COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-18-00034-CV
IN THE INTEREST OF J.B.,
A CHILD
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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
TRIAL COURT NO. CV16-00427
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MEMORANDUM OPINION 1
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After a jury trial, the trial court terminated appellant D.L.M.’s parental rights
to his 18-month-old son, J.B. 2 On appeal, D.L.M. raises five issues. In his first
three, he attacks three grounds for termination. See Tex. Fam. Code Ann.
1
See Tex. R. App. P. 47.4.
2
We use initials to refer to various individuals associated with this appeal.
See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2017); Tex. R. App. P.
9.8(b)(2).
§ 161.001(b)(1) (West Supp. 2017). In his fourth, he attacks the best-interest
finding. See Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2017). And in his
fifth, he asserts that the trial court erred by admitting his criminal history into
evidence. We affirm.
Termination Generally
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 Tex. Fam. Code Ann. § 161.001(b), § 161.206(a) (West 2014);
E.N.C., 384 S.W.3d at 802. 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.
2
2002); see also 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 under family code section
161.001(b)(2). Tex. Fam. Code Ann. § 161.001(b); 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 factfinder. 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.).
Background
When born, J.B. exhibited withdrawal symptoms, and after testing, J.B.’s
meconium came back positive for both methamphetamine and amphetamine.
Due to feeding problems, J.B. remained in the hospital for about two weeks, after
which the Texas Department of Family and Protective Services placed him in
foster care.
J.B.’s mother later relinquished her parental rights.
3
DNA testing determined that D.L.M. was J.B.’s father. At the time these
proceedings took place, D.L.M. was incarcerated and serving a ten-year
sentence for unlawful possession of a firearm by a felon.
The jury here found and the judgment reflects that D.L.M.’s parental rights
were terminated based on three grounds plus the requisite best-interest finding:
• D.L.M. had “engaged in conduct or knowingly placed [J.B.] with
persons who [had] engaged in conduct [that] endanger[ed] [J.B.’s]
physical or emotional well-being . . . ,” see Tex. Fam. Code Ann.
§ 161.001(b)(1)(E);
• D.L.M. had “constructively abandoned [J.B.] who ha[d] been in the
permanent or temporary managing conservatorship of the
Department of Family and Protective Services for not less than six
months,” and that “(i) the department ha[d] made reasonable efforts
to return [J.B.] to [D.L.M.]; (ii) [D.L.M.] ha[d] not regularly visited or
maintained significant contact with [J.B.]; and (iii) [D.L.M.] ha[d]
demonstrated an inability to provide [J.B.] with a safe environment,”
see id. § 161.001(b)(1)(N); and
• D.L.M. had “knowingly engaged in criminal conduct that ha[d]
resulted in” his “(i) conviction of an offense; and (ii) confinement or
imprisonment and inability to care for [J.B.] for not less than two
years from the date of filing the petition.” See id. § 161.001(b)(1)(Q).
• The jury also found “that termination [was] in [J.B.’s] best interest
. . . .” See id. § 161.001(b)(2).
Grounds Discussion—D.L.M.’s First Three Issues
In the first three issues in D.L.M.’s brief, he asserts that the evidence is
legally and factually insufficient to support grounds under subsections (E)
4
(endangering conduct), (N) (constructive abandonment), and (Q) (criminal
conduct resulting in inability to care for child due to confinement). 3
I. Standard of Review
A. 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 Department proved both the
particular ground for termination and the child’s best interest. 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, and we resolve any disputed facts in favor
of the finding if a reasonable factfinder could have done so. Id. We also must
disregard all evidence that a reasonable factfinder could have disbelieved, in
3
Under his first issue in his brief, D.L.M. refers to grounds under section
161.001(b)(1)(D) (endangering conditions or surroundings)—a ground on which
the termination decree is not based—instead of grounds under subsection (E)
(endangering conduct). See Tex. Fam. Code Ann. § 161.001(b)(1)(D). Within his
discussion, however, he also refers to the allegation that he “engaged in conduct”
that endangered the child’s physical or emotional well-being, which is language
found in subsection (E). But he mistakenly attributes that engaged-in-conduct
language to grounds under subsection (D) (endangering conditions or
surroundings). Elsewhere he argues that the Department failed to prove that he
engaged in a dangerous “course of conduct,” which is a phrase associated with
subsection (E). See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth
2003, no pet.). Finally, D.L.M.’s prayer tracks the language found in both
subsections (D) and (E). We construe his brief to attack grounds under
subsection (E) (endangering conduct). See Tex. R. App. P. 38.9 (“Briefing Rules
to Be Construed Liberally”). Otherwise, a failure to challenge all the grounds on
which a termination is based renders attacks on those grounds that are
contested moot. See In re S.L., 421 S.W.3d 34, 37 (Tex. App.—Waco 2013, no
pet.).
5
addition to considering undisputed 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. In doing our job, we cannot weigh witness-credibility
issues that depend on the witness’s appearance and demeanor because that is
the factfinder’s province. Id. 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.
B. Factual Sufficiency
We must perform “an exacting review of the entire record” in determining
whether the evidence is factually sufficient to support terminating 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 verdict 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 violated an alleged
ground and that termination was in the child’s best interest. Tex. Fam. Code Ann.
§ 161.001(b); In re C.H., 89 S.W.3d 17, 28 (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 in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
6
II. Discussion
D.L.M. confirmed that he was currently serving a ten-year sentence for
unlawful possession of a firearm. He was sentenced on March 9, 2017, with
about 14 months’ credit for time served. Trial in this termination proceeding was
in January 2018—ten months after his sentencing for unlawful possession. So at
the time of trial, he had served about two years of his sentence. D.L.M. testified
that he thought he would serve only a few more months before getting paroled.
His next parole hearing was in March or April 2018. But parole is inherently
speculative, and its possibility does not prevent a finding that the parent will
remain incarcerated for not less than two years from the date the Department
filed its petition—here, July 2016. See H.R.M., 209 S.W.3d at 108–09 (discussing
parole in the context of subsection (Q) grounds). In D.L.M.’s case, he admitted to
not having gotten paroled on his two earlier trips to the penitentiary—once on an
eight-year sentence and once on a two-year sentence.
Viewing the evidence in light most favorable to the verdict, we hold that the
evidence is such that a factfinder could reasonably form a firm belief or
conviction that D.L.M. had “knowingly engaged in criminal conduct that ha[d]
resulted in” his “(i) conviction of an offense; and (ii) confinement or imprisonment
and inability to care for [J.B.] for not less than two years from the date of filing the
petition” and is thus legally sufficient on the subsection (Q) grounds. See J.P.B.,
180 S.W.3d at 573; see also Tex. Fam. Code Ann. § 161.001(b)(1)(Q).
7
Furthermore, based on the entire record and giving due deference to the
factfinder’s findings, we also hold that a factfinder could reasonably form a firm
conviction or belief that D.L.M. had “knowingly engaged in criminal conduct that
ha[d] resulted in” his “(i) conviction of an offense; and (ii) confinement or
imprisonment and inability to care for [J.B.] for not less than two years from the
date of filing the petition” and that the evidence is therefore also factually
sufficient on subsection (Q) grounds. See H.R.M., 209 S.W.3d at 108; C.H.,
89 S.W.3d at 28; see also Tex. Fam. Code Ann. § 161.001(b)(1)(Q).
We overrule D.L.M.’s third issue.
For purposes of this appeal, we need not decide whether the evidence
supports the endangering-conduct and constructive-abandonment
findings.
When we find that sufficient evidence supports one of the alleged
predicate grounds for termination under section 161.001(b)(1), we need not
review the remaining predicate grounds. See In re A.V., 113 S.W.3d 355,
362 (Tex. 2003); In re S.K.A., 236 S.W.3d. 875, 900 (Tex. App.—Texarkana
2007), pet. denied, 260 S.W.3d 463 (Tex. 2008). Accordingly, we do not address
whether the evidence sufficed to support the grounds alleged either under
section 161.001(b)(1)(E) (endangering conduct) or under section
161.001(b)(1)(N) (constructive abandonment). For purposes of termination, one
ground is sufficient. See In re A.O., No. 02-09-00005-CV, 2009 WL 1815780, at
*6 (Tex. App.—Fort Worth June 25, 2009, no pet.) (mem. op.).
We overrule D.L.M.’s first and second issues. Tex. R. App. P. 47.1.
8
Best Interest—D.L.M.’s Fourth Issue
In D.L.M.’s fourth issue, he contends that the evidence is legally and
factually insufficient to support the trial court’s finding that termination was in
J.B.’s best interest.
I. Standard of Review—Best Interest
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
both of the grounds under section 161.001(b)(1) and of best interest under
section 161.001(b)(2). Id. at 249; C.H., 89 S.W.3d at 28. Nonexclusive factors
that the factfinder in a termination case may also use in determining the child’s
best interest include:
• the child’s desires;
• the child’s emotional and physical needs now and in the
future;
• the emotional and physical danger to the child now and in the
future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote
the child’s best interest;
• the plans for the child by these individuals or by the agency
seeking custody;
• the stability of the home or proposed placement;
9
• the parent’s acts or omissions which may indicate that the
existing parent-child relationship is not a proper one; and
• the parent’s excuse, if any, for the acts or omissions.
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, and some listed factors may not apply 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 child’s best interest. Id. On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding. Id.
II. Best-Interest Discussion
D.L.M. was 35 years old at the time of trial. Since his eighteenth birthday,
he had spent more time incarcerated than free. He admitted having multiple
previous convictions for unauthorized use of a motor vehicle, evading arrest, and
burglary of a habitation, as well as convictions for organized retail theft,
possession of marijuana, criminal mischief, unlawful possession of a firearm by a
felon, evading detention, cruelty to animals, and unlawful restraint. D.L.M. was
incarcerated at the time of trial, serving a ten-year sentence for unlawful
possession of a firearm.
D.L.M. had been incarcerated twice before. In 2013, he was sentenced to
two years for evading arrest in a vehicle, and before that, in 2005, he was
10
sentenced to eight years for burglary and for possession of a prohibited
weapon—a Molotov cocktail. 4 D.L.M. admitted that when he was released from
prison in 2012, he was in legal trouble again within four months. He also admitted
that when he was released in 2015, he was in trouble again within three months.
At trial in January 2018, D.L.M. claimed that his next parole-board meeting
was only months away—in March or April 2018—and that he thought he would
be released. He acknowledged that he had served all eight years of his eight-
year sentence from 2005 and both years of his two-year sentence from 2013.
The Department caseworker acknowledged that, other than being in jail,
D.L.M. had not endangered J.B.’s life.
D.L.M. denied knowing that J.B.’s mother was using drugs. He contended
that he did not know about her drug use until J.B. tested positive for
methamphetamines.
And not until December 2016, after DNA testing, did D.L.M. even know he
was J.B.’s father. D.L.M. had never met J.B. and had never sent any birthday
presents, letters, or pictures to J.B. Acknowledging that bonding occurs only by
being together, D.L.M. admitted that he and J.B. had not bonded.
4
D.L.M. mistakenly testified that he received a two-year sentence for theft
in 2012. He received a theft conviction in 2013 on the same date as his evading-
arrest-in-a-vehicle conviction. The offense dates for both convictions were in
2012.
11
D.L.M. had fathered two other children—daughters—one in California and
one in Gainesville. Both lived with their mothers. 5 Although D.L.M. did not pay
child support, he testified that he supported his children when he could, usually
by selling drugs. D.L.M. felt particularly motivated this time because J.B. was a
boy and carried his last name. 6
Once released from prison, D.L.M. planned to work on cars in a body
shop. D.L.M. had previously held a job only twice—once for six months at El
Fenix in 2012, and once for six months at Toby Keith’s, also in 2012. When he is
released from prison, D.L.M.’s fiancée said that he could live with her.
In the meantime, his grandmother and sister had agreed to help care for
J.B. The Department had conducted a home study on D.L.M.’s grandmother, but
the study’s results had not yet come back. 7 D.L.M.’s grandmother was 72 years
old and currently lived in a two-bedroom, one-bathroom house with five children.
D.L.M.’s sister spoke highly of his parenting ability. His grandmother
described D.L.M. as a “good boy” when around her, as having a good
relationship with his daughters, and as having the ability to be a good father.
5
D.L.M.’s sister testified that his daughter in Gainesville currently lived with
her.
6
J.B. did not carry D.L.M.’s last name. Nevertheless, the gist of D.L.M.’s
testimony was that the thought of having a son was particularly motivating.
7
D.L.M.’s grandmother testified but denied knowing anything about a home
study on her.
12
As for J.B., he was thriving in his foster home, which was the only home he
had ever known. The foster parents were very nurturing and hoped to adopt him.
J.B.’s foster (and prospective adoptive) mother testified, stating that she
stayed in contact with J.B.’s mother and that J.B. visited and did activities with his
half-siblings. If she were allowed to adopt J.B., the foster mother testified that she
would allow D.L.M.’s family to have contact with him. Expressing her belief that
D.L.M. had a right to get to know his son, she even extended that offer to D.L.M.,
provided they met at a neutral place in the beginning, at least until they got to
know him better. The foster mother testified that she offered J.B. certainty and
permanence.
A child’s need for permanence through the establishment of a stable,
permanent home is a paramount consideration in the best-interest determination.
In re. E.R.W., 528 S.W.3d 251, 267 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). Unlike the prospective adoptive family here—or presumably like any other
family with whom the Department might ultimately place J.B.—D.L.M. offered
only uncertainty. He might get paroled in March 2018 or, if his previous
incarcerations were any indication, he might not get paroled at all and thus not be
released until January 2026.
D.L.M. had not met J.B.’s emotional or physical needs in the past, and
because D.L.M. was in prison, his ability to meet those needs in the future was
altogether speculative. D.L.M.’s criminal history posed an emotional and physical
danger to J.B. should D.L.M. return to a life of crime; and although D.L.M.
13
assured the jury that he would change his ways, the jury was not required to
believe him. After all, despite his already having two daughters, D.L.M. had
engaged in criminal conduct, was convicted, and was given a lengthy prison
sentence. D.L.M.’s sister and grandmother might have thought highly of his
parenting skills, but his ability to parent at all was compromised by his
incarcerations.
Viewing the evidence in the light most favorable to the verdict, we hold that
a reasonable factfinder could have formed a firm belief or conviction that
termination was in J.B.’s best interest and thus that the evidence was legally
sufficient. See J.F.C., 96 S.W.3d at 266.
And when viewing the evidence equally, in light of the entire record and
while according due deference to the jury’s findings, we hold that a reasonable
factfinder could have reasonably formed a firm belief or conviction that the
termination was in J.B.’s best interest and, therefore, that the evidence is
factually sufficient as well. See id.; C.H., 89 S.W.3d at 26.
We overrule D.L.M.’s fourth issue.
Criminal History
In D.L.M.’s fifth issue, he argues that the trial court erred by allowing
evidence and testimony of his criminal history into evidence.
I. Standard of Review—Admission of Evidence
We review a trial court’s admission of challenged evidence for an abuse of
discretion. In re D.D., No. 02-17-00368-CV, 2018 WL 1630708, at *12 (Tex.
14
App.—Fort Worth Apr. 5, 2018, no pet. h.) (mem. op.) (citing Gharda USA, Inc. v.
Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015)). A trial court abuses its
discretion if it acts without reference to any guiding rules or principles—that is, if
it acts arbitrarily or unreasonably. Id. (citing Low v. Henry, 221 S.W.3d 609,
614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004)). We
must uphold the trial court’s evidentiary ruling if the record provides any
legitimate basis for it. Id. (citing Owens–Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35, 43 (Tex. 1998)).
Relevant evidence tends “to make a fact more or less probable than it
would be without the evidence” and is generally admissible. Tex. R. Evid. 401(a),
402; D.D., 2018 WL 1630708, at *12. But if the risk of unfair prejudice
substantially outweighs relevant evidence’s probative value, that evidence should
be excluded. See Tex. R. Evid. 403; D.D., 2018 WL 1630708, at *13. Rule
403 favors the admission of relevant evidence and presumes that relevant
evidence will be more probative than prejudicial. D.D., 2018 WL 1630708, at
*13 (citing Murray v. Tex. Dept. of Fam. & Protective Servs., 294 S.W.3d 360,
368 (Tex. App.—Austin 2009, no pet)). Excluding evidence under rule 403 is an
extraordinary remedy that must be done sparingly. Id. (citing Murray, 294 S.W.3d
at 368).
II. Discussion
To prove that a parent’s rights should be terminated, the Department must
prove both a subsection (1) ground and, under subsection (2), that termination is
15
in the child’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2); D.D.,
2018 WL 1630708, at *12.
Evidence of extensive criminal history is relevant when evaluating parental
abilities. In re L.M., No. 02-16-00127-CV, 2016 WL 5957030, at *15 (Tex. App.—
Fort Worth Oct. 13, 2016, pet. denied) (mem. op.); In re J.F., No. 02-08-00183-
CV, 2009 WL 806889, at *8 (Tex. App.—Fort Worth Mar. 26, 2009, pet. denied)
(mem. op.); see also In re S.B., 207 S.W.3d 877, 886 (Tex. App.—Fort Worth
2006, no pet.) (noting that parent’s poor judgment may be considered in
determining child’s best interest). Criminal history and incarceration adversely
affect the amount of contact between a parent and child and the parent’s ability
to provide financial and emotional support to the child. In re J.L.G., No. 06-16-
00087-CV, 2017 WL 1290895, at *5 (Tex. App.—Texarkana Apr. 6, 2017, no
pet.) (mem. op.). In D.L.M.’s case, his criminal history is directly relevant both to
his absence from J.B.’s life and to his failure to financially and emotionally
support him. In re C.W., No. 02-17-00025-CV, 2017 WL 2289115, at *7 (Tex.
App.—Fort Worth May 25, 2017, no pet.) (mem. op.). Even criminal conduct
before the child is born is relevant in evaluating the appropriateness of a parent’s
choices and lifestyle. Calderon v. Tex. Dept. of Fam. & Protective Servs., No. 03-
09-00257-CV, 2010 WL 2330372, at *2 n.3 (Tex. App.—Austin June 11, 2010, no
pet.) (mem. op.). D.L.M.’s extensive criminal history was thus directly relevant to
the best-interest determination. See Tex. R. Evid. 401.
16
And although the evidence was prejudicial, it was not unfairly prejudicial.
“[T]estimony is not inadmissible on the sole ground that it is ‘prejudicial’ because
in our adversarial system, much of a proponent’s evidence is legitimately
intended to wound the opponent.” Bay Area Healthcare Group, Ltd. v. McShane,
239 S.W.3d 231, 234 (Tex. 2007). “The fact that evidence has some prejudicial
effect is insufficient to warrant its exclusion. To be excluded, evidence must not
only create a danger of unfair prejudice, but that danger must substantially
outweigh its relevance.” In re T.E., No. 06-11-00048-CV, 2011 WL 5865712, at
*7 (Tex. App.—Texarkana Nov. 23, 2011, no pet.) (mem. op.) (internal citations
omitted); see Tex. R. Evid. 403. Here, D.L.M.’s criminal history was undoubtedly
prejudicial but not unfairly so, as it showed a long pattern of unlawful, dangerous
behavior that resulted in his repeated incarceration and bore on whether the
factfinder could trust D.L.M. to responsibly and capably raise J.B. to adulthood.
We overrule D.L.M.’s fifth issue.
Conclusion
Having overruled each of D.L.M.’s issues, we affirm the trial court’s
judgment.
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE
PANEL: SUDDERTH, C.J.; KERR and BIRDWELL, JJ.
DELIVERED: July 5, 2018
17