                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-17-00006-CV

              IN THE INTEREST OF A.N. AND K.N., CHILDREN



                              From the 249th District Court
                                 Johnson County, Texas
                             Trial Court No. DC-D201600051


                               MEMORANDUM OPINION

        Jeremy N. appeals from a judgment that terminated the parent-child relationship

between him and his children, A.N. and K.N.1 After hearing all the evidence, the trial

court found by clear and convincing evidence that Jeremy (1) knowingly placed or

knowingly allowed the children to remain in conditions or surroundings that endanger

the children, (2) engaged in conduct or knowingly placed the children with persons who

engaged in conduct that endangers the children, (3) had been convicted or placed on

community supervision, including deferred adjudication community supervision, for

being criminally responsible for the death or serious injury of a child under section 22.04


1Jessica N. is the mother of A.N. and K.N. She executed a voluntary relinquishment of her parental rights
and is not a party to this appeal.
of the Penal Code TEX. FAM. CODE ANN. § 161.001 (b) (1) (D) (E) (L) (West Supp. 2016).

The trial court further found by clear and convincing evidence that termination was in

the best interest of the children. We affirm.

                                            Facts

        Jeremy is the father of J.N.; twin boys, M.N. and M.N.; and twins A.N. and K.N.

A.N. and K.N were born on November 23, 2015. On January 23, 2016, Jeremy was

convicted for injury to a child and sentenced to seventy-five years confinement for

injuries M.N. received as a result of being shaken.         This Court affirmed Jeremy’s

conviction on May 17, 2017 in Cause No. 10-16-00222-CR. Jeremy’s parental rights were

terminated to J.N. and M.N., and M.N., and this Court affirmed the trial court’s order of

termination for those children on February 22, 2017 in Cause No. 10-16-00234-CV.

        Jeremy was incarcerated for the offense of injury to a child at the time A.N. and

K.N. were born, and he remained incarcerated during the pendency of the case. Jeremy

was never allowed visitation with A.N. and K.N. The children were removed from the

parents while they were still in the hospital and have been in foster care since being

released from the hospital.

                                    Standard of Review

        In eight issues Jeremy argues that the evidence is legally and factually insufficient

to support the trial court’s findings on each of the grounds for termination. Only one

predicate act under section 161.001 (b) (1) is necessary to support a judgment of

termination in addition to the required finding that termination is in the child's best

In the Interest of A.N. and K.N.                                                       Page 2
interest. In re A.V., 113 S.W.3d 355, 362 (Tex.2003). In conducting a legal sufficiency

review in a parental termination case:

        [A] court should look at all the evidence in the light most favorable to the
        finding to determine whether a reasonable trier of fact could have formed
        a firm belief or conviction that its finding was true. To give appropriate
        deference to the factfinder's conclusion and the role of a court conducting a
        legal sufficiency review, looking at the evidence in the light most favorable
        to the judgment means that a reviewing court must assume that the
        factfinder resolved disputed facts in favor of its finding if a reasonable
        factfinder could do so. A corollary to this requirement is that a court should
        disregard all evidence that a reasonable factfinder could have disbelieved
        or found to be incredible. This does not mean that a court must disregard
        all evidence that does not support the finding. Disregarding undisputed
        facts that do not support the finding could skew the analysis of whether
        there is clear and convincing evidence.

In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d

256, 266 (Tex.2002)) (emphasis in J.P.B.).

        In a factual sufficiency review,

       [A] court of appeals must give due consideration to evidence that the
       factfinder could reasonably have found to be clear and convincing.... [T]he
       inquiry must be "whether the evidence is such that a factfinder could
       reasonably form a firm belief or conviction about the truth of the State's
       allegations." A court of appeals should consider whether disputed
       evidence is such that a reasonable factfinder could not have resolved that
       disputed evidence in favor of its finding. 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.F.C., 96 S.W.3d 256, 266-67 (Tex.2002) (quoting In re C.H., 89 S.W.3d 17, 25

(Tex.2002)) (internal footnotes omitted) (alterations added).




In the Interest of A.N. and K.N.                                                         Page 3
                                   Conviction for Injury to a Child

        In the fifth and sixth issues, Jeremy complains that the evidence is legally and

factually insufficient to support the trial court’s finding that he was convicted of a crime

under Section 22.04 of the Texas Penal Code.           Section 161.001 (b) (1) (L) of the Texas

Family Code allows termination of the parent-child relationship if the parent has:

        been convicted or has been placed on community supervision, including
        deferred adjudication community supervision, for being criminally
        responsible for the death or serious injury of a child under the following
        sections of the Penal Code, or under a law of another jurisdiction that
        contains elements that are substantially similar to the elements of an offense
        under one of the following Penal Code sections, or adjudicated under Title
        3 for conduct that caused the death or serious injury of a child and that
        would constitute a violation of one of the following Penal Code sections:
                                             …

                (ix) Section 22.04 (injury to a child, elderly individual, or disabled
                individual);

TEX. FAM. CODE ANN. § 161.001 (b) (1) (L) (West Supp. 2016).

        Jeremy argues that because his criminal conviction was being appealed it could

not be used as a ground for termination. In Rian v. Texas Department of Family and

Protective Services, the Austin Court of Appeals considered whether Section 161.001 (b)

(1) (L) had a finality requirement before it could be used as a ground for termination.

See Rian v. Tex. Dep't of Family and Protective Services, No. 03-08-00155-CV, 2009 Tex. App.

LEXIS 5925 at *3 (Tex.App.—Austin July 31, 2009, pet. denied). The court concluded that

the legislature intended to permit termination under section 161.001 based on conviction

without regard to whether appeals were exhausted. Rian v. Tex. Dep't of Family and

Protective Services, 2009 Tex. App. LEXIS 5925 at *6. The Amarillo Court of Appeals

In the Interest of A.N. and K.N.                                                         Page 4
agreed with the analysis in Rian v. Texas Department of Family and Protective Services and

held that Section 161.001 (b) (1) (L) does not require that the appeal of the conviction be

exhausted. In the Interest of T.C.C.H., No. 07-11-00179-CV, 2011 Tex. App. LEXIS 10134 at

*24 (Tex. App. – Amarillo December 22, 2011, no pet.).

        We also hold that Section 161.001 (b) (1) (L) does not require that all appeals be

exhausted before the conviction can be used for termination.      We overrule the fifth and

sixth issues. Because we find that evidence is legally and factually sufficient to support

the trial court’s finding of a predicate act pursuant to Section 161.001 (b) (1) (L), we need

not reach the first, second, third, and fourth issues.

                                        Best Interest

        In the seventh and eighth issues, Jeremy complains that the evidence is legally and

factually insufficient to support the trial court’s finding that termination is in the best

interest of the children. In determining the best interest of a child, a number of factors

have been considered, including (1) the desires of the child; (2) the emotional and

physical needs of the child now and in the future; (3) the emotional and physical danger

to the child now and in the future; (4) the parental abilities of the individuals seeking

custody; (5) the programs available to assist these individuals; (6) the plans for the child

by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent

that may indicate the existing parent-child relationship is not a proper one; and (9) any

excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372

(Tex.1976); In re S.L., 421 S.W.3d 34, 38 (Tex.App.-Waco 2013, no pet.). The Holley factors


In the Interest of A.N. and K.N.                                                       Page 5
focus on the best interest of the child, not the best interest of the parent. In re S.L., 421

S.W.3d at 38. The goal of establishing a stable permanent home for a child is a compelling

state interest. Id. The need for permanence is a paramount consideration for a child's

present and future physical and emotional needs. Id.

        A.N. and K.N. were one year old at the time of trial. They had never met Jeremy

because he had been incarcerated since their birth. The children are in a foster home with

another sibling where their physical and emotional needs are being met. Jeremy is

incarcerated and sentenced to seventy-five years in prison. He does not have access to

programs to assist him with the children, and he has no plans to care for the children.

Jeremy has violent tendencies as evidenced by his conviction for injuring one of his

children. We find that the evidence is legally and factually sufficient to support the trial

court’s finding that termination is in the best interest of the children. We overrule the

seventh and eighth issues on appeal.

                          Admitting Evidence of Criminal Conviction

        In the ninth issue, Jeremy contends that the trial court abused its discretion and

violated his due process rights by considering his criminal conviction that had been

appealed. Whether the trial court erred in admitting or excluding evidence depends

upon whether it abused its discretion. In re K.S., 76 S.W.3d 36, 42 (Tex. App.—Amarillo

2002, no pet.). Furthermore, a trial court abuses its discretion when the decision fails to

comport with controlling rules and principles. Owens-Corning Fiberglas Corp. v. Malone,

972 S.W.2d 35, 43 (Tex. 1998).


In the Interest of A.N. and K.N.                                                       Page 6
           In In the Interest of W.D.W., the Eastland Court of Appeals addressed whether the

trial court abused its discretion in admitting criminal convictions under Section 161.001

(1) (L) that were pending on appeal. In the Interest of W.D.W., 2012 Tex. App. LEXIS 5562,

at *39 (Tex.App. – Eastland July 12, 2012, pet. den’d). The court found the analysis Rian

v. Tex. Dep't of Family and Protective Services to be dispositive and held that the evidence

was admitted to show that the parental rights should be terminated; and, therefore, the

trial court did not abuse its discretion in admitting the evidence. Id. at *41. We also find

that the trial court did not abuse its discretion in admitting the evidence of Jeremy’s

criminal conviction.

           The Texas Supreme Court has held that we use the analysis in Mathews v. Eldridge2

to review due process complaints. In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). In

conducting an Eldridge due process analysis, we weigh three factors (1) the private

interests at stake, (2) the government's interest in the proceeding, (3) and the risk of

erroneous deprivation of parental rights. Id. The right of a parent to maintain custody

of his child is very precious; however, protecting the child’s welfare and achieving

permanency is also a consideration. Id.

           Jeremy was convicted of injuring one of his children. The children are in a foster

home and have the need for permanency. The government has an interest in protecting

the best interest of the children and obtaining a final decision for their placement. Section


2   Mathews v. Eldridge, 424 U.S. 319 (1976).
In the Interest of A.N. and K.N.                                                       Page 7
161.001 (b) (1) (L) allows for termination after a parent has been convicted of injury to a

child. The burden of proof for criminal convictions as well as the procedural processes

in place for criminal defendants reduces the risk of erroneous deprivation of parental

rights after admission of evidence of that criminal conviction. After weighing the three

factors set out in In re M.S., we find that admitting the criminal conviction while it was

pending on appeal did not violate Jeremy’s due process rights. We overrule the ninth

issue.

                                        Conclusion

         We affirm the trial court’s judgment.




                                           AL SCOGGINS
                                           Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 24, 2017
[CV06]




In the Interest of A.N. and K.N.                                                     Page 8
