In the Interest of K.O. and K.Q., Children v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00440-CV

IN THE INTEREST OF K.O. AND K.Q., CHILDREN

On Appeal from the County Court at Law No. 2 Randall County, Texas Trial Court No. 82392L2, Honorable Dan L. Schaap, Sitting by Assignment

June 26, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellants, Mother and Father, appeal from the trial court’s order terminating their

parental rights to their children, K.Q. and K.O., in a suit brought by Appellee, the

Department of Family and Protective Services.1 Mother and Father challenge the

sufficiency of the evidence to support the trial court’s findings under the predicate grounds

and the finding that termination is in the best interest of the children. We affirm the trial

court’s judgment of termination.

1 To protect the privacy of the parties involved, we refer to the mother of the children as “Mother,”

the father of the children as “Father,” and the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). BACKGROUND

The case involves the parent-child relationship between Mother and Father and

K.Q. and K.O. K.Q. was born on May 2, 2021, and K.O. was born on June 30, 2022. In

November of 2022, the Department became involved with Mother after allegations were

made that Mother was working as a prostitute and that she had K.Q. and K.O. “with her

in the hotel rooms, and in the different locations where she was working.” Mother

admitted to the Department investigator that she was recently arrested for prostitution but

denied that the children were present when she was working. A few days later, Mother

informed the investigator that she planned to relocate to Dallas. Mother then left the

children with their maternal grandmother. The Department could not approve of the

maternal grandmother as a placement because she had a history with the Department.

The maternal grandmother asked a co-worker to take care of K.O. and K.Q. in Mother’s

absence. After a few days, the co-worker could not take care of the children any longer

and delivered them to the Department. Mother would not disclose her location or contact

information to the Department and told the investigator that “the Department could have”

the children. Father, awaiting trial on felony charges, was interviewed in the Potter County

Detention Center by the investigator. Father gave his mother’s name as a possible

caregiver for K.Q. and K.O., but she was unsuitable because she had a history with the

Department.

The Department took K.Q. and K.O. into care because there were no suitable

relatives available to care for them. The Department filed its petition for protection,

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

adversary hearing, the Department was appointed temporary managing conservator and 2 K.Q. and K.O. were placed in a foster home. The associate judge conducted a bench

trial on the Department’s petition in November of 2023. Mother timely filed a request for

a de novo hearing. The following evidence was presented at the hearings.

The Department developed family service plans for Mother and Father and the trial

court ordered compliance with the plans’ requirements. Among other things, the plans

required Mother and Father to maintain stable housing and employment, complete a

psychosocial evaluation, participate in individual counseling, maintain a drug-free lifestyle

and abstain from the use of illegal drugs, submit to random drug screens, complete

rational behavior therapy, participate in parenting classes, and maintain regular contact

with the caseworker.

Mother satisfied her plan’s requirements that she obtain a psychosocial evaluation,

complete rational behavior therapy, participate in parenting classes, and complete

individual counseling. She submitted to some but not all of the drug screens requested

by the Department. She had weekly supervised visits with the children until June of 2023.

Between June and September, Mother missed eight out of twelve scheduled visits, and

she only exercised two visits between September and November. Mother has continued

to live with maternal grandmother, who has a history with the Department. Mother has

not been able to maintain stable employment, although she was employed at IHOP a

week before the final hearing.

On March 10, 2023, Mother pleaded guilty to prostitution and was placed on

deferred adjudication for one year. According to Mother, after Father went to jail, she

turned to prostitution to make money so that Father could get released on bond.

3 Father was arrested and jailed in August of 2022 and pleaded guilty to multiple

charges. He remained incarcerated for the duration of the underlying case. He was

transferred to the Texas Department of Criminal Justice, Institutional Division (TDCJ) to

serve concurrent sentences for burglary (four years), evading arrest with a motor vehicle

(four years), and unauthorized use of a motor vehicle (six months). K.Q. was fourteen

months old and K.O. was one month old when Father was incarcerated. After his

incarceration, Father did not see the children. However, Father testified that he wants a

relationship with K.O. and K.Q. after he is released from prison.

K.Q. and K.O. were placed in foster care in December of 2022. At the time of

removal, both children were developmentally behind and K.O. was not receiving the

medical attention he needed. The foster mother testified that K.O. had torticollis, limited

range of motion, an untreated umbilical hernia, and a “severe flat spot” on his head. K.O.

was referred to Early Childhood Intervention services and receives occupational and

physical therapy. He is walking and “has come a long way.” K.Q. was still drinking

formula, struggling with chewing and swallowing, and suffered from extreme ear

infections. K.Q.’s walking improved when her ear infections were treated. She receives

speech therapy. The foster home is meeting all of K.Q.’s and K.O.’s physical and

emotional needs. Both children are now active toddlers, healthy eaters, and free from

ear infections. The Department has no concerns with the placement. The foster parents

are willing to keep the children long term and want to pursue adoption.

The trial court terminated Mother’s parental rights to K.Q. and K.O. on the grounds

of endangering conditions, endangerment, constructive abandonment, and failure to

comply with a court order that established actions necessary to obtain return of the child. 4 See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O).2 The trial court also found that

termination was in the best interest of K.O. and K.Q. See § 161.001(b)(2). The trial court

terminated Father’s parental rights to K.O. and K.Q. on the grounds of endangerment,

constructive abandonment, and failure to comply with a court order that established

actions necessary to obtain return of the child. See § 161.001(b)(1)(E), (N), (O). The trial

court also found that termination was in the best interest of K.O. and K.Q. See

§ 161.001(b)(2). The Department was appointed as permanent managing conservator of

K.Q. and K.O. Mother and Father timely appealed the resulting judgment.

STANDARD OF REVIEW

A parent’s right to the “companionship, care, custody, and management” of his or

her child is a constitutional interest “far more precious than any property right.” Santosky

v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re

M.S., 115 S.W.3d 534, 547 (Tex. 2003). We strictly scrutinize termination proceedings

and strictly construe the involuntary termination statutes in favor of the parent. Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural parents are not

absolute” and “[t]he rights of parenthood are accorded only to those fit to accept the

accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re

J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may forfeit his or

her parental rights by his or her acts or omissions, the primary focus of a termination suit

is protection of the child’s best interests. See id.

2 Further references to provisions of the Texas Family Code will be by reference to “section ___”

or “§ ___.”

5 In a case to terminate parental rights under section 161.001 of the Family Code,

the petitioner must establish, by clear and convincing evidence, that (1) the parent

committed one or more of the enumerated acts or omissions justifying termination, and

(2) termination is in the best interest of the child. § 161.001(b). 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.”

§ 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both elements must be

established and termination may not be based solely on the best interest of the child as

determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533

(Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied).

“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.” In re A.V., 113 S.W.3d at 362. We affirm a termination order if the evidence is

both legally and factually sufficient to support any alleged statutory ground the trial court

relied upon in terminating parental rights if the evidence also establishes that termination

is in the child’s best interest. In re K.C.B., 280 S.W.3d at 894–95.

In reviewing for legal sufficiency, we look at all the evidence in the light most

favorable to the finding to determine whether a reasonable trier of fact could have formed

a firm belief or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344−45

(Tex. 2009). In reviewing for factual sufficiency, we give due consideration to evidence

that the factfinder could reasonably have found to be clear and convincing. In re C.H., 89

S.W.3d 17, 27 (Tex. 2002). If, considering the entire record, the disputed evidence that

a reasonable factfinder could not have credited in favor of the finding is so significant that

6 a factfinder could not reasonably have formed a firm belief or conviction, then the

evidence is factually insufficient. In re J.F.C., 96 S.W.3d at 266.

The clear and convincing evidence standard does not mean the evidence must

negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,

902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall

that the trier of fact has the authority to weigh the evidence, draw reasonable inferences

therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the

right to resolve credibility issues and conflicts within the evidence and may freely choose

to believe all, part, or none of the testimony espoused by any witness. Id. Where

conflicting evidence is present, the factfinder’s determination on such matters is generally

regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no

writ).

The appellate court cannot weigh witness credibility issues that depend on

demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d

570, 573 (Tex. 2005) (per curiam). Even when credibility issues are reflected in the

written transcript, the appellate court must defer to the factfinder’s determinations, if those

determinations are not themselves unreasonable. Id.

APPLICABLE LAW

A trial court may order termination of a parent-child relationship if the court finds

by clear and convincing evidence that a parent has knowingly placed or knowingly

allowed a child to remain in conditions or surroundings which endanger the physical or

emotional well-being of the child and/or engaged in conduct or knowingly placed the

7 child with persons who engaged in conduct which endangers the physical or emotional

well-being of the child. See § 161.001(b)(1)(D), (E). Both subsections (D) and (E)

require proof of endangerment. To “endanger” means to expose the child to loss or

injury or to jeopardize the child’s emotional or physical health. Boyd, 727 S.W.2d at

533. A child is endangered when the environment creates a potential for danger that

the parent is aware of but consciously disregards. J.S. v. Tex. Dep’t of Family &

Protective Servs., 511 S.W.3d 145, 159 (Tex. App.—El Paso 2014, no pet.). Endanger

means more than a threat of metaphysical injury or the possible ill effects of a less-

than-ideal family environment, but it is not necessary that the conduct be directed at

the child or that the child suffer injury. In re N.K., 399 S.W.3d 322, 330–31 (Tex. App.—

Amarillo 2013, no pet.).

While both subsections (D) and (E) focus on endangerment, they differ regarding

the source of the physical or emotional endangerment to the child. See In re B.S.T., 977

S.W.2d 481, 484 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Subsection (D)

requires a showing that the environment in which the child is placed endangered the

child’s physical or emotional health. Doyle v. Tex. Dep’t of Protective & Regulatory

Servs., 16 S.W.3d 390, 394 (Tex. App.—El Paso 2000, pet. denied). Conduct of a parent

or another person in the home can create an environment that endangers the physical

and emotional well-being of a child as required for termination under subsection (D). In

re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no pet.). “ Inappropriate,

abusive, or unlawful conduct by persons who live in the child’s home or with whom the

child is compelled to associate on a regular basis in his home is a part of the ‘conditions

or surroundings’ of the child’s home” under subsection (D). In re M.R.J.M., 280 S.W.3d

8 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g). The factfinder may infer

from past conduct endangering the child’s well-being that similar conduct will recur if the

child is returned to the parent. Id. Thus, subsection (D) addresses the child’s

surroundings and environment rather than parental misconduct, which is the subject of

subsection (E). Doyle, 16 S.W.3d at 394.

Under subsection (E), the cause of the danger to the child must be the parent’s

conduct alone, as evidenced not only by the parent’s actions, but also by the parent’s

omission or failure to act. In re M.J.M.L., 31 S.W.3d 347, 350–51 (Tex. App.—San

Antonio 2000, pet. denied); Doyle, 16 S.W.3d at 395. To be relevant, the conduct does

not have to have been directed at the child, nor must actual harm result to the child from

the conduct. Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 84

(Tex. App.—Dallas 1995, no writ). Additionally, termination under subsection (E) must be

based on more than a single act or omission; a voluntary, deliberate, and conscious

course of conduct by the parent is required. In re E.P.C., 381 S.W.3d 670, 683 (Tex.

App.—Fort Worth 2012, no pet.). The specific danger to the child’s well-being need not

be established as an independent proposition but may be inferred from parental

misconduct. In re B.C.S., 479 S.W.3d 918, 926 (Tex. App.—El Paso 2015, no pet.).

A determination of best interest necessitates a focus on the child, not the parent.

Id. at 927. Appellate courts examine the entire record to decide what is in the best interest

of the child. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is a strong

presumption that it is in the child’s best interest to preserve the parent-child relationship.

In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam).

9 In assessing whether termination is in a child’s best interest, the courts are guided

by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976).3 “[T]he State need not prove all of the factors as a condition precedent to parental

termination, ‘particularly if the evidence were undisputed that the parental relationship

endangered the safety of the child.’” In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—

Houston [1st Dist.] 2002, pet. denied) (quoting In re C.H., 89 S.W.3d at 27). Evidence

that supports one or more statutory grounds for termination may also constitute evidence

illustrating that termination is in the child’s best interest. See In re E.C.R., 402 S.W.3d at

249. The best interest analysis may consider circumstantial evidence, subjective factors,

and the totality of the evidence as well as direct evidence. In re N.R.T., 338 S.W.3d 667,

677 (Tex. App.—Amarillo 2011, no pet.). We must also bear in mind that a child’s need

for permanence through the establishment of a stable, permanent home has been

recognized as the paramount consideration in determining best interest. See In re K.C.,

219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).

Mother’s Appeal

The trial court terminated Mother’s parental rights to K.O. and K.Q. on the grounds

set out in subsections 161.001(b)(1)(D), (E), (N) and (O). Only one predicate ground is

required to support termination when there is also a finding that termination is in the child’s

3 These factors include: (1) the child’s desires; (2) the child’s present and future emotional and

physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child’s best interest; (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.

10 best interest. In re A.V., 113 S.W.3d at 362. Pursuant to the Texas Supreme Court

opinion in In re N.G., we review the trial court’s findings under subsections

161.001(b)(1)(D) and (E) when raised on appeal, because a finding under those grounds

may justify termination of parental rights to other children under subsection (M). In re

N.G., 577 S.W.3d 230, 235–37 (Tex. 2019) (per curiam); see § 161.001(b)(1)(M).

Sufficiency of the Evidence under Subsections 161.001(b)(1)(D) and (E)

In her first issue, Mother challenges the legal and factual sufficiency of the

evidence to support the termination of her parental rights under subsections (D) and (E).

Because the evidence pertaining to subsections 161.001(b)(1)(D) and (E) is interrelated,

we may conduct a consolidated review. In re M.R.J.M., 280 S.W.3d at 503.

The Department presented evidence that shortly before K.Q. and K.O. were

removed from her care, Mother was arrested and spent two days in jail. She pleaded

guilty to the offense of prostitution and was placed on deferred adjudication for one year.

According to Mother, she “fell in with the wrong crew.” Father had gone to jail, and she

was trying to make money to bond him out. She admitted that prostitution is a very violent

and dangerous way to make a living and that she had been assaulted while prostituting.

After the Department began its investigation, Mother was attacked by a group of women

outside maternal grandmother’s home where K.Q. and K.O. were living. Mother abruptly

moved to Dallas, leaving K.Q. and K.O. with maternal grandmother. Mother refused

further cooperation and told the Department it “could have [K.Q. and K.O.].” When K.Q.

and K.O. were removed from Mother’s care, they were developmentally behind and had

unaddressed medical needs. Mother had not followed through with the exercises and

11 physical therapy that would have alleviated K.O.’s physical condition, which caused his

ear to touch his shoulder. K.Q. suffered from chronic ear infections and she struggled

with chewing and swallowing food. Mother was aware that K.Q. had speech delays, but

she did not seek any assistance. While Mother completed some of her court-ordered

services, she began missing drug tests and weekly visits with K.Q. and K.O. in June

despite the Department providing transportation to her visits. She failed to maintain a

home suitable for K.Q. and K.O. and had difficulty staying employed.

Based on the evidence, the trial court could have formed a firm belief or conviction

that Mother knowingly placed or knowingly allowed K.Q. and K.O. to remain in conditions

or surroundings which endangered their physical or emotional well-being and engaged in

conduct which endangered K.Q.’s and K.O.’s emotional and physical well-being. See

§ 161.001(b)(1) (D), (E). Mother engaged in prostitution and failed to appreciate that the

risks associated with her criminal activity represent a risk to the children’s physical and

emotional well-being. See In re N.K., 399 S.W.3d at 331. The trial court could have

considered Mother’s failure to complete significant requirements of her service plan as

part of its endangering conduct analysis under subsection (E). Mother had made little

progress in addressing the stability of the home or meeting K.Q.’s and K.O.’s emotional

and physical needs. Mother’s employment had changed at least three times and there

were periods in which she was unemployed. Notably, she failed to comply with requested

drug testing and missed numerous visitations with K.Q. and K.O. See In re H.G., No. 07-

21-00278-CV, 2022 Tex. App. LEXIS 2687, at *20 (Tex. App.—Amarillo Apr. 25, 2022,

pet. denied) (mem. op.).

12 Having examined the entire record, we find that the trial court could reasonably

form a firm belief or conviction that Mother knowingly placed or knowingly allowed K.Q.

and K.O. to remain in conditions or surroundings which endangered their physical or

emotional well-being and engaged in conduct which endangered K.Q.’s and K.O.’s

emotional and physical well-being. The same evidence is factually sufficient to support

the trial court’s affirmative finding. We overrule Mother’s first issue. Having found that

the evidence is legally and factually sufficient to support the trial court’s finding under

subsections 161.001(b)(1) (D) and (E), we need not address the portion of Mother’s first

issue challenging the trial court’s findings under subsections 161.001(b)(1) (N) and (O).

See In re A.V., 113 S.W.3d at 363; see also TEX. R. APP. P. 47.1 (allowing courts of

appeals to limit discussions in opinions to issues necessary to disposition of appeal).

Best Interest

In her second issue, Mother challenges the factual and legal sufficiency of the

evidence to support the best-interest finding made under section 161.001(b)(2).

The evidence detailed above regarding Mother’s involvement with prostitution,

medical neglect of K.Q. and K.O., and failure to complete her service plan is probative to

the best-interest inquiry. See In re E.C.R., 402 S.W.3d at 249. A parent’s failure to

complete the court-ordered services when her parent-child relationship is in jeopardy

creates a reasonable inference that the parent is incapable of availing herself of programs

that promote the best interest of the child, both now and in the future. The factfinder can

infer from a parent’s failure to take the initiative to utilize the available programs that the

parent did not have the ability to motivate herself in the future. In re S.P., 509 S.W.3d

13 552, 558 (Tex. App.—El Paso 2016, no pet.). This evidence weighs heavily in favor of

the best-interest finding.

Stability and permanence are paramount in the upbringing of children. In re J.D.,

436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may

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

the plans and expectations of each party are realistic or weak and ill-defined. Id. at 119–

20. Mother began a new job the week before trial. She testified that she is living with

maternal grandmother and her four siblings in a three-bedroom home. Mother testified

that if K.Q. and K.O. were returned, she would continue working, enroll the children in

daycare, and save money for a house. At the de novo hearing in January of 2024, Mother

testified that she plans to take over a lease for a two-bedroom duplex. She has not

completed any further services since the final hearing in November. She asked to be

appointed a possessory conservator and to name the foster parents managing

conservators of K.Q. and K.O. Conversely, the foster family has been providing a safe

and stable environment for the past year, along with the structure and consistency that

K.Q. and K.O. need. The foster parents have actively sought to meet the children’s needs,

including taking steps to remedy their developmental delays. The evidence shows that

K.Q. and K.O. are strongly bonded with their foster family and are thriving in their care.

The foster family plans to adopt them.

At the time of trial, K.Q. was two and a half years old and K.O. was seventeen

months old and, thus, both too young to testify about their desires. When children are too

young to express their desires, the factfinder may consider whether the children have

bonded with the foster family, are well-cared for by them, and have spent minimal time 14 with a parent. In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014,

pet. denied). Further, the Department’s plan for K.Q.’s and K.O.’s adoption provides

permanence and stability for the children and weighs heavily in favor of the trial court’s

conclusion that termination of Mother’s parental rights is in their best interest.

We conclude the evidence is legally and factually sufficient to establish a firm

conviction in the mind of the trial court that termination of Mother’s parental rights is in the

best interest of K.Q. and K.O. We overrule Mother’s second issue challenging the best-

interest determination.

Father’s Appeal

Sufficiency of the Evidence under Subsection 161.001(b)(1)(E)

In his first issue, Father challenges the sufficiency of the evidence to support the

trial court’s finding that he engaged in conduct that endangered the physical or emotional

well-being of K.O. and K.Q.

At the time of the removal, Father had been incarcerated for four months.

According to the testimony of the investigator, Father’s incarceration prevented him from

being able to take possession of K.Q. and K.O., and his incarceration and inability to care

for the children placed them at risk. He requested the children be placed with his mother,

but she was ineligible due to her prior history with the Department.

Before his incarceration, Father lived with Mother and the children. He testified he

was bonded with K.Q. and K.O., and that he fed them, changed their diapers, and bathed

them. The last contact Father had with K.Q. and K.O. was August 1, 2022. At that time,

15 K.Q. was fourteen months old and K.O. was one month old. Father acknowledged that

his criminal history did not reflect good parenting on his part. Father signed his plan of

services, but did not complete any services required by the plan. On the day of trial, he

enrolled in a cognitive intervention class to address his anger issues. Father was denied

parole in March of 2023 due to his “repeatedly commit[ting] criminal episodes” which

indicated “a predisposition to commit criminal acts upon release” and “excessive

substances use involvement.” He remained incarcerated at the time of trial and has a

maximum sentence date ending August 1, 2026.

The testimony before the trial court established an endangering course of conduct

by Father: he turned to criminal activity less than a month after the birth of each of his

children—K.Q. in May of 2021 and K.O. in June of 2022; he committed three felonies in

a fifteen-month period; his criminal record shows a pattern of conduct, not an isolated

incident; his repeated criminal episodes and excessive substance use were the bases for

his denial of parole; he did not stop engaging in criminal activity after K.Q. was born when

he should have been aware that criminal conduct risked separating him from K.Q.; and

other than K.O.’s first month of life, Father has been an absent parent because of his

incarceration.

Father asserts he was the “non-offending” parent because he had no knowledge

that Mother was not an appropriate caregiver or that she was leaving the children with

inappropriate caregivers. We are unpersuaded by his argument. Father’s lack of

knowledge resulted from his criminal conduct that led to his incarceration and his

indifference to his infant daughter and son while he was incarcerated. See In re J.F.-G.,

627 S.W.3d 304, 313 (Tex. 2021) (“A parent’s criminal history—taking into account the 16 nature of the crimes, the duration of incarceration, and whether a pattern of escalating,

repeated convictions exists—can support a finding of endangerment.”). The caseworker

testified that Father was unable to provide K.O. and K.Q. a safe and stable home, he had

not visited or had any contact with the children, and his incarceration posed a continuing

danger to them. “[I]ntentional criminal activity which exposed the parent to incarceration

is relevant evidence tending to establish a course of conduct endangering the emotional

and physical well[-]being of the child.” In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—

Amarillo 2001, no pet.) (per curiam); In re A.F., No. 07-19-00435-CV, 2020 Tex. App.

LEXIS 4152, at *17 (Tex. App.—Amarillo May 29, 2020, pet. denied) (mem. op.) (parent’s

failure to regularly participate in visitation demonstrates lack of concern for the child’s

well-being and can reasonably be found to be emotionally endangering to child’s well-

being). Further, in our analysis under subsection (E), we may also consider Father’s

failure to complete relevant requirements of his service plan. In re J.B., No. 02-22-00384-

CV, 2023 Tex. App. LEXIS 812 at *21 (Tex. App.—Fort Worth Feb. 9, 2023, pet. denied)

(mem. op.) (in subsection (E) analysis, trial court may consider failure to work service

plan, even due to incarceration).

Viewing the evidence in the manner required by each standard of review, we

conclude that it is both legally and factually sufficient for a reasonable trier of fact to form

a firm belief or conviction that Father engaged in a course of conduct which endangered

the physical or emotional well-being of K.O. and K.Q. We overrule Father’s first issue.

Having found that the evidence is legally and factually sufficient to support the trial court’s

finding under subsection 161.001(b)(1)(E), we need not address the portion of Father’s

17 first issue challenging the trial court’s findings under subsection 161.001(b) (1) (N) and

(O). See In re A.V., 113 S.W.3d at 363; TEX. R. APP. P. 47.1.

In his second issue, Father challenges the factual and legal sufficiency of the

evidence to support the best-interest finding made under section 161.001(b)(2).

At the time of the hearing, K.Q. and K.O. were too young to express their desires.

In such cases, the factfinder may consider whether the children have bonded with the

foster family, are well-cared for by them, and have spent minimal time with a parent. In

re J.D., 436 S.W.3d at 118. The evidence showed that K.Q. and K.O. had spent minimal

time with Father. In 2021, K.Q. was less than a month old when Father committed the

second-degree felony offense of burglary. Approximately one year later, Father

committed two additional felonies shortly after K.O. was born. Father was incarcerated

throughout the underlying proceedings, having no contact with either of his children since

August 1, 2022. The Department presented evidence that the foster family provided a

safe, stable, and loving environment for K.Q. and K.O. and the children were thriving in

that placement. The foster parents have actively sought to meet the children’s needs,

including taking steps to remedy their developmental delays.

As for K.Q.’s and K.O.’s physical and emotional needs and the physical and

emotional danger to them, the trial court could have reasonably found that Father’s

minimal contact with the children constituted evidence that Father is incapable or unwilling

to meet K.Q.’s and K.O.’s needs now and in the future. See In re R.J., 568 S.W.3d 734,

752−53 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (minimal visitation relevant to

18 multiple Holley factors including child’s current and future physical and emotional needs

and parent’s ability to care for child). In contrast, K.O. and K.Q. were doing well in their

placement with a foster family. Given the evidence of Father’s repeated criminal

episodes, failure to complete the court-ordered services, and lack of contact with K.Q.

and K.O., the trial court could have reasonably concluded that his actions “sp[oke]

volumes about [his] parenting skills” and suggested “a substantial likelihood” that he

“would be a danger to [K.Q. and K.O.] in the future or put them in a possibly harmful

situation.” In re X.R.L., 461 S.W.3d 633, 640−41 (Tex. App.—Texarkana 2015, no pet.).

Taken together, the trial court could have reasonably concluded that Father was not

“willing and able to provide the child[ren] with a safe environment,” a primary

consideration in determining best interest. § 263.307(b).

Father’s continued incarceration subjects K.Q. and K.O. to a life of uncertainty and

instability. A parent’s imprisonment is a factor that may be considered in determining a

child’s best interest. In re M.L., No. 07-20-00195-CV, 2020 Tex. App. LEXIS 9483, at *16

(Tex. App.—Amarillo Dec. 4, 2020, no pet.) (mem. op.). Because of Father’s continued

incarceration, it is likely that his limited interaction with K.Q. and K.O. will continue for the

foreseeable future. See In re N.R.T., 338 S.W.3d at 677 (considering that appellants had

“no meaningful contact” with their child when evaluating evidence relevant to best-interest

determination).

Stability and permanence are paramount in the upbringing of a child. In re J.D.,

436 S.W.3d at 120. The factfinder may compare the parent’s and the Department’s plans

for the child and determine whether the plans and expectations of each party are realistic

or weak and ill-defined. Id. at 119−20. Father planned to “get a job, get a vehicle, and 19 get [K.Q. and K.O.] some clothes and stuff, and try to take care of them” upon his release

from prison. The Department’s plan for K.Q. and K.O. is continued placement with the

foster family who has consistently and reliably met the children’s physical, medical, and

emotional needs. The Department’s plan to pursue adoption by the foster family would

provide permanence and stability for K.Q. and K.O.

We conclude the evidence is legally and factually sufficient to establish a firm

conviction in the mind of the trial court that termination of Father’s parental rights is in the

best interest of K.O. and K.Q. We overrule Father’s second issue challenging the best-

CONCLUSION

Having overruled the issues raised by Mother and Father, we affirm the judgment

of the trial court terminating Mother’s and Father’s parental rights to K.Q. and K.O.

Judy C. Parker Justice