Opinion
14-22-00335-CV
10-20-2022
IN THE INTEREST OF L.G., A CHILD
On Appeal from the 387th District Court Fort Bend County, Texas Trial Court Cause No. 19-DCV-264060
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
MEMORANDUM OPINION
Kevin Jewell Justice
The trial court terminated a father's parental rights to his four-year-old daughter, L.G. ("Lindsay"), on predicate grounds of endangering conduct, constructive abandonment, failure to comply with a family service plan, and knowingly engaging in criminal conduct that resulted in confinement or imprisonment and inability to care for the child. The court also found that termination was in Lindsay's best interest and appointed the Department of Family and Protective Services (the "Department") as her sole managing conservator. On appeal, the father challenges the legal and factual sufficiency of the evidence to support the predicate grounds, as well as the best interest finding. The father also contends that the trial court abused its discretion by declining to name him as a possessory conservator. Because we conclude that legally and factually sufficient evidence supports the trial court's endangerment and best interest findings, we affirm the judgment.
"Lindsay" is a pseudonym. See Tex.R.App.P. 9.8.
Background
Lindsay was born in December 2017. On July 2, 2019, the Department filed a petition to terminate the parental rights of Lindsay's mother ("Mother") and father ("Father"). Lindsay was removed from Mother's care pursuant to an emergency order for protection that named the Department Lindsay's temporary sole managing conservator. At the time of Lindsay's removal, Father was incarcerated. Lindsay was placed with her maternal great-grandmother.
The trial on the Department's petition began briefly on November 29, 2021, then recessed and recommenced on February 21, 2022. Mother did not appear at trial and has not appealed the order terminating her parental rights. The following evidence was presented at trial.
Father and Mother have been "together" since 2014, and the record suggests that they remain married. They have a history of domestic violence directed at each other, including several encounters from 2014 to 2018. In November 2014, Father was charged with the felony offense of assaulting Mother by impeding her breath in Harris County. He pleaded guilty to this offense, but his adjudication of guilt was deferred, and he was placed on community supervision for three years. In 2016, the State moved to adjudicate his guilt based on alleged violations of his community supervision conditions, and the trial court issued a capias for his arrest in December 2016. Father pleaded true to the alleged violations. The court adjudicated his guilt and sentenced him to five years' incarceration in the Texas Department of Criminal Justice, Institutional Division. Father began serving this sentence in April 2018, when Lindsay was nearly four months old.
Meanwhile, Mother was charged with aggravated assault with a deadly weapon in January 2016 in Fort Bend County after she stabbed Father multiple times with a knife. Mother pleaded guilty, but her adjudication of guilt was deferred, and she was placed on community supervision for six years in June 2016.
A few months later, in October 2016, Father was charged with assaulting Mother in Fort Bend County. Father pleaded nolo contendere, and the Fort Bend County Court at Law sentenced him to twenty-two days "already served in the Fort Bend County Jail" in March 2018.
Father was again charged with two felony counts of assaulting Mother in February 2018 in Fort Bend County, and one count involved impeding Mother's breath. Around the time of these charges, Father was adjudicated guilty of the November 2014 assault against Mother in Harris County and began to serve his sentence. The February 2018 Fort Bend felony assault charges were dismissed because "the defendant is already serving 5 years TDC out of Harris County." Father was released from prison in September 2021, when Lindsay was three years, nine months old.
The Department also introduced evidence of Father's criminal history unrelated to domestic offenses. Father pleaded guilty or nolo contendere to and was sentenced to brief jail time for several offenses, such as evading arrest in January 2013 (sentenced to three days in Fort Bend County jail); driving with a suspended license and driving while intoxicated in March 2013 (sentenced to thirty days in Fort Bend County jail for each offense, to run concurrently); driving with a suspended license in March 2014 (sentenced to three days in Fort Bend County jail); and criminal trespass in April 2015 (sentenced to fourteen days in Fort Bend County jail). All of these offenses occurred before Lindsay was born.
According to the Department's family-based safety services officer Brittany Johnson, the Department became involved in providing safety services to Mother and Lindsay based on allegations that Mother was living in a hotel and using drugs. Mother tested positive for methamphetamine, amphetamines, cocaine, and opiates, and was ordered to go to an inpatient drug treatment program. Lindsay was placed with her maternal great-grandmother while Mother participated in inpatient treatment and parenting education. According to Johnson, Mother tested positive for methamphetamine after she was released from her inpatient treatment. That resulted in the Department seeking and obtaining temporary managing conservatorship of Lindsay on July 2, 2019. The Department left Lindsay in the care of her great-grandmother. However, by the time of trial, Lindsay was placed with her maternal great-aunt and great-uncle because her great-grandmother began having health issues.
Father testified that his relationship with Mother began in 2014 but, though not divorced, they are no longer "together." He acknowledged several of the assault charges during their relationship but testified that he and Mother nonetheless continued to live together. He testified that their relationship ended in March 2018 when he turned himself in for violating the probation terms related to the 2014 assault in Harris County. He decided to turn himself in after Lindsay was born so that she could have a "better life" in the long run. He stated it was better for him to go to prison while Lindsay was a baby because she "wouldn't really remember it." Father acknowledged that Mother was not in a "good state of mind" to take care of Lindsay in March 2018, but he left Lindsay with Mother anyway. He testified that he called CPS, "911 nonemergency," and spoke with his aunt and uncle to try to make sure that Lindsay was safe before he surrendered to authorities. According to Father, CPS did not want to remove Lindsay at that time.
Father acknowledged that the Department created a family service plan for him while he was in prison and that he was ordered to complete it. According to Father, he saw the Department counselor twice. While in prison, Father took several courses, including parenting courses, completed his GED, and participated in alcohol addiction programs. After Father was released from prison in September 2021, he began seeing a new therapist. He continued to participate in alcohol recovery programs. He testified that, pursuant to his parenting plan, he completed parenting courses, a drug and alcohol assessment, and a psychological evaluation.
In November 2021, the trial court ordered Father, pursuant to an agreement, to engage in reunification therapy with a designated counselor, at Father's expense. Father acknowledged that he agreed to pay for reunification therapy in lieu of paying child support but testified that he did not pay for the therapy because he could not afford it. He also acknowledged that he had not paid any child support, although he testified that his aunt and uncle provided support for Lindsay while he was in prison. He testified that he filed paperwork to begin paying child support through payroll deductions once he was released from prison and obtained employment, but he acknowledged that no such deductions were ever taken from his pay.
At the time of trial, Father earned $12 per hour as a mechanic and worked anywhere from thirty to forty hours per week. He testified that he was living with his mother rent-free, but that he contributed to household bills. According to Father, he currently has about $100 left each month after paying his bills. He stated that he planned to get a better job to help pay for Lindsay's needs. Father testified that he has another child-a son, sixteen years old at the time of trial-also living with him and his mother. That child's mother is deceased. Father's mother has cancer, and neither she nor Father's son have met Lindsay.
Father stated his belief that he has been an active father throughout Lindsay's life, writing letters and drawing pictures for her while he was in prison. He agreed that Lindsay's inability to see him for three and a half years while he was in prison may have been detrimental to her emotional well-being, but he disagreed that it was emotionally traumatizing to her because she was so young. He acknowledged that he spent no time with Lindsay while he was in prison but claimed that the Department would not allow visits. He denied that he was "nasty" or "angry" when the Department's caseworker visited him in jail, although he acknowledged that he has been emotional and frustrated throughout his involvement with the Department.
Father estimated that he visited Lindsay, supervised, seventeen times since he was released from prison, missing only one scheduled visit. He denied arguing with the caseworker during some visits; he also denied being angry during previous court hearings. Although he acknowledged that Lindsay seemed to fear him at some visits, he believed her caregivers had "coached" her. He admitted that Lindsay asked to leave a visit early but testified that Lindsay hugs him and hangs onto him during most visits. According to Father, he has made changes in putting his children's needs first. He stated that he wanted Lindsay returned to him in "due time" and that he would do whatever is asked of him to get her back. He believed that terminating his parental rights would "destroy" Lindsay. He also accused Mother's relatives, including Lindsay's current placement, of "alcohol abuse, drug abuse, sexual abuse," and "parental alienation."
Lindsay's caseworker, Christina Merrill, testified that Lindsay was initially placed with her maternal great-grandmother. At that time, the Department's plan was family reunification with Mother because Father was incarcerated. Merrill testified that Mother did not complete her service plan and her last contact with the Department was in December 2021. Lindsay was moved to her current placement, with her maternal great-aunt and great-uncle, in May 2020.
Merrill reported that she created a service plan for Father and made efforts for service providers to meet with him while he was incarcerated. She testified that Father met with a therapist for four sessions while incarcerated (as opposed to two sessions, as Father testified), but Father was unsuccessfully discharged from the therapy. Merrill agreed that Father completed a psychological evaluation and parenting classes and was currently engaged in therapy. She testified that, pursuant to the plan, Father was required to pay child support, submit to random drug testing, and provide safe and stable housing. According to Merrill, although Father submitted to random drug testing, he has not paid child support and could not demonstrate a safe and stable home until he is not on parole, lives on his own, or has a better income. Merrill also testified that Father has not completed his service plan because he has not yet completed therapy. She also denied hearing from Father regarding a referral for reunification therapy, and she stated that Father did not express any problems paying for that therapy.
In discharging Father, the counselor stated, "Client continues to bring up the errors made by DFPS and is preoccupied with case law and 'defeating' CPS. There was little acknowledgement of his negative behaviors that may impact his ability to effectively parent his child."
Merrill described several instances of Father's hostile or angry behavior. She testified that she visited Father while he was incarcerated, but she left the visit early because he "appeared to be aggressive." Merrill also described several of Father's post-incarceration visits with Lindsay. Merrill said Lindsay often wanted to leave early. At one visit, Merrill related that Lindsay urinated on herself, which was "very unusual." According to Merrill, Father was asked to stop bringing candy to Lindsay and saying negative things to her, but Father did not heed any of these requests and continued to bring candy and say whatever he wanted to her. When Father was asked to stop these behaviors, he became "very hostile." Merrill agreed that Lindsay's attorney ad litem intervened during one of Father's visits because his conduct was creating a "toxic" environment for Lindsay. Merrill testified:
[Father] is aggressive towards me. He is combative towards me. I can't say anything to him without the conversation resulting in an argument. And there's been times where I had to actually hang up the phone or walk away from [Father] or not respond to him due to his behaviors.Merrill also testified that Father became upset during court hearings and displayed "aggressive and angry behavior" in court and did not follow admonishments to calm down.
According to Merrill, Father cannot meet Lindsay's emotional and physical needs because he is "hostile and appears to be very aggressive." She testified that Father "doesn't seem to understand what you're saying or even want to hear what you're saying." Merrill also testified that Father's monthly income was not enough to care for Lindsay.
Merrill described Lindsay as very happy in her current placement with her maternal great-aunt ("Aunt") and great-uncle ("Uncle"). Merrill testified that Lindsay has been with them for over two years, is closely bonded to them, and is comfortable where she is. She refers to Aunt and Uncle as "Mom and Dad," and Merrill has no concerns about their ability to care for Lindsay. She agreed that Lindsay's aunt and uncle are meeting her physical, emotion, and educational needs. Lindsay also sees her maternal half-siblings in her current placement. Merrill testified that the Department's current plan for Lindsay is relative adoption by Aunt and Uncle, and this plan will provide Lindsay with the stability and permanency that she needs.
CASA volunteer Susan Crookson testified that she supervised several visits between Father and Lindsay. According to Crookson, Lindsay was "very timid" and "scared" of Father; she never sat next to him because she was "worried about who this guy was." She testified that there is no bond between Father and Lindsay. Crookson explained that Lindsay does not like to be touched, but that Father nonetheless "strokes her neck or blows in her ear, tickles down her back," which makes Lindsay "very upset." Lindsay has asked Father to stop numerous times, but he persisted. Crookson described Father as becoming angry with either the caseworker or herself during several visits, which caused Lindsay to become withdrawn and want to leave. She expressed concerns about Father's anger, aggressiveness, and inability to read Lindsay's emotional cues in these circumstances. According to Crookson, Father has had many outbursts, is "very passionate and angry," and has been "extremely upset about the way the case [is] going." She also testified that Father was aggressive and intimidating during court hearings. She expressed concerns about returning Lindsay to Father, explaining that he cannot provide a safe and stable home for her, that the two are not bonded, and that Lindsay does not think of Father as her "daddy."
Crookson testified that Lindsay is very bonded with Aunt and Uncle; Lindsay also interacts positively with their three older children. Crookson has no concerns about Lindsay's current placement; the family lives in the country with numerous animals and Lindsay has the support of three generations of family. According to Crookson, Lindsay is in a safe and stable environment, she is with people she has known since birth, and adoption is in Lindsay's best interest. She stated that Lindsay's aunt and uncle want to adopt her, which would be a "very good outcome" for her. In Crookson's view, moving Lindsay from a happy environment where she knows everyone to a new place with people she has not met (Father's son and mother) or is not bonded with (Father) would not be in Lindsay's best interest.
Father's therapist, Arcadio Rodriguez, testified that he has provided weekly virtual therapy to Father since October 2021, and Father has not missed any sessions. During therapy, they have covered topics such as: providing a safe, secure, and stable home environment; enhanced parenting skills; anger management strategies; improving interpersonal functioning; improving emotional dysfunction; improving impulse control; and reducing domestic violence issues. According to Rodriguez, Father has shown the ability to exercise fair judgment and make good decisions by maintaining employment and housing. Father has basic life skills, such as having a driver's license and bank account, and he can maintain stable employment and housing. Father is "extremely motivated to have custody of his child and be protective of that child." Although Rodriguez expressed concerns about Father's purported angry outbursts, he has not witnessed any. However, he testified that Father has expressed a "tremendous amount of frustration with the system."
Rodriguez explained that he obtained his information about Father from Father's psychological report and from talking to Father. He has not personally observed Father outside of therapy sessions, and he has not reviewed any other documents from the Department. He also acknowledged that he has not seen or spoken to Lindsay, nor has he observed any of Father's visits with her. Rodriguez expressed that Father has progressed as far as he can during therapy, and Father does not need to continue his therapy with Rodriguez.
According to Rodriguez, reunification therapy would be appropriate for Father and Lindsay. However, he acknowledged that he had not consulted with Lindsay's therapist before recommending reunification. Rodriguez did not think there were any adverse effects stemming from Father's three-and-a-half-year incarceration during Lindsay's four years of life. He also did not think there would be emotional or mental problems for Lindsay if she were removed from her current placement to live with people she does not know and with whom she has never lived. However, he admitted that he was not aware that Lindsay had been in her current placement for two years and acknowledged that a child under five years of age may suffer from abandonment issues because Father had not been in her life. He also admitted it would have been "helpful" if he had met Lindsay before making any recommendations concerning her.
Father's uncle, B.C., testified regarding his involvement with Father and Lindsay. He described his relationship with Father as "good," and he stated that he has visited about twenty times with Lindsay during the pendency of this case. He described the in-person visits as going "quite well," but stated that Zoom visits due to the COVID pandemic "were a little bit challenging." B.C. and his wife arranged these visits with Lindsay's caregiver, Aunt. According to B.C., he and his wife offered to be a placement for Lindsay, but they were not considered for "a good long time" although a home study was "finally done." He did not know the result of the home study. B.C. stated that he would like to continue being involved in Lindsay's life because he and his wife "care for this girl and her well-being, especially her future well-being."
According to B.C., Father "was going down the right path" when he was younger, until he became involved with Mother. He acknowledged that Father then was "going down the wrong path" and had "made some mistakes," but now, Father was doing everything he could to be reunited with Lindsay. He described some of Father's efforts to improve, such as holding down a job, paying bills, and trying to do what the Department or his parole officer told him to do. However, he acknowledged that he had very little information about Father's and Mother's history of domestic violence or Father's history of driving while intoxicated. B.C. opined that Father could provide Lindsay with a safe and stable home, and he stated he has no concerns about Lindsay potentially being returned to Father's care. He reiterated that Father is "a man that's changed and going . . . down the right path." He testified that he would be there to provide Father support if Father were given custody of Lindsay.
Child development specialist Dr. Susan Profilet testified regarding her observations of visits between Father and Lindsay. Dr. Profilet observed six visits between January and March 2022. According to Dr. Profilet, Father was, "for the most part, appropriate with his daughter." He brought age-appropriate toys and helped Lindsay set them up and sometimes played with her. Father and Lindsay had many conversations, but Dr. Profilet reported that Father did not show Lindsay affection or validation. Dr. Profilet also described some "concerning" behavior on Father's part, such as Father's teasing of Lindsay, by holding toys out of her reach, letting her have the toy, then taking the toy from her. The doctor said that this made Lindsay mad, and she walked away from Father; also, Lindsay tried to hit or bite Father a few times when she was upset. According to Dr. Profilet, Father always sat in a chair and did not try to get down to Lindsay's level to play with her. She described as Lindsay as "guarded" with Father. Dr. Profilet reported, however, that Lindsay's trust increased with Father a little over the course of the visits, based on the way Lindsay let him play with her toys. Nonetheless, she observed that Lindsay did not want to talk with Father about personal matters, often told him "no," often did not make eye contact with Father, and sometimes wanted to leave the visit early. Dr. Profilet testified that, based on her observations, Lindsay and Father did not appear bonded and "didn't have a healthy attachment."
Aunt testified that Lindsay lives with her and her husband. Aunt stated that she has three grown children and several grandchildren. According to Aunt, Lindsay has lived with them for two years. Lindsay lived with her great-grandmother for about a year before she moved into Aunt's care.
According to Aunt, she saw Lindsay start packing up to leave early at over half of her visits with Father. She also stated that Father was "disruptive" in interacting with the people supervising his visits with Lindsay and "continue[d] to harass the person who was supervising the visits to where it's almost been argumentative at times." Aunt testified that Father was "really rude and obnoxious to the supervisor a lot of times." When Father behaved that way, Lindsay "would just shut down." Aunt explained that Lindsay is always ready to go home after visits with Father, which is not the way Lindsay normally acts when visiting other people.
Aunt described Lindsay's life with her and Uncle. She stated that Lindsay refers to them as "Mom" and "Dad." She testified that she loves Lindsay and Lindsay loves them; they are "family." According to Aunt, Lindsay has pet goats, turkeys, chickens, and dogs at home. She described Lindsay as smart, stating that Lindsay loves attending school and loves her teachers. Aunt related that Lindsay regularly sees Aunt's adult children, Lindsay's great-grandmother, and Lindsay's maternal half-siblings. Aunt testified that she has taken steps to adopt Lindsay, such as becoming "licensed to foster," taking CPR classes, and permitting health and fire inspections. She also said that she is willing to continue caring for Lindsay until she is eighteen.
Aunt stated that she would not be comfortable with Father visiting her home if his parental rights were left intact because he intimidates her, and she has seen him "lash out." She described a meeting with Father once where he "blew up," "got loud," was "sort of screaming," and "banged his hands on the table." She related that Father "got heated and he had to be escorted out of building."
Aunt testified that neither Father nor his relatives have given her anything to help care for Lindsay. When asked whether Father has ever contacted her to find out how Lindsay is doing, Aunt responded, "No." She also testified that she would be concerned if Lindsay were returned to Father because "she has yet to bond [with him and] she would be terrified."
After the conclusion of the trial, the trial court found clear and convincing evidence that: (1) Mother and Father engaged in conduct or knowingly placed Lindsay with persons who engaged in conduct that endangered Lindsay's physical or emotional well-being; (2) Mother and Father constructively abandoned Lindsay, who had been in the Department's temporary managing conservatorship for not less than six months and (a) the Department made reasonable efforts to return Lindsay to Mother and Father, (b) Mother and Father had not regularly visited or maintained significant contact with Lindsay, and (c) Mother and Father had demonstrated an inability to provide Lindsay with a safe environment; (3) Mother and Father did not comply with the provisions of a court-ordered service plan; (4) Mother had used a controlled substance in a manner that endangered Lindsay's health or safety and (a) failed to complete a court-ordered substance abuse treatment plan or (b) after completing a court-ordered substance abuse treatment program continued to abuse a controlled substance; and (5) Father had knowingly engaged in criminal conduct that resulted in Father's conviction of an offense and confinement or imprisonment and inability to care for Lindsay for not less than two years from the date of filing the petition. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (O), (P), (Q). The court further found that terminating Mother's and Father's parental rights was in Lindsay's best interest and appointed the Department Lindsay's permanent managing conservator. See id. §§ 161.001(b)(2), 161.207(a). Based on these findings, the trial court signed a final order terminating Mother's and Father's parental rights to Lindsay.
Father timely appealed.
Analysis
A. Standards of Review
In a proceeding to terminate the parent-child relationship under Texas Family Code section 161.001, the petitioner must establish by clear and convincing evidence one or more acts or omissions enumerated under subsection (1) of section 161.001(b) and that termination is in the best interest of the child under subsection (2). See Tex. Fam. Code § 161.001; In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. See In re of J.F.-G., 627 S.W.3d 304, 310 (Tex. 2021); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.-Houston [14th Dist.] 2012, no pet.). Although parental rights are of constitutional magnitude, they are not absolute. See In re A.C., 560 S.W.3d 624, 629 (Tex. 2018); In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due to the severity and permanency of terminating the parental relationship, Texas requires clear and convincing evidence to support such an order. See Tex. Fam. Code § 161.001; In re J.F.-G., 627 S.W.3d at 310; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "Clear and convincing evidence" means "the measure or degree of proof that 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 § 101.007; In re J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a "correspondingly searching standard of appellate review." In re A.C., 560 S.W.3d at 630; see also In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.-Houston [14th Dist.] 2008, no pet.).
In reviewing the legal sufficiency of the evidence in a parental termination case, we must consider all evidence in the light most favorable to the challenged finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence that a reasonable fact finder could have disbelieved. See id.; In re G.M.G., 444 S.W.3d 46, 52 (Tex. App.-Houston [14th Dist.] 2014, no pet.). However, this does not mean that we must disregard all evidence that does not support the finding. In re D.R.A., 374 S.W.3d at 531. Because of the heightened standard, we also must be mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. Id.
In reviewing the factual sufficiency of the evidence under the clear-and-convincing standard, we consider and weigh disputed evidence contrary to the finding against all the evidence favoring the finding. In re A.C., 560 S.W.3d at 631; In re J.O.A., 283 S.W.3d at 345. "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, then the evidence is factually insufficient." In re J.O.A., 283 S.W.3d at 345 (internal quotation omitted). We give due deference to the fact finder's findings, and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
B. Predicate Grounds
1. Applicable law
In his first five issues, Father argues the evidence is legally and factually insufficient to support termination under all section 161.001(b)(1) predicate grounds on which the termination order is based. To affirm a termination judgment on appeal, a court need uphold only one termination ground-in addition to upholding a challenged best interest finding-even if the trial court based the termination on more than one ground. In re N.G., 577 S.W.3d at 232; In re L.M., 572 S.W.3d 823, 832 (Tex. App.-Houston [14th Dist.] 2019, no pet.). Further, due to the significant collateral consequences of terminating parental rights under section 161.001(b)(1)(D) or (E), "[a]llowing section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to the court thus violates the parent's due process and due course of law rights." In re N.G., 577 S.W.3d at 237. Thus, when as here a parent challenges predicate termination grounds under either subsection 161.001(b)(1)(D) or (E), or both of those subsections, we must address and detail our analysis under one of those subsections. See id. We will address the trial court's finding of endangerment under subsection (E).
Termination of parental rights is warranted if the fact finder finds by clear and convincing evidence, in addition to the best interest finding, that the parent has "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex. Fam. Code § 161.001(b)(1)(E). "To endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). A finding of endangerment under subsection (E) requires evidence that the endangerment was the result of the parent's conduct, including acts, omissions, or failures to act. In re S.R., 452 S.W.3d 351, 361 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). Termination under subsection (E) must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. Id. A court properly may consider actions and inactions occurring both before and after a child's birth to establish a course of conduct. In re A.L.H., 515 S.W.3d 60, 91 (Tex. App.-Houston [14th Dist.] 2017, pet. denied).
While endangerment often involves physical endangerment, the statute does not require that conduct be directed at a child or that the child actually suffer injury; rather, the specific danger to the child's well-being may be inferred from the parent's misconduct alone. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.-Fort Worth 2004, pet. denied). A parent's conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. In re F.E.N., 542 S.W.3d 752, 764 (Tex. App.-Houston [14th Dist.] 2018, no pet.); In re A.L.H., 515 S.W.3d at 92. Among the types of actions or omissions constituting evidence meeting this standard are criminal activity, convictions, and incarceration. See In re V.V., 349 S.W.3d 548, 554 (Tex. App.-Houston [1st Dist.] 2010, pet. denied). Evidence of criminal conduct, convictions, imprisonment, and their effects on a parent's life and ability to parent, may establish an endangering course of conduct. In re S.M., 389 S.W.3d 483, 492 (Tex. App.-El Paso 2012, no pet.). Routinely subjecting children to the probability that they will be left alone because their parent is in jail endangers children's physical and emotional well-being. See Walker v. Tex. Dep't of Fam. &Protective Servs., 312 S.W.3d 608, 617 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). Imprisonment alone is not an endangering course of conduct but is a fact properly considered on the endangerment issue. Boyd, 727 S.W.2d at 533-34.
Moreover, "[d]omestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment." In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.-Houston [14th Dist.] 2003, no pet.); accord In re S.R., 452 S.W.3d at 361. Violence does not have to be directed toward the child or result in a final conviction-"Texas courts routinely consider evidence of parent-on-parent physical abuse in termination cases without specifically requiring evidence that the conduct resulted in a criminal conviction." In re V.V., 349 S.W.3d at 556. As this court has noted, parents' criminal conduct that exposes them to the possibility of incarceration can negatively impact a child's living environment and emotional wellbeing. In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.-Houston [14th Dist.] 2005, no pet.).
2. Application
The record contains clear and convincing evidence that Father has regularly engaged in criminal activity, including several instances of domestic violence against Mother. Lindsay's parents have a significant history of parent-on-parent physical abuse. When Lindsay was born, both Father and Mother were then on deferred adjudication community supervision arising from pleading guilty to assaults against each other on separate occasions. At that time, Father was subject to an outstanding arrest warrant based on alleged violations of his community supervision terms (to which he pleaded "true"). Further, within three months of Lindsay's birth, Father faced two more felony charges in Fort Bend County for assaulting Mother. Although earlier instances of charged domestic violence offenses, as well as Father's other crimes, occurred before Lindsay was born, a court may consider actions occurring before a child's birth to find an endangering course of conduct. E.g., A.L.H., 515 S.W.3d at 91; In re S.M., 389 S.W.3d at 492 ("In this case, there is evidence of multiple criminal convictions, including three convictions for assault causing bodily injury, two of which involved domestic violence against S.M.'s mother. One of these occurred during pregnancy. Even though all of these offenses occurred before S.M. was born, they can still be considered as part of a voluntary, deliberate, and conscious course of conduct that had the effect of endangering S.M."). Father committed numerous criminal offenses prior to Lindsay's birth, escalating from offenses such as evading arrest, driving while intoxicated, and criminal trespass, to several felony assault charges or convictions for domestic violence against Mother, some of which conduct occurred after Lindsay was born. Cf. In re J.F.-G., 627 S.W.3d at 315. Thus, Father subjected Lindsay to an early life of uncertainty and instability because he could be (and was) jailed for certain offenses. In re A.L.H., 515 S.W.3d at 91; see Boyd, 727 S.W.2d at 533-34 (incarceration is a fact properly considered on the endangerment issue). Father's inability to comply with the terms of his community supervision ultimately resulted in his incarceration for approximately the first three years of Lindsay's life until he was released only months before trial. And the fact finder may consider evidence of Father's pattern of criminal activity, including parent-on-parent physical abuse, even though some charged offenses did not result in a final conviction or incarceration. See In re V.V., 349 S.W.3d at 556. Abusive and violent conduct can produce an environment that endangers the well-being of a child, and evidence that a person has engaged in abusive conduct in the past permits an inference that the person will continue such violent behavior in the future. In re S.M., 389 S.W.3d at 492; see also In re J.F.-G., 627 S.W.3d at 313 ("A parent's criminal history-taking into account the nature of the crimes, the duration of incarceration, and whether a pattern of escalating, repeated convictions exists-can support a finding of endangerment.").
Further, the trial court was presented with evidence concerning Father's ongoing inability to manage his anger and frustration. As noted above, several witnesses testified to Father's angry outbursts during his visits with Lindsay, and although these outbursts were not directed at her, she witnessed several of them and was described as subdued or withdrawn afterwards. Both the Department's caseworker and the CASA volunteer described Father as angry and aggressive. And they both testified that, during court proceedings, Father displayed angry or intimidating behavior. Lindsay's current caregiver, Aunt, testified that Father intimidated her, and she described a meeting during which Father became so angry that he had to be escorted from the building. This evidence, coupled with Father's history of domestic violence, also supports the trial court's endangerment finding. Accord In re J.I.T.P., 99 S.W.3d at 844-45 (explaining that domestic violence, want of self-control, and propensity for violence may be considered evidence of endangerment).
Based on this evidence, we conclude that a fact finder could have formed a firm belief or conviction that its endangerment finding under subsection (E) was true. E.g., In re J.F.-G., 627 S.W.3d at 31; In re S.M., 389 S.W.3d at 492-93; In re V.V., 349 S.W.3d at 556.
In his brief, Father insists that he did not engage in an endangering course of conduct. His argument, however, focuses almost solely on the potential danger to Lindsay while she was under Mother's care. Father insists that, before he went to prison in April 2018, he tried to protect Lindsay from Mother's neglect. These arguments are insufficient to reverse the judgment for several reasons. First, the fact finder reasonably could have found Father's testimony not credible. Second, Father neither mentions nor accounts for his own repeated and undisputed criminal, endangering conduct. Finally, even crediting Father's assertion that he did not knowingly endanger Lindsay by leaving her with Mother in 2018, and that he made good-faith efforts to bond with Lindsay after his incarceration, "a parent's shortterm, positive, post-incarceration behavior does not nullify earlier endangering conduct such that the trier of fact must set the earlier conduct aside." In re J.F.-G., 627 S.W.3d at 316; see also R.G. v. Dep't of Fam. &Protective Servs., No. 14-21-00584-CV, 2022 WL 906190, at *6-7 (Tex. App.-Houston [14th Dist.] Mar. 29, 2022, no pet.) (mem. op.).
In sum, considered in the light most favorable to the trial court's ruling, we conclude that the evidence is legally sufficient to support the trial court's determination that termination of Father's parental rights to Lindsay was justified under Family Code section 161.001(b)(1)(E). Further, in view of the entire record, we conclude that the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that termination was warranted under section 161.001(b)(1)(E). Accordingly, we conclude that the evidence is legally and factually sufficient to support the subsection (E) finding.
Having concluded that the evidence is legally and factually sufficient to support the trial court's finding under subsection (E), we need not review the sufficiency of the evidence to support the subsection (D), (N), (O), and (Q) findings. We overrule Father's first five issues.
C. Child's Best Interest
In Father's seventh issue, he challenges the legal and factual sufficiency of the evidence to support the trial court's best interest finding.
1. Applicable law
The best interest inquiry is child-centered and focuses on the child's wellbeing, safety, and development. In re A.C., 560 S.W.3d at 631. The trier of fact may consider several factors to determine the child's best interest, including: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons 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) acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate; and (9) any excuse for the parents' acts or omissions. 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 parents' willingness and ability to provide the child with a safe environment).
Courts apply a strong presumption that the best interest of the child is served by keeping the child with the child's natural parents, and it is the Department's burden to rebut that presumption. In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.- Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement in a safe environment also is presumed to be in the child's best interest. Tex. Fam. Code § 263.307(a). A finding in support of "best interest" does not require proof of any unique set of factors, nor does it limit proof to any specific factors. See Holley, 544 S.W.2d at 371-72. Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d at 28. And a fact finder may measure a parent's future conduct by his past conduct in determining 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).
We review the Holley factors in light of the evidence at trial. Applying them, we observe that neither party presented testimony regarding Lindsay's desires. However, several witnesses testified that Lindsay has bonded well with her relative placement, that she loves her aunt and uncle and they love her, and there was ample testimony that Aunt and Uncle wished to adopt Lindsay. Cf. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.-Houston [14th Dist.] 2016, pet. denied) (when children are too young to express their desires, the fact finder may consider that the children have bonded with the foster family, are well cared for by the foster family, and have spent minimal time with a parent).
2. Application
Lindsay was four years old at the time of trial, and she had been in the Department's care for two years and eight months at that time (the Department's original petition was filed in July 2019 and trial ended in March 2022). Before and after Lindsay was born, Father engaged in a pattern of criminal conduct, including numerous acts of domestic violence against Mother. His criminal conduct and violations of the terms of his community supervision resulted in his absence from Lindsay's life for the majority of her first four years. The trial court could have determined that Father's poor choices, violent behavior, criminal conduct, and incarcerations will continue, endangering Lindsay's present and future physical and emotional needs. E.g., In re S.M., 389 S.W.3d at 493-94; In re E.A., No. 13-06-503-CV, 2007 WL 2471459, at *8 (Tex. App.-Corpus Christi-Edinburg Aug. 31, 2007, no pet.) (mem. op.) ("Because there is evidence that appellant's past actions were unsuitable, the trial court could have inferred that similar unsuitable conduct could recur in the future if the children are returned to appellant.").
Regarding Father's parenting abilities, the trial court heard ample evidence of his anger and hostile behavior throughout the case, including during hearings, visits with Lindsay, meetings, and trial. The trial court also heard several witnesses, including the Department's caseworker, the CASA volunteer, and child development specialist Dr. Profilet, testify that Father and Lindsay have not developed a parent-child bond, despite Father's numerous visits with her since he was released from prison. CASA volunteer Crookson testified that Father was unable to read Lindsay's emotional cues. Further, several witnesses expressed concern over Father's inability to recognize that his absence for most of Lindsay's life had any negative effect on Lindsay. And Dr. Profilet testified that Father exhibited a "concerning" amount of teasing toward Lindsay, which hurt his relationship with her. Although Father completed many services in this case, he did not complete reunification therapy, which he was ordered to complete in lieu of paying child support, despite this case having lingered over nearly three years.
See supra note 6.
It is undisputed that Father did not pay any child support for Lindsay.
As well, it is undisputed that Father is currently on parole and living with his mother. He is not paying rent, although he testified that he contributes toward the household bills. Father testified that, after paying his bills, he has about $100 left over in his current situation, although he expressed his plans to get a better job to make more money. Department caseworker Merrill testified that $100 is not enough money to provide for Lindsay's basic monthly needs. Merrill testified that Father cannot provide a safe and stable home for Lindsay until he is off parole and making more money. See L.Z. v. Tex. Dep't of Fam. &Protective Servs., No. 03-12-00113-CV, 2012 WL 3629435, at *10-11 (Tex. App.-Austin Aug. 23, 2012, no pet.) (mem. op.) (holding the trial court's best interest finding was supported where the father had a history of instability, domestic violence, and criminal activity, and the Department planned to have the child's foster family adopt him).
In contrast to these facts, Lindsay has been in the stable and nurturing care of Aunt and Uncle for two years. She is closely bonded to them and considers them her "mom" and "dad." According to Merrill, Aunt and Uncle are meeting Lindsay's physical, emotional, and educational needs. Aunt testified that she loves Lindsay and that Lindsay loves her. Lindsay sees much of her extended family frequently in her current placement, and Aunt expressed the desire to adopt Lindsay. According to both Merrill and CASA volunteer Crookson, adoption by Aunt and Uncle will provide Lindsay with the stability and permanence she needs. Both agreed that adoption by Aunt and Uncle is in Lindsay's best interest. See Tex. Fam. Code § 263.307(a) ("In considering the factors established by this section, the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest.").
Viewing this evidence in the light most favorable to the judgment for our legal-sufficiency analysis and all the evidence equally for our factual-sufficiency analysis, we conclude that a fact finder reasonably could have formed a firm belief or conviction that termination of Father's parental rights was in Lindsay's best interest. See id. § 161.001(b)(2).
We overrule Father's seventh issue.
D. Father's Request to be Named Possessory Conservator
Father brings two additional challenges to the trial court's judgment. In his sixth issue, he contends that the trial court erred by failing to make additional findings appointing him a possessory conservator. In issue eight, he contends the trial court erred by declining to name him a possessory conservator. Neither of these issues has merit.
Texas Family Code section 161.207, entitled "Appointment of Managing Conservator on Termination," provides: "If the court terminates the parent-child relationship with respect to both parents or to the only living parent, the court shall appoint a suitable, competent adult, the Department of Family and Protective Services, or a licensed child-placing agency as managing conservator of the child." Tex. Fam. Code § 161.207(a). Appointment of a nonparent may be considered a "consequence of the termination." In re L.G.R., 498 S.W.3d at 207.
Here, the trial court found that appointing Father as a permanent managing conservator "is not in the child's best interest because the appointment would significantly impair the child's physical health or emotional development." Because we have determined that the trial court did not err in terminating Father's parental rights, Father no longer has any legal rights with respect to Lindsay. See Tex. Fam. Code § 101.024(a) (excluding a terminated parent from the definition of "parent"). Thus, he cannot challenge the portion of the termination order that relates to the appointment of her conservator. See In re K.V.C., No. 04-22-00150-CV, 2022 WL 3639511, at *7 (Tex. App.-San Antonio Aug. 24, 2022, no pet. h.) (mem. op.); see also In re A.B.M., No. 14-21-00687-CV, 2022 WL 1311067, at *8-9 (Tex. App.- Houston [14th Dist.] May 3, 2022, pet. denied) (mem. op.) (when evidence was sufficient to support termination of father's parental rights, there was no error in declining to name father possessory conservator and instead naming grandmother child's sole managing conservator); In re J.C.R., No. 04-18-00949-CV, 2019 WL 2110109, at *7 (Tex. App.-San Antonio May 15, 2019, pet. denied) (mem. op.).
We overrule Father's sixth and eighth issues.
Conclusion
Having overruled the dispositive issues in this appeal, we affirm the trial court's judgment.