Affirmed and Memorandum Opinion filed October 12, 2023.
In The
Fourteenth Court of Appeals
NO. 14-23-00377-CV
IN THE INTEREST OF K.M.H., A CHILD
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 2019-46295
MEMORANDUM OPINION
In this appeal from a judgment terminating the parent-child relationship, the
Father argues that the evidence is insufficient to support the trial court’s various
predicate findings, as well as the trial court’s other finding that termination is in the
Child’s best interest. Because we conclude that the evidence is sufficient to support
at least one predicate finding and the best-interest finding, we overrule the Father’s
arguments and affirm the trial court’s judgment.
BACKGROUND
The Child, a girl, was born with a congenital heart defect. Surgical operations
were performed at an early age, including a heart transplant at the age of four.
Following the transplant, the Child was required to receive a complicated regimen
of antirejection medication, which the Mother neglected to administer. Because of
that neglect, the Child was readmitted to the hospital less than three months after the
transplant.
During that hospitalization, the Department received two separate referrals.
The first was for medical neglect, which stemmed from the Mother’s failure to
administer the Child’s antirejection medication. And the second was for suspected
sexual abuse, which stemmed from the Child’s display of sexual behavior and her
use of vulgar language.
The Department investigated the allegations, but the Department ultimately
allowed the Child to be discharged from the hospital and returned to the Mother.
Upon the Child’s discharge, the Mother neglected to administer the Child’s
antirejection medication for a second time, and the Child was readmitted to the
hospital again.
During that latter hospitalization, the Child told her medical team that the
Mother’s boyfriend had touched her in an inappropriate sexual manner. This time,
the Department removed the Child from the Mother’s care and petitioned to
terminate the Mother’s parental rights. After a delay in identifying the Father, who
had been incarcerated since the Child was nearly two months old, the Department
also petitioned to terminate the Father’s parental rights.
The Mother voluntarily relinquished her parental rights, but the Father
contested the termination in a lengthy trial that spanned more than one year. At its
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conclusion, the trial court signed a decree of termination finding that the Department
had proven predicate grounds (D), (E), (O), and (Q), and that termination of the
Father’s parental rights was in the Child’s best interest. See Tex. Fam. Code
§ 161.001(b)(1)(D) (endangerment by environment); Tex. Fam. Code
§ 161.001(b)(1)(E) (endangerment by conduct); Tex. Fam. Code § 161.001(b)(1)(O)
(failure to comply with family service plan); Tex. Fam. Code § 161.001(b)(1)(Q)
(criminal conduct that resulted in imprisonment).
The Father now appeals from that judgment.
THE PREDICATE FINDING
To terminate the parent-child relationship, the trial court must make two
findings. See In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). First, the trial court must
find that a predicate ground for termination has been satisfied, which typically
requires proof by clear and convincing evidence that a parent has either committed
a prohibited act or has failed to perform a required act. See Tex. Fam. Code
§ 161.001(b)(1). If the trial court finds such a predicate ground for termination, the
trial court must then find by clear and convincing evidence that termination is in the
child’s best interest. See Tex. Fam. Code § 161.001(b)(2).
The trial court here found four predicate grounds for termination: grounds (D),
(E), (O), and (Q). And on appeal, the Father argues that the evidence is legally and
factually insufficient to support each of these predicate findings.
We must affirm the trial court’s judgment if, in addition to upholding a
challenged best-interest finding, the evidence is sufficient to support just a single
predicate ground for termination. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)
(“Only one predicate finding under section 161.001(1) is necessary to support a
judgment of termination when there is also a finding that a termination is in the
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child’s best interest.”). But when there are appellate challenges to predicate grounds
(D) and (E), as there are here, we must consider whether the evidence is sufficient
to support either of those findings first. See In re N.G., 577 S.W.3d 230, 235 (Tex.
2019) (per curiam) (explaining that due process requires a consideration of predicate
grounds (D) and (E) because those grounds can have significant collateral
consequences for parents in future termination proceedings involving different
children).
We begin with the Father’s appellate challenge to the trial court’s finding
under predicate ground (E).
To support a finding under predicate ground (E), the Department had the
burden of showing that the Father has “engaged in conduct . . . which endangers the
physical or emotional well-being of the child.” See Tex. Fam. Code
§ 161.001(b)(1)(E). The Department was also required to carry this burden by clear
and convincing evidence, which is greater than the simple preponderance standard
that applies more commonly in civil cases. See Tex. Fam. Code § 161.001(b)(2).
Under the standard for clear and convincing evidence, the measure or degree of proof
must produce in the mind of the trier of fact a firm belief or conviction that the
allegation sought to be established is true. See Tex. Fam. Code § 101.007. This
heightened burden of proof results in a “correspondingly searching standard of
appellate review.” See In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).
When reviewing the legal sufficiency of the evidence in a parental termination
case, we consider all of the evidence in the light most favorable to the finding to
determine whether a reasonable factfinder could have formed a firm belief or
conviction that its finding was true. See In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002). We assume that the factfinder resolved disputed facts in favor of its finding
if a reasonable factfinder could have done so, and we disregard all evidence that a
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reasonable factfinder could have disbelieved. Id. This standard does not mean that
we disregard all evidence that does not support the finding. Id. When deciding
whether the finding is supported by clear and convincing evidence, we must also
consider undisputed evidence contrary to the finding. Id.
In a factual-sufficiency review, we give due consideration to both the disputed
evidence contrary to the finding as well as all of the evidence favoring the finding.
Id. The evidence is factually insufficient 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. Id.
The Department’s evidence of endangerment focused on the Father’s history
of incarceration. Standing alone, a parent’s mere incarceration will not satisfy the
predicate ground for endangerment, but if the evidence as a whole—including the
incarceration—shows a course of conduct that has the effect of endangering the
physical or emotional well-being of a child, then a finding under the predicate
ground is supportable. See Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,
533 (Tex. 1987). And here, the Department produced evidence that the Father has
engaged in a course of repeated criminal conduct, which involved offenses of
escalating severity and which resulted in multiple incarcerations.
This evidence began with a misdemeanor charge for possession of marijuana,
which occurred when the Father was eighteen years old. The Father pleaded guilty
to that charge, and the trial court deferred an adjudication of guilt. When the Father
later violated the terms of his community supervision, the trial court adjudicated the
Father’s guilt and sentenced him to twenty days’ confinement in the county jail.
About a year after his release, when he was nineteen years old, the Father was
charged with threatening to kill his own father. The Father pleaded guilty to a
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misdemeanor charge of making a terroristic threat, and he was sentenced to forty-
five days’ confinement in the county jail.
Following that release, when he was twenty years old, the Father was arrested
on federal charges for aiding and abetting an armed bank robbery, and for
brandishing a firearm in furtherance of that robbery. The Father pleaded guilty to
both of those felony charges, and he was sentenced to consecutive terms totaling
more than ten years’ imprisonment. He was also ordered to pay more than $200,000
in restitution.
None of these offenses was directed specifically at the Child, but the predicate
ground for endangerment does not require that the parent’s conduct be so directed,
or that a child actually suffer injury. See In re J.W., 645 S.W.3d 726, 748 (Tex.
2022). Rather, endangerment can be inferred from the parent’s misconduct alone,
and misconduct that subjects a child to a life of uncertainty and instability endangers
the child’s physical and emotional well-being. See In re V.A., 598 S.W.3d 317, 331
(Tex. App.—Houston [14th Dist.] 2020, pet. denied).
Of the offenses mentioned above, only the felony crimes were committed after
the Child was born, but a court may consider actions and inactions occurring both
before and after a child’s birth when assessing whether a parent has engaged in
conduct that endangers a child’s well-being. See In re C.A.B., 289 S.W.3d 874, 883
(Tex. App.—Houston [14th Dist.] 2009, no pet.). The evidence here established that
the Father engaged in such conduct—both before and after the Child’s birth—and
that this conduct has resulted in multiple incarcerations. Also, this evidence
established that the Father has been incarcerated for nearly all of his adult life, and
for nearly all of the Child’s life. The trial court could have reasonably concluded that
this course of criminal conduct and its resulting incarcerations endangered the
Child’s well-being by subjecting her to a life of uncertainty and instability. See In re
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J.J.L., 578 S.W.3d 601, 612 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
(“Routinely subjecting a child to the probability [she] will be left alone because [her]
parent is in jail endangers the child’s physical and emotional well-being.”).
During the trial, the Father did not dispute any of the evidence regarding his
criminal convictions. On appeal, however, the Father has suggested that his
involvement in the armed bank robbery “may have been indirect” because the facts
of that case were never developed and because the record merely showed that he
pleaded guilty to “aiding and abetting” the robbery. There is no evidentiary support
for the suggestion that the Father’s involvement was “indirect.” The record actually
shows more than the Father suggests—namely, that he pleaded guilty to a separate
count of brandishing a firearm in furtherance of the robbery, which is a crime of
violence. Also, and more importantly, the record conclusively established that the
Father was incarcerated and could not provide for the Child, thereby endangering
her physical and emotional well-being.
The Father’s appellate argument focuses largely on the Mother. He
emphasizes that the Mother endangered the Child by engaging in illegal drug use,
by neglecting to administer the Child’s medications, and by allowing the Child to be
sexually abused by her boyfriend. The Father then argues that these actions and
inactions cannot be imputed to him because there was no evidence that he ever had
knowledge of them. This argument is legally correct—the Mother’s misconduct
cannot be imputed to the Father—but that does not change our analysis that the
Father’s own course of conduct provides an independent basis for the trial court’s
endangerment finding. See Tex. Fam. Code § 161.001(b)(1)(E) (requiring
knowledge when the predicate finding is based on the endangering conduct of
others).
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The Father also suggests that there is insufficient evidence to support the trial
court’s finding because, after learning of the Mother’s endangering conduct, he took
protective action by suggesting the names of caregivers who could foster the Child.
But this evidence does not controvert the other evidence that the Father’s own course
of criminal conduct endangered the Child’s well-being by subjecting her to a life of
uncertainty and instability.
Considered in the light most favorable to the judgment, the evidence is legally
sufficient to support the trial court’s finding that the Father has engaged in conduct
that endangers the Child’s physical or emotional well-being. Further, in view of the
entire record, we conclude that any disputed evidence is not so significant as to
prevent the trial court from forming a firm belief or conviction that termination was
warranted because of the Father’s endangerment. Accordingly, we conclude that the
evidence is legally and factually sufficient to support the trial court’s finding under
predicate ground (E). See In re Z.N.M., No. 14-17-00650-CV, 2018 WL 358480, at
*6 (Tex. App.—Houston [14th Dist.] Jan. 11, 2018, no pet.) (mem. op.) (“The record
establishes Father’s illegal drug use, his harmful and irresponsible choices leading
to repeated imprisonment, his lack of parenting until the Department located him,
and a child left in the Department’s care because Father was in jail. In terminating
Father’s parental rights, the trial court reasonably credited the evidence of the
parenting void in Zoe’s life and Father’s inability to safeguard her physical and
emotional well-being.”).
This conclusion likewise means that we need not consider the Father’s
remaining arguments that the evidence is legally and factually insufficient to support
the trial court’s other findings under predicate grounds (D), (O), and (Q). See Tex.
R. App. P. 47.1; In re P.W., 579 S.W.3d 713, 728 (Tex. App.—Houston [14th Dist.]
2019, no pet.).
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THE BEST-INTEREST FINDING
We now consider whether the evidence is legally and factually sufficient to
support the trial court’s other finding that termination of the Father’s parental rights
was in the Child’s best interest.
No specific set of facts is required to establish that termination is in the best
interests of a child, but there are several nonexclusive factors that may guide the
factfinder’s best-interest determination. See In re L.M., 572 S.W.3d 823, 837 (Tex.
App.—Houston [14th Dist.] 2019, no pet.). These factors include (1) the desires of
the child; (2) the child’s emotional and physical needs; (3) the emotional and
physical danger to the child now and in the future; (4) the parental abilities of the
individuals seeking custody; (5) the programs available to assist those persons
seeking custody in promoting the best interest of the child; (6) the plans for the child
by the individuals or agency seeking custody; (7) the stability of the home or
proposed placement; (8) any acts or omissions of the parent that may indicate the
existing parent-child relationship is not appropriate; and (9) any excuse for the
parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976); In re E.R.W., 528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017,
no pet.); see also Tex. Fam. Code § 263.307(b) (listing factors to consider in
evaluating a parent’s willingness and ability to provide the child with a safe
environment).
The Child’s Desires. The trial began shortly before the Child’s seventh
birthday, and it ended after her eighth birthday. The Child never testified at any point
during the trial, but there was evidence that she told several witnesses, including the
Father, that she would prefer to live with her current placement—not the Father. This
factor supports the trial court’s best-interest finding.
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The Child’s Needs. The Child was born with a congenital heart defect, and
she received a heart transplant at the age of four. Because of that transplant, the Child
must take medications to suppress her immune system, which would otherwise reject
the donated organ.
The Caregiver, who was described at trial as the Father’s “godsister,” has
received training for all of the Child’s medical needs. That training has also been
given to the Caregiver’s Mother, who was described as the Father’s godmother and
who had helped raise the Father as a child. Due to his incarceration, the Father has
not received the same training, nor is he familiar with the Child’s medical team.
There was also evidence that the Father failed to comprehend the seriousness
of the Child’s medical needs. That evidence took the form of phone calls, in which
the Father pleaded with the Caregiver’s Mother to not assist the Department in
terminating his parental rights. The Father expressed a preference for the Caregiver
to return the Child to foster care so that he might be able to exercise his parental
rights once he was released from prison. But there was testimony from medical
professionals that if the Child were in foster care—as the Father had desired—and
if the Child were ever to need to a new heart, then the Child might not receive priority
on the transplant list because of her unstable housing situation. The trial court could
have reasonably factored this consideration in its best-interest finding.
In addition to her medical needs, the Child also has mental health needs,
stemming from the sexual abuse she experienced at the hands of the Mother’s
boyfriend. The Caregiver has taken the Child to therapy to address these needs. One
doctor opined that the Caregiver has been cooperative on the issue of therapy and
that the Caregiver has the ability to identify situations in which the Child needs more
therapy. By contrast, when the Department’s caseworker addressed the well-being
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of the Child over the phone with the Father, he tended to focus more on his own
plans once he was released from prison.
Dangers to the Child. The Father’s criminal history is evidence of
endangerment because, as explained above, his repeated incarcerations have
subjected the Child to a life of uncertainty and instability.
The Father was incarcerated first for possession of marijuana. Not long after
his release, the Father threatened to kill a family member, for which he was
incarcerated again.
After his release from that second incarceration, the Father began living with
a girlfriend, who gave birth to the Father’s son (who is not a subject of this
termination proceeding). The Father then conceived the Child with the Mother, as
well as a second son with his girlfriend (who is not a subject of this termination
proceeding either). Shortly after the birth of the Child, but before the birth of his
second son, the Father was involved in an armed bank robbery, for which he was
arrested and incarcerated for the third time. During this termination proceeding, the
Father was still incarcerated for his involvement in that robbery. He is projected to
be released in November 2023, although there was some testimony that he might be
released sooner.
There was no direct evidence that the Father knew that the Child had been
born at the time of the armed bank robbery. However, the Father could have foreseen
that a child would have been born. The Father also knew that he already had a son
with his girlfriend, and that another child by her was expected, and yet the Father
still knowingly participated in an armed bank robbery, which has subjected all of his
children to a life of uncertainty and instability.
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The trial court could have reasonably considered the Father’s past criminal
history and inferred that it would continue in the future and that the best interest of
the Child would be served by terminating the Father’s parental rights. See In re J.D.,
436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“A fact
finder may infer from a parent’s past inability to meet a child’s physical and
emotional needs an inability or unwillingness to meet a child’s needs in the future.”).
Parenting Abilities. There was some evidence that the Father parented his
first son for several months. However, the Father then participated in an armed bank
robbery, which resulted in his incarceration. The Father has not parented the Child
at all, nor his second son by his girlfriend.
There was some dispute as to when the Father first learned that the Child had
been born. The Department presented evidence that the Father learned of the Child’s
existence when she was several months old, but the Father testified that he did not
know of the Child’s existence until the Child was at least three years old. In both of
these competing versions, the evidence suggested that the Father was informed of
the Child’s birth when he was in prison, and then only of the possibility that the
Child was his. Nevertheless, there was no evidence that the Father took any actions
to confirm his paternity or to protect the Child until after the Department had
removed the Child from the Mother.
The Father has participated in a parenting class during his incarceration. The
Father also revealed that when he was in high school, he worked at a daycare
managed by the Caregiver’s Mother, supervising after-school-age children. But the
Father left that job when he stopped living with the Caregiver’s Mother.
There was no indication that the Caregiver has parented any children of her
own, but the Caregiver plans to adopt the Child and raise her alongside the
Caregiver’s Mother. By the end of the trial, the Caregiver and the Caregiver’s
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Mother had cared for the Child for more than two years. And according to the
Department’s caseworker, the Child was thriving under their care.
Programs. There was no mention of any programs available to the Father to
specifically assist him in caring for the Child and promoting her best interests.
Plans. The Caregiver hopes to adopt the Child, and she testified that she
would allow the Father to have appropriate contact with the Child after his release
from prison. Even before the Father’s release, the Caregiver has allowed the Child
to have contact with her half-siblings, and with her paternal and maternal
grandparents.
The Father testified that he is not specifically seeking custody of the Child,
but he does not want his parental rights to be terminated. However, the Caregiver
could not adopt the Child and provide permanency in the Child’s life unless the
Father’s rights were terminated.
The Department’s caseworker testified that when she privately communicated
with the Father, he often spoke about his own goals, rather than the goals he had for
the Child, or even the well-being of the Child. That observation was similarly true
of the Father’s trial testimony. The Father did not provide any detailed plans for the
Child, but he hoped at least to show to the Child that not all men were bad like the
one who had sexually abused her.
Stability of the Home. The Father’s living situation is not stable. At the time
of trial, he was incarcerated, though he hoped to benefit from supervised release,
which would allow him to leave prison early. In the event of his supervised release,
the Father plans to stay in a halfway house, and then work either at a fast food
restaurant or at a soft drink company. Without any corroborating proof, the Father
claimed that jobs awaited him at both places of employment. The Father also claimed
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that his grandfather could provide him with housing, but the grandfather did not
testify.
The Caregiver, by contrast, has a stable living situation. The Caregiver is
employed at a hospital. Though she works long hours, the Caregiver can depend on
the Caregiver’s Mother to watch the Child when she is away.
There was no evidence that the Father has any comparable support network.
In fact, his own mother testified that the Father is not allowed in her home.
The Father’s Acts and Omissions. When the Father learned that the Child
had been removed from the Mother’s care, he took swift and protective action to
reach out to the Caregiver’s Mother, in hopes that she would foster the Child. The
Father also took that action before his paternity had even been confirmed by a DNA
test. However, the Father has not availed himself of all of the resources available to
him while in prison. He discontinued a drug abuse program because he saw no
benefit to it, even though he was involved in illegal drug activity before his latest
incarceration.
Altogether, the evidence provided the trial court with a substantial basis for
doubting whether the Father has the ability to provide the Child with a safe and stable
living environment. Viewing the evidence in the light most favorable to the
judgment for our legal-sufficiency analysis, and viewing all of the evidence equally
for our factual-sufficiency analysis, we conclude that a reasonable factfinder could
have formed a firm belief or conviction that termination of the Father’s parental
rights was in the best interest of the Child.
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CONCLUSION
The trial court’s judgment is affirmed.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Jewell and Spain. (Spain, J.,
concurring without opinion).
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