Opinion issued October 20, 2020
Court of Appeals
First District of Texas
IN THE INTEREST OF A.F.R. AKA BABY BOY R
On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2018-04986J
Appellants, A.Z.R. and D.R. , appeal from the trial
ir parental rights to their infant child, A.F.R.
Alex . 1 In her sole issue, Mother argues that the trial court lost jurisdiction
resulting in a void judgment. In five issues, Father argues that (1) the trial court
1 For purposes of this Opinion, we will refer to the child and parties by pseudonyms. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8. lost jurisdiction resulting in a void judgment; (2) the evidence is legally and
factually insufficient to support termination under Texas Family Code section
161.001(b)(1)(E) and (O); (3) the evidence is legally and factually insufficient to
support termination being in the best interest of the child; and (4) the evidence is
legally and factually insufficient to support the appointment of the Department of
as the sole managing conservator of
DFPS filed its original petition on October 16, 2018, after learning that
Mother and Alex tested positive for cocaine upon his birth. On the same day, the
trial court appointed DFPS as temporary sole managing conservator of Alex and
that pursuant to section 263.401, October 21, 2019 was the statutory automatic
dismissal date. 2 On September 23, 2019, the trial court signed an extension order,
noting that (1) extraordinary circumstances exist to necessitate the child to remain
in the temporary managing conservatorship of DFPS, (2) continuing appointment
of DFPS as temporary managing conservator ; and
2 See TEX. FAM. CODE § 263.401. (3) suit would be automatically dismissed if trial on the merits had not commenced
by April 18, 2020. 3
The trial on the merits commenced on February 12, 2020. Jasmin Green, a
DFPS caseworker, testified that Alex was a little over a year old at the time of trial,
and the referral to DFPS occurred because Mother and Alex tested positive for
cocaine upon his birth. Although the trial court ordered her to take a drug test on
April 30, 2019, Mother did not take the drug test on the scheduled date. Green
recalled that she last spoke to Mother in December 2019 when Mother said she
was moving to a longer-term treatment facility, but, because she did not give an
address, Green was unable to verify the information that Mother had given her.
Green testified that despite her service plan, Mother did not do any of the services.
She also testified that Mother did not visit Alex during the pendency of the case.
Green testified that Mother committed terroristic threats on June 7, 2018,
while pregnant with Alex, and on February 5, 2019, when Alex was four-months-
old. Green also noted that Mother had a conviction for possession of cocaine and a
2013 conviction for attempted injury to a child. Green testified that
tability. She has not been able to show that
t and there are other children that are not in
her care; and the fact that mom continued even up until giving birth to engage
3 See TEX. FAM. CODE § 263.401(a), (b). in criminal acts as well as illegal drug use. That kind of speaks to her inability to
Regarding Father, Green testified that he was served on October 23, 2018.
Green testified that Father was ordered to take a drug test on January 30 and April
30, 2019, but he failed to show. Green admitted that Father did not have any
criminal history involving illegal substances, but she agreed that it would have
despite Father receiving a service plan Green also
testified to calling Father on multiple occasions and leaving contact information,
but Father never returned her calls. When asked if Father had contacted DFPS to
visit Alex recalled that Father had visited Alex one time, in February 2019. Other than the
one visit, Father has not seen Alex.
Green agreed that Father was
sentenced to five years for aggravated robbery in 2007. She also testified that
Father had been convicted of an assault in 2017 and another assault on June 24,
2018 against Mother, who was pregnant with Alex at the time of the assault.
Green testified that was a concern to DFPS regarding
endangering conduct toward the child. The trial court also admitted documentary evidence reflecting Father aggravated robbery conviction in 2007 and the two
assaults. history, including offenses in addition to those testified to by Green.
Green testified that Alex is currently living in a foster home where he has
been living since his discharge from the hospital. The foster home is willing to
adopt Alex, who is developmentally on target and well loved and cared for. Green
also testified that the foster parents are meeting Alex , and
she has no concerns that the foster parents would continue to meet A needs if
he is permanently placed in their home. Green further testified that the foster
parents have a biological child, between the ages of seven and eight, who has a
relationship with Alex, the family is well bonded to Alex, and it would be in
Alex terminated. Green explained that since being discharged from the hospital, Alex
has only been in this placement, the family has taken the child in and loved him as
their own, he is very bonded, and she did not think Alex could have been placed in
a better home. The foster family has even facilitated contact between Alex and his
biological family, including his maternal aunt, uncle, and grandmother.
On cross-examination, Green admitted that she did not have a positive drug
test for Father 2007 robbery conviction occurred 11 years ago
when Father was 17. Green testified that she was informed that Father has been working and that he has an apartment. Green was also aware that Father claimed
to have completed his service plan, but she noted that he did not finish the service
plan that DFPS offered. When asked what he has not completed, Green testified
Father did not complete the following requirements: (1) parenting education
classes, (2) a psychological assessment, (3) a substance-abuse assessment,
(4) stable housing, (5) income, (6) remain crime-free, and (7) individual
counseling. Green said Father has not provided proof that he completed any of
those services. Green also testified that she was informed by someone other than
Father that he had first
visit with Alex
During questioning by Angela Phea, guardian ad litem for Alex, Green
agreed that the services that DFPS gives to the parents needs to be completed and
the parents must provide proof. Green agreed that a missed drug test is considered
deserves stability and permanency, which he already has in the current placement.
On its redirect examination, DFPS asked Green to clarify what she meant
lex clarified that Father did not really know how to hold Alex and [h]e brought a
female friend and she took over the visit in a way that I felt was not really appropriate, especially if this is the first time this Father [was] meeting his son.
Green testified that Father said the woman was his girlfriend, that he had not been
around small children, and that he did not know how.
Joy Redding, a coordinator from Child Advocates, testified that she believed
that termination of the parents rights and adoption by the current foster family
would be in deserves to be in a safe and stable environment, one that is free of violence, even if
the child is not even if violence is not directed at the child. The current foster
he is bonded with them.
On cross-examination, Redding testified that Father showed her the lease for
his home two weeks before the trial, but that she has not been able to physically
examine his house. She said that he also showed her letters from Catholic
Father testified that he was there to have his child returned to him and that
he has been providing for his son, taking care of him, and sending him clothes and
papers that they asked for, from day one. Father explained that he moved to
Colorado to find work because the crime he committed when he was seventeen
was holding him back. H in Colorado, but he is now living in Houston as a self-employed barber. He wants to see Alex, he
set up a beautiful room for Alex, and that if Alex is returned, he will get food for
him and have lly staying in my house right now, and I just brought these 4
seven to eight
parenting classes at Catholic Charities, he was ready to have the child placed in his
home today, and he was willing to have cameras installed in his home for a period
of six months.
During cross-examination, Father admitted that he was not present for the
birth of his son because his relationsh
Father knew Mother was pregnant and he took care of her for nine months. Father
said that he was around Mother because he wanted his son to be healthy. When
asked if he failed to show up for a January 30, 2019 court-ordered drug test, Father
agreed, explaining that he was in Colorado. When asked if the court ordered a
drug test on April 30, 2019, Father said he did not know. When asked if he would
argue with DFPS that evidence has already been admitted that shows that he did
not show up for an 4
Although not in the record, Father was apparently referring to some type of certificate. Father admitted that he did not show up for court- first came to court and I was in the living room with the dude who was doing the
hair, he was kind of being sarcastic with me. He was being sarcastic about my hair
zero tolerance about my hair. He said he was going to, like, yank my hair
out to do this test and that kind of upset me so I kind of left it alone and left the
building. Father admitted that he did not give a sample of his hair because he did
not want it to affect his hairstyle.
Father agreed that, at the January 30, 2019 hearing, the trial court ordered
him to do specific things and follow recommendations, including services to
address domestic violence. Father testified that he did not complete it because he
did not know about it. Father admitted that he knew it was important to complete
his family plan of service and he completed it. When asked what he did, Father
respon parental classes at the Catholic Charity church, providing . . . head, . . . and several other little things that I just did on my own, you know, as far
as like . . . making sure his room is in a perfect environment for a one-year- H completed having a stable place to stay. I actually completed what else I completed completed on visited his son during the pendency of the case, Father answered s.
Father agreed that he was convicted of aggravated robbery back in 2007 and
sentenced to five years in the penitentiary. Father said he learned his lesson and
paid his debt to society. DFPS then asked if he was convicted of assault in 2017,
to which Father responded that he had gotten into a fistfight. Father disagreed that
on June 24, 2018, he committed assault on Mother, who was pregnant at the time.
Father agreed that he pled guilty because he was told that it was the only way to be
released that day. Father disagreed that he had a desire to beat up pregnant
On re-direct examination, counsel attempted to show that Father had pay
stubs. Instead, Father testified that working in the past has nothing to do with him
a total of $600 a month.
Mother testified that she wanted to continue to work on her services, and
On April 10, 2020, the trial court terminated Mother Alex based on the predicate acts in subsections (E) (endangering conduct), (N) (constructive abandonment), (O) (failure to comply with court order). 5 The trial
court also terminated Father parental rights based on the predicate acts in
subsections (E) (endangering conduct) and (O) (failure to comply with court
order). 6 The trial court also found that termination of their parental rights was in
section 161.001(b)(2). Mother and
Father timely appealed.
In their first issue, Mother and Father both argue that the trial court lost
jurisdiction on October 21, 2019 because it did not dispose of the case within one
year of appointing DFPS as the temporary managing conservator.
A. Standard of Review and Applicable Law
Whether a court has subject-matter jurisdiction is a question of law that we
review de novo. Tex. Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004); In re T.B., 497 S.W.3d 640, 644 (Tex. App. Fort Worth 2016, pet.
denied). When a trial court s void judgment is appealed, we lack jurisdiction to
address the merits of the appeal and have jurisdiction only to declare the judgment
void and dismiss the underlying case. In re G.X.H., 584 S.W.3d 543, 556 (Tex.
App. Houston [14th Dist.] 2019, no pet.); Freedom Commc ns, Inc. v. Coronado,
5 See TEX. FAM. CODE § 161.001(b)(1)(E), (N), (O).
6 See id. § 161.001(b)(1)(E), (O). 372 S.W.3d 621, 623 (Tex. 2012)). We must analyze the jurisdictional question
because subject-matter jurisdiction is a power that exists only by operation of law
and may not be conferred by agreement or waiver. Dubai Petroleum Co. v. Kazi,
12 S.W.3d 71, 76 (Tex. 2000).
The Family Code sets out a statutory framework for ensuring that
termination proceedings are handled in an expedited manner. See, e.g., of Fam. & Protective Servs. v. Dickensheets, 274 S.W.3d 150, 158 59 (Tex.
App. Houston [1st Dist.] 2008, no pet.). Section 263.041 provides,
(a) Unless the court has commenced the trial on the merits or granted an extension under Subsection (b) or (b-1), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary affecting the parent-child relationship filed by the department
that requests termination of the parent-child relationship or requests that the department be named conservator of the child is terminated and the suit is automatically dismissed without a court order. Not later than the 60th day before the day the suit is automatically dismissed, the court shall notify all parties to the suit of the automatic dismissal date.
(b) Unless the court has commenced the trial on the merits, the court may not retain the suit on the court s docket after the time described by Subsection (a) unless the court finds that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child. If the court makes those findings, the court may retain the suit on the court s docket for a period not to exceed 180 days after the time described by Subsection (a). If the court retains the suit on the court s docket, the court shall render an order in which the court:
(1) schedules the new date on which the suit will be automatically dismissed if the trial on the merits has not commenced, which date must be not later than the 180th day after the time described by Subsection (a);
(2) makes further temporary orders for the safety and welfare of the child as necessary to avoid further delay in resolving the suit; and
(3) sets the trial on the merits on a date not later than the date specified under Subdivision (1).
TEX. FAM. CODE § 263.401(a), (b).
Thus, the Family Code requires that the court commence the trial on the
merits or grant an extension by the first Monday after the first anniversary of the
date the court rendered a temporary order appointing DFPS as temporary managing
conservator. TEX. FAM. CODE § 263.401(a). If the trial court fails to commence
the Id.; In re G.X.H., 584 S.W.3d at
jurisdiction if the trial on the merits does not begin by the deadline imposed by
The trial court may grant an extension of up to 180 days if it finds that
extraordinary circumstances necessitate that the child remain in the temporary managing conservatorship of DFPS and that continuing the appointment of DFPS
as temporary managing conservator is in the child s best interest. See TEX. FAM.
CODE § 263.401(b).
We strictly construe statutes concerning involuntary termination of parental
rights in favor of parents. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Our
primary objective in construing a statute, however, is to determine and give effect
to the legislature s intent. Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999). In
determining the legislature s intent, we look first to the statute s plain and common
meaning and presume that the legislature intended the plain meaning of its words.
Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 282 (Tex. 1999). We also
presume that the legislature chose its words carefully, recognizing that every word
in a statute was included for some purpose and that every word excluded was
omitted for a purpose. In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App. San
Antonio 2000, pet. denied); Renaissance Park v. Davila, 27 S.W.3d 252, 257 (Tex.
App. Austin 2000, no pet.).
On October 18, 2018, the trial court issued a temporary order appointing
DFPS as temporary sole managing conservator of Alex. Thus, the trial court had
to commence trial by the automatic dismissal date of October 21, 2019 or grant an
extension. See TEX. FAM. CODE § 263.401(a). If neither of those acts occurred, the See
Instead of commencing trial by October 21, 2019, the record shows that on
September 23, 2019, the trial court signed an order finding extraordinary
circumstances that necessitated Alex to remain in the temporary managing
conservatorship of DFPS and that continuing the appointment of DFPS as
. The order provided
a new automatic dismissal date of April 18, 2020, unless a trial on the merits had
commenced or if the child was placed in or removed from a monitored placement.
Ultimately, the trial court commenced the trial on the merits on February 12, 2020.
We conclude that t September 23, 2019 order finding extraordinary
circumstances complies with section 263.401 of the Texas Family Code.
Without citing any authority, Father argues that the trial court termination is void because the record does not indicate that the trial court held a
hearing before issuing the September 23 docket. Although we agree that the record does not contain a transcript of any
hearing conducted in relation to the finding of extraordinary
circumstances, we note that the plain language of the statute does not require the
trial court to conduct a hearing before granting an extension. See TEX. FAM. CODE
§ 263.401(a), (b); In re T.T.F., 331 S.W.3d 461, 475 (Tex. App. Fort Worth 2010, no pet.) (noting that plain language of section 263.401 does not require trial
court to conduct hearing before extension). Because no hearing requirement
appears in the statute, we presume that the legislature did not intend to require a
hearing before the trial court retains a case on its docket pursuant to section
263.401. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.
2011) (emphasizing that courts presume legislature chooses its words with care,
including words it intends to include and omitting words it intends to omit).
Father, relying on In re Department of Family & Protective Services, 273
S.W.3d 637, 643 (Tex. 2009) (orig. proceeding), also argues that decree of termination is void because the September 23 order does not contain its
factual bases for finding extraordinary circumstances. In In re Department of
Family & Protective Services ghts
within its dismissal deadline, but then granted a new trial outside the dismissal
deadline and without an order extending the time for which the case was to be
retained on its docket. 273 S.W.3d at 640. In discussing former section
263.401(a), the supreme -
year dismissal date, the court must make specific findings to support the extension
order . . . as set out in the statute Id. at 643. Contrary to In re Department of Family &
Protective Services, opinion requires the trial court to provide
only the specific findings, as 263.401 a finding that
extraordinary circumstances exist and that continuing DFPS as the temporary
managing conservator is in the best interests of the child. See TEX. FAM. CODE
§ 263.401(b). We thus decline to interpret section 263.401(b) or In re Department
of Family & Protective Services to require the trial court to find anything more
than what is required in the statute. See In re J.G.K., No. 02-10-00188-CV, 2011
WL 2518800, at *35 (Tex. App. Fort Worth June 23, 2011, no pet.) (mem. op.)
(stating that section 263.401 does not require trial court to explain in extension
order what extraordinary circumstances necessitated extension); In re A.T.S., No.
12-07-00196-CV, 2008 WL 2930392, at *18 (Tex. App. Tyler July 31, 2008, no
pet.) (mem. op.) (same).
Mother relies on In the Interest of G.X.H. to support her argument that the
trial court lacked jurisdiction. In G.X.H., the trial on the merits commenced after
the dismissal deadline and it was undisputed that the trial court did not grant an
extension under section 263.401(b) or (b)(1). See G.X.H., 584 S.W.3d 543, 546
(Tex. App. Houston [14th Dist.] 2019, pet. pending). Our sister court thus held
that the inated, and the suit was automatically
dismissed. Id. G.X.H. provides no support for because the record in this appeal shows that the trial court granted an extension on September
23, 2019, before the statutorily mandated dismissal deadline of October 23, 2019.
Because the trial court granted an extension that complied with section
263.401, we conclude that the trial court did not lose its jurisdiction.
We overrule Mother s on appeal.
Sufficiency of the Evidence
In his second and third issues on appeal, Father argues that the evidence is
legally and factually insufficient to support the trial court s finding that he
committed the predicate acts under subsections 161.001(b)(1)(E) and (O). See
TEX. FAM. CODE § 161.001(b)(1)(E), (O).
A. Standard of Review and Applicable Law
Protection of the best interest of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S.W.3d 355, 361 (Tex. 2
Santosky v. Kramer, 455 U.S. 745, 758 59
(1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Accordingly, we strictly
scrutinize termination proceedings and strictly construe the involuntary termination
statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). In a case to terminate parental rights under Texas Family Code section
161.001, DFPS must establish, by clear and convincing evidence, that (1) the
parent committed one or more of the enumerated acts or omissions justifying
termination and (2) termination is in the best interest of the child. TEX. FAM. CODE
§ 161.001(b). that will produce in the mind of the trier of fact a firm belief or conviction as to the
Id. § 101.007; In re J.F.C., 96
S.W.3d 256, 264 (Tex. 2002). Only one predicate finding under section
161.001(b)(1) is necessary to support a judgment of termination when there is also
a finding that termination is in the child s best interest. In re A.V., 113 S.W.3d at
When reviewing the legal sufficiency of the evidence in a case involving
termination of parental rights, we determine whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction that there existed
grounds for termination under section 161.001(b)(1) and that termination was in
the best interest of the child. See TEX. FAM. CODE § 161.001(b)(1), (2); In re
J.F.C., 96 S.W.3d at 266. In doing so, we examine all the evidence in the light
most favorable to the finding, assuming Id. We must also disregard all evidence that the factfinder could have reasonably disbelieved or
found to be incredible. Id.
When conducting a factual sufficiency review, we consider and weigh all the
evidence including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d 336,
345 (Tex. 2009). 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
Id. (quoting In re J.F.C.,
96 S.W.3d at 266). We give due deference to the factfinder s findings, and we
cannot substitute our own judgment for that of the factfinder. In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006).
Subsection 161.001(b)(1)(E) requires the trial court to find by clear and
ngaged in conduct or knowingly placed
the child with persons who engaged in conduct which endangers the physical or
emotional well- Id. § 161.001(b)(1)(E). Subsection (E)
requires that the cause of the endangerment be the parent s conduct alone, as
evidenced by either the parent s actions or omissions. Id. § 161.001(b)(1)(E).
metaphysical injury or the possible ill effects of a less-than-ideal family
env Tex. Dep t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). In this context, endanger means to expose a child to loss or injury or to
jeopardize a child s emotional or physical well-being. Id.; see In re M.C., 917
S.W.2d 268, 269 (Tex. 1996).
The Department does not need to establish that a parent intended to
endanger a child to support termination based on endangerment. See In re M.C.,
917 S.W.2d at 270. Nor is it necessary to establish that the parent s conduct was
directed at the child or caused actual harm; rather, it is sufficient if the parent s
conduct endangers the child s well-being. See Boyd, 727 S.W.2d at 534; Walker v.
Tex. Dep t of Fam. & Protective Servs., 312 S.W.3d 608, 616 17 (Tex. App. Houston [1st Dist.] 2009, pet. denied). Danger to a child s well-being may be
inferred from parental misconduct. Boyd, 727 S.W.2d at 533. conduct that subjects a child to a life of uncertainty and instability endangers the
physical and emotional well-being of a In re R.W., 129 S.W.3d 732, 739
(Tex. App. Fort Worth 2004, pet. denied). may support an inference that past conduct may recur and further jeopardize the
-being. See id.
The court s endangerment analysis also includes consideration of a parent s
criminal record and how repeated criminal activity adds instability to the child s
life with repeated parental incarceration and separation. See Boyd, 727 S.W.2d at
c standing alone, constitute engaging in conduct which endangers the emotional or physical well- shows a course of conduct which has the effect of endangering the physical or
emotional well- Id. at 533 34; see In re V.V., 349 S.W.3d 548, 555 (Tex. App. Houston [1st
Dist.] 2010, pet. denied) (en banc) (affirming termination of father s parental rights
assault and other crimes against
The evidence shows that Father was convicted of aggravated robbery in
2007 and sentenced to imprisonment for five years; convicted of assault in 2017
and sentenced to 28 days in jail; and convicted of assault of a family member in
September 2018 and sentenced to 100 days in jail. Additional evidence in the
record from Child Advocates shows that Father has the following criminal history:
(1) criminal trespassing in 2016; confined for 15 days; (2) resisting arrest in 2016;
confined for 30 days; (3) criminal mischief in 2017; confined for six days; (4) criminal trespassing of habitation in 2017; confined for 150 days; and
(5) criminal mischief in 2017; confined for 100 days.
Father argues that his criminal convictions and incarcerations occurred
before Alex was born. However, courts may look to evidence of parental conduct
both before and after a child s birth and before and after a child s removal from the
home to determine whether termination is appropriate. See In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009) (citing In re M.N.G., 147 S.W.3d 521, 536 (Tex.
App. Fort Worth 2004, pet. denied)); Walker v. Tex. Dep t of Fam. and
Protective Servs., 312 S.W.3d 608, 617 (Tex. App. Houston [1st Dist.] 2009, pet.
denied) (explaining that relevant conduct may occur either before or after child s
removal from home).
In addition to the criminal history before Alex was born, Father pled guilty
to assaulting Mother while she was pregnant with Alex. of self-control, and propensity for violence may be considered as evidence of
In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App. Houston [14th
Dist.] 2003, no pet.). Violence does not have to be directed toward the child or
result in a final conviction -
on-parent physical abuse in termination cases without specifically requiring
In re V.V., 349
S.W.3d at 556. -control, and propensity for In re J.I.T.P., 99
S.W.3d at 845. Parents criminal conduct that exposes them to the possibility of
incarceration can negatively impact a child s living environment and emotional
well-being. In re S.M.L, 171 S.W.3d 472, 479 (Tex. App. Houston [14th Dist.]
2005, no pet.).
particularly Father s 2011 aggravated robbery conviction, two assault convictions,
including one against Mother while pregnant with Alex, and his additional lengthy
criminal history and repeated incarcerations, we conclude that the trial court could
have formed a firm belief or conviction that Father had knowingly engaged in
conduct that endangered physical or emotional well-being in violation of
subsection 161.001(b)(1)(E). See In re J.O.A., 283 S.W.3d at 344 (citing In re
J.F.C., 96 S.W.3d at 266). Mother and that he only pled guilty to the assault so that he could be released, the
See In the Interest of K.P.C., No. 14-17-00993-CV, 2018 WL 2106669, at *9 (Tex.
App. Houston [14th Dist.] May 8, 2018, pet. denied) (mem. op.) (stating that trial
-serving testimony that panhandling was
l well-being). Thus, in view of
the entire record, we conclude that the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that Father had
knowingly engaged in conduct that endangered physical or emotional well-
being in violation of subsection 161.001(b)(1)(E). See In re J.O.A., 283 S.W.3d at
345 (citing In re J.F.C., 96 S.W.3d at 266).
Because we conclude that the evidence is legally and factually sufficient to
support the trial court s findings under section 161.001(b)(1)(E), we do not address
Father s arguments that the evidence is legally and factually insufficient to support
the trial court s findings under subsection (O). See In re P.W., 579 S.W.3d 713,
728 (Tex. App. Houston [14th Dist.] 2019, no pet.).
In his fourth issue, Father argues that the evidence is legally and factually
insufficient to support termination being in the best interest of the child.
A. Applicable Law
There is a strong presumption that the best interest of a child is served by
keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re
D.R.A., 374 S.W.3d 528, 533 (Tex. App. Houston [14th Dist.] 2012, no pet.).
Prompt and permanent placement of the child in a safe environment is also
TEX. FAM. CODE § 263.307(a). Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best-interest finding: the desires of the
child; the present and future physical and emotional needs of the child; the present
and future emotional and physical danger to the child; the parental abilities of the
persons seeking custody; the programs available to assist those persons seeking
custody in promoting the best interest of the child; the plans for the child by the
individuals or agency seeking custody; the stability of the home or proposed
placement; acts or omissions of the parent which may indicate the existing parent-
child relationship is not appropriate; and any excuse for the parent s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 371 72 (Tex. 1976). This list of
factors is not exhaustive, however, and evidence is not required on all the factors to
support a finding that terminating a parent s rights is in the child s best interest.
Id.; In re D.R.A., 374 S.W.3d at 533.
In addition, the Texas Family Code sets out factors to be considered in
evaluating the parent s willingness and ability to provide the child with a safe
environment, 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. TEX. FAM. CODE § 263.307(b); In re R.R., 209 S.W.3d at
Courts may consider circumstantial evidence, subjective factors, and the
totality of the evidence as well as the direct evidence when conducting the best-
interest analysis. See In re E.D., 419 S.W.3d 615, 620 (Tex. App. San Antonio
2013, pet. denied). Evidence supporting termination under one of the predicate
grounds listed in section 161.001(b)(1) can also be considered in support of a
finding that termination is in the best interest of the child. See In re C.H., 89
S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative of both
section 161.001(b)(1) grounds and best interest). A parent s past conduct is
probative of his future conduct when evaluating the child s best interest. See In re
O.N.H., 401 S.W.3d 681, 684 (Tex. App. San Antonio 2013, no pet.); see also
Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App. Houston [1st Dist.] 2010, pet.
denied). A factfinder may also infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent when
assessing the best interest of the child. In re D.M., 452 S.W.3d 462, 471 (Tex.
App. San Antonio 2014, no pet.) (citing In re B.K.D., 131 S.W.3d 10, 17 (Tex.
App. Fort Worth 2003, pet. denied)).
Regarding the child s desires, Alex, an infant at the time of trial, was too
young to express his desires. However, he had been placed in a foster home, in
which he was doing well, and his needs were being met. The evidence showed that
his foster placement wanted to adopt him and that he had bonded with the foster
parents and their biological daughter. The evidence further shows that since
through trial, Father had seen him only once. The trial court could
infer from this evidence that the child wanted to remain with his foster family. See
In re J.D., 436 S.W.3d 105, 118 (Tex. App. Houston [14th Dist.] 2014, no pet.)
consider that the children have bonded with the foster family, are well-cared for by
The evidence showed further that Father only met with his son once during
the pendency of these proceedings, although a second meeting was scheduled.
Other than testifying that he had moved to Colorado to find work, Father did not
explain why he See K.M. v. Tex. Dep t of Family & Protective Servs., 388 S.W.3d 396, 405 (Tex. App. El Paso 2012, no pet.)
(discussing parent s failure to visit child as factor supporting finding that
termination was in child s best interest).
Regarding emotional and physical needs now and in the future, and
the possible emotional and physical danger to him now and in the future, the trial
court had evidence of Father s repeated criminal activity and resulting
incarcerations. See generally In re O.N.H., 401 S.W.3d at 684 (stating that past
conduct is probative of future conduct when evaluating child s best interest). The
trial court could have concluded that Father s pattern of repeated incarcerations
environment a primary consideration in determining the child
See In re A.C., 394 S.W.3d 633, 642 (Tex. App. Houston [1st Dist.] 2012, no
pet.). The evidence also showed that Father was convicted of assaulting Mother
while she was pregnant with Alex. See Walker, 312 S.W.3d at 619 (considering
father s past violence in best-interest assessment and noting that evidence of
endangering conduct under subsection (E) is also probative of best-interest
Regarding parental abilities, Father had shown very little parental abilities.
He agreed that he was not present when Alex was born and that he did not meet
Alex until February 2019. At that visit, Father brought his girlfriend with him because he did not know how to hold a baby. Although Father testified that he had
taken some parenting classes, other evidence showed that he had not completed the
parenting classes as required by his family service plan. In contrast to this
evidence, witnesses testified that Alex had bonded with his foster family, he was
happy, healthy, and thriving in his foster home, and the foster family planned to
Regarding plans for the child, Father testified that he moved back to Texas,
found employment, rented a two-bedroom apartment and had furnished
room and purchased toys. In contrast, DFPS testified that foster family
wanted to adopt him if parental rights were terminated. Although the trial court
heard evidence that Father made efforts to provide a safe home for Alex, the trial
court could have weighed this evidence plans were
more likely to ultimately provide Alex with a stable, safe, and permanent home,
which is a paramount consideration in a court s best-interest determination. See
TEX. FAM. CODE § 263.307(a); see also In re K.C., 219 S.W.3d 924, 931 (Tex.
App. Dallas 2007, no pet.).
Viewing the evidence in the light most favorable to the trial court s finding,
we conclude that the trial court could have formed a firm belief or conviction that
termination of Father s parental rights is in best interest. See In re J.O.A.,
283 S.W.3d at 344 (citing In re J.F.C., 96 S.W.3d at 266); In re J.M.T., 519 S.W.3d 258, 270 (Tex. App. Houston [1st Dist.] 2017, pet. denied) (placement in
safe, stable foster home and that child was doing well there was relevant to child s
emotional and physical needs and stability of home or proposed placement and
therefore supported trial court s best-interest finding); Rogers v. Dep t of Family &
Protective Servs., 175 S.W.3d 370, 378 (Tex. App. Houston [1st Dist.] 2005, pet.
dism d w.o.j.) (successful foster placement and possibility of adoption by foster
parents supported determination that termination of parental rights was in
children s best interest). In view of the entire record, we conclude that the
disputed evidence is not so significant as to prevent the trial court from forming a
firm belief or conviction that termination of Father s parental rights is in
best interest. See In re J.O.A., 283 S.W.3d at 345 (citing In re J.F.C., 96 S.W.3d at
266). Accordingly, we hold that legally and factually sufficient evidence supports
the trial court s best interest finding.
Appointment of Department as Sole Managing Conservator
In his fifth issue, Father argues that legally and factually insufficient
evidence supports the appointment of DFPS as sole managing conservator of Alex.
suitable, competent adult, DFPS, or a licensed child-placing agency as managing
conservator of TEX. FAM. CODE § 161.207(a); see In re M.M.M., No. 01-16-00998-CV, 2017 WL 2645435, at *17 (Tex. App. Houston [1st Dist.] June
16, 2017, no pet.) (mem. op.). We review conservatorship determinations for an
abuse of discretion and will reverse one only if the trial court s decision is arbitrary
and unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); see also A.C.,
394 S.W.3d at 644.
An order terminating the parent-child relationship divests the parent of all
legal rights and duties with respect to the child. TEX. FAM. CODE § 161.206(b).
Once we overrule a parent s challenge to a termination order, the trial court s
appointment of DFPS as sole managing conservator may be considered a
A.S., 261 S.W.3d 76, 92 (Tex. App. Houston [14th Dist.] 2008, pet. denied).
Because we have overruled Mother challenges to the trial
court s order terminating their parental rights, the order has divested Mother and
Father of their legal rights and duties related to Alex. See TEX. FAM. CODE
§ 161.206(b); In re D.K.W., Jr., No. 01-17-00622-CV, 2017 WL 6520439, at *5
(Tex. App. Houston [1st Dist.] Dec. 21, 2017, pet. denied) (mem. op.). As a
result, Father does not have standing to challenge the portion of the order
appointing DFPS as permanent managing conservator of Alex because any alleged
error could not injuriously affect his rights. D.K.W., 2017 WL 6520439, at *5.
We overrule s fifth issue. Conclusion
Having overruled all of Mother issues, we affirm the trial
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Hightower and Adams.