in the Interest of T.J.

• Court: Court of Appeals of Texas
• Decided: December 8, 2022
• Docket: 09-22-00224-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00224-CV __________________

IN THE INTEREST OF T.J.

__________________________________________________________________

On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. 21DC-CV-00145 __________________________________________________________________

MEMORANDUM OPINION

B.L. 1 appeals the trial court’s order terminating his parental rights. In three

issues, B.L. challenges the legal and factual sufficiency of the evidence supporting

the best-interest finding and the termination ground specified in

section 161.001(b)(1)(E), as well as the legal and factual sufficiency of the evidence

supporting the trial court’s appointment of the Department of Family and Protective

Services (“the Department”) as permanent managing conservator. See Tex. Fam.

1To preserve the privacy of the parties, we refer to the parties and the child by their initials or their familial relationship. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8. 1 Code Ann. §§ 161.001(b)(1)(E), (2); 161.207. We affirm the trial court’s judgment

terminating B.L.’s parental rights.

BACKGROUND

In March 2021, the Department filed a petition seeking the termination

of B.L.’s parental rights to his child, T.J. In June 2022, the trial court conducted a

bench trial on the Department’s petition. B.L. testified he was convicted of injury

to a child by omission for an offense he committed in 2018, sentenced to thirty-five

years of confinement, and had been incarcerated since August 2020. B.L. explained

that he is eligible for parole in February 2038, when T.J. would be eighteen, but

could be released in four years if his charge is reduced. B.L. testified that his

conviction involved a 2018 offense concerning T.J.’s sibling, R.J., and B.L.

explained that the omission was failing to get R.J. medical treatment for a couple of

months after she suffered severe burns. The record includes a Judgment of

Conviction by Court–Waiver of Jury Trial dated December 16, 2021, which shows

that B.L. pleaded “guilty” to injury to a child by omission and that the trial court

assessed punishment at thirty-five years of imprisonment.

B.L. explained that T.J. was born in December 2020, and T.J. was under the

Department’s care because T.J.’s mother (“Mother”) violated her probation and was

incarcerated when T.J. was released from the hospital. B.L. testified that T.J was

“one and half, maybe two[,]” and was living with Mother’s cousins, and B.L. wanted

T.J. to have some contact with him and his cousin, who had agreed to provide 2 support for T.J. during his incarceration. B.L. explained that he never had contact

with T.J. or provided support because he was incarcerated, and he had not spoken to

the Department about his cousin. B.L. testified that T.J. is doing well in her current

placement with her siblings. B.L. explained that it was in T.J.’s best interest to

remain in her current placement and for him to keep his parental rights and have his

cousin provide T.J. with financial support.

Heidi Airey, a Department caseworker, testified T.J. was doing amazing in

her current placement with her sisters and was meeting her milestones. Airey

testified that she never received any placement recommendations from B.L, and B.L.

and his family have had no contact with T.J. since her birth and have made no effort

to have any. Airey explained that Mother executed an affidavit to relinquish her

parental rights to T.J. and wanted T.J. to stay with her family; however, Airey wanted

T.J. to stay in her current placement where she recognizes her foster parents as her

parents, because she does not know anyone else. Airey testified that it was in T.J.’s

best interest to be adopted and to have contact with her biological siblings and

Mother’s family. Airey explained that she did not think it was in T.J.’s best interest

to have contact with B.L. because it created confusion and possible problems in the

future.

Cassie Sauer, a Department caseworker, testified that she had been in contact

with B.L., and she explained that B.L.’s mother was facing the same charges as B.L.

Sauer testified that T.J. was doing great in her current placement and was very happy 3 and bonded. Sauer further testified that it was in T.J.’s best interest to be adopted by

her current placement, which has also adopted T.J.’s biological sisters. Sauer

explained that T.J. has contact with her biological brothers who are placed in another

home. Sauer testified that B.L. had not demonstrated an ability to ever be able to

parent T.J., and she never had contact with B.L.’s cousin. Sauer also testified that it

was in T.J.’s best interest for both parents’ parental rights to be terminated so she

could be adopted by her current placement.

B.L.’s cousin testified that T.J. could live with her, and she would help support

T.J. during B.L.’s incarceration. B.L.’s cousin testified that she had not been in

contact with T.J. or provided any support, and she had never contacted the

Department about having access to T.J. B.L.’s cousin testified that she had only

spoken with B.L.’s mother about having contact with T.J., and it was in T.J.’s best

interest to have contact with B.L.’s family. B.L.’s cousin explained that it was not

in T.J.’s best interest for B.L.’s rights to be terminated because he is paying for what

he has done and needs a second chance.

The trial court found that clear and convincing evidence supported one

predicate statutory ground for terminating B.L.’s parental rights and that termination

of B.L.’s parental rights was in the best interest of T.J. See id. § 161.001(b)(1)(E),

(2). The trial court appointed the Department as the permanent managing

conservator of T.J. The trial court issued Findings of Fact and Conclusions of Law.

B.L. appealed. 4 ANALYSIS

In issue one, B.L. contends that the evidence is legally and factually

insufficient to support termination of his parental rights under section

161.001(b)(1)(E) of the Family Code. See id. § 161.001(b)(1)(E). In issue two, B.L.

contends that the evidence is legally and factually insufficient to demonstrate that

termination of his parental rights is in the best interest of T.J. See id. §

161.001(b)(2). We address issues one and two together.

Under legal sufficiency review, we review 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 its finding was true.” In re J.F.C., 96 S.W.3d

256, 266 (Tex. 2002). We assume that the factfinder resolved disputed facts in favor

of its finding if a reasonable factfinder could, and we disregard all evidence that a

reasonable factfinder could have disbelieved or found to have been incredible. Id. If

no reasonable factfinder could form a firm belief or conviction that the matter that

must be proven is true, the evidence is legally insufficient. Id.

Under factual sufficiency review, we must determine whether the evidence is

such that a factfinder could reasonably form a firm belief or conviction about the

truth of the Department’s allegations. Id. We give due consideration to evidence that

the factfinder could reasonably have found to be clear and convincing. Id. We

consider whether disputed evidence is such that a reasonable factfinder could not

have resolved that disputed evidence in favor of its ruling. Id. If, in light of the entire 5 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, the evidence is factually insufficient. Id.

The decision to terminate parental rights must be supported by clear and

convincing evidence, i.e., “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)(1), (2); see also In re J.L., 163

S.W.3d at 84. We will affirm a judgment if any ground is supported by legally and

factually sufficient evidence and the best-interest finding is also supported by legally

and factually sufficient evidence. In re C.A.C., Jr., No. 09-10-00477-CV, 2011 WL

1744139, at *1 (Tex. App.—Beaumont May 5, 2011, no pet.) (mem. op.).

Section 161.001(b)(1)(E) allows for termination 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[.]” Tex. Fam. Code Ann. § 161.001(b)(1)(E). A

parent’s conduct in the home can create an environment that endangers the child’s

physical and emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—

Fort Worth 2003, no pet.). “The factfinder may infer from past conduct endangering 6 the child’s well-being that similar conduct will recur if the child is returned to the

parent.” In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no

pet.) (citation omitted).

For purposes of subsection (E), endangerment means to expose the child to

loss or injury or to jeopardize a child’s emotional or physical health. Id.; In re

M.L.L., 573 S.W.3d 353, 363 (Tex. App.—El Paso 2019, no pet.). Termination under

subsection (E) must be based on more than a single act or omission and requires a

voluntary, deliberate, and conscious course of conduct by the parent. In re M.L.L.,

573 S.W.3d at 363-64. A parent’s conduct that subjects a child’s life to instability

and uncertainty endangers the emotional or physical well-being of a child. Id. at

363. Endangerment is not limited to actions directed toward the child and includes

the parent’s actions before the child’s birth and while the parent had custody of older

children. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).

While incarceration, standing alone, does not constitute engaging in conduct

which endangers the emotional or physical well-being of the child, it does support

an endangerment finding “‘if the evidence including the imprisonment, shows a

course of conduct which has the effect of endangering the physical or emotional

well-being of the child.’” In re J.F.-G., 627 S.W.3d 304, 312–13 (Tex. 2021)

(citation omitted). A parent’s criminal history, including the nature of the crime, the

duration of incarceration, and whether a pattern of escalating, repeated convictions

exists, can support an endangerment finding. Id. at 313 (citation omitted). A parent’s 7 lengthy incarceration presents a significant risk of endangerment to a child’s well-

being. Id. at 314 (citation omitted).

Regarding the best interest inquiry, we consider a non-exhaustive list of

factors: (1) the desires of the child; (2) the child’s emotional and physical needs 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 child’s best interest; (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 not proper; and (9) any excuse for the

acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976); see also Tex. Fam. Code Ann. § 263.307(b). No particular Holley factor is

controlling, and evidence of one factor may be sufficient to support a finding that

termination is in a child’s best interest. In re A.P., 184 S.W.3d 410, 414 (Tex. App.—

Dallas 2006, no pet.). The best interest determination may rely on direct or

circumstantial evidence, subjective facts, and the totality of the evidence. In re

N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). A parent’s

inability to provide a stable home supports a finding that termination is in the best

interest of the child. In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007,

no pet.).

8 The trial judge considered evidence that B.L. was convicted of injury to a

child by omission because he failed to get R.J. medical treatment for a couple of

months after she suffered severe burns. The trial court also considered the length of

B.L.’s incarceration and that he was not eligible for parole until T.J. would be

eighteen. The trial judge heard evidence that B.L. had never seen T.J. or provided

any support and had not demonstrated an ability to ever be able to parent T.J. The

evidence in this case concerning the seriousness of the crime and R.J.’s burn injuries

and B.L.’s testimony that it was over two months before Mother’s stepmother took

R.J. to the hospital for medical care, together with the duration and consequences of

B.L.’s incarceration, is relevant when the resulting abandonment presents a risk, as

it did here, to T.J.’s physical and emotional well-being. See In re J.F.-G., 627 S.W.3d

at 314. B.L. testified that before his incarceration he knew Mother was pregnant with

T.J. and that since T.J.’s birth, he has not seen or supported T.J.’s physical or

emotional well-being, and the trial court could have viewed his testimony as

evidence of his own omissions in caring for T.J.’s well-being. See id. at 315.

Additionally, the disruption caused by B.L.’s imprisonment was not

“normal[,]” because B.L. was completely absent from T.J.’s life and would be until

T.J. was eighteen, and an absence of that duration resulting from criminal conduct

is sufficient to establish a “‘pattern of conduct that is inimical to the very idea of

child-rearing’” that endangered T.J’.s physical or emotional well-being. See id. at

316 (citation omitted). The trial court could have reasonably concluded that such a 9 disruption is qualitatively different than a short-term incarceration. See id. Despite

B.L.’s and his cousin’s testimony that his cousin would provide support to T.J.

during his incarceration, the trial court heard evidence that neither B.L. nor his

cousin tried to contact T.J. during her placement with Mother’s family or the

Department about their proposed plan to provide support.

Viewing the evidence in the light most favorable to the trial judge’s findings,

we conclude that the trial judge could reasonably have formed a firm belief or

conviction that B.L. engaged in conduct or knowingly placed T.J. with persons who

engaged in conduct that endangered T.J.’s physical or emotional well-being. See

Tex. Fam. Code Ann. § 161.001(b)(1), (E); In re J.F.-G., 627 S.W.3d at 312–16; In

re J.O.A., 283 S.W.3d at 345; In re M.L.L., 573 S.W.3d at 363; In re M.R.J.M., 280

S.W.3d at 502; In re J.T.G., 121 S.W.3d at 125.

With respect to the best interest of the child, the trial court heard evidence that

B.L. was serving a thirty-five-year sentence and not eligible for parole until T.J.

would be eighteen. The trial judge heard evidence that B.L. never had contact with

T.J. or provided any support and that T.J. was doing well in her current placement

with her biological sisters. The trial judge also considered evidence that it was in

T.J.’s best interest to remain in her current placement with family where she was

happy and bonded and allowed to visit her biological brothers who were in another

placement. The trial judge heard evidence that it was in T.J.’s best interest for B.L.’s

parental rights to be terminated so she could be adopted. 10 Prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest. See Tex. Fam. Code Ann. § 263.307(a).

As the sole judge of the credibility of the witnesses and the weight to be given to

their testimony, the trial court could reasonably conclude that termination of B.L.’s

parental rights is in the best interest of T.J. See id. §§ 161.001(b)(2), 263.307(a); see

also In re J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371–72; In re M.R., 243

S.W.3d at 821. We conclude that the Department established, by clear and

convincing evidence, that B.L. committed the predicate act enumerated in section

161.001(b)(1)(E) and that termination of B.L.’s parental rights is in the best interest

of T.J. See Tex. Fam. Code Ann. § 161.001(b)(1)(E), (2); In re C.A.C., Jr., 2011 WL

1744139, at *1. Accordingly, we overrule issues one and two.

In issue three, B.L. challenges the legal and factual sufficiency of the evidence

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

The State argues that since B.L.’s challenges to the termination of his parental rights

have failed, his challenge to the appointment of the Department as managing

conservator also fails. We agree with the State.

Section 161.207 of the Texas Family Code provides that if the trial court

terminates the parent-child relationship with respect to both parents, the Court shall

appoint a suitable, competent adult, the Department, or a licensed child-placing

agency as managing conservator of the child. Tex. Fam. Code Ann. § 161.207(a).

Here, the trial court terminated the parental rights of all living parents. Having 11 affirmed the trial court’s judgment terminating B.L.’s parental rights, B.L.’s

challenge to the conservatorship appointment was subsumed in the issues related to

the termination of his parental rights. See In re D.N.C., 252 S.W.3d 317, 318 (Tex.

2008). Accordingly, we overrule issue three. Having overruled each of B.L.’s issues,

we affirm the trial court’s judgment terminating B.L.’s parental rights.

AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on October 18, 2022 Opinion Delivered December 8, 2022

Before Golemon, C.J., Kreger and Horton, JJ.