                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                         §
                                                                           No. 08-18-00182-CV
    IN THE INTEREST OF                                   §
                                                                                 Appeal from
    I.D.G., V.A.G., E.R.G., AND R.J.G.,                  §
                                                                             65th District Court
    CHILDREN.                                            §
                                                                         of El Paso County, Texas
                                                         §
                                                                          (TC # 2017DCM6687)
                                                         §

                                 OPINION ON MOTION FOR REHEARING

         W.M.U. (Wanda) appeals from the judgment terminating her parental rights to I.D.G.,

V.A.G., E.R.G., and R.J.G.1 The trial court also terminated the parental rights of the biological

father, V.G., but he has not appealed. On April 9, 2019, we issued our opinion and judgment

modifying the termination judgment to delete the finding under Section 161.001(b)(1)(K) and

affirming the termination judgment as modified.                   In our review of the legal and factual

sufficiency issues, we did not address termination of Wanda’s parental rights under Section

161.001(b)(1)(D) and (E) because Wanda did not challenge two other predicate termination

grounds. On May 17, 2019, the Texas Supreme Court decided In re Z.M.M. which holds that

due process requires an appellate court to review a parent’s sufficiency challenges directed at

subsections D and E even when an alternate predicate termination ground is supported by

1
  To protect the identity of the children, the opinion will refer to W.M.U. by the fictitious name “Wanda”, to her
mother H.U. by the fictitious name “Helen” and to the children by their initials or collectively as the children. See
TEX.R.APP.P. 9.8.
sufficient evidence. In re Z.M.M., No. 18-0734, --- S.W.3d ---, 2019 WL 2147266, at *1 (Tex.

May 17, 2019)(per curiam); see In re N.G., No. 18-0508, --- S.W.3d ---, 2019 WL 2147263 (Tex.

May 17, 2019)(holding that due process and due course of law require an appellate court to

review and detail its analysis as to termination of parental rights under subsections D or E).

Wanda filed an amended motion for rehearing contending that we erred by failing to address the

sufficiency challenges to the findings based on subsections D and E. The Department filed a

response indicating that we must address these sufficiency challenges.

          We grant Wanda’s amended motion for rehearing, withdraw our opinion and judgment

issued on April 9, 2019, and issue the following opinion and judgment in their place. Finding

that the Texas Department of Family and Protective Services abandoned its request to terminate

Wanda’s parental rights under Section 161.001(b)(1)(K) of the Texas Family Code, we delete

that affirmative finding from the termination order. We also find that the evidence is legally

insufficient to support the termination finding under Section 161.001(b)(1)(D) of the Texas

Family Code and delete that affirmative finding from the termination order. The termination

order, as so modified, is affirmed.2

                                           FACTUAL SUMMARY

          Wanda is the mother of four children, I.D.G., V.A.G., E.R.G., and R.J.G. In 2015,

Wanda left the children, ranging in age from six years to nine years of age, at the Lee and Beulah

Moor Children’s Home in El Paso.3 She provided her mother, Helen, with a power of attorney to

consent to medical treatment for the children. The facility is a temporary group home for

2
    Our opinion and judgment disposing of the case were issued within the 180-day period established by
TEX.R.JUD’L ADMIN. 6.2(a). As a result of the change in law made by In re Z.M.M. and In re N.G., it became
necessary to grant the appellant’s motion for rehearing and withdraw our prior opinion and judgment. Under these
circumstances, we have endeavored to comply with Rule 6.2(a)’s mandate to ensure that the appeal is brought to
final disposition as quickly as reasonably possible even if it was not done within 180-days from the filing of the
notice of appeal.
3
    Witnesses referred to the facility as the Lee Moor Home or the Lee Moor Children’s Home.

                                                       -2-
children whose parents are having difficulty caring for the children. At the Lee Moor Home, the

children are provided a safe home, and they receive counseling, attend school, and are provided

medical care. The family is encouraged to participate with the children. Wanda visited the

children only sporadically, and it was the children’s grandmother, Helen, who participated in the

majority of the children’s events and activities. When Wanda attended events at the home,

including counseling sessions, she focused on her telephone rather than engaging with the

children. During the time the children were at Lee Moor Home, Helen cared for the children on

the weekends. The children remained at the Lee Moor Home until the Fall of 2017.

       On August 28, 2017, the Department received a report that Wanda had been in and out of

jail and she had fled to Mexico with her boyfriend even though she was on probation. Helen

informed the caseworker that she had cared for the children for the last eight years, but she could

no longer be responsible for them due to her health issues and the children’s behavior. The

Department attempted to contact Wanda and V.G., but they could not locate either of them.

I.D.G. said she had not seen her mother for several weeks and the younger children had not seen

her recently and did not know her location. On October 6, 2017, the Department filed a petition

seeking termination of Wanda’s and V.G.’s parental rights. That same day, the trial court

entered an emergency order naming the Department as the temporary sole managing conservator

of the children. The court conducted the final trial in the case on September 14, 2018. Wanda

was in federal custody and did not attend the trial. Wanda’s criminal history includes federal

convictions for human trafficking and importing marijuana.              She was convicted on

September 23, 2010 of encouraging and inducing the illegal entry of aliens and was placed on

probation for five years. The terms of probation required Wanda to take parenting classes. In

2011, she was convicted of importing marijuana. Wanda committed this offense only one month



                                               -3-
after she was placed on probation for the first offense. The court sentenced her to serve twenty-

one months followed by probation for three years. Finally, Wanda was convicted on March 11,

2016 of transporting aliens, and she was sentenced to serve sixteen months in prison followed by

supervised release for two years. Wanda’s federal probation officer, Karen Eisenberg, testified

at trial that she requested issuance of a warrant for Wanda in May 2017 after she left the halfway

house and other violations of the terms of her supervised release. The court did not revoke

Wanda’s supervised release, but she was ordered to spend an additional ninety days at the

halfway house. Wanda absconded from the halfway house again in September 2017. Following

her release from the halfway house in 2018, Wanda was arrested in August 2018 for transporting

aliens. At the time of the final hearing in this case, she was in federal custody and facing a new

charge as well as revocation of her supervised release.

       The trial court found that the Department had proven by clear and convincing evidence

that Wanda had:      (1) knowingly placed or knowingly allowed the children to remain in

conditions or surroundings which endanger the physical or emotional well-being of the children,

pursuant to § 161.00l(b)(l)(D), Texas Family Code; (2) engaged in conduct or knowingly placed

the children with persons who engaged in conduct which endangers the physical or emotional

well-being of the child, pursuant to § 161.00l(b)(l)(E), Texas Family Code; (3) executed before

or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights,

pursuant to § 161.001(b)(1)(K), Texas Family Code; (4) constructively abandoned the children

who have been in the permanent or temporary managing conservatorship of the Department of

Family and Protective Services for not less than six months and: (1) the Department has made

reasonable efforts to return the children to the mother; (2) the mother has not regularly visited or

maintained significant contact with the children; and (3) the mother has demonstrated an



                                                -4-
inability to provide the children with a safe environment, pursuant to § 161.001(b)(l)(N), Texas

Family Code; and (5) failed to comply with the provisions of a court order that specifically

established the actions necessary for Wanda to obtain the return of the children who have been in

the permanent or temporary managing conservatorship of the Department of Family and

Protective Services for not less than nine months as a result of the children’s removal from the

parent under Chapter 262 for the abuse or neglect of the child, pursuant to § 161.001(b)(l)(O),

Texas Family Code. The court also found by clear and convincing evidence that termination of

Wanda’s parental rights was in the children’s best interest, and it appointed the Department as

the permanent managing conservator of the children.

                         PREDICATE TERMINATION GROUNDS

       In Issues One through Three, Wanda challenges the legal and factual sufficiency of the

evidence supporting the trial court’s determination that her parental rights should be terminated

based on subsections D, E, and K of Section 161.001(b)(1) of the Texas Family Code. Parental

rights may be involuntarily terminated through proceedings brought under Section 161.001 of

the Texas Family Code.       See TEX.FAM.CODE ANN. § 161.001.           Under this provision, the

petitioner must (1) establish one or more of the statutory acts or omissions enumerated as

grounds for termination, and (2) prove that termination is in the best interest of the children. See

id. Both elements must be established, and termination may not be based solely on the best

interest of the child as determined by the trier of fact. Texas Department of Human Services v.

Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In the Interest of A.B.B., 482 S.W.3d 135, 138

(Tex.App.--El Paso 2015, pet. dism’d w.o.j.).        Only one predicate finding under Section

161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that

termination is in the child’s best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).



                                               -5-
                                       Standards of Review

       When reviewing the legal sufficiency of the evidence in a termination case, we consider

all of the evidence in the light most favorable to the trial court’s finding, “to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”

In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d 256,

266 (Tex. 2002); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We give deference to the

fact finder’s conclusions, indulge every reasonable inference from the evidence in favor of that

finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long

as a reasonable fact finder could do so. In the Interest of J.P.B., 180 S.W.3d at 573. We

disregard any evidence that a reasonable fact finder could have disbelieved, or found to have

been incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re

J.F.C., 96 S.W.3d at 266. However, when a parent’s rights have been terminated based on

multiple predicate grounds, including subsections D or E, we must address any sufficiency

challenges directed at subsections D and/or E, even if the evidence is sufficient to support

termination on other predicate grounds. See In re Z.M.M., 2019 WL 2147266 at *2; In re N.G.,

2019 WL 2147263 at *3.

       In a factual sufficiency review, the inquiry is whether the evidence is such that a fact

finder could reasonably form a firm belief or conviction about the challenge findings. See In re

J.F.C., 96 S.W.3d at 266. We must give due consideration to evidence that the fact finder could

reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. A court of

appeals should consider whether disputed evidence is such that a reasonable fact finder could not

have resolved that disputed evidence in favor of its finding. Id. If the disputed evidence that a

reasonable fact finder could not have credited in favor of the finding is so significant that a fact



                                                -6-
finder could not reasonably have formed a firm belief or conviction, then the evidence is

factually insufficient. Id.

                                   Section 161.001(b)(1)(K)

       We begin by addressing Issue Three which pertains to termination of Wanda’s parental

rights based on Section 161.001(b)(1)(K). The termination order recites that the Department

proved by clear and convincing evidence that Wanda’s parental rights should be terminated

pursuant to subsections D, E, K, N, and O of Section 161.001(b)(1). The record reflects,

however, that the Department abandoned its request for termination under Section

161.001(b)(1)(K). Consequently, we sustain Issue Three and modify the judgment by deleting

the challenged finding.

                      Section 161.001(b)(1)(D) -- Endangering Environment

       In Issues One and Two, Wanda challenges termination of her parental rights pursuant to

Section 161.001(b)(1)(D) and (E). Wanda does not raise any arguments related to termination of

her parental rights under subsections N and O. Consequently, those unchallenged grounds are

sufficient to support the termination order. See Perez v. Texas Department of Protective and

Regulatory Services, 148 S.W.3d 427, 434 (Tex.App.--El Paso 2004, no pet.).              We are

nevertheless required to address the merits of the sufficiency arguments related to subsections D

and E. See In re Z.M.M., 2019 WL 2147266 at *2; In re N.G., 2019 WL 2147263 at *3.

       We begin by considering whether the evidence is legally and factually sufficient to

support termination under Section 161.001(b)(1)(D). A parent’s rights may be terminated if

there is clear and convincing evidence that the parent has knowingly placed or knowingly

allowed the child to remain in conditions or surroundings which endanger the physical or

emotional well-being of the child. See TEX.FAM.CODE ANN. § 161.001(b)(1)(D). Subsection D



                                              -7-
addresses the child’s surroundings and environment.         In re N.R., 101 S.W.3d 771, 775-76

(Tex.App.--Texarkana 2003, no pet). In this context, the child’s environment refers to the

suitability of the child’s living conditions as well as the conduct of parents or others in the home.

In re S.R., 452 S.W.3d 351, 360 (Tex.App.--Houston [14th Dist.] 2014, pet. denied).

       A child is endangered when the environment creates a potential for danger that the parent

is aware of but disregards. In re E.R.W., 528 S.W.3d 251, 264 (Tex.App.--Houston [14th Dist.]

2017, no pet.). The relevant time frame to determine whether there is clear and convincing

evidence of endangerment is before the child was removed. Ybarra v. Texas Department of

Human Services, 869 S.W.2d 574, 577 (Tex.App.--Corpus Christi 1993, no pet.). When seeking

termination under subsection D, the Department must show that the child’s living conditions

pose a real threat of injury or harm. In re N.R., 101 S.W.3d at 776; Ybarra, 869 S.W.2d at 577.

Conduct that demonstrates awareness of an endangering environment is sufficient to show

endangerment. In re S.M.L., 171 S.W.3d 472, 477 (Tex.App.--Houston [14th Dist.] 2005, no

pet.). Evidence of criminal conduct, convictions, or imprisonment is relevant to a review of

whether a parent engaged in a course of conduct that created an environment endangering to the

child’s well-being. See In re S.R., 452 S.W.3d at 360-61; A.S. v. Texas Department of Family &

Protective Services, 394 S.W.3d 703, 712-13 (Tex.App.--El Paso 2012, no pet.).

       The evidence shows that Helen had cared for the children most of their lives because

Wanda had been in and out of jail. Wanda’s criminal history includes three convictions for

federal felony offenses in 2010, 2011, and 2016, two of which resulted in her incarceration in

prison for a total of thirty-nine months. Wanda left the children at a temporary group home in El

Paso in 2015 and gave her mother power of attorney to consent to medical care for the children.

Over the next two years, Wanda visited the children only sporadically and her mother acted as



                                                -8-
the children’s primary caregiver on weekends.           During this two-year period, Wanda was

convicted of transporting aliens in 2016 and sentenced to serve sixteen months in prison

followed by supervised release for two years.           Because Wanda violated the terms of her

supervised release, she was ordered to spend an additional ninety days at the halfway house.

When Helen became unable to care for the children in 2017, Wanda refused to accept

responsibility for her children and it became necessary for the Department to take custody of

them.

        During Wanda’s incarceration, the children were cared for by Helen or by the Lee Moor

Children’s Home. There is no evidence that the children’s living conditions posed a real threat

of injury or harm to them. While the evidence supports termination of Wanda’s parental rights

on other grounds, we conclude that the evidence is legally insufficient for a reasonable trier of

fact to form a firm belief or conviction that Wanda knowingly placed or knowingly allowed the

children to remain in conditions or surroundings which endangered their physical or emotional

well-being. Issue One is sustained. It is unnecessary to address Wanda’s factual sufficiency

challenge directed at the subsection D finding.

                        Endangering Conduct -- Section 161.001(b)(1)(E)

        In Issue Two, Wanda contends that the evidence is legally and factually insufficient to

support termination of her parental rights under Section 161.001(b)(1)(E). The term “conduct,”

as used in Section 161.001(b)(1)(E), includes both the parent’s actions and failures to act. In re

M.J.M.L., 31 S.W.3d 347, 351 (Tex.App.--San Antonio 2000, pet. denied).               Conduct that

subjects a child to a life of uncertainty and instability endangers the physical and emotional well-

being of a child. See A.S. v. Texas Department of Family and Protective Services, 394 S.W.3d




                                                  -9-
703, 712 (Tex.App.--El Paso 2012, no pet.); In re M.R.J.M., 280 S.W.3d 494, 503 (Tex.App.--

Fort Worth 2009, no pet.).

       Under Section 161.001(b)(1)(E), the relevant inquiry is whether evidence exists that the

endangerment of the child’s physical and emotional well-being was the direct result of the

parent’s conduct, including acts, omissions, or failures to act. See In re J.T.G., 121 S.W.3d 117,

125 (Tex.App.--Fort Worth 2003, no pet.). Termination under this subsection 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. When determining whether a parent has engaged in an

endangering course of conduct, a fact finder may consider the parent’s actions and inactions that

occurred both before and after the child was born. See In re J.O.A., 283 S.W.3d 336, 345 (Tex.

2009); In re B.C.S., 479 S.W.3d 918, 926 (Tex. App.--El Paso 2015, no pet.); In re S.M., 389

S.W.3d 483, 491-92 (Tex. App.--El Paso 2012, no pet.). The conduct need not occur in the

child’s presence, and it may occur both before and after the child has been removed by the

Department. Walker v. Texas Department of Family & Protective Services, 312 S.W.3d 608, 617

(Tex.App.--Houston [1st Dist.] 2009, pet. denied). Scienter is not required for an appellant’s

own acts under Section 161.001(b)(1)(E), although it is required when a parent places her child

with others who engage in endangering acts. In re U.P., 105 S.W.3d 222, 236 (Tex.App.--

Houston [14th Dist.] 2003, pet. denied).

       Conduct that subjects a child to a life of uncertainty and instability endangers the child's

physical and emotional well-being. In re R.A.G., 545 S.W.3d 645, 651 (Tex.App.--El Paso 2017,

no pet.); Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex.App.--Houston [1st Dist.] 2010, pet.

denied); In re R.W., 129 S.W.3d 732, 739 (Tex.App.–Fort Worth 2004, pet. denied). The

commission of criminal conduct by a parent may support termination under Section



                                              - 10 -
161.001(b)(1)(E) because it exposes the child to the possibility that the parent may be

imprisoned. In re R.A.G., 545 S.W.3d at 651; In re M.C., 482 S.W.3d 675, 685 (Tex.App.--

Texarkana 2016, pet. denied); In re A.W.T., 61 S.W.3d 87, 89 (Tex.App.--Amarillo 2001, no

pet.)(intentional criminal activity which exposes the parent to incarceration is relevant evidence

tending to establish a course of conduct endangering the emotional and physical well-being of

the child). While criminal violations and incarceration are not enough to show endangerment by

themselves, they can be evidence of endangerment if shown to be part of a course of conduct that

is endangering to the child. Texas Department of Human Services v. Boyd, 727 S.W.2d 531,

533-34 (Tex. 1987); Perez v. Texas Department of Protective and Regulatory Services, 148

S.W.3d 427, 436 (Tex.App.--El Paso 2004, no pet.). Likewise, a fact finder may infer that a

parent’s lack of contact with the child and absence from the child’s life endangered the child's

emotional well-being. In re R.A.G., 545 S.W.3d at 652; In re U.P., 105 S.W.3d 222, 236

(Tex.App.--Houston [14th Dist.] 2003, pet. denied).

       When a parent is incarcerated, she is absent from the child’s daily life and is unable to

provide support. See In re S.M.L., 171 S.W.3d 472, 479 (Tex.App.--Houston [14th Dist.] 2005,

no pet.). An environment which routinely subjects a child to the probability that he will be left

alone because his parent is incarcerated endangers both the physical and emotional well-being of

a child. In re C.L.C., 119 S.W.3d 382, 393 (Tex.App.--Tyler 2003, no pet.); In re S.D., 980

S.W.2d 758, 763 (Tex.App.--San Antonio 1998, pet. denied). Conduct that results in such a

disability, and that subjects a child to a life of uncertainty and instability, endangers the child’s

physical or emotional well-being. Id.

       We have already detailed the evidence showing Wanda refused to accept parental

responsibility for the children and repeatedly committed criminal offenses which caused her to



                                               - 11 -
become incarcerated. There is also evidence in the record that Wanda did not complete most of

the services required by her service plan. While Wanda completed the general parenting classes,

she stopped attending her other services when she absconded from custody. Based on the

evidence, the trial could have formed a firm conviction or belief that Wanda’s failure to accept

parental responsibility, repeated commission of criminal acts resulting in her incarceration and

absence from the children’s lives, and her failure to complete the required services constitutes a

course of conduct which endangered the physical or emotional well-being of her four children.

See In re F.H., No. 14-18-00209-CV, 2018 WL 3977931, at *6 (Tex.App.--Houston [14th Dist.]

August 16, 2018, no pet.)(holding father’s incarceration, criminal history, and drug use, along

with absence from child’s life, created a course of conduct from which the fact finder could have

determined father endangered daughter’s emotional and physical well-being). Having found that

the evidence is both legally and factually sufficient to support termination under subsection E,

we overrule Issue Two.

                                        BEST INTEREST

       In Issue Four, Wanda contends that the evidence is legally and factually insufficient to

support the best interest finding made under Section 161.001(b)(2) of the Family Code.

                                        Standard of Review

       When reviewing the legal sufficiency of the evidence in a termination case, we consider

all of the evidence in the light most favorable to the trial court’s finding, “to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”

In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d 256,

266 (Tex. 2002); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We give deference to the

fact finder’s conclusions, indulge every reasonable inference from the evidence in favor of that



                                               - 12 -
finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long

as a reasonable fact finder could do so. In the Interest of J.P.B., 180 S.W.3d at 573. We

disregard any evidence that a reasonable fact finder could have disbelieved, or found to have

been incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re

J.F.C., 96 S.W.3d at 266.

       In a factual sufficiency review, the inquiry is whether the evidence is such that a fact

finder could reasonably form a firm belief or conviction about the challenge findings. See In re

J.F.C., 96 S.W.3d at 266. We must give due consideration to evidence that the fact finder could

reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. A court of

appeals should consider whether disputed evidence is such that a reasonable fact finder could not

have resolved that disputed evidence in favor of its finding. Id. If the disputed evidence that a

reasonable fact finder could not have credited in favor of the finding is so significant that a fact

finder could not reasonably have formed a firm belief or conviction, then the evidence is

factually insufficient. Id.

                                        The Holley Factors

       A determination of best interest necessitates a focus on the child, not the parent. See In

the Interest of B.C.S., 479 S.W.3d 918, 927 (Tex.App.--El Paso 2015, no pet.); In the Interest of

R.F., 115 S.W.3d 804, 812 (Tex.App.--Dallas 2003, no pet.). There is a strong presumption that

it is in the child’s best interest to preserve the parent-child relationship. In re B.C.S., 479 S.W.3d

at 927. Several factors must be considered in our analysis of the best interest issue: 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 parenting abilities of the individuals

seeking custody; the programs available to assist those individuals to promote the child’s best



                                                - 13 -
interest; the plans for the child by those individuals or the agency seeking custody; the stability

of the home or proposed placement; the parent’s acts or omissions that may indicate that the

existing parent-child relationship is not a proper one; and any excuse for the parent’s acts or

omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976)(“the Holley factors”). We also

must bear in mind that permanence is of paramount importance in considering a child’s present

and future needs. In re B.C.S., 479 S.W.3d at 927.

       We begin by examining the legal sufficiency of the evidence supporting the best interest

finding. The first factor is the desires of the children. At the time of trial, I.D.G. was twelve-

years-old, V.A.G. was eleven-years-old, E.R.G., was ten-years-old, and R.J.G. was nine-years-

old. According to the caseworker, Iliana Ladd, the children are disappointed and upset with

mother, and are sad because they want their mother. I.D.G. asked the caseworker why Wanda

had them if she was not going to care for them. I.D.G. also stated that she knew her mother was

doing drugs and having relationships with men. There is no evidence that the children are

mature enough to express a preference as to their placement. In re A.R., 236 S.W.3d 460, 480

(Tex.App.--Dallas 2007, no pet.)(op. on reh’g)(a child’s preference should not be considered

absent a showing of sufficient maturity). Further, evidence that the children “want their mother”

does not necessarily mean that it is the children’s desire to be placed with mother.

       Evidence that a child is well-cared for by the foster family, is bonded to the foster family,

and has spent minimal time in the presence of a parent is relevant to the best interest

determination under the desires of the child factor. See In re R.A.G., 545 S.W.3d 645, 653

(Tex.App.--El Paso 2017, no pet.); In re U.P., 105 S.W.3d 222, 230 (Tex.App.--Houston [14th

Dist.] 2003, pet. denied). The overwhelming evidence shows that Wanda has not been involved

in the children’s lives for several years and she had only twelve visits with them during the



                                               - 14 -
pendency of the termination case.            The three younger children have been in their current

placement since March 2018. They are doing well, participate in family activities, and crave

their foster parents’ attention. The foster parents plan to adopt them and they are open to

fostering I.D.G. if they are able to resolve a foster home licensing issue. 4 I.D.G. was placed with

a new foster family on the day of the final hearing. Given Wanda’s lack of involvement in the

children’s lives for several years, we conclude that the first factor weighs in favor of the trial

court’s best interest finding. The next two factors are the children’s emotional and physical

needs now and in the future, and the emotional and physical danger to the children now and in

the future. The youngest child, R.J.G., has behavioral issues which require treatment with

medication and therapy. I.D.G. has also received counseling for sexual abuse. The need for

permanence is a paramount consideration for a child’s present and future physical and emotional

needs. In re R.A.G., 545 S.W.3d at 653; In re U.P., 105 S.W.3d at 230. The trial court found

that Wanda engaged in conduct endangering to the children. Conduct that subjects a child to a

life of uncertainty and instability endangers the physical and emotional well-being of a child.

See A.S. v. Texas Department of Family and Protective Services, 394 S.W.3d 703, 712

(Tex.App.--El Paso 2012, no pet.); In re M.R.J.M., 280 S.W.3d 494, 503 (Tex.App.--Fort Worth

2009, no pet.). Further, a fact finder may infer that past conduct endangering the well-being of a

child may recur in the future if the child is returned to the parent. In re R.A.G., 545 S.W.3d at

653; In re D.L.N., 958 S.W.2d 934, 934 (Tex.App.--Waco 1997, pet. denied).                          Intentional

criminal activity that exposes a parent to incarceration is conduct that endangers the physical and

emotional well-being of a child. Texas Department of Human Services v. Boyd, 727 S.W.2d 531,

533 (Tex. 1987). From the time the children were quite young, Wanda repeatedly violated


4
  The caseworker testified that the foster parents would be required to obtain a group home license before I.D.G.
could be placed with them.

                                                     - 15 -
federal law resulting in her incarceration, and she was arrested for a new offense just weeks

before the final hearing. Based on the evidence, the trial court could have determined that

Wanda would continue to endanger the children in the future by her criminal conduct and

abandonment of the children. The second and third factors weigh heavily in support of the best

interest finding.

        The fourth factor is the parenting abilities of the individuals seeking custody.           In

reviewing the parenting abilities of a parent, a fact finder can consider the parent’s past neglect

or past inability to meet the physical and emotional needs of the children. D.O. v. Texas

Department of Human Services, 851 S.W.2d 351, 356 (Tex.App.--Austin 1993, no writ),

disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002). The evidence

supports a conclusion that Wanda has poor parenting skills and an inability to care for her

children or provide for their basic needs. This factor weighs in favor of the best interest finding.

        The fifth factor examines the programs available to assist those individuals to promote

the child’s best interest. Wanda completed the general parenting classes, but she failed to take

parenting classes aimed at teaching her parenting skills appropriate for the age of her children as

required by her service plan. The trial court could infer from Wanda’s failure to take the

initiative to utilize the available programs that she would not have the ability to motivate herself

in the future. See In re W.E.C., 110 S.W.3d 231, 245 (Tex.App.--Fort Worth 2003, no pet.). The

fifth factor supports the best interest finding.

        We will consider the sixth and seventh factors together. The sixth factor examines the

plans for the child by those individuals or the agency seeking custody. The seventh factor is the

stability of the home or proposed placement. The fact finder may compare the parent’s and the

Department’s plans for the children and determine whether the plans and expectations of each



                                                   - 16 -
party are realistic or weak and ill-defined. D.O., 851 S.W.2d at 356. The Department’s plan is

for the three younger children to remain in their current placement and to be adopted by the

foster parents. It is possible that I.D.G. will also be placed with her siblings if the foster parents

are able to become licensed as a group home. Wanda did not testify at trial or offer any evidence

of her own plan for the children. The trial court could have determined that the foster parents

will continue to provide the children with a safe and stable home. The sixth and seventh factors

weigh in favor of the best interest finding.

       The eighth factor is the parent’s acts or omissions that may indicate that the existing

parent-child relationship is not a proper one. Wanda abandoned the children and endangered

them by repeatedly violating federal law which resulted in her incarceration. As a result, she

could not provide the stability and permanence needed by the children. Based on this evidence,

the trial court could have found that the existing parent-child relationship between Wanda and

the children is not a proper one. The eighth factor supports the best interest finding.

       Finally, the ninth factor is whether there is any excuse for the parent’s acts or omissions.

Wanda’s brief does not address this factor or offer any excuse for her conduct.

       After considering the evidence related to the Holley factors, the trial court could have

reached a firm conviction that termination of Wanda’s parental rights is in the best interest of her

children. We conclude that the evidence supporting the best interest finding is supported by both

legally and factually sufficient evidence. Issue Four is overruled.

       Having sustained Issues One and Three, we modify the judgment by deleting the trial

court’s findings that Wanda’s parental rights should be terminated pursuant to Section

161.001(b)(1)(D) and (K).       Having overruled Issues Two and Four, we affirm the order

terminating Wanda’s parental rights to I.D.G., V.A.G., E.R.G., and R.J.G. as so modified.



                                                - 17 -
July 30, 2019
                                    ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.




                                             - 18 -
