. See In re A.R.D., 694 S.W.3d 829, 840 (Tex. App.—
Houston [14th Dist.] 2024, pet. denied) (“A fact[]finder reasonably can infer that a parent’s
failure to submit to court-ordered drug tests indicates the parent is avoiding testing
because they were using illegal drugs.” (citation omitted)).
Further, Father did not participate in a material portion of the family plan of service.
“A failure to complete a court-ordered service plan may constitute evidence supporting
an endangerment finding because such conduct subjects a child to instability and
uncertainty, which endangers the child.” Id. Specifically, Father failed to complete the
psychological evaluation, parenting classes, domestic violence intervention and
prevention classes, individual counseling sessions, the requisite number of substance
abuse counseling sessions, and submitted to less than half of the random drug
screenings requested.
There was also evidence that L.P. had not developed a bond with Father. “The
parent-child relationship, and efforts to improve or enhance parenting skills, are relevant
in determining whether a parent’s conduct results in endangerment under subsection (E).”
A.S. v. Tex. Dep’t of Fam. & Protective Servs., 394 S.W.3d 703, 712 (Tex. App.—El Paso
2012, no pet.) (citing In re D.T., 34 S.W.3d 625, 640 (Tex. App.—Fort Worth 2000, pet.
denied). Father had not visited L.P. for an entire year prior to trial. See id.; see also In re
D.A., No. 02-15-00213-CV, 2015 WL 10097200, at *5 (Tex. App.—Fort Worth, Dec. 10,
2015, no pet.) (mem. op.) (“[T]he risk of emotional harm from a parent’s missed visits with
12 a child may support a finding of endangerment.” (citations omitted)). He did not appear
for the first two days of trial, he did not testify, and he did not present evidence as to his
current residence, employment, or plans for L.P.
Viewing all the evidence in the light most favorable to the trial court’s (D) and (E)
findings and considering undisputed contrary evidence, we conclude that a reasonable
factfinder could form a firm belief or conviction that the findings were true. See In re A.C.,
560 S.W.3d at 634. Further, considering the entire record, including evidence both
supporting and contradicting the trial court’s findings, we conclude that the contrary
evidence is not so overwhelming as to undermine the court’s findings. See id. Because
the evidence is legally and factually sufficient to support both endangerment grounds, we
need not address the sufficiency of the evidence supporting the remaining grounds. See
In re N.G., 577 S.W.3d at 232–33. We overrule Father’s first issue.
C. Best Interest Finding
In Father’s second issue, he argues there is legally and factually insufficient
evidence supporting the trial court’s best interest finding.
1. Holley Factors
There is a strong, though rebuttable, presumption that keeping a child with a parent
is in the child’s best interest. TEX. FAM. CODE ANN. § 153.131(b); In re R.R., 209 S.W.3d
112, 116 (Tex. 2006). In reviewing a best interest finding, we consider, among other
evidence, the non-exclusive Holley factors. In re E.N.C., 384 S.W.3d at 807 (citing Holley
v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)). These factors include: (1) the child’s
desires; (2) the child’s emotional and physical needs now and in the future; (3) any
emotional and physical danger to the child now and in the future; (4) the parental abilities
13 of the individuals seeking custody; (5) the programs available to assist the individuals
seeking custody to promote the best interest of the child; (6) the plans for the child by the
individuals or agency seeking custody; (7) the stability of the home or proposed
placement; (8) the parent’s acts or omissions which may indicate that the existing parent-
child relationship is improper; and (9) any excuse for the parent’s acts or omissions. Id.
The party seeking termination is not required to prove all nine Holley factors, and in some
cases, undisputed evidence of just one factor may be sufficient to support a finding that
termination is in the best interest of the child. In re C.H., 89 S.W.3d 17, 25, 27 (Tex. 2002).
As to the first Holley factor, when a child such as L.P. is too young to express his
desires, the factfinder may consider that the child has bonded with the foster family, is
well cared for by them, and has spent minimal time with a parent. See In re J.D., 436
S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.); In re R.S.D., 446
S.W.3d 816, 818, 820 (Tex. App.—San Antonio 2014, no pet.) (finding that the child, who
was “almost four years old” at the time of trial, was “too young to have stated his desires”).
Evidence at trial showed that L.P., eighteen months old at the time of trial, was bonding
with his foster family and spent minimal time with Father before and after removal.
As to the second Holley factor, there was evidence presented that L.P.’s current
and future emotional and physical needs are being met at the foster home. Turning to the
third Holley factor, there was no evidence that the foster family presents a current or future
risk of emotional or physical damage to the child; however, Father’s history of drug use,
criminal conduct, abuse and neglect presents risk of emotional or physical damage to the
14 child. Regarding the fourth Holley factor, Father presented no evidence concerning his
parenting abilities.
The fifth Holley factor addresses programs available to assist individuals seeking
custody. The only evidence in this regard is that the Department offered several services
that were designed to help Father promote the best interest of the child, but Father was
unwilling or unable to successfully comply. See In re O.N.H., 401 S.W.3d 681, 687 (Tex.
App.—San Antonio 2013, no pet.) (“Non-compliance with a service plan is probative of a
child’s best interest.” (citing In re W.C., 98 S.W.3d 753, 765 (Tex. App.—Fort Worth 2003,
no pet.)); Wilson v. State, 116 S.W.3d 923, 930 (Tex. App.—Dallas 2003, no pet.)
(concluding that a parent’s lack of motivation to learn how to improve parenting skills is
evidence supporting the best interest determination).
As to the plans for the child by the individuals seeking custody, the sixth Holley
factor, R.R. testified that she and her husband intended to adopt L.P. and his brother. The
Department presented evidence that L.P.’s foster placement was a stable and loving
environment. No plans for L.P.’s future were offered by Father. The seventh Holley factor,
the stability of the home or proposed placement, was addressed with testimony that L.P.
was bonding with the foster family. Again, Father presented no evidence regarding the
stability of his home environment.
The evidence in support of termination in this case centers primarily on the eighth
Holley factor, parent’s improper acts or omissions indicating that the parent-child
relationship is improper. Evidence established that Father had a substance abuse history
dating back to 2002; he used illegal substances prior to removal and continued to use
drugs during the pendency of this case; he used drugs with Mother; he was validated for
15 neglectful supervision of A.P. due to drug use in 2021; he had a history of domestic
violence with Mother; he failed to visit with L.P. throughout the proceedings; and he failed
to complete most of the requirements in the service plan.
Lastly, as to the ninth Holley factor, no relevant evidence was adduced to any
excuses for the acts or omissions of Father.
Looking at all of the evidence in the light most favorable to the trial court’s finding,
we conclude a reasonable trier of fact could have formed a firm belief or conviction that
termination was in L.P.’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re
A.C., 560 S.W.3d at 630. Further, the evidence to the contrary was not so significant as
to preclude such a finding. See id. at 631. We overrule Father’s second issue.
III. CONCLUSION
The trial court’s judgment is affirmed.
JON WEST Justice
Delivered and filed on the 13th day of February, 2025.