In The
Court of Appeals
Seventh District of Texas at Amarillo
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No. 07-21-00149-CV
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IN THE INTEREST OF M.D., A CHILD
On Appeal from the 46th Judicial District
Wilbarger County, Texas
Trial Court No. 29025; Honorable Dan Mike Bird, Presiding
August 30, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Biological father, G.D., appeals the trial court’s judgment terminating his parental
rights to the child, M.D. On appeal, he challenges the evidence supporting the trial court’s
finding that termination of his parental rights was in the child’s best interest. We affirm.
Parental rights may be involuntarily ended if a two-pronged test is met. That is,
clear and convincing evidence must establish both one or more of the statutory grounds
permitting termination and termination must be in the child’s best interests. See TEX. FAM.
CODE ANN. § 161.001(b) (West Supp. 2020); In re N.G., 577 S.W.3d 230, 232 (Tex. 2019)
(per curiam). G.D. does not dispute that clear and convincing evidence established the
first prong and, thereby, implicitly conceded that sufficient evidence supports the trial
court’s findings under Subsections (D), (E), (F), and (Q). See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D), (E), (F), and (Q) (West Supp. 2020). Therefore, unchallenged
predicate statutory grounds support the termination of G.D.’s parental rights. Additionally,
said evidence can support the trial court’s best interest finding. See In re E.A.F., 424
S.W.3d 742, 750 (Tex. App.—Houston [14th Dist.] 2014, pet denied) (citing, inter alia, In
re C.H., 89 S.W.3d 17, 28 (Tex. 2002)); see also In re T.C., No. 07-18-00080-CV, 2018
Tex. App. LEXIS 6769, at *13 (Tex. App.—Amarillo Aug. 23, 2018, pet. denied) (mem.
op.) (noting that a parent who opts to forgo a challenge to predicate ground findings tacitly
concedes that sufficient evidence supports those findings).1
In determining the best interest of a child, courts apply the non-exhaustive Holley
factors in performing their analysis. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976). Those factors include the following: (1) the desires of the child; (2) the present
and future emotional and physical needs of the child; (3) the present and future emotional
and physical danger to the child; (4) the parental abilities of the individuals seeking
custody; (5) the programs available to assist these individuals to promote the best interest
of the child; (6) the plans held by the individuals seeking custody of the child; (7) the
stability of the home of the parent and the individuals seeking custody; (8) the acts or
omissions of the parent which may indicate that the existing parent-child relationship is
not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. The
1 To determine whether the evidence is legally sufficient to support the trial court’s best-interest
finding, we look at all the evidence in the light most favorable to the finding to determine whether a
reasonable fact-finder could form a firm belief or conviction that termination of parental rights is in the child’s
best interest. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
We must perform “an exacting review of the entire record” in determining the factual sufficiency of
the evidence supporting the termination findings. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). We review
the whole record to decide whether a fact-finder could reasonably form a firm conviction or belief that
termination of the parent-child relationship would be in the child’s best interest. See In re C.H., 89 S.W.3d
at 28.
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foregoing indicia are not exhaustive, and the absence of evidence on some of them does
not itself preclude a fact-finder from reasonably forming a strong conviction or belief that
termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27. To that we add the
rule that a “trier of fact [also] may measure a parent’s future conduct by his past conduct
[in] determin[ing] whether termination of parental rights is in the child’s best interest.” In
re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).
M.D. was born in June of 2018 and removed from his mother on March 14, 2020,
after he tested positive for marijuana and THC. His brother, born on March 14, 2020,
also testified positive for the same controlled substances and underwent removal. Both
children were placed together with relatives and resided there through trial. Upon
removal, their mother performed few of the requirements placed on her to regain custody.
Eventually, she informed the Department that she wanted to start life anew and
abandoned the children.
Other evidence reveals that, but for two months, G.D. had been imprisoned during
M.D.’s life. He had neither a relationship nor bond with the child. Nor had he ever
provided any financial or emotional support for the child. Similarly missing was more than
nominal effort on his part to complete any of the conditions necessary to retain his
relationship with M.D. His lack of effort included the two-month period during his release
from jail and subsequent reincarceration for violating parole conditions. He did not submit
to drug testing, find employment, or engage in services during that interim.
M.D. calls the couple with whom he resides his mother and father. Strong bonds
have developed between them. The couple also “worked very hard to create a normal
life for the” children, “completed all classes, [and] have gone above and beyond.” The
couple’s quick response also saved the life of M.D.’s brother when the latter’s appendix
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ruptured. Additionally, M.D. “was behind developmentally and in speech” but “has since
successfully passed all of his ECI services.” No longer was he “going through any
withdrawals.” Instead, he was “doing great” living with his cousins, according to the
Department’s witness.
G.D.’s incarceration exposed M.D. to a life of uncertainty and instability, which is
a factor to weigh in the best interests analysis. See In re H.P., No. 07-19-00394-CV, 2020
Tex. App. LEXIS 3743, at *14 (Tex. App.—Amarillo May 1, 2020, pet. denied) (mem. op.)
(noting that a parent’s incarceration is a factor to weigh when undertaking a best-interest
analysis). His lack of emotional and financial support for M.D., his lack of a bond with the
child, and his failure to complete services are also relevant factors. They, coupled with
the enriching nature of the environment provided by M.D.’s cousins, are more than ample
to support a finding that termination of appellant’s parental rights was in the child’s best
interest.2
We hold that clearing and convincing evidence appears of record enabling a fact-
finder to form a firm conviction and belief that termination of appellant’s parental
relationship was in the child’s best interest. We overrule appellant’s sole issue and affirm
the trial court’s judgment ending the parent-child relationship between G.D. and M.D.
Per Curiam
2 We note that, pursuant to the Texas Supreme Court opinion in In re N.G., we generally review the
trial court’s findings under section 161.001(b)(1)(D) and (E) when challenged. This is so because of the
potential future consequences to a parent’s parental rights concerning a different child. See In re N.G., 577
S.W.3d at 235–37. Appellant’s engaging in criminal conduct resulting in his incarceration, leaving his child
with one who abuses drugs, and providing neither financial nor emotional support for the child is evidence
that appellant engaged in a voluntary, deliberate, and conscious course of conduct endangering the child’s
physical and emotional well-being. Thus, the record contains sufficient evidence upon which the trial court
could have found that subsections (D) and (E) supported termination of appellant’s parental rights.
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