Opinion filed January 9, 2020




                                                  In The


            Eleventh Court of Appeals
                                             __________

                                       No. 11-19-00212-CV
                                           __________

                      IN THE INTEREST OF K.R., A CHILD


                   On Appeal from the 1st Multicounty Court at Law
                                Mitchell County, Texas
                          Trial Court Cause No. CCL17106


                           MEMORANDUM O PI NI O N
        This is an appeal from an order in which the trial court terminated the parental
rights of K.R.’s mother and father.1 K.R.’s father filed this appeal. On appeal, he
challenges the legal and factual sufficiency of the evidence in each of his four issues.
We affirm.
        The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2019). To terminate


        1
         We note that, in the same order, the trial court also terminated the parental rights of the parents of
M.R., who has a different father than K.R. M.R.’s parents did not appeal; therefore, the termination with
respect to M.R. is not at issue in this appeal.
parental rights, it must be shown by clear and convincing evidence that the parent
has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id.
      In this case, the trial court found that Appellant had committed four of the acts
listed in Section 161.001(b)(1)—those found in subsections (D), (E), (O), and (Q).
Specifically, the trial court found that Appellant had knowingly placed or knowingly
allowed the child to remain in conditions or surroundings that endangered the child’s
physical or emotional well-being; that Appellant had engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangered
the child’s physical or emotional well-being; that Appellant had failed to comply
with the provisions of a court order that specifically established the actions necessary
for him to obtain the return of the child, who had been in the managing
conservatorship of the Department of Family and Protective Services for not less
than nine months as a result of the child’s removal from Appellant for abuse or
neglect; and that Appellant had knowingly engaged in criminal conduct that resulted
in his conviction of an offense and confinement or imprisonment and inability to
care for the child for not less than two years from the date that the petition was filed.
The trial court also found, pursuant to Section 161.001(b)(2), that termination of
Appellant’s parental rights would be in the best interest of the child.
      To determine if the evidence is legally sufficient in a parental termination case,
we review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the
evidence is factually sufficient, we give due deference to the finding and determine
whether, on the entire record, a factfinder could reasonably form a firm belief or
conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002).
      With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (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 to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
      The Department initially received a report that the mother had used cannabis
while she was pregnant.        During that investigation, an investigator with the
Department went to the location where K.R., the mother, Appellant’s brother (who
is M.R.’s father), and another adult male lived. The investigator was concerned that
K.R. lived with three adults in a small, one-bedroom travel trailer and that a newborn
child would also be living there soon. The living conditions at the trailer—
particularly the scrap metal, junk cars, and old appliances outside the trailer—
presented a danger to K.R.
      The Department received another intake shortly after the birth of M.R. The
mother tested positive for methamphetamine at the time of M.R.’s birth. M.R. and
K.R. also tested positive for methamphetamine. The mother and M.R.’s father tested
positive for methamphetamine at the time of removal. The Department removed the
children and placed them with a paternal aunt. The mother subsequently pleaded
guilty to and was convicted of the offense of child endangerment as a result of her
use of methamphetamine while pregnant with M.R.
       At the time of the removal, two-year-old K.R. was “very dirty”; her hair was
matted; and she had a bruise on her forehead. The aunt with whom the children were
placed testified that K.R. appeared to be very neglected. The aunt testified that K.R.
had a large bruise on her forehead, was very dirty, had no shoes, and had stickers
imbedded in her feet. The aunt testified that, when she saw K.R. about a month
before the removal, K.R. had “excessive” bruising on her head, arms, and legs.
When K.R. was placed with the aunt, K.R. was not potty trained, did not mind well,
“had a real bad cussing problem,” and was “scared to death of water.” While in the
aunt’s care, K.R.’s behavior improved tremendously. The aunt had potty trained
K.R. within one week. The aunt testified that K.R. is now a beautiful, happy, well-
behaved little girl.
       Appellant has been in prison since K.R. was two weeks old.              He was
incarcerated at the time of removal and throughout the time that this case was
pending in the trial court. Appellant appeared at trial via telephone. He testified that
he had not received a parenting packet or a copy of his service plan. Appellant
acknowledged that, at the time of trial, he was incarcerated for the offenses of
unlawful possession of a firearm and assault and that, unless he is released on parole,
he will remain incarcerated until K.R. is at least six years old. Appellant claimed
that he did not know about the mother’s long history of drug use.
       The record reflects that Appellant was convicted of burglary of a building in
2008. In 2014, Appellant committed the offense of unlawful possession of a firearm
by a felon. In 2015, he committed the offense of aggravated assault causing serious
bodily injury. Appellant was convicted of the latter two offenses in 2016, and his
punishment was assessed at confinement for eight years for each offense, with the
sentences to run concurrently.
      The conservatorship supervisor and the children’s guardian ad litem both
believed that termination of Appellant’s parental rights would be in K.R.’s best
interest. K.R. had been placed in a stable and loving home with a paternal aunt and
was doing well there. K.R. was happy and had adjusted well in her aunt’s home,
and the aunt wanted to adopt K.R. and M.R. The aunt testified that she was not
willing to be a permanent managing conservator so that Appellant could retain his
parental rights; the aunt wanted to adopt the children. The aunt testified, however,
that she wanted K.R. to meet her father and that she would encourage Appellant and
K.R. to have a relationship as long as Appellant “stays clean.”
      In his first three issues, Appellant challenges the legal and factual sufficiency
of the evidence to prove grounds (D), (E), (O), and (Q). We first address Appellant’s
first issue—his challenge to the trial court’s findings under Section 161.001(b)(1)(D)
and (E). See In re N.G., 577 S.W.3d 230, 234–35 (Tex. 2019) (addressing due
process and due course of law with respect to appellate review of grounds (D) and
(E) and holding that an appellate court must provide a detailed analysis if affirming
the termination on either of these grounds).
      Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 33 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and conscious
course of conduct by the parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex.
App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex.
App.—Eastland 1999, no pet.). The offending conduct does not need to be directed
at the child, nor does the child actually have to suffer an injury. In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009).
      Mere imprisonment, standing alone, does not support a finding under
subsection (E) as it does “not . . . constitute engaging in conduct which endangers
the emotional or physical well-being of a child.” Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987). However, evidence of criminal conduct,
convictions, and imprisonment and their effect on the parent’s life and ability to
parent may establish an endangering course of conduct. In re B.C.S., 479 S.W.3d
918, 926 (Tex. App.—El Paso 2015, no pet.). An offense committed by a parent
before the birth of the parent’s child “can be a relevant factor in establishing an
endangering course of conduct.” In re E.N.C., 384 S.W.3d 796, 804–05 (Tex. 2012)
(citing J.O.A., 283 S.W.3d at 345).
      The record reflects that Appellant had a history of violence and irresponsible
choices, and the trial court could have determined from this evidence that Appellant
voluntarily engaged in an endangering course of conduct. See In re S.L.-E.A.,
No. 02-12-00482-CV, 2013 WL 1149512, at *9–10 (Tex. App.—Fort Worth Mar. 21,
2013, pet. denied) (mem. op.); see also J.O.A., 283 S.W.3d at 345–46; In re S.F., 32
S.W.3d 318, 322 (Tex. App.—San Antonio 2000, no pet.). At the termination
hearing, Appellant admitted to the course of conduct that resulted in his
incarceration. Appellant testified that the victim of the aggravated assault was his
brother-in-law. The record reflects that Appellant pleaded guilty to “intentionally,
knowingly, or recklessly caus[ing] serious bodily injury” to his brother-in-law “by
striking him in the head with a piece of lumber.” We believe that the trial court could
have found by clear and convincing evidence that Appellant had engaged in a course
of conduct that endangered K.R.’s physical or emotional well-being. Accordingly,
we hold that the evidence is legally and factually sufficient to uphold the trial court’s
finding under subsection (E). We overrule Appellant’s first issue. Because only one
statutory ground is necessary to support termination and because we have upheld the
trial court’s finding under subsection (E), we need not address the finding under
subsection (D) or Appellant’s second and third issues. See FAM. § 161.001(b)(1);
N.G., 577 S.W.3d at 234–35.
      We add, however, that even if we were to conclude that the finding under
subsection (E) was not supported by sufficient evidence, we would uphold the
finding made pursuant to subsection (Q), a finding which Appellant challenges in
his third issue. To support a finding under subsection (Q), the record must show that
the parent will be incarcerated or confined and unable to care for the child for at least
two years from the date the termination petition was filed. FAM. § 161.001(b)(1)(Q);
In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006).
      The Department produced clear and convincing evidence from which the trial
court could reasonably have formed a firm belief that Appellant had knowingly
engaged in criminal conduct, that he was duly convicted and imprisoned for that
conduct, and that his imprisonment and inability to care for K.R. would continue for
more than two years after the date that the petition was filed in this cause.
Furthermore, the aunt did not indicate that she was willing to care for K.R. on
Appellant’s behalf while he was incarcerated. See H.R.M., 209 S.W.3d at 110; In re
Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied). Thus, the
evidence is legally and factually sufficient to support the trial court’s finding under
subsection (Q). See H.R.M., 209 S.W.3d at 108–10; Caballero, 53 S.W.3d at 396.
      In his fourth issue, Appellant challenges the sufficiency of the evidence to
support the trial court’s finding that termination of Appellant’s parental rights was
in the best interest of K.R. As set forth above, K.R. had been placed with a paternal
aunt in an appropriate home and had thrived there. The conservatorship supervisor
and the guardian ad litem believed that termination of Appellant’s parental rights
would be in K.R.’s best interest. Appellant had been incarcerated since K.R. was
two weeks old, at which time Appellant was sentenced to serve a term of
confinement for eight years. Appellant was unable to care for K.R. and had no
relationship with her. Based upon the evidence presented in this case, we defer to
the trial court’s finding. See C.H., 89 S.W.3d at 27.
        We hold that, based on the evidence presented at trial and the Holley factors,
the trial court could reasonably have formed a firm belief or conviction that
termination of Appellant’s parental rights would be in K.R.’s best interest. See
Holley, 544 S.W.2d at 371–72. Upon considering the record as it relates to the
emotional and physical needs of K.R. now and in the future, the emotional and
physical danger to K.R. now and in the future, the parental abilities of those
involved, the plans for the child by the Department, Appellant’s criminal activity,
and the stability of K.R.’s placement with her aunt, we hold that the evidence is
sufficient to support the finding that termination of Appellant’s parental rights is in
the best interest of K.R. See id. We cannot hold that the finding as to best interest
is not supported by clear and convincing evidence. We overrule Appellant’s fourth
issue on appeal.
        The order of the trial court is affirmed.




                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE
January 9, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.

        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
