In the Interest of A.W.A. v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-23-00006-CV
________________
IN THE INTEREST OF A.W.A.
________________________________________________________________________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 21-03-03534-CV
________________________________________________________________________
MEMORANDUM OPINION
Mother and Father appeal the trial court’s order terminating their parental
rights to their daughter, Anne, on findings of conduct endangerment, condition
endangerment, their failure to comply with their respective family service plans, and
as to Father, that termination of Father’s parental rights is in the best interest of
Anne.1 On appeal, the parents argue the evidence is insufficient to support the trial
1
See Tex. Fam. Code Ann. § 161.001(1)(D) ,(E), (O), (b)(2). To preserve the
privacy of the parties, we refer to the Appellants as “Mother” and “Father” and the
child by a pseudonym to protect their identities. See Tex. Fam. Code Ann. §
109.002(d); Tex. R. App. P. 9.8(b)(2).
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court’s predicate findings terminating their parental rights under section
161.001(b)(1). In addition, Father argues the evidence is insufficient to support the
trial court’s finding that terminating his rights would be in Anne’s best interest under
161.001(b)(2) of the Texas Family Code. See Tex. Fam. Code. Ann. §161.001(b)(2).
We affirm.
I. Background
A. Procedural History
1. Affidavit of Removal
Anne was born in October 2020. In March 2021, The Department of Family
and Protective Services (the Department) filed an Original Petition for Protection of
a Child, For Conservatorship, and For Termination in Suit Affecting the Parent-
Child Relationship and Order Setting Hearing. Attached to the petition, the
Department filed an Affidavit in Support of Removal alleging that keeping Anne in
her current home was contrary to her welfare and best interest. In the affidavit, the
Department outlined the events that led to its request for Anne’s removal. Mother
and Anne tested positive for marijuana at Anne’s birth, and Anne was placed in the
NICU for low sugar levels. Mother and Father admitted to smoking marijuana while
Mother was pregnant with Anne. A Family Based Service Plan was opened for the
parents, and Mother and Father continued to test positive for drugs in November and
December 2020. Both Mother and Father completed a substance abuse assessment
2
and were recommended to submit to random drug testing, substance abuse
counseling, and psychological counseling. Within two weeks of this assessment, the
Department received notice that the parents had a “domestic altercation” leading to
Father’s arrest. Anne was removed from her parent’s care and placed with a maternal
aunt. The parents continued to test positive for marijuana in January 2021. That same
month, the maternal aunt took Anne to a wellness appointment and it was discovered
Anne had a fractured forearm. The parents offered various explanations for Anne’s
injures, telling the Department that she fell in her baby carrier when she was a month
and half old and a dog jumped on her at about two months old. Anne was then placed
with her maternal great-grandmother. In February 2021, a Family Team meeting was
held with the parents and maternal great-grandmother where the parents agreed to
engage in services with the Department, agreed to stop using illegal substances,
maintain contact with the Department, obtain employment, and find stable housing.
The Department reported inconsistent contact with the parents during the month of
March, with both parents not showing up for requested drug testing. Father was
arrested during that month for probation violations. The Department requested
Anne’s removal because of Father’s domestic violence, criminal history, and drug
usage.
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2. Second Affidavit of Removal
In September 2021, maternal great-grandmother was named managing
conservator of Anne after filing a Petition in Intervention in this suit. In November
2021, the Department filed a Petition to Modify, requesting to modify the September
order to be named temporary managing conservator of Anne. In its Affidavit in
Support of Removal, the Department alleged neglectful supervision of Anne by
Mother and maternal great-grandmother. According to the second affidavit, it
received a referral that Mother was smoking marijuana around Anne, that neither
maternal great-grandmother or Mother had baby formula for Anne and did not have
the ability to get formula, resulting in Anne drinking sugary drinks. Maternal great-
grandmother also had a violent boyfriend and was allowing Mother to live with
Anne. In August 2021, maternal great-grandmother was arrested for possession of
methamphetamines. Anne was removed from maternal great-grandmother’s care.
The Department requested temporary conservatorship because of serious concerns
about Anne’s caregiver’s drug usage, stability of her home placement, noting she
has been moved 7 times, and the parent’s criminal history and drug use.
In November 2021, the trial court granted the Department temporary sole
managing conservatorship over Anne. Anne was placed in foster care. The trial court
held a bench trial in November 2022.2
2
Maternal great-grandmother did not file an intervention in this case.
4
B. Evidence at Trial
1. Testimony of Caseworker Amber Evans
Evans testified that she is the conservatorship caseworker for this case. She
noted that there was a prior Department case with this family, in which maternal
great-grandmother was named permanent managing conservator of Anne.
Evans stated that she was assigned this case in May 2022, and Mother
contacted her and they agreed to meet in person. Subsequently, Mother did not
contact her again until July, claiming she had phone issues. Evans finally met Mother
in person in August. Evans stated that Mother has completed her domestic violence
assessment, and three sessions of individual and outpatient therapies. Evans never
received documentation that Mother ever completed her parenting course, that she
is employed, or has stable housing. She also confirmed that since she has been the
caseworker, Mother has not had visitation with Anne because Mother cannot pass a
drug test. During the pendency of this case, Mother has continued to test positive for
marijuana. Evans expressed concerns that Mother also continues to maintain contact
with Father because they have a volatile relationship. At the time of trial, Mother
was pregnant again with Father’s child. She testified that since April, she has not
seen any change or behavior from Mother.
Regarding Father, Evans stated she is concerned with his criminal history and
failure to complete services. According to Evans, Father needs to complete Batterers
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Intervention Prevention Program classes, including individual and group classes,
and a psychiatric evaluation as recommended from his substance abuse assessment.
She testified that Father regularly visited Anne and his visits were appropriate. Evans
stated that her biggest concern for Father is his failure to complete his services, in
conjunction with his criminal history, and the very young age of this child.
Evans testified that Anne is currently in a “foster to adopt” placement. She
stated that Anne is bonded with her foster parents and foster sibling, and that the
home is safe and appropriate. She believes that termination of Mother and Father’s
parental rights is in Anne’s best interest.
2. CASA advocate Christy Prozzoly
Christy Prozzoly has been the CASA advocate for Anne since December
2021. She explained that her role is to advocate for Anne and help facilitate the needs
of Anne. With Father, she stated she provided “[c]oaching, recommendations on
creating resumes, anything that I could do.” During that time, she has met with both
parents and with Anne’s paternal grandparents. She stated that during her meeting
with paternal grandfather, he was “throwing the groceries[,]” leading Prozzoly to
stay after her meeting to check on paternal grandmother, because she was
“concerned for her” safety. She described her experience in meeting the paternal
grandparents, stating it was “relevant[,] because this is the home that [Anne] would
be going to if [Father] was successful” and if he were awarded conservatorship.
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When asked about Mother, Prozzoly stated that she first met Mother in
January 2022 at the Department office. She had one other visitation with Mother in
February 2022. She observed the visits between Mother and Anne, and Mother
brought food and toys to Anne during the visit. Prozzoly recalled that Mother had
an “outburst” during that visitation. Prozzoly testified that Mother did not support
Anne during the pendency of the case.
Prozzoly confirmed that Anne has moved thirteen times in her life and
Prozzoly does not believe those moves were in Anne’s best interest. Prozzoly
believes Anne should stay with her foster family.
3. Father
Father testified that he was twenty-two years old and this was his first case
with the Department. He admitted to smoking marijuana with Mother when Mother
was pregnant with Anne. He testified that after Anne was removed from the maternal
great-grandmother, she lived with Father and the paternal grandmother for about
“two months” during the pendency of this case. Father testified regarding his
criminal history including, evading arrest, assault family violence, and possession of
a controlled substance. The complaints and judgments were entered as evidence by
the Department. Father testified that he was arrested and convicted for the assault
strangulation of Mother and received eight years deferred adjudication. Father
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confirmed that he has a new family violence assault charge against Mother pending
since April 2022. Father denied having an ongoing relationship with Mother.
Father stated since he has been released from jail he has made preparations
for Anne to be returned to him, including living with paternal grandmother, having
a “good…. clean environment[,]” for Anne to live, with her own room, and that he
just got a job. Father asserted that although he does not have any items for Anne, he
plans to get a car seat, bed, toys, clothes, and diapers for her to go in her room. Father
would place Anne in daycare while he worked during the day. He testified that he is
working to complete his drug and alcohol group therapy, parenting classes, and
batterer’s intervention program. He explained that he is learning to control his urges
regarding drugs and alcohol, and he is learning to control his anger. According to
Father, he learned how his substance abuse and behaviors negatively affect his child.
Father admitted that he made “bad decisions[]” including smoking marijuana and
“family violence issues.” But he denied smoking marijuana in front of Anne before
she was removed from his care, stating he would go in the backyard when he smoked
marijuana. Father also stated that since he has been released from jail, he has visited
with Anne for an hour “[e]very other week,” but missed his last visitation because
another person was not available to observe.
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4. Mother
Mother testified she wants the court to grant her or Father managing
conservatorship of their daughter. Mother confirmed that Anne received an injury
before she was removed from her care but stated she did not know how her daughter
received the injury to her arm. Mother testified she did not contact the Department
until April after Father went to jail. She stated she did not go to the Department’s
office until that date because she did not have a “ride[.]” She explained that she has
not had visitation with Anne in almost a year because she cannot pass a drug test.
Mother also denied losing her temper and screaming at her lawyer in front of Anne
on an occasion when she did have a visitation.
Mother testified that she started smoking marijuana every day starting when
she was sixteen years old. Mother detailed her criminal history, explaining that she
was first arrested for possession of marijuana when she was eighteen years old. In
total, Mother testified she has been arrested three times with the most recent arrest
in 2022. Mother stated that she is not currently using marijuana, but “[i]t’s just still
in my system, and my levels will tell that.” Mother testified that she last used
marijuana at the end of May, but at her November trial, admitted she could not pass
a drug test, because she is still using a substance that is a “form of THC.” Mother
also confirmed that she is currently pregnant and failed drug tests during her current
pregnancy. Mother denied any knowledge that maternal great-grandmother was
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using methamphetamines when Anne was in her custody. Mother testified that she
has not completed any part of her family service plan, but she says she is “in the
works of completing them.”
Mother stated she is currently living in her mother’s home that includes
several other family members. Mother is not currently employed, but plans to get a
job to support Anne, in addition to receiving support from her family. Mother stated
Anne would sleep in Mother’s room in a queen size bed and that Mother made
preparations for Anne, including obtaining clothes and toys. Mother planned to start
potty training Anne. Mother stated that her sister lives in the home and would watch
Anne during the day while Mother worked.
Mother testified that she and Father dated for two and half years. When asked
about Father’s domestic violence, she stated that he has been violent with her “more
than ten” times, with the most recent assault happening in April. She described in
detail Father’s domestic assaults, stating he went to jail for domestic violence assault
against her. Mother testified she never called the police on Father, but a neighbor or
Father’s family called the police. Mother agreed that Anne was in the home during
an assault. Mother stated Father would “never put his hands on my daughter[,]” and
Mother was comfortable with Father having overnight visitation with Anne. Mother
expressed confidence that Father is taking medication to control his anger issues
since he has been released from jail. Mother denied having an ongoing relationship
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with Father, stating they only communicate about this case. That said, Mother also
agreed that she is currently pregnant with Father’s child.
5. Foster Mother
Foster Mother testified that she has had Anne in her home for almost a year.
Her family would like to adopt Anne if Mother and Father’s rights are terminated.
Foster Mother stated that Anne is developing on target and has no health issues other
than springtime allergies. She testified that she has been married for 12 years, owns
her own home, her husband has never been violent with her, and neither she nor her
husband have been arrested or incarcerated. Her household includes herself, her
husband, and her six-year-old daughter. Both she and her husband work full time
and Anne attends daycare during the day. She testified that Anne has her own room,
with a toddler bed, dresser, changing table, and rocking chair that she still uses to
rock Anne to sleep.
According to Foster Mother, Anne was very timid when she arrived at her
home, and it took several weeks before she could put her on the ground or in a chair
because she always wanted to be held, with Anne screaming each time she put her
down. Foster Mother stated that she works with Anne, reading, helping her to
identify animals and teaching her to “form words.” Foster Mother described the
difficulties surrounding the uncertainty of Anne’s future, stating that Anne is an
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“absolute pleasure to have and she gets along with everyone in our house.” Foster
Mother confirmed that she has not observed the parents’ interactions with Anne.
At the conclusion of the trial, the trial court granted the Department’s petition
and terminated Mother’s and Father’s parental rights, finding predicate statutory
requirements and that termination was in the best interest of Anne. Mother and
Father timely appealed.
II. Standard of Review
The decision to terminate parental rights must be supported by clear and
convincing evidence. Tex. Fam. Code Ann. § 161.001(b). Under the Family Code,
“‘[c]lear and convincing evidence’ means 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; In re J.L., 163 S.W.3d 79,
84 (Tex. 2005). The movant must show that the parent committed one or more
predicate acts or omissions and that termination is in the child’s best interest. See
Tex. Fam. Code Ann. § 161.001(b); In re J.L., 163 S.W.3d at 84.
In reviewing the legal sufficiency of the evidence in a parental rights
termination case, we must consider all the evidence in the light most favorable to the
finding to determine whether a reasonable factfinder could have formed a firm belief
or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344-45 (Tex.
2009) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume the
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factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so, and we disregard all evidence that a reasonable factfinder could have
disbelieved. Id. In a factual sufficiency review, we “give due consideration to
evidence that the factfinder could reasonably have found to be clear and
convincing.” In re J.F.C., 96 S.W.3d at 266. We 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 re C.H., 89 S.W.3d 17, 25
(Tex. 2002)). “If, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” Id. In cases tried to the bench, the trial court in its
role as factfinder determines the credibility and weight of the witnesses’ testimony
and resolves any inconsistencies or conflicts in the evidence. See Webb v. Crawley,
590 S.W.3d 570, 578 (Tex. App.—Beaumont 2019, no pet.); In re R.J., 568 S.W.3d
734, 754 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).
III. Analysis
A. Statutory Grounds D and E
Mother and Father challenge the sufficiency of the evidence to support
termination of their parental rights under sections 161.001(b)(1), (D) and (E) of the
Texas Family Code. See Tex. Fam. Code Ann. §161.001(b)(1) (D), (E).
13
Additionally, Father challenges the sufficiency of the evidence in support of
termination under subsection 161.001(b)(1)(O) of the Texas Family Code. Id.We are required to consider the sufficiency of the evidence pursuant to
Sections 161.001(b)(1)(D) or (E) if challenged. In re N.G., 577 S.W.3d 230, 235-36
(Tex. 2019). If the evidence is sufficient as to one of these, it will not be necessary
to address the other predicate grounds because sufficient evidence as to only one
ground in addition to the best interest finding is all that is necessary to affirm a
termination judgment. Id. at 232-33. Because the evidence supporting statutory
grounds D and E may be interrelated, we may consolidate our review of the evidence
supporting 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.).
Endangerment arises when a parent’s conduct jeopardizes the child’s emotional or
physical health. See In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied).
Under subsection D, parental rights may be terminated if clear and convincing
evidence supports a finding 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).
Subsection E allows for termination of parental rights if clear and convincing
evidence supports that the parent “engaged in conduct or knowingly placed the child
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with persons who engaged in conduct which endangers the physical or emotional
well-being of the child[.]” Id. § 161.001(b)(1)(E).
Under subsection D, parental rights may be terminated based on a single act
or omission by the parent. In re L.E.S., 471 S.W.3d 915, 925 (Tex. App.—Texarkana
2015, no pet.) (citing In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003,
pet. denied)). Termination under subsection E requires more than a single act or
omission and a “‘voluntary, deliberate, and conscious course of conduct by the
parent is required.’” Id. at 923 (quoting Perez v. Tex. Dep’t of Protective &
Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004, no pet.)). As for
subsection D, we examine the time before the child’s removal to determine whether
the environment of the home posed a danger to the child’s physical or emotional
well-being. Id. at 925 (citing In re L.C., 145 S.W.3d 790, 795 (Tex. App.—
Texarkana 2004, no pet.)). “A finding of endangerment under subsection E,
however, may be based on conduct both before and after removal.” In re A.L.H., 515
S.W.3d 60, 93 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (citing In re
S.R., 452 S.W.3d at 360). “‘[E]ndanger’ means to expose to loss or injury[.]’” In re
N.S.G., 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.) (quoting Tex.
Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Under subsection
E, it is sufficient that the child’s well-being is jeopardized or exposed to loss or
injury. Boyd, 727 S.W.2d at 533; N.S.G., 235 S.W.3d at 367. “‘A child is endangered
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when the environment creates a potential for danger that the parent is aware of, but
disregards.’” In re L.E.S., 471 S.W.3d at 925 (quoting In re N.B., No. 06-12-00007-
CV, 2012 WL 1605457, at *9 (Tex. App.—Texarkana May 8, 2012, no pet.) (mem.
op.)). Generally, subjecting a child to a life of uncertainty and instability endangers
the child’s physical and emotional well-being. See In re R.W., 129 S.W.3d 732, 739
(Tex. App.—Fort Worth 2004, pet. denied).
In addition, a pattern of drug abuse will support a finding of conduct
endangering a child even if there is no evidence that such drug use caused a physical
or actual injury to the child. Vasquez v. Tex. Dep’t of Protective & Regulatory Servs.,
190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). A history
of illegal drug use is conduct that subjects a child to a life that is uncertain and
unstable, endangering the child’s physical and emotional well-being. In re S.D., 980
S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied); Dupree v. Tex. Dep’t
of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no
writ). A parent’s drug use, criminal history, and employment and housing instability
prior to and during the case create a course of conduct from which the factfinder
could determine the parent endangered the child’s emotional and physical well-
being. See In re M.C., No. 09-18-00436-CV, 2019 WL 1561824, at *6 (Tex. App.—
Beaumont Apr. 11, 2019, no pet.) (mem. op.); see also In re S.R., 452 S.W.3d at
361-62 (parent’s drug use may qualify as a voluntary, deliberate, and conscious
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course of conduct endangering the child’s well-being); Walker v. Tex. Dep’t of
Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.]
2009, pet. denied) (illegal drug use may support termination under subsection E
because “it exposes the child to the possibility that the parent may be impaired or
imprisoned[ ]”). A parent’s continued drug use when the custody of her child is in
jeopardy supports a finding of endangerment. See In re S.R., 452 S.W.3d at 361-62
(citing Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221 S.W.3d
244, 253-54 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). Further, a factfinder
can reasonably infer that a parent’s failure to submit to court-ordered drug tests
indicates the parent was avoiding testing because she was using illegal drugs. In re
E.R.W., 528 S.W.3d 251, 265 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
“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
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 Boyd, 727 S.W.2d at 533. Abusive or
violent conduct by a parent can produce an environment endangering the child’s
physical or emotional well-being. In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.—
Fort Worth 2004, pet. denied).
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1. Mother
The jury heard evidence that Mother admitted to past and present drug usage,
including marijuana use as recent as the spring of 2022. Repeated requests were
made for Mother to submit to drug testing and Mother has not been able to provide
two clean drug tests so she could resume visitation with her daughter. The trial court
heard Mother’s testimony that she used marijuana while in a relationship with Father
and during her pregnancy with Anne. Evidence also demonstrated that she continued
to use a “THC” substance while pregnant with her second child. Mother also
admitted that she was arrested several times for possession of a controlled substance,
with the most recent arrest a few months before trial. Finally, Mother admitted to
drug use after her child was removed and admitted that she had failed to complete
recommended substance abuse counseling. Additionally, while in Mother’s care,
Anne suffered an injury that Mother could not explain.
The trial court heard from the first caseworker that Mother failed to contact
the Department for several months after her child was removed from maternal great-
grandmother’s care. Mother admitted that she is not working, and while she may
have had stable housing, she was relying on others for money. The factfinder heard
evidence that Father was physically abusive to Mother throughout their relationship.
Mother continued her relationship with Father and she is currently pregnant with
another child conceived with Father. Mother admitted she did not call the police, or
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otherwise report Father’s abuse, and she also did not leave Father until he was
incarcerated.
2. Father
The factfinder heard evidence regarding Father’s drug use, including smoking
marijuana with Mother during her pregnancy with Anne. Father testified that he
planned to live with his mother and stepfather. CASA expressed reservations and
concerns about the stepfather. Father admitted his stepfather was verbally abusive to
him as a child. The trial court also heard evidence that Father had a propensity for
violent conduct and had been arrested several times for assaults against Mother. The
evidence also established that Anne suffered an injury while in Mother and Father’s
care--an injury that was discovered only after maternal aunt took Anne to the doctor.
Deferring to the factfinder’s credibility determinations and reviewing all the
evidence in the light most favorable to the termination findings under subsections D
and E, the trial court could reasonably have formed a firm belief or conviction that
Mother and Father, through their individual acts or omissions or a course of conduct,
endangered their child’s physical or emotional well-being. We conclude that the
Department established, by clear and convincing evidence, that Mother and Father
committed the predicate acts enumerated in subsections D and E. See Tex. Fam.
Code Ann. § 161.001(b)(1)(D), (E). Further, considering the entire record, we
conclude the disputed evidence the trial court could not reasonably have credited in
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favor of its endangerment findings is not so significant that the court could not
reasonably have formed a firm belief or conviction that Mother and Father
endangered their child. See In re J.F.C., 96 S.W.3d at 266. Therefore, we need not
address the sufficiency of the evidence to support a violation of subsections O
regarding Father. See In re D.S., 333 S.W.3d 379, 388 (Tex. App.—Amarillo 2011,
no pet.). We overrule Mother’s and Father’s first and second issues.
B. Best Interest of the Child
While Mother did not challenge the best interest finding, Father challenges
the sufficiency of the evidence supporting the trial court’s finding that terminating
his parental rights is in Anne’s best interest.
In a suit filed by the Department to terminate the parent-child relationship, the
Department must prove by “clear and convincing evidence” that terminating the
parent-child relationship is in the child's best interest. Tex. Fam. Code Ann. §
101.007. As defined by the Family Code, clear and convincing evidence “means 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.Trial courts have wide latitude in determining a child’s best interest. See
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). There is a strong
presumption that the best interest of a child is served by keeping the child with his
parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re D.R.A., 374 S.W.3d 528,
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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 nonexclusive factors to be considered in
determining whether a parent is willing and able to provide a safe environment for a
child including: the child’s age and physical and mental vulnerabilities; whether
there is a history of abusive or assaultive conduct by the child’s family or others who
have access to the child’s home; the willingness and ability of the child’s family to
seek out, accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision; the willingness and ability of
the child’s family to effect positive environmental and personal changes within a
reasonable period of time; whether the child’s family demonstrates adequate
parenting skills, including providing the child with minimally adequate health and
nutritional care, a safe physical home environment, and an understanding of the
child’s needs and capabilities; and whether an adequate social support system
consisting of an extended family and friends is available to the child. Id. §
263.307(b); see also In re R.R., 209 S.W.3d at 116. The Texas Supreme Court has
articulated several additional factors that may be considered when determining
whether termination of parental rights is in the best interest of the child, including:
1) the desires of the child, 2) the emotional and physical needs of the child now and
21
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 acts or omissions of the parent that may
indicate that the existing parent-child relationship is not a proper one, and 9) any
excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367,
371-72 (Tex. 1976) (setting forth the “Holley factors” and noting “[t]his listing is by
no means exhaustive[ ]”). No specific 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.”) (citing In re C.H., 89 S.W.3d at 27); In re A.P., 184 S.W.3d 410, 414 (Tex.
App.—Dallas 2006, no pet.). Because stability and permanence are important in a
child’s emotional and physical development, termination of parental interests may
be in the child’s best interest when a parent is unable to provide a stable environment
or a reliable source for food, clothing, shelter, and emotional support. See In re J.D.,
436 S.W.3d 105, 119-20 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing In
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re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied)); In re
T.G.R.-M., 404 S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, 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., 89 S.W.3d at 28 (parent’s past
performance as parent is relevant to determination of present and future ability to
provide for child); In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013,
pet. denied) (factfinder may measure a parent’s future conduct by past conduct);
Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 824 (Tex. App.—Fort Worth
2007, no pet.). The best-interest determination may rely on direct or circumstantial
evidence, subjective factors, and the totality of the evidence. In re N.R.T., 338
S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). If, in light of the entire
record, no reasonable factfinder could form a firm belief or conviction that
termination was in the child’s best interest, then we must conclude that the evidence
is legally insufficient to support termination. See In re J.F.C., 96 S.W.3d at 266.
Father had been arrested and incarcerated several times for domestic abuse
against Mother, including seven months before trial. He admitted to smoking
marijuana with Mother during her pregnancy with Anne. Father testified that he was
arrested and convicted for the assault strangulation of Mother and received eight
years deferred adjudication. Father confirmed that he has a new family violence
assault charge against Mother pending since April 2022. A history of criminal
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activity is a factor the trial court can consider in determining the parental abilities of
a parent who may be sent to jail or prison and unavailable to care for the child.
The Holley Factors
1) The Child’s Desires
Because of the lack of evidence as to Anne’s desires in this record, the first
Holley Factor is given neutral weight.
2) Emotional and Physical Needs of the Child Now and in the Future
Father has a serious criminal history involving family violence. This court
recently considered similar criminal history in In re J.O., No. 09-21-00341-CV,
2022 Tex. App. LEXIS 1769, at *31 (Tex. App.— Beaumont Mar. 17, 2022, pet.
denied) (mem. op.). Citing In re R.W., 129 S.W.3d 732, we agreed with the Fort
Worth Court of Appeals that “As a general rule, conduct that subjects a child to a
life of uncertainty and instability endangers the physical and emotional well-being
of a child.” Id at 739. Since Father’s deferred adjudicated probation could be revoked
any time during the next eight years, it constitutes evidence upon which the court
can base its decision that Father cannot provide a stable home environment for Anne.
It is evidence the trial court can consider to determine that Father is unable to meet
the emotional and physical needs of the child now and in the future. Father’s past
performance engaging in conduct endangering Anne, as we have previously found,
are relevant to the determination of present and future ability to provide for the child.
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See In re B.P., No. 09-21-00038-CV, 2021 Tex. App. LEXIS 5000 at *10 (Tex.
App.—Beaumont June 24, 2021, no pet.) (explaining the factfinder may infer from
a parent’s past conduct endangering the child that similar conduct will recur if the
child were to be returned to the parent). Under the second Holley factor, this
evidence supports the findings of the Court.
3) Emotional and Physical Danger to the Child Now and in the Future
Father has been arrested and incarcerated several times for domestic abuse
against Mother, including seven months before trial. He admitted to smoking
marijuana with Mother during her pregnancy with Anne. This evidence can be relied
upon by the trial court to find that Father’s past behaviors predict that Father may
place Anne in physical or emotional danger in the future. See id. at *5.
4) The Parental Abilities of the Individuals Seeking Custody
Anne lived with Father for a short period of time before she was placed in
foster care. Although ordered to Batterers Intervention Prevention Program and a
psychiatric evaluation, Father failed to complete these requirements. Father’s
significant criminal history and failure to complete services are evidence upon which
the trial court could have formed a firm belief or conviction that termination of
Father’s parental rights is in Anne’ best interest.
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5) The Programs Available to Assist the Father
Programs were made available to the Father for batterer’s intervention and
substance abuse in which Father failed or refused to participate. This fact weighs in
favor of termination of Father’s rights.
6) The Father’s Plans for the Child
Father is taking medication to control his anger issues since he has been
released from jail. Mother denied having an ongoing relationship with Father but
agreed that she is currently pregnant with Father’s child. This indicates there is likely
to be future interactions between the two which could lead to violence as it has in
the past. Father stated he does not have any items for Anne in his current home. He
plans to get a car seat, bed, toys, clothes, and diapers for her to go in her room if
given custody—he does not have those things now. The trial court could have
considered these circumstances that Father has not made adequate plans to ensure
the physical and emotional well-being of Anne. This evidence weighs against Father
on the best interest of the child.
7) The Stability of the Home or Proposed Placement
The contingent nature of the planned living situation expressed by Father,
together with the possibility that his probation could be revoked and he could be sent
to prison, weigh against the stability of his proposed placement. The trial court could
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have formed a firm belief or conviction that, based upon these circumstances,
termination of Father’s parental rights is in Anne’s best interest.
8) The Acts or Omissions of the Parent
The fact that Father smoked marijuana “outside” while Anne was living in his
household and assaulted Anne’s Mother, resulting in being placed on criminal
probation, weigh against the Father in this case. The trial court could have formed a
firm belief or conviction that Father’s illegal actions around the child are not in the
best interest of the child.
9) Any Excuse for the Acts or Omissions of the Parent
Father has not provided any legitimate excuses for dangerous acts and
omissions admitted in this case. Based upon all the circumstances presented by the
evidence, the trial court could properly form a firm belief or conviction that placing
Anne with Father would not be in Anne’s best interest.
Finally, testimony demonstrated that Anne is happy in her foster home, she is
considered to be a part of the foster parent’s family, and her foster parents are
meeting all her needs. The foster family wants to adopt Anne if Mother’s and
Father’s parental rights are terminated. Father’s serious criminal history, failure to
complete batterer’s intervention programs, substance abuse programs, and
psychiatric evaluations, are sufficient for the trial court to have formed a firm belief
or conviction that termination of Father’s parental rights are in Anne’s best interest.
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Having considered the evidence related to best interest and deferring to the
trial court’s determinations on witness credibility, the resolution of conflicts in the
evidence, and the weight to be given the testimony, we conclude that the statutory
and Holley factors weigh in favor of the trial court’s finding that termination is in
the child’s best interest. See Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307(a); In
re J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371-72. We conclude that the
evidence is both legally and factually sufficient to support the trial court’s finding
that termination of Father’s parental rights is in the child’s best interest, and we
overrule his last issue.
IV. Conclusion
Having overruled Mother’s and Father’s issues, we affirm the judgment of
the trial court.
AFFIRMED.
________________________________
JAY WRIGHT
Justice
Submitted on April 19, 2023
Opinion Delivered June 15, 2023
Before Horton, Johnson and Wright, JJ.
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