In the Interest of H.S. v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-23-00002-CV
________________
IN THE INTEREST OF H.S.
________________________________________________________________________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 21-10-13796-CV
________________________________________________________________________
MEMORANDUM OPINION
Following a bench trial, K.M. (“Mother”) and E.S. (“Father”) appeal the trial
court’s order terminating their parental rights to their minor child, “Henry,” based
on Texas Family Code subsections 161.001(b)(1)(D), (E), (N), (O) and a finding that
termination was in Henry’s best interest. 1 See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E), (N), (O), (2). In separate briefs, Mother and Father challenge
the legal and factual sufficiency of the evidence supporting the termination grounds
1In parental rights termination cases, to protect the identity of the minors, we
refer to the children by a pseudonym or initials and family members by their
relationships to the children. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App.
P. 9.8(b)(2).
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specified in sections 161.001(b)(1)(D), (E), (N), and (O) and that termination was in
Henry’s best interest. See id. Mother and Father also challenge the trial court’s
appointment of the Department of Family and Protective Services (“the
Department”) as permanent managing conservator. Father further argues he received
ineffective assistance of counsel. As discussed below, we affirm the trial court’s
termination order.
BACKGROUND AND FACTS LEADING TO REMOVAL
In October 2021, the Department filed its Original Petition for Protection of a
Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship naming Henry as the subject of the suit and seeking to terminate
Mother’s and Father’s parental rights. The Department included Investigator James
Dorchak’s Affidavit in Support of Removal with the Petition. Dorchak outlined a
report they received in April 2021 regarding Mother’s neglectful supervision of
Henry, alleging that Mother was using “pills, cocaine, or methamphetamine[,]” and
that Mother had been in jail for assault. The Department also outlined reports it
received in May 2021 and September 2021 regarding Father’s neglectful supervision
of Henry, including mental health issues, a suicide threat, and intoxication. The
September 2021 report alleged Father was suicidal and had threatened to kill himself
and Henry, which led to him being taken to the hospital. Mother reportedly picked
Father up from the hospital, and they were “allegedly using drugs” with Mother
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stating that Father “shot up heroin” and had “bars.” Father “was trying to harm
himself and refused medical care.”
The Affidavit described the Department’s investigation and difficulties
locating Mother and Henry during the investigation, which led to Henry being placed
on the Child Safety Check Alert List. Dorchak averred that after setting up a safety
plan with Mother in September 2021, the next day, he was notified that Mother left
in the middle of the night. Dorchak further averred that he was informed by a Harris
County Deputy that they discovered Mother to be incapacitated in the backseat of
her car, and Henry was with her. Mother was taken to the hospital, and Henry was
taken to the Conroe Child Protective Services’ (CPS) office where the Department
took emergency custody.
The Affidavit also described Mother’s history with the Department beginning
in 2008 and involving her other children. Dorchak outlined the parents’ criminal
histories, which included substance abuse arrests, assault arrests, and domestic
violence arrests, among others.
TRIAL EVIDENCE
The record showed that Mother and Father appeared through counsel, but
Father did not personally appear for trial, and Mother personally appeared only on
the first day.
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Testimony of James Dorchak
CPS Investigator Dorchak testified that he was assigned the case in April
2021, when the investigation began. Dorchak explained that initially, it was hard to
locate Mother, but he met Father, who was caring for Henry at his home. Dorchak
testified that during this first interaction, Father took care of Henry, had a clean
home, and had toys for Henry. At that time, there were no immediate concerns for
Henry’s safety, but the investigation was ongoing.
In June 2021, Dorchak met Mother for the first time at a gas station, after an
incident where Father yelled profanities and screamed at law enforcement. Police
arrested Father at the gas station, and Henry was in the backseat of Father’s vehicle.
Dorchak testified the day of that incident, Father yelled all sorts of profanity at him
over the phone, law enforcement was “mainly intervening[,]” and he “couldn’t even
have a clear conversation with the father.” Besides the shouting, yelling, and cursing,
Father’s slurred speech made Dorchak believe he was impaired.
At that time, Dorchak was not in charge of finding a placement for Henry, so
Mother took Henry from the gas station. Mother told Dorchak that she lived with
her sister in Liberty County, and Dorchak was instructed to follow Mother to her
residence, where he viewed the home and observed nothing concerning at that time.
Dorchak next contacted Mother in August 2021, and he implemented a safety plan
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in September 2021 with Mother and her roommate, but they did not follow it, and
there was a period when they could not locate Henry or Mother.
Dorchak testified that in October 2021, a Harris County Sheriff’s Deputy
informed him that Henry needed care. Dorchak explained that he could not find
family placement for Henry, so he put Henry in foster placement. Dorchak testified
that based on the available information, he could not place Henry with Mother or
Father. Dorchak had concerns about Father not being protective and about his mental
state. Dorchak testified that Father could not articulate thoughts about the CPS case
and “didn’t understand what was going on.” Father offered placement options, but
when the Department checked them out, they were inappropriate. Dorchak explained
that the paternal grandmother was not an appropriate placement, because Father and
his brother had criminal histories and lived with her.
In October 2021, when Dorchak located Henry, Father described Mother’s
condition as “messed up” and that she did not know where she was. Dorchak
characterized the parents’ relationship during the investigation as “off and on.”
Dorchak also confirmed that during the entire investigation, between April and
October 2021, Henry was in the care of one or both parents.
Dorchak testified that both parents had a criminal history. Dorchak testified
that documents admitted into evidence showed in February 2019, Mother was
convicted of a second driving while intoxicated offense. Additionally, the
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documentary evidence included information on an aggravated assault charge against
Mother that occurred in April 2021 and a conviction for possession of a controlled
substance in November 2021. In May 2022, a criminal complaint was filed against
Mother for family violence. Dorchak testified that Mother’s criminal history
concerned him, as the ongoing substance charges and domestic violence charges had
not made for a safe environment for a child. Dorchak explained that the charges he
discussed all occurred in the last few years.
Dorchak also testified that Father was convicted of possession of a controlled
substance in 2016 and had deferred adjudication for a terroristic threat against a
public servant in 2019. Father’s behavior likewise concerned him. Dorchak testified
there were allegations of domestic violence between Mother and Father, and Mother
talked to him about the allegations. Dorchak explained that he was concerned about
leaving Henry with Mother or Father, given the ongoing issues with substance abuse
and domestic violence.
Dorchak testified that during the investigation, given his concerns about both
parents using drugs, he asked them to drug test, but they never did. When Dorchak
asked them to drug test, Mother told him to get her drug tests through the probation
department, which he eventually did “with some difficulty.” Dorchak said Father
“just refused to go.”
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Mother’s Testimony
During the first day of trial, Mother testified that she did not recall when
Henry was removed from her care, because she was unconscious “due to health
reasons” inside of a Walgreens. Mother testified she now knows that she was
unconscious due to a thyroid problem and was prescribed the wrong medication.
Mother testified that Henry went to Walgreens with her but stayed in the vehicle
with her friend, and she denied she neglected him. Mother testified the next thing
she recalled was waking up and leaving the hospital to find Henry. Mother said she
was in the hospital for a couple of hours.
Mother denied that she was ever asked to drug test, that she was on probation,
and that she was taking drug tests for probation. Mother testified that she recalled
meeting with another caseworker, Serenity Hubert, who discussed services with her.
Mother remembered being asked to complete services, including a parenting class,
but she testified that nobody would answer her calls when she tried to arrange them.
Mother said a new caseworker asked her to undergo a psychiatric evaluation; she
testified she did but did not receive a report or recommendations from the evaluation.
Mother explained that she was asked to complete a drug and alcohol assessment but
did not, because she missed two appointments, so they refused to work with her
anymore, and she did not recall being sent to another place. Mother testified that she
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has insomnia, PTSD, is bipolar, and takes multiple medications for these conditions.
Mother did not return the second day of trial to complete her testimony.
Testimony of Teresa Horton
Teresa Horton testified that she has been the assigned caseworker since
January 2022. 2 Horton explained there was a service plan created for Mother at the
beginning of the case, but she created a second one for Mother when she was
assigned to the case. Horton testified that she reviewed the plan with Mother, which
Mother signed. Horton testified that she asked Mother to undergo a drug and alcohol
assessment with drug screening, domestic violence with possible battering
intervention and prevention program, counseling services, a psychological and a
psychiatric evaluation, visitation, and anger management. Horton also asked Mother
to continue drug testing. Horton testified that Mother did not complete any services.
Horton testified that Mother “never followed through. I could not get her to give me
a straight answer half the time.”
Horton explained that they arranged weekly visitation for Mother with Henry
at the Conroe CPS office, but Mother did not attend all the visits. Horton said they
changed the visitations in March, because during a visit they observed Mother
“sliding down to the floor. She was swaying back and forth when she was standing
2For the purpose of disclosing potential conflicts, we note that Justice
Horton is not related to Teresa Horton.
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up. She was slurring her words. At one point she dropped her phone [be]cause she
fell asleep.” Horton testified that she did not think this was safe or appropriate, so
they stopped the visit and asked both parents to go drug test, but they did not. Father
was there during this visit, and “he wasn’t under the influence as much as she was,
but he was slow, I guess. He was reacting slow.” Horton testified that following this
incident, because of the parents’ lack of progress and not staying in touch, they
moved the visits to one hour per month, and the parents only came to two of those
monthly visits. Horton explained that the parents failed to show for more than half
the visits after confirming, so Henry had to return home without seeing them.
Horton testified that the parents failed to alleviate the safety concerns during
the case. Horton explained that the concerns included Mother’s drug use and not
being safe around Henry, and Mother completed no services designed to prove that
she was no longer doing those things. Horton did not see any action from Mother to
show that she was not using substances; Horton asked Mother to drug test every time
she saw her, but Mother did not take a single drug test. Horton also asked Father to
drug test. Horton expressed concerns about Father’s drug use and not being safe
around Henry. Horton tried repeatedly to visit the parents’ homes but could not get
a response. Horton explained that she has never seen the home of either parent, and
she has been unable to ensure their homes were safe and appropriate. Horton was
also concerned about domestic violence, which the parents failed to alleviate. Horton
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testified that her concerns for returning Henry to Mother included Mother’s failure
to get help for substance abuse and domestic violence, and Horton did not believe
Mother would be safe for Henry. With respect to returning Henry to Father, Horton
was also concerned about substance abuse and domestic violence and did not think
it would be safe for Henry.
Horton testified that Father reported he was working but could not provide the
employer’s name, and neither parent provided employment verification. Horton
testified Father and Mother “got back together” in January or February and were
living together. Father did not do his parenting classes. Horton explained that Father
wanted Henry placed with his mother, but she did not pass the home study. Father
went to Tri-County for mental health services and obtained medication, but Horton
did not know if he continued to follow through. Horton was not concerned about
Father being under the influence the last time she saw him, because he was released
from jail that morning.
Horton said the Department’s goal is termination of the parents’ rights and
unrelated adoption. She testified that Henry is two and currently in a “foster only”
placement. Horton testified it was in Henry’s best interest that the parents’ rights be
terminated and that he remain in the permanent managing conservatorship of the
Department until they identified a home. Horton explained that they were moving
Henry to a foster-to-adopt placement, and he began visits with that family. Horton
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testified that Henry would remain in a foster home if not adopted, but the family they
are looking into wants to adopt. Horton described the visitation process for Henry
with the potential adoptive family and testified their first visit with him “went really
well.” Horton testified that the Department is asking for termination of both parents’
rights, and she believed termination was in Henry’s best interest.
Testimony of Randolph Hansen
Randolph Hansen testified that he is the CASA advocate and has been since
October 2021. Hansen said he visits Henry at least once a month, and Henry does
not have any observable special needs at this time. Although Hansen testified he was
not concerned with the parents’ supervised visits with Henry, he would be concerned
if either parent visited the child unsupervised. Hansen testified that the first visit
between Henry and the potential adoptive family went well. He recommended the
transition to the adoptive family continue, but he was not concerned about Henry’s
current placement. Hansen testified he also recommended termination of both
parents’ parental rights and agreed with the Department’s goal for Henry. Hansen
explained that he based this on the fact that the parents are “not good parents” and
are “very erratic[;]” they have no financial stability and have an unwillingness or
inability to complete their services, and they have shown a lack of effort to visit
Henry and attend court proceedings. Hansen agreed with the Department having
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permanent managing conservatorship of Henry for the purposes of adoption and
believed it was in Henry’s best interest.
Other Evidence
Documentary evidence admitted at trial included, among other things, the
court’s orders incorporating the service plans, the service plans for both parents,
Mother’s criminal history, and Father’s criminal history. For Mother, the criminal
history evidence included a recent judgment for family violence assault causing
bodily injury, driving while intoxicated, and possession of a controlled substance.
The criminal history evidence for Father included a recent judgment for evading
arrest, assault on a public servant, making a terroristic threat against a public servant,
and possession of a controlled substance.
STANDARD OF REVIEW
The standard of proof required in cases involving termination of parental
rights is clear and convincing evidence, which 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.” Id. §§ 101.007, 161.001(b); In re
E.N.C., 384 S.W.3d 796, 802 (Tex. 2012) (citing In re J.F.C., 96 S.W.3d 256, 263
(Tex. 2002)) (other citations omitted). 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 interests. See In re A.V., 113 S.W.3d
12355, 362 (Tex. 2003) (applying previous version of the statute). Yet when, as here,
a parent challenges the endangerment findings under section 161.001(b)(1)(D) or
(E), due process concerns and the requirement for a meaningful appeal dictate that
we review these grounds. See In re N.G., 577 S.W.3d 230, 236–37 (Tex. 2019) (per
curiam); In re C.M.C., 554 S.W.3d 164, 171 (Tex. App.—Beaumont 2018, no pet.).
When conducting a legal sufficiency review of the termination of parental
rights, we examine 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 at 266; see also In re
J.O.A., 283 S.W.3d 336, 344–45 (Tex. 2009). We assume the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could, and we
disregard all evidence a reasonable factfinder could have disbelieved or found
incredible. In re J.O.A., 283 S.W.3d at 344–45; In re J.F.C., 96 S.W.3d at 266; see
also In re E.N.C., 384 S.W.3d at 802. The evidence is legally insufficient if no
reasonable factfinder could form a firm belief or conviction that the matter that must
be proven is true. In re J.F.C., 96 S.W.3d at 266.
In a factual sufficiency review, we “give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing” and must
determine “‘whether the evidence is such that a factfinder could reasonably form a
firm belief or conviction about the truth of the State’s allegations.’” Id. (quoting In
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re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). Considering the entire record, if the disputed
evidence 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. We defer to the factfinder
and do not substitute our judgment for the factfinder’s. See In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006). The factfinder is the sole arbiter of the witnesses’ credibility
and demeanor. See id. at 109 (quoting In re J.L., 163 S.W.3d 79, 86–87 (Tex.
2005)).
ANALYSIS
Ineffective Assistance of Counsel
In his first issue, Father complains that he was deprived of the ability to
participate in the final trial. Father asserts that counsel announced to the court on
both days of trial that Father could not be there due to transportation issues, yet
counsel failed to file a written motion for continuance both times.
Claims that trial counsel provided ineffective assistance in cases involving
termination of parental rights are governed by the two-prong test stated in Strickland
v. Washington, 466 U.S. 668, 687 (1984). In re D.T., 625 S.W.3d 62, 73 (Tex. 2021);
In re M.S., 115 S.W.3d 534, 544–45 (Tex. 2003). Under the Strickland test, the
complaining party must show: (1) counsel’s performance was deficient, which
means counsel made errors so egregious that they were not functioning as
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“‘counsel’” guaranteed by the Sixth Amendment; and (2) counsel’s deficient
performance prejudiced the complaining party such that there is a reasonable
probability that but for counsel’s unprofessional errors, the result of the proceedings
would have been different. In re M.S., 115 S.W.3d at 545 (quoting Strickland, 466
U.S. at 687); see also In re D.T., 625 S.W.3d at 73.
When evaluating trial counsel’s performance, we indulge a strong
presumption that counsel’s conduct is within the wide range of reasonable,
professional assistance, which includes trial strategy. See In re M.S., 115 S.W.3d at
545 (quoting Strickland, 466 U.S. at 689) (other citations omitted). An appellant has
the burden to overcome the presumption that, under the circumstances, the
challenged conduct might be considered sound trial strategy. Strickland, 466 U.S. at
689. If the record is silent about the reasons for counsel’s actions, we do not
speculate to find ineffective assistance of counsel. In re A.S., No. 09-21-00142-CV,
2021 WL 5113817, at *11 (Tex. App.—Beaumont Nov. 4, 2021, pet. denied) (mem.
op.); see also Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608,
623 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citation omitted). “Any
claim of ineffective assistance must be firmly founded in the record and the record
must affirmatively demonstrate the ineffectiveness.” In re S.M.T., 241 S.W.3d 650,
653 (Tex. App.—Beaumont 2007, no pet.) (citation omitted).
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In this case, Father has not met either prong of the Strickland test. See
Strickland, 466 U.S. at 687; In re D.T., 625 S.W.3d at 73; In re M.S., 115 S.W.3d at
545. The record reveals that on the first day of trial counsel told the trial court Father
could not attend because he was at work. Counsel announced not ready and orally
moved for a continuance; the trial court asked if counsel filed a motion, to which
counsel responded she had not and had only learned the information ten minutes
earlier. The record also shows that the trial court did not deny the motion for
continuance because it was not in writing. Rather, the trial court explained that the
case was continued from the first trial setting, “and we have a quickly approaching
dismissal deadline and not a lot of time between now and that dismissal deadline.”
On the second day of trial, Father’s counsel also requested a continuance and
revealed the parents were together but having transportation issues. The trial court
denied the requested continuance and again noted the dismissal deadline, “So based
on the timeline and the dismissal deadline in this case, I’m going to deny the request
to recess again; and we are going forward today.”
The record establishes that counsel only learned of Father’s unavailability the
first day of trial minutes before, and the second day Father could not appear due to
transportation issues. Given such circumstances, we cannot say that counsel’s failure
to file a written motion for continuance constituted deficient performance under the
first prong of Strickland. See Strickland, 466 U.S. at 687; In re D.T., 625 S.W.3d at
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73; In re M.S., 115 S.W.3d at 544. The trial court did not deny the continuances
because they were not in writing. Instead, the trial court denied the continuances
based on the dismissal date. See In re R.A.D.G., No. 10-14-00085-CV, 2014 WL
4960792, at *2 (Tex. App.—Waco Oct. 2, 2014, no pet.) (mem. op.) (explaining that
father failed to meet his burden of establishing his trial counsel’s failure to file a
written, verified motion for continuance constituted defective performance where
the trial court did not deny the motion because it was not written). Father cannot
show that but for counsel’s failure to file written motions for continuance, the result
of the proceedings would have been different and therefore, failed also to satisfy the
second prong of Strickland. See Strickland, 466 U.S. at 687; In re D.T., 625 S.W.3d
at 73; In re M.S., 115 S.W.3d at 544; see also In re R.A.D.G., 2014 WL 4960792, at
*2. We overrule Father’s first issue.
Predicate Grounds
Mother and Father challenge the sufficiency of the evidence supporting the
trial court’s endangerment findings, so we first consider whether the evidence is
sufficient to support the findings terminating Mother’s and Father’s rights under
subsections 161.001(b)(1)(D) and (E). See In re N.G., 577 S.W.3d at 235–36. If the
evidence is sufficient as to one of these grounds plus sufficient evidence exists to
support the best interest finding, we will affirm the termination order. See id. at 232–
33. Since evidence of grounds D and E is often interrelated, we consolidate our
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review of these grounds. See In re J.L.V., No. 09-19-00316-CV, 2020 WL 1161098,
at *10 (Tex. App.—Beaumont Mar. 11, 2020, pet. denied) (mem. op.).
Subsection D allows for the termination of parental rights if clear and
convincing evidence supports that the parent “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). Under subsection E, parental rights may be terminated if clear and
convincing evidence establishes the parent “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). The Texas Supreme
Court has explained that “‘endanger’ means to expose to loss or injury; to
jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987) (citation omitted). To endanger a child, “it is not necessary that the conduct
be directed at the child or that the child actually suffers injury.” Id. (citation omitted).
“Subsection D requires the endangerment to the child to be the direct result of
the child’s environment.” See Interest of J.H., No. 09-20-00056-CV, 2020 WL
4516860, at *10 (Tex. App.—Beaumont Aug. 6, 2020, no. pet.) (mem. op.) (citation
omitted). “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
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Dist.] Sept. 26, 2019, pet. denied) (mem. op.) (citation omitted). We consider the
child’s environment before the Department obtained custody in our subsection D
endangerment analysis. See In re J.L.V., 2020 WL 1161098, at *10. Under
subsection D, termination may be 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). It is
unnecessary that a parent know with certainty the child is in an endangering
environment; instead, awareness of the potential for danger and disregarding the risk
is enough to show endangering conduct. See In re J.H., 2020 WL 4516860, at *10.
To terminate a parent’s rights under subsection E, the evidence must “show a
conscious course of conduct.” In re C.M.C., 554 S.W.3d at 172 (citing In re J.T.G.,
121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)). In our analysis of
subsection E, we may consider actions occurring before and after a child’s birth to
establish a “course of conduct.” See id. (citation omitted).
Evidence of a parent’s drug use can establish that the child’s surroundings
endanger his physical or emotional well-being under subsection D and qualify as a
“voluntary, deliberate, and conscious course of conduct endangering the child’s
well-being under subsection (E).” In re C.V.L., 591 S.W.3d 734, 751 (Tex. App.—
Dallas 2019, pet. denied) (citation omitted). A parent’s continued drug use after the
child’s removal is conduct that risks parental rights and may support an endangering
course of conduct under E. See Cervantes-Peterson v. Tex. Dep’t of Family &
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Protective Servs., 221 S.W.3d 244, 253 (Tex. App.—Houston [1st Dist.] 2006, no
pet.) (noting that mother’s continued narcotics use after child’s removal in the face
of drug testing, jeopardized her relationship with her child). The trial court may infer
from these refusals to drug test that the parents were using drugs. See In re M.S., No.
09-22-00313-CV, 2023 WL 1453166, at *6 (Tex. App.—Beaumont Feb. 2, 2023,
no pet.); In re K.C.B., 280 S.W.3d 888, 895 (Tex. App.—Amarillo 2009, pet. denied)
(noting trial court may infer from parent’s refusal to submit to drug test that they are
using drugs).
“‘Domestic violence and a propensity for violence may be considered
evidence of endangerment, even if the endangering acts did not occur in the child’s
presence, were not directed at the child, or did not cause actual injury to the child.’”
In re M.S., 2023 WL 1453166, at *6 (quoting In re K.A.R., No. 04–17–00723–CV,
2018 WL 1733147, at *3 (Tex. App.—San Antonio Apr. 11, 2018, pet. denied)
(mem. op.)); see also Boyd, 727 S.W.2d at 533. A parent’s abusive or violent conduct
or that of other residents of a child’s home can create an environment endangering
to the child’s physical or emotional well-being. In re M.S., 2023 WL 1453466, at
*6; In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.—Fort Worth 2004, pet. denied).
As to Mother, the trial court heard testimony that she arrived impaired for a
visit with Henry, refused to submit to drug testing during the case’s pendency, and
failed to complete her services. See Cervantes-Peterson, 221 S.W.3d at 253.
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Testimony and documentary evidence admitted at trial also established that Mother
had two convictions for driving under the influence and another conviction for
possession of a controlled substance. Although Mother denied that she was asked to
undergo drug tests, the trial court was free to disbelieve this testimony and believe
the caseworkers’ testimony. In re H.R.M., 209 S.W.3d at 109. Dorchak testified there
were concerns for domestic violence, and documentary evidence showed that
Mother was convicted of a family violence assault causing bodily injury to Father.
See In re M.S., 2023 WL 1453466, at *6; In re K.A.S., 131 S.W.3d at 222.
Viewing the evidence in the light most favorable to the trial court’s findings,
we conclude that the trial court could reasonably have formed a firm belief or
conviction that Mother knowingly placed or knowingly allowed Henry to remain in
conditions or surroundings which endangered his physical or emotional well-being
and engaged in conduct or knowingly placed Henry with persons who engaged in
conduct that endangered Henry’s physical or emotional well-being. See Tex. Fam.
Code Ann. § 161.001(b)(1)(D), (E); In re J.O.A., 283 S.W.3d at 345; In re J.F.C.,
96 S.W.3d at 266; Boyd, 727 S.W.2d at 533; In re M.S., 2023 WL 1453466, at *6–
7.
Regarding Father, evidence established that despite the domestic violence
concerns between the parents, they were still together “off and on.” See In re M.S.,
2023 WL 1453466, at *6; In re K.A.S., 131 S.W.3d at 222. The trial court also heard
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testimony describing Father’s outburst in a gas station parking lot while Henry was
with him that ultimately led to Father’s arrest. The documentary evidence revealed
convictions for Father for assaulting a public servant and making a terroristic threat
against a public servant. The CPS investigator testified about Father’s refusal to
submit to drug testing while the case was pending. See In re M.S., 2023 WL
1453166, at *6; In re K.C.B., 280 S.W.3d at 895. Dorchak also expressed concern
about Father’s lack of protective abilities and his mental state.
Viewing the evidence in the light most favorable to the trial court’s findings,
we conclude that the trial court could reasonably have formed a firm belief or
conviction that Father knowingly placed or knowingly allowed Henry to remain in
conditions or surroundings which endangered his physical or emotional well-being
and engaged in conduct or knowingly placed Henry with persons who engaged in
conduct that endangered Henry’s physical or emotional well-being. See Tex. Fam.
Code Ann. § 161.001(b)(1)(D), (E); In re J.O.A., 283 S.W.3d at 345; In re J.F.C.,
96 S.W.3d at 266; Boyd, 727 S.W.2d at 533; In re M.S., 2023 WL 1453466, at *6–
7.
We determine that the Department established, by clear and convincing
evidence, that Mother and Father committed the predicate acts enumerated in
subsections 161.001(b)(1)(D) and (E). See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E); In re M.S., 2023 WL 1453466, at *6–7. Having concluded
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the evidence was legally and factually sufficient to support the trial court’s findings
on subsections 161.001(b)(1)(D) and (E), we need not address Mother’s and Father’s
challenges to the trial court’s findings under (N) and (O). See In re N.G., 577 S.W.3d
at 235, In re M.S., 2023 WL 1453466, at *7; see also Tex. R. App. P. 47.1. We
overrule Mother’s and Father’s issues challenging the legal and factual sufficiency
of the evidence supporting predicate acts under subsections (D) and (E).
Best Interest
Both parents challenge the legal and factual sufficiency of the evidence
supporting the trial court’s best interest finding. Trial courts have wide latitude in
determining the child’s best interest. See Gillespie v. Gillespie, 644 S.W.2d 449, 451
(Tex. 1982). There is a strong presumption the child’s best interest is served by
keeping him with his parent. See In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (citation omitted); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston
[14th Dist.] 2012, no pet.); see also Tex. Fam. Code Ann. § 153.131(b). Prompt and
permanent placement of the child in a safe environment is also presumed to be in the
child’s best interest. Tex. Fam. Code Ann. § 263.307(a).
The Family Code outlines factors in determining whether a parent is willing
and able to provide a safe environment for the child. See id. § 263.307(b). Several
other nonexclusive factors may be considered in a best interest analysis, including:
(1) the desires of the child; (2) the emotional and physical needs of the child now
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and in the future; (3) the emotional and physical danger to the child now and in the
future; (4) the parental abilities of the individuals seeking custody; (5) the programs
available to assist these individuals to promote the best interest of the child; (6) the
plans for the child by these individuals or by the agency seeking custody; (7) the
stability of the home or proposed placement; (8) the parent’s acts or omissions that
may indicate that the existing parent-child relationship is not a proper one; and (9)
any excuse for the parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976); see also In re A.C., 560 S.W.3d 624, 631 (Tex. 2018)
(characterizing the Holley factors as “non-exclusive”). No particular Holley factor is
controlling, and evidence of one factor may be enough to support a finding that
termination is in the child’s best interest. See M.C. v. Tex. Dep’t of Family &
Protective Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso 2009, pet.
denied) (“Undisputed evidence of just one factor may be sufficient to support a
finding that termination is in the best interest of a child.”) (citations omitted); see
also In re C.H., 89 S.W.3d at 27.
We may consider circumstantial evidence, subjective factors, and the totality
of the evidence in our best interest analysis. See In re N.R.T., 338 S.W.3d 667, 677
(Tex. App.—Amarillo 2011, no pet.). A parent’s past conduct is relevant to
determining the parent’s present and future ability to care for a child. See In re C.H.,
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89 S.W.3d at 28. Evidence supporting the statutory grounds for termination may also
support a best interest finding. See id.
We have explained the evidence shows Father’s history of drug use, outbursts
leading to arrest, and multiple criminal convictions. The trial evidence established
Father’s lack of protectiveness and continued relationship with Mother despite her
assault against him which led to a domestic violence conviction. The evidence
further showed that Father did not regularly visit Henry during the proceedings and
failed to complete services.
Likewise, the evidence established Mother’s multiple criminal convictions,
drug use, and history of domestic violence against Father. The record established
that Mother refused to follow a safety plan the Department implemented, and the
Department could not locate Mother or Henry for a period despite the existence of a
safety plan. A caseworker also testified that Mother completed none of the services
to help deal with her substance abuse and other issues. Finally, a caseworker
established that Mother did not regularly visit Henry and even showed up to one visit
impaired, which led them to stop in-person visits.
Although evidence of placement plans and adoption are relevant to best
interest, a lack of evidence about definitive plans for permanent placement and
adoption are not dispositive. See id. Rather, based on the entire record, we ask if a
factfinder could reasonably form a firm conviction or belief that termination of the
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parent’s rights is in the child’s best interest—even if the agency cannot precisely
identify the child’s future home environment. See id. Henry remained in foster care
at the time of trial, but evidence showed the Department recently located a potential
adoptive family, and the initial meetings between the family and Henry went well.
The caseworker and ad litem testified that it was in Henry’s best interest for both
parents’ rights to be terminated.
Considering the evidence related to best interest, deferring to the trial court’s
determinations on witness credibility, the resolution of conflicts in the evidence, and
the weight given to the testimony, we conclude that the statutory and Holley factors
weigh in favor of the trial court’s finding that termination is in Henry’s best
interest. See Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307(a), (b); Holley, 544
S.W.2d at 371–72. The trial court could have reasonably formed a firm belief or
conviction that termination of Mother’s and Father’s parental rights was in Henry’s
best interest. See In re C.H., 89 S.W.3d at 28. We overrule Mother’s and Father’s
issue challenging the sufficiency of the evidence to support the best interest finding.
Conservatorship
Father and Mother also challenge the legal and factual sufficiency of the
evidence to support the Department’s appointment as managing conservator, and
Father cites Texas Family Code section 161.207. Both parents argue that the trial
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court appointed the Department as the managing conservator only as “a consequence
to the termination.”
The trial court’s termination order notes that it appointed the Department as
permanent managing conservator and found “that the appointment of the
Respondents as permanent managing conservator of the child is not in the child’s
best interest because the appointment would significantly impair the child’s physical
health or emotional development.” These findings track those required by Family
Code section 153.131, which indicates the trial court appointed the Department as
the managing conservator under Chapter 153. See Tex. Fam. Code Ann. § 153.131;
In re L.M., No. 09-22-00307-CV, 2023 WL 2418912, at *5 (Tex. App.—Beaumont
Mar. 9, 2023, no pet.) (mem. op.) (determining same). When a trial court appoints
the Department as the child’s managing conservator based on its authority under
Chapter 153, the parent must challenge the trial court’s appointment of the
Department as the child’s managing conservator to preserve a challenge. See In re
J.A.J., 243 S.W.3d 611, 615–17 (Tex. 2007) (explaining that parent must raise an
issue on appeal challenging trial court’s appointment of the Department when the
findings show it was appointed under Family Code section 153.131 as a challenge
based on those findings is not subsumed by a parent’s claim that terminating the
parent-child relationship is not in the child’s best interest); In re L.M., 2023 WL
2418912, at *4 n.22. Mother and Father did not specifically challenge the
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conservatorship findings under 153.131, instead they seemingly challenged the
findings based on Family Code section 161.207. See In re L.M., 2023 WL 2418912,
at *5 (upholding Department’s appointment as conservator despite reversing
termination order where parents failed to challenge the conservatorship findings).
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 both parents. Having affirmed
the trial court’s judgment terminating Mother’s and Father’s parental rights, their
challenge to the conservatorship appointment pursuant to 161.207 was subsumed in
the issues related to the termination of his parental rights. See In re D.N.C., 252
S.W.3d 317, 318–19 (Tex. 2008); In re T.J., No. 09-22-00224-CV, 2022 WL
17491817, at *5 (Tex. App.—Beaumont Dec. 8, 2022, pet. denied) (mem. op.).
Furthermore, to the extent they challenge the Department’s appointment as
conservator under Chapter 153, the evidence as outlined in our analysis of their other
issues supports the trial court’s finding that appointment of the parents as permanent
managing conservators “is not in the child’s best interest because the appointment
would significantly impair the child’s physical health or emotional development.”
See Tex. Fam. Code Ann. § 153.131(a). We overrule this issue.
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CONCLUSION
Having overruled Mother’s and Father’s issues, we affirm the trial court’s
termination order.
AFFIRMED.
________________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on April 24, 2023
Opinion Delivered June 15, 2023
Before Golemon, C.J., Horton and Johnson, JJ.
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