in the Interest of K.H., S.W., and I.W., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-15-00164-CV

IN THE INTEREST OF K.H., S.W.,
AND I.W., CHILDREN

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FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 360-531494-13

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MEMORANDUM OPINION 1

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This is an ultra-accelerated appeal 2 from a judgment terminating the

parental rights of Appellant R.M. (Father) to his two children, S.W. (Sonny) and

I.W. (Irene). We affirm the trial court’s judgment.

1
See Tex. R. App. P. 47.4.
2
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal is filed).
 Background Facts

Sonny and Irene lived with their mother L.W. (Mother). Mother also has

another child, K.H. (Kayla). In early November 2013, the Department of Family

and Protective Services (DFPS or the Department) received a report that Mother

had left Sonny and Kayla in a car while she took Irene into a store and stole a

purse. Police pulled Mother over and found that none of the children were in

child seats or were wearing seatbelts. A DFPS investigator went to Mother’s

home and spoke with Kayla. Kayla said that before Irene had been born, Mother

would leave Kayla and Sonny in the home alone while Mother went to work.

Kayla said she and Sonny were left in a closet during Mother’s eleven-hour

shifts. Mother had a history with DFPS for having left Kayla alone before and

having left the children with different people. Kayla also told the investigator that

Father would come over to Mother’s apartment and that he “yelled a lot and she

was scared of him.” Kayla said that Father would give her soda mixed with

alcohol that would make her dizzy.

DFPS was not able to interview Father in that investigation because

Mother said she did not have any contact information for him and the old phone

numbers in the DFPS files were not valid. The Department removed the children

for neglectful supervision. At the DFPS office, Sonny appeared to be in pain, so

the Department took the children to the hospital for evaluations. There, it

discovered that Sonny had been constipated for “about a month.” Sonny began

2
“throwing up feces,” and the hospital staff said that he likely would have died had

he continued to stay in such a state.

The Department filed its petition for termination in November 2013. In

October 2014, the trial court granted the Department’s motion for extension of

the dismissal date, extending the dismissal date to March 24, 2015. 3 In April

2015, Mother relinquished her parental rights to all three children. A trial to the

bench proceeded against Father and Kayla’s alleged biological father, C.H. The

trial court found that Father had knowingly placed or had knowingly allowed

Sonny and Irene to remain in conditions or surroundings that endangered their

physical or emotional well-being; had engaged in conduct or had knowingly

placed Sonny and Irene with persons who had engaged in conduct that

endangered their physical or emotional well-being; had constructively abandoned

Sonny and Irene; and had failed to comply with the provisions of a court order

that specifically established the actions necessary for him to obtain the return of

Sonny and Irene. The trial court further found that termination of Father’s

parental rights to Sonny and Irene was in the children’s best interest. Father

then filed this appeal. 4

3
The order states the dismissal date as March 24, 2014. The 2014 date is
clearly a typographical error, and no party disputes that the dismissal date was
extended to March 24, 2015.
4
The trial court also terminated Mother’s rights to her three children and
C.H.’s rights to Kayla. Mother and C.H. did not appeal; thus, Kayla is not a
subject of this appeal.

3
 Standard of Review

In a termination case, the State seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except the child’s

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever

permanently the relationship between a parent and a child, it must first observe

fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)

(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92

(1982)). We strictly scrutinize termination proceedings and strictly construe

involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d

796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.

Termination decisions must be supported by clear and convincing

evidence. See Act of May 26, 2015, 84th Leg., R.S., ch. 1, § 1.078,

sec. 161.001(b), 2015 Tex. Sess. Law Serv. 18–20 (West) (to be codified as an

amendment to Tex. Fam. Code Ann. § 161.001) (hereinafter cited as Tex. Fam.

Code Ann. § 161.001(b)); Tex. Fam. Code Ann. § 161.206(a) (West 2014);

E.N.C., 384 S.W.3d at 802. “[C]onjecture is not enough.” Id. at 810. Due

process demands this heightened standard because “[a] parental rights

termination proceeding encumbers a value ‘far more precious than any property

right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59,

102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also

4
E.N.C., 384 S.W.3d at 802. Evidence is clear and convincing if it “will produce in

the mind of the trier of fact a firm belief or conviction as to the truth of the

allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West

2014); E.N.C., 384 S.W.3d at 802.

For a trial court to terminate a parent-child relationship, the party seeking

termination must establish by clear and convincing evidence that the parent’s

actions satisfy one ground listed in family code section 161.001(b)(1) and that

termination is in the best interest of the child. Tex. Fam. Code Ann.

§ 161.001(b)(1); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex.

2005). Both elements must be established; termination may not be based solely

on the best interest of the child as determined by the trier of fact. Tex. Dep’t of

Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re C.D.E.,

391 S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.).

1. Legal sufficiency

In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the challenged ground for

termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

We review all the evidence in the light most favorable to the finding and

judgment. Id. We resolve any disputed facts in favor of the finding if a

reasonable factfinder could have done so. Id. We disregard all evidence that a

reasonable factfinder could have disbelieved. Id. We consider undisputed

5
evidence even if it is contrary to the finding. Id. That is, we consider evidence

favorable to termination if a reasonable factfinder could, and we disregard

contrary evidence unless a reasonable factfinder could not. See id. “A lack of

evidence does not constitute clear and convincing evidence.” E.N.C.,

384 S.W.3d at 808.

We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses because that is the factfinder’s province. J.P.B.,

180 S.W.3d at 573, 574. And even when credibility issues appear in the

appellate record, we defer to the factfinder’s determinations as long as they are

not unreasonable. Id. at 573.

2. Factual sufficiency

We are required to perform “an exacting review of the entire record” in

determining whether the evidence is factually sufficient to support the termination

of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In

reviewing the evidence for factual sufficiency, we give due deference to the

factfinder’s findings and do not supplant the judgment with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record, a factfinder could reasonably form a firm conviction or belief that the

parent’s actions satisfying at least one ground listed in section 161.001(b)(1) and

the termination of the parent-child relationship would be in the best interest of the

child. Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re C.H., 89 S.W.3d 17, 28

(Tex. 2002). If, in light of the entire record, the disputed evidence that a

6
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 in the truth of its finding, then the evidence is factually insufficient.

H.R.M., 209 S.W.3d at 108.

Discussion

I. Grounds for termination

In his first four issues, Father argues that the evidence is insufficient to

support the trial court’s endangerment findings. Father does not, however,

challenge the sufficiency of the evidence supporting the trial court’s findings on

the other two grounds for termination, including the finding that he failed to

comply with the provisions of a court order that specifically established the

actions necessary for him to obtain the return of the children, who had been in

the permanent or temporary managing conservatorship of the Department for not

less than nine months as a result of their removal for abuse or neglect. See Tex.

Fam. Code Ann. § 161.001(b)(1)(O). Along with a best interest finding, a finding

of only one ground alleged under section 161.001(b)(1) is sufficient to support a

judgment of termination. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re

E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). We

therefore do not reach the merits of Father’s first four issues. See Tex. R. App.

P. 47.1; A.V., 113 S.W.3d at 362.

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II. Best interest

In his fifth and sixth issues, Father argues that the evidence is insufficient

to support the trial court’s best interest finding.

A. Presumption and the statutory and Holley factors

There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). We review

the entire record to determine the child’s best interest. In re E.C.R., 402 S.W.3d

239, 250 (Tex. 2013). The same evidence may be probative of both the

subsection (1) ground and best interest. Id. at 249; C.H., 89 S.W.3d at 28.

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)

(West 2014). The following factors should be considered in evaluating the

parent’s willingness and ability to provide the child with a safe environment:

(1) the child’s age and physical and mental vulnerabilities;

(2) the frequency and nature of out-of-home placements;

(3) the magnitude, frequency, and circumstances of the harm
to the child;

(4) whether the child has been the victim of repeated harm
after the initial report and intervention by the department;

(5) whether the child is fearful of living in or returning to the
child’s home;

(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members, or
others who have access to the child’s home;

8
 (7) 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;

(8) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home;

(9) whether the perpetrator of the harm to the child is
identified;

(10) 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;

(11) the willingness and ability of the child’s family to effect
positive environmental and personal changes within a reasonable
period of time;

(12) whether the child’s family demonstrates adequate
parenting skills, including providing the child and other children
under the family’s care with:

(A) minimally adequate health and nutritional care;

(B) care, nurturance, and appropriate discipline consistent with
the child’s physical and psychological development;

(C) guidance and supervision consistent with the child’s
safety;

(D) a safe physical home environment;

(E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and

(F) an understanding of the child’s needs and capabilities;
and

(13) whether an adequate social support system consisting of
an extended family and friends is available to the child.

Id. § 263.307(b); R.R., 209 S.W.3d at 116.

9
 Other, nonexclusive factors that the trier of fact in a termination case may

also use in determining the best interest of the child include

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the future;

(C) the emotional and physical danger to the child now and in the future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote the
best interest of the child;

(F) the plans for the child by these individuals or by the agency seeking
custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see

E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we

consider, among other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807.

These factors are not exhaustive; some listed factors may be inapplicable

to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of

just one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child. Id. On the other hand, the

presence of scant evidence relevant to each factor will not support such a

10
finding. Id. That is, “[a] lack of evidence does not constitute clear and convincing

evidence.” E.N.C., 384 S.W.3d at 808.

B. The evidence

1. The children’s age and vulnerabilities

At the time of trial, Sonny was four years old and Irene was eighteen

months’ old. See Tex. Fam. Code Ann. § 263.307(b)(1). Father was unsure of

Irene’s birthday because, as he said, “it’s not that I was watching—you know, in

her care.” Sonny had delayed speech problems. Haylee Long, the Department

conservatorship caseworker, testified, “When he first came into care, you couldn’t

understand anything he said.” Upon evaluation, these problems were attributed

to severe neglect prior to coming into foster care and had improved with speech

therapy. Sonny was on medications for the first few months after his removal for

his constipation issues. At the time of trial, Long described Irene as “a very

happy baby” who is “very advanced for her age.”

2. History of abusive or assaultive conduct and substance
abuse

Father “has a pattern of domestic violence.” See id. § 263.307(b)(7),

(12)(E). Long testified that the Department’s main concerns regarding Father

was his history of domestic violence and neglect and his lack of stability in

housing and employment. See id. § 263.307(b)(3).

In 2008, the Department became involved with Kayla and Mother due to

Kayla’s failure to thrive. Ultimately, the Department removed Kayla from Mother

11
because they were living with Father at the time and “an incident” occurred

between Mother and Father. See id. § 263.307(b)(2). Kayla was subsequently

returned to Mother after Mother completed services. The Department became

involved again in 2011. During that investigation, Kayla told the DFPS

investigator that Father was aggressive and that she was scared of him. See id.

§ 263.307(b)(5). Kayla described feeling dizzy after Father would give her soda

laced with alcohol. She also told DFPS investigators that Father would hit her

with a stick or twig.

Mother had stated in a previous investigation that Father was physically

violent and verbally aggressive towards her and Kayla. Mother said that Father

would hit Kayla with a twig. Mother indicated to Long that Father continued to be

physically abusive towards her during the case. Mother said that Father bit her in

2014, that she had bruises on her face, and that she had lost her job because

she did not go to work. She also claimed that Father sexually assaulted her in

March 2015.

Father was supposed to address his alcohol issues in his individual

counseling. See id. § 263.307(b)(8). Long testified, “[Kayla] would frequently

talk—she still frequently talks about how [Father] makes her uncomfortable

because he drinks and his friends drinks and he doesn’t like—she doesn’t like to

be around that. And [Mother] has also stated that he drinks a lot of alcohol.”

Long testified that Father has been involved with domestic violence with

his current girlfriend. Father was arrested in July 2014 for assault and bodily

12
injury, to which he pleaded guilty. He was on deferred adjudication at the time of

trial.

3. Father’s willingness and ability to seek out, accept, and
complete counseling services and to cooperate with and facilitate an
appropriate agency’s close supervision and to effect positive
environmental and personal changes within a reasonable period of
time

Father began counseling in April 2014, and stopped attending in June

2014. See id. § 263.307(b)(10). He began attending counseling again in

January 2015, four months before trial. Long testified that Father did not

successfully complete his counseling. Father’s second counselor, Bransha

Gardener, testified that Father had quit counseling in June 2014 because he had

gone to jail for domestic violence. Gardener said that Father’s goal was to

“achieve a level of effective parenting, to stop ineffective parenting.” She said

that Father did not meet that goal because “[h]e never put the kids first. He knew

of the condition the children were living in prior to [DFPS] getting involved, he

never stepped in to see about their well-being.” Gardener said that Father was

aware prior to the children being taken into care that Mother was “unstable” but

that when he had the children, Mother “would harass him, so he would just give

the kids back so he wouldn’t have to deal with her.” Gardener believed this was

not appropriate parenting and that Father was not doing enough to protect the

children. Gardener did not believe that more counselling sessions would

rehabilitate Father because he lacked commitment.

13
 Long sent Father to parenting classes at the same location as his

individual counseling where they would be free of charge. At one point, Father

asked for a different parenting class to accommodate his schedule and said he

knew of an online class, but he never provided Long with the information she

needed. Long testified that Father did not complete any parenting classes.

Father testified that he had completed seven out of eight parenting classes

before he was arrested and had to start over. He also said that his parenting

class was scheduled at the same time as another class. He acknowledged that a

year and a half was more than enough time to complete his services.

The Department gave Father a service plan and asked that he complete

individual counseling, parenting classes, and a batterer’s intervention and

prevention program; maintain stable housing and employment; and attend

visitation with his children. See id. § 263.307(b)(11). Long testified that Father

was not compliant with the service plan and that he had achieved none of the

goals set for him. Specifically, she said that Father had not completed his goals

of learning and applying realistic expectations for the age and developmental

capabilities of the children; managing income to meet the basic needs of the

family; demonstrating an acceptance of the responsibility of being a parent;

demonstrating an ability to provide basic necessities such as food, clothing,

shelter, medical care, and supervision for the children; and demonstrating the

ability to protect the children when they were not in his care. Long testified that

she believed that given more time, Father would still not reach any of the goals.

14
 Father completed his batterer’s intervention and prevention program the

week before trial. He testified that he had learned a lot from his classes and that

he had changed and had learned to communicate. However, Long testified that

she did not believe that Father’s issues regarding family violence and domestic

abuse have been resolved and that Father had not demonstrated an attitude or

behavior that his problems with violence were no longer an issue.

Father only attended seven visitations during the eighteen months that the

case was pending. For the first six visits, Father ignored Irene. Long said,

“[Father] did not acknowledge her presence. He didn’t look at her. He didn’t hold

her. He didn’t talk to her. Nothing.” Father never sent any gifts or cards to the

children. Long testified that it was important that parents attend visitation

because it shows commitment to the children. Long explained that there was no

bond between Father and his children due to this lack of commitment and that if

he did not show commitment while under court order, there was no chance he

would do so when he was not supervised. She said,

I think it’s important for children to know who their parents
are and to know that they’re loved and that they’re valued
enough for their parent to visit them. And if not visit them, at
least call to check on them, to call to see how they’re doing,
to show some sort of interest in how their life is going.

I think that a bond is extremely important with children for their
development. They’re—children who are bonded to their parents,
who have a relationship with their parents do better in school and
they just do better in life because they feel valued.

15
 Father told the Department that he was a truck driver, but he never

provided proof of employment. He also told the trial court that he did not realize

how serious it was that he was not attending visitation. When asked why he

stopped visiting the children, he said,

My son asked me a question, like he wanted to know why he
couldn’t come with me. I didn’t have no answer. ‘Cause back then
I didn’t have a job. I had not completed the program.

You know, she asked—he asked me a question which, you
know, as a real father, I could have had an answer, but I didn’t have
an answer that day. And that really got into me to the point that I
felt like, you know, I’m hurting them more visiting them like this and
just leaving them. But that was the wrong thing. The wrong
decision.

4. Father’s parenting skills

Gardener described Father’s parenting style as “absentee parent.” See id.

§ 263.307(b)(12). She said that Father would only “step in when someone

force[d] him to.” She described Father as “unstable” and said, “Even when he

got a job and even talking about the future, it was always someone else was

going to watch the kids compared to him.” The DFPS investigator testified that

Father would call Kayla names like “ugly.” See id. § 263.307(b)(12)(B).

Gardener and Long both testified that they did not believe that Father had

demonstrated that he could provide a safe and healthy home for his children.

See id. § 263.307(b)(12)(D). Father did not have stable housing until about two

weeks before trial. He told DFPS that he was living with “his girlfriend or a friend

or a cousin” but would not provide an address. In February 2015, he gave Long

16
an address where he said he was living. Long went to the address, and the man

who answered the door said that Father did not live there.

Father’s name was not on the lease at his current residence. Long was

concerned that Father was not on the lease because she did not “really know

that he [was] living there, and he could [have left] at any time,” once again

demonstrating a lack of commitment. Long testified that Father was living with

other people and she had not been able to do background checks on them. She

said the room appeared large enough and safe for the children, but there was no

furniture in Father’s bedroom or in the room in which he said the children would

sleep.

5. Father’s support system

Father testified that his family had been providing him support. See id.

§ 263.307(b)(13). Father said that his cousin had helped find housing for him

and the children and that he had watched Sonny when Father had to leave for

work. When asked who would watch the children while Father was at work, he

said that he would “strongly consider” finding another job that would give him

more time at home.

Father has two older children who live in Kenya with his parents. Father

told Long that “sometimes he sends money.” Father believed that he is providing

good parenting to his children. See Holley, 544 S.W.2d at 371–72.

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 6. The children’s current placement

At the time of trial, the children were currently living together in a foster

home, where Sonny and Irene had been since they were removed in 2013.

Sonny had been in speech therapy since his removal, and Long reported that he

had made “a lot of improvements.”

Long asked Father for the names of any family members with whom he

wanted the children placed, but he never gave Long contact information. She

testified,

[Father] originally said that he would like for his cousin in
Houston to take the children. I asked numerous times for his phone
number, his address, any way for me to get in contact with him. He
continuously said[,] “I’ll get it to you. I’ll get it to you.” He wouldn’t
even provide me with a name. He said he wanted to talk to him
first.

He later came and said that he wanted us to look at his
parents, his mother and father who live in Kenya. He provided us
with their information. A person in my office who actually speaks
Swahili, which is what [Father]’s mother speaks, contacted her.
She said that her and her husband were willing to come to the
United States and care for the children, and they were just waiting
on [Father] to set up an appointment with them at the embassy. To
my knowledge, [Father] has not done that.

There have been maybe one or two—there was one other
relative. I believe it was a grandfather. Mr. O[.], I believe, is his
name—who [Father] asked that we look into. He did not want to
provide me with his information. He said that he wanted to talk to
him first with [Mother] present, and that they would all talk together.
I followed up several times, saying[,] “Have you done this? If not,
just give me his phone number. I can contact him and talk to him.”
He did not do it.

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 7. Father’s other acts and omissions

When Mother found out she was pregnant with Irene, Father gave her

$500 to have an abortion. When Mother refused, Father “wanted nothing to do

with the baby because he told her to have an abortion.” Long also testified that

Father admitted in open court that he did not want to have a relationship with

Irene and that he did not want to get paternity testing. Long said that Father did

not attempt to establish a relationship with Irene until August 2014, about nine

months after the children were removed.

Father told the trial court that he had not visited the children because he

“hated the kid,” referring to Irene. He said that he had accepted Sonny as his

child without a DNA test but that he was “told to do the DNA for the other kid”

(again referring to Irene) because he did not believe that he was her father. He

said that once he accepted that he was her father he “felt so happy.”

Long testified that there was no bond between Father and the children and

that the children did not indicate that they missed Father. Gardener also testified

to the lack of bond between Father and the children. Sonny did not express a

desire to see Father, and Long testified that Sonny “might know [Father] if he

saw him, possibly.” Long said, “That is concerning because there is—there is no

bond there. [Father] has shown no commitment to his children—that he’s willing

to provide for them financially, emotionally. And if he’s not willing to do that, I

don’t—I don’t believe that they would be cared for by him.”

19
 Long testified that she was not impressed that Father had recently been

making progress. She did not believe that Father could provide a safe home or

that his parenting had improved, and she stated that reunification with his

children would be endangering to them. The trial court asked Long for “the

number one reason why [Father’s rights] need[] to be terminated.” Long

responded,

I believe that [Father] has had every opportunity to show his
commitment to his children, that he’s committed to caring for them,
showing them the love that they need—not only the love, but being
able to provide for them at all—and he has not even accepted
responsibility for any of the domestic violence; he has not accepted
responsibility for not attending visitation; he has not accepted
responsibility for even being a parent to these children.

THE COURT: Okay. The fact that he’s contesting this, does
that have any impact on your opinion?

[LONG]: No.

THE COURT: Why?

[LONG]: Because from my conversations with [Father], I
believe that this is about him winning.

THE COURT: Winning what?

[LONG]: Just winning this case. I don’t think it really has to
do with his children at all.

THE COURT: Why do you know—why do you believe that?
That’s an interesting—you think he wants to win but it has nothing to
do with his children. Help me understand what you mean.

[LONG]: I believe he dislikes the children’s mother very, very
much, and he wants to show her that he can win.

20
 THE COURT: Well, divorced people sometimes don’t like
each other. What makes this case different?

[LONG]: All I know is that in every conversation I’ve ever had
with [Father], everything surrounds [Mother] rather than the children.

The DFPS investigator also testified that he did not believe that Father

would be an appropriate placement for the children. Gardener testified that

Father did not prioritize the children and that “[e]verthing came before the kids.”

She did not believe that Father had taken any responsibility for the children

coming into DFPS’s care, including denying that he had been involved with

domestic violence. She did not recommend that Father be reunified with his

children because she did not think that they were bonded and that Father would

be a committed parent. When asked if there was “anything that was revealed

during counseling that [gave her] an indication that he might have a glimmer of

hope of taking responsibility and being a good parent,” she answered no.

Father acknowledged that Mother had been neglectful and that she was

having problems with the children, but he denied knowing that she was leaving

the children alone for long periods of time. Father also denied ever physically

hurting Mother. He testified that he allowed the children to remain with Mother

because he thought she had changed after the last case she had with DFPS.

When asked if Mother would be a problem in the future, he said, “I know she will

if I get the kids.” When asked if he believed he could protect them from Mother,

he said, “I will make sure.”

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 C. Analysis

Father had a history of domestic violence, directed both at his partners and

the children. He was on deferred adjudication community supervision for assault

and bodily injury, which incident occurred during the pendency of this case.

See In re S.M.L., 171 S.W.3d 472, 480 (Tex. App.—Houston [14th Dist.] 2005,

no pet.) (stating that the father’s incarceration and pattern of criminal and violent

conduct made it likely that he would face incarceration again in the future).

Father also had problems with alcohol abuse. Father did not address any of his

issues through counseling or other services, and he failed to complete his service

plan. See In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no

pet.) (“A parent’s drug use, inability to provide a stable home, and failure to

comply with [a] family service plan support a finding that termination is in the best

interest of the child.”).

The evidence showed that Father was aware that Mother was not

providing a safe and stable home for the children, but Father allowed the children

to remain with her because he did not want to deal with Mother. At the time of

removal, Sonny had delayed speech problems and life-threatening, long-term

constipation. Father was not bonded with the children and had only attended

seven visitations in over a year and a half. See In re J.L.R., No. 11-05-00094-

CV, 2006 WL 728069, at *2 (Tex. App.—Eastland Mar. 23, 2006, no pet.) (mem.

op.) (holding evidence legally and factually sufficient to support best interest

finding when father had limited contact with child). He repeatedly referred to

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Irene as “the kid” and had admitted in open court that he did not want to have a

relationship with her.

A factfinder may infer from past conduct endangering the well-being of the

child that similar conduct will recur if the child is returned to the parent. In re

M.M., No. 02-08-00029-CV, 2008 WL 5195353, at *6 (Tex. App.—Fort Worth

Dec. 11, 2008, no pet.) (mem. op.); see also Smith v. Tex. Dep’t of Protective &

Regulatory Servs., 160 S.W.3d 673, 681 (Tex. App.—Austin 2005, no pet.) (“[I]n

considering the best interest of the child, evidence of a recent turn-around in

behavior by the parent does not totally offset evidence of a pattern of instability

and harmful behavior in the past.”). The trial court was free to believe that Father

would continue in his pattern of abuse and absenteeism, especially in light of the

evidence that Father had not addressed any of the Department’s concerns.

Viewing all of the evidence in the light most favorable to the best-interest

finding and considering the statutory and Holley factors, we hold that the trial

court could have reasonably formed a firm conviction or belief that termination of

the parent-child relationship between Father and Sonny and between Father and

Irene was in the children’s best interest, and we therefore hold the evidence

legally sufficient to support the jury’s best-interest finding. See Tex. Fam. Code

Ann. § 161.001(2); Jordan v. Dossey, 325 S.W.3d 700, 733 (Tex. App.—Houston

[1st Dist.] 2011, pet. ref’d) (holding evidence legally sufficient to support finding

that termination of mother’s parental rights was in child’s best interest when most

of the best interest factors weighed in favor of termination). Similarly, reviewing

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all the evidence with appropriate deference to the factfinder, we hold that the jury

could have reasonably formed a firm conviction or belief that termination of the

parent-child relationship between Father and Sonny and between Father and

Irene was in the children’s best interest, and we therefore hold that the evidence

is factually sufficient to support the trial court’s best-interest findings. See Tex.

Fam. Code Ann. § 161.001(2). We therefore overrule Father’s fifth and sixth

issues.

Conclusion

Having overruled Father’s fifth and sixth issues and having not reached the

merits of Father’s first through fourth issues, we affirm the trial court’s judgment.

/s/ Lee Gabriel

LEE GABRIEL
JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DELIVERED: October 15, 2015

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