Opinion issued August 16, 2018




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00140-CV
                               NO. 01-18-00141-CV
                            ———————————
     IN THE INTEREST OF L.J.M., W.J.M., AND N.J.M., CHILDREN
                   IN THE INTEREST OF S.S.M., A CHILD



                    On Appeal from the 314th District Court
                             Harris County, Texas
                Trial Court Case Nos. 2016-04727J, 2016-06662J


                          MEMORANDUM OPINION

      In these termination of parental rights cases, S.M., Sr. (Father) appeals the

trial court’s decrees terminating his parental rights to his sons, L.J.M., W.J.M., and

N.J.M., and to his daughter, S.S.M. In one issue on appeal, Father contends that the
Department of Family and Protective Services (DFPS or Department) failed to

present factually sufficient evidence to support the trial court’s finding that

termination of his parental rights was in his children’s best interest.

      We affirm.

                                     Background

      Father and S.C. (Mother) have four children who are the subjects of these

appeals: L.J.M. (“Luke”), who was born in April 2013; W.J.M. (“Wesley”), who

was born in May 2014; N.J.M. (“Nathan”), who was born in October 2015; and

S.S.M. (“Samantha”), who was born in December 2016, while the underlying suit

involving her older brothers was already pending.1 Father has three older children

from a previous relationship who were not involved in these proceedings.2 Mother

is not a party to this appeal.



1
      We refer to the children by pseudonyms to protect their privacy and for ease of
      reading. The suit involving the termination of Mother’s and Father’s parental rights
      to Luke, Wesley, and Nathan was tried in trial court cause number 2016-04727J and
      resulted in appellate cause number 01-18-00140-CV. The suit involving the
      termination of Mother’s and Father’s parental rights to Samantha was tried in trial
      court cause number 2016-06662J and resulted in appellate cause number 01-18-
      00141-CV. The trial court terminated both Mother’s and Father’s parental rights.
      Mother did not appeal the trial court’s decrees of termination.
2
      The trial court admitted evidence that DFPS had been involved with Father’s older
      children. Specifically, in 2011, one of Father’s children tested positive for opiates
      at birth. DFPS had also received referrals that, in February 2014, Father struck two
      of his older children and that, in April 2014, Father’s older children “were spotted
      sitting in the middle of the road outside of their house and almost got run over by
      an oncoming car.”
                                            2
      DFPS first became involved with the children in November 2014. In an

affidavit supporting the petition to terminate Mother’s and Father’s parental rights,3

DFPS caseworker Montoyua Ponder averred that the Department received a referral

that the family’s home contained “physical and sanitary hazards such as broken

windows, animal/human feces and roaches/rodents.” DFPS assisted the family in

moving to a new home. DFPS received an additional referral of neglectful

supervision in January 2016 when Wesley, who was not quite two years old at the

time, “was found crawling in the middle of a busy street a good distance from his

home.” DFPS also received a referral of physical neglect in March 2016 because of

“concerns that the home environment of the children was deplorable.” All three of

these cases were “ruled out,” and Ponder averred that “the family made great strides

to clean the home and [Mother and Father] also placed chain locks on both entry

doors.”

      Ponder averred that DFPS sought temporary managing conservatorship of

Luke, Wesley, and Nathan as well as termination of Mother’s and Father’s parental

rights to the children after two further referrals in July and August of 2016. In the

first referral, in July 2016, the Department received a report that three-year-old Luke

had a habit of leaving the home and “wandering the streets” while Mother was busy

with his younger brothers, sometimes late at night, and that neighbors would bring


3
      The trial court admitted this affidavit into evidence at the final hearing.
                                             3
him back home. On one particular occasion, Luke escaped the house while Mother

was bathing the younger children, and he was hit by a car. An ambulance took Luke

to the hospital, but he did not have serious injuries from this incident. Ponder averred

that she recommended that Mother and Father clean the home and that they purchase

sliding locks for both doors to prevent the children from leaving the home unnoticed.

Ponder stated that, during her visit to the home, she observed Luke leave the house

without Mother and Father noticing.

      Ponder further averred that DFPS received another referral in August 2016.

DFPS received a report that Luke had been examined at a local hospital for “ligature

marks” on both his ankles. The marks “were almost to the bone” and “appeared to

be infected.” According to Mother and Father, Luke discovered a pair of handcuffs

that Father owned and he placed the handcuffs around his own ankles. Mother

reported that she and Father were unable to find the key to the handcuffs, so they

used various tools, including a saw and metal cutters, to remove the handcuffs.

Mother cleaned the wounds on Luke’s ankles and used antibacterial ointment, but

she and Father waited several days before seeking medical attention for Luke and

did not “call for help because it would look like abuse and they were scared.” Upon

DFPS’s insistence, Luke was admitted to Texas Children’s Hospital for treatment.

      Ponder attached Luke’s medical records to her affidavit. Dr. Rebecca

Chancey, the attending physician at Texas Children’s Hospital, reported that Luke


                                           4
had “denuded skin” and “deep open wounds” over both of his ankles that

“require[ed] plastic surgery evaluation and likely skin grafting,” and he also had a

recent buckle fracture to his left shoulder and an old, healing fracture to his right

arm. Dr. Chancey stated that Luke’s wounds were not consistent with Mother’s and

Father’s explanations and that his fractures “show[ed] evidence of abuse in the past.”

Dr. Chancey also examined Wesley and Nathan. Neither of these children was

injured, although, upon reviewing Wesley’s medical records, Dr. Chancey noted that

Wesley had a history of medical issues and that he needed follow up visits with

neurology and cardiology specialists. The trial court admitted Luke’s and Wesley’s

medical records into evidence at the final hearing.4

      On August 25, 2016, the day after Luke was admitted to the hospital, DFPS

filed its petition seeking managing conservatorship over Luke, Wesley, and Nathan

and seeking the termination of Mother’s and Father’s parental rights. The trial court

entered an order naming DFPS the temporary managing conservator of the children,

and the court also ordered that Mother and Father have no visitation with the children

until further order of the court. The trial court also approved family service plans for


4
      Wesley’s medical records indicated that he suffered from a pulmonary hemorrhage
      when he was a newborn and that Mother and Father missed his follow-up cardiology
      appointments and did not provide a reason for this failure. Medical records also
      indicated that Wesley experienced several seizures when he was around one year
      old and he was diagnosed with periventricular leukomalacia, developmental delay,
      and gross motor delay. The records stated that Wesley was “at risk of developing
      epilepsy and cerebral palsy.”
                                           5
Mother and Father, requiring them to complete a parenting course, participate in

individual counseling and a psychosocial assessment, obtain legal employment and

stable housing, and submit to drug testing.5

      In September 2016, Mother and Father were charged with the felony offense

of injury to a child arising out of the August 2016 incident involving Luke and the

handcuffs. The trial court admitted into evidence a copy of the probable cause

affidavit completed by Houston Police Department Officer D. Marshall, who

investigated the possibility of physical abuse after Luke was treated at Texas

Children’s Hospital. Officer Marshall averred that Mother told him that Luke had

put the handcuffs around his own ankles and that she could not locate the key. She

further stated that, after searching for the key for five hours, she and Father had to

cut the handcuffs off of Luke’s ankles because Luke started losing circulation in his

feet. Officer Marshall averred:

      [Mother] stated they tried to cut the handcuffs with a sawzall, followed
      by a knife sharpener, and then ultimately was successful when using a
      grinder. [Mother] stated that [Father] used the grinder while [Mother]
      held [Luke], who was scared and crying, down. [Mother] had one arm
      on [Luke’s] upper body and the other arm on [Luke’s] legs. [Mother]
      stated it took about 5 hours to grind the handcuffs off, and caused
      [Luke] more injuries—burns from the heat of the grinder and cuts to his
      skin. [Mother] further stated that the grinding made the cuffs dig deeper
      and deeper into [Luke’s] skin.

5
      At the final hearing, the trial court admitted testimony and exhibits indicating that
      Mother tested positive for marijuana use in September 2016. Father tested positive
      for alcohol use in September 2016 and July 2017, and he tested positive for
      marijuana use in January 2017.
                                            6
      After the handcuffs were removed, [Father and Mother] did not seek
      immediate medical treatment for [Luke’s] injuries. Instead, [Mother]
      stated she let the injuries air dry. When the wounds started to get red
      and infected. [Mother] told [Father] to take [Luke] to the doctor.
      [Mother] stated, “I know we should have taken him on the first day, but
      we didn’t.” [Luke] was taken to the doctor on Tuesday, August 23,
      2016, approximately 4 days after the incident.
      Affiant knows from his 10 years of training and experience that
      handcuffs have a universal key. If [Father] or [Mother] had contacted
      first responders or law enforcement, the handcuffs could have been
      easily removed with any handcuff key. The defendants’ failure to get
      the handcuffs removed in a timely manner by making contact with law
      enforcement caused [Luke’s] injuries and could have easily been
      avoided.
      Affiant met with Dr. M. Donaruma, who is a child abuse pediatrician
      at Texas Children’s Hospital, and found her to be credible and reliable.
      Dr. Donaruma stated that [Luke’s] scarring and injuries will have
      permanent disfigurement and will cause difficulties for [Luke] as he
      grows taller. Dr. Donaruma further stated that the delay in removing the
      handcuffs caused serious disfigurement, significant pain, and risk of
      infection.

Mother stated to Officer Marshall, “We didn’t want to get the cops involved because

we knew what would happen.” Mother ultimately pleaded guilty to the offense of

injury to a child in August 2017, and the criminal court assessed her punishment at

two years’ confinement. At the time of the final hearing in the underlying

termination proceedings, Father had not yet been to trial on the injury to a child

charge.

      While Mother was in custody during the pendency of the injury to a child

charge, she gave birth to Samantha in December 2016. DFPS immediately filed a

petition seeking to be named Samantha’s temporary managing conservator and
                                         7
seeking termination of Mother’s and Father’s parental rights to Samantha. In the

affidavit supporting the termination petition, which was admitted into evidence at

the final hearing, DFPS caseworker Monique Norman averred that Samantha was

born while Mother was in custody at the Harris County Jail and that Mother would

return to the jail in several days, but “it is unknown who will take custody of”

Samantha. Norman averred that Father had also been charged with injury to a child

but had been released on bond, and DFPS had been unable to contact Father to

discuss a placement for Samantha. Mother had provided Norman with the names of

several family members who she thought might be able to take care of Samantha,

including Mother’s father (“Grandfather”), but Norman was not able to make contact

with any of the people Mother had named as potential caregivers. The trial court

signed an order naming DFPS as Samantha’s temporary managing conservator.

      In October 2017, Grandfather and his fiancée filed a petition in intervention,

seeking to be named managing conservators of the children, or, if Mother’s and

Father’s parental rights were terminated, seeking to adopt the children. Jessica

Gomez, the DFPS caseworker assigned to the children, completed a “Preliminary

Kinship Caregiver Home Assessment” of Grandfather’s home in January 2018. Four

people lived in Grandfather’s home, including Grandfather, his fiancée, a friend of

Grandfather, and that friend’s twelve-year-old grandson. Grandfather did not have a

criminal history or a history with DFPS, but his fiancée had been referred to DFPS


                                         8
for neglectful supervision in 2007 and also had several past arrests. Grandfather and

his fiancée “stated they are willing to care for the children and protect them in any

way possible, even if that means they do not let [Mother] come and visit,” but “[t]he

caseworker was not very confident the potential caregivers were telling the truth.”

Gomez listed several potential concerns about the placement, including

Grandfather’s fiancée’s criminal and DFPS history; the lack of running water at the

house during Gomez’s visit; Grandfather’s plan for the three older children—

including Luke, who had a history of escaping Mother’s and Father’s house—to

sleep in the front room next to the front door; Grandfather’s plan for Samantha to

sleep in a bed in the room he shared with his fiancée, which did not have a door; and

Grandfather’s fiancée’s attempts to get custody of her four grandchildren, “which

will put 8 children, age 11 and younger” in their care. Gomez recommended denial

of Grandfather’s house as a placement for the children.

      At the final hearing, Gomez testified concerning the events that had brought

the children into DFPS’s care, including the incident in which Luke left the house

and was hit by a car and the incident in which Luke had “severe ligature marks on

his ankles” and the treating doctors believed that his injuries were “consistent with

physical abuse.” The trial court admitted photographs of the injuries to Luke’s

ankles. Gomez testified concerning Mother and Father’s explanation for Luke’s

injuries, which was that Luke climbed up five or six drawers of a dresser to pull


                                         9
handcuffs out of the top drawer, which he then secured around his ankles. Mother

and Father could not find the key to the handcuffs, so they tried several different

methods to remove the handcuffs before succeeding with an electric grinder. Mother

and Father “did not initially take [Luke] to the doctor or call for help because they

knew that they had a CPS case open and they did not want it to look like child abuse.”

Gomez testified that Luke’s medical records showed that he had a new fracture to

his shoulder and a healing fracture to his wrist, which the attending physician ruled

“non-accidental.”

      Gomez testified that both Mother and Father completed the parenting course

required by their family service plans. Father, however, did not maintain contact

with DFPS, he did not participate in individual counseling or in a psychosocial

assessment, he did not provide proof of legal employment, he did not provide proof

of stable housing, and he did not participate in regular drug testing. Gomez also

testified that while Mother was no longer incarcerated at the time of the final hearing,

she did not have current contact information for Mother, and she did not know where

Mother was located.

      Gomez testified that Luke, Nathan, and Samantha were currently placed in a

foster home together, and Wesley was placed in a separate foster home. Gomez

stated that, during the pendency of the proceedings, Wesley was diagnosed with




                                          10
cerebral palsy, and the foster parents taking care of Luke, Nathan, and Samantha

determined that they could not also take care of Wesley due to his special needs.

          Gomez further testified that Grandfather had contacted her and asked to be

considered as a placement for the children, but she testified that she would not be in

favor of that placement. Gomez stated that she did not believe Grandfather’s house

was a safe place for the children due to his fiancée’s criminal history and a lack of

“adequate space of living.”

          Gomez stated that termination of Mother’s and Father’s parental rights to the

children would be in their best interest. She testified:

          It’s in their best interest due to the fact that they are now being taken
          care of and not neglected as previous CPS investigations have found.
          They are being provided all of the needs that they need, including
          therapeutic needs, stable housing, clothes. They’re clean. The children
          have progressed a lot. [Luke] is speaking a lot more. [Wesley] has
          learned to walk. [Wesley] is speaking a lot more. The children are going
          to be in a home free from drug use and abuse—physical abuse.

The trial court admitted a permanency report completed by DFPS in December 2017,

and this report reflected that the children were doing well in their current placements,

Luke and Wesley were receiving therapy, the children were bonded to their

caregivers, and the children—Wesley and Nathan in particular—enjoyed their visits

with each other. Gomez stated that there was a good chance of finding an adoptive

home for the children if the trial court terminated Mother’s and Father’s parental

rights.


                                             11
      Lisa McCartney, an expert in “the welfare, safety, and placement of children,”

testified that, in her opinion, the children should not be separated because it “would

be damaging to their emotional and physical well being” and that Wesley and

Nathan, in particular, should be placed together. McCartney also testified that both

Luke and Wesley had special needs: Luke had been diagnosed with “a lot of learning

disabilities” and was taking medication for ADHD and Wesley had been diagnosed

with cerebral palsy. McCartney testified that both Nathan and Samantha were

“developmentally on target” and there were no concerns regarding their health.

McCartney stated:

      The children have had so many moves in their short lives, from different
      placement to different placement and their history of significant abuse
      and neglect at the hands of their parents, they need to, you know, not
      be moved until their final destination. So my recommendation would
      be to do a legally free broadcast on these children nationwide. I think
      these children are adoptable and that we can find—I think we’ll get a
      lot of homes because they’re legally free. . . . And these kids don’t
      need—they need permanency. They need to be together and they need
      permanency and they need the right family that is prepared to deal with
      two children with special needs.

McCartney recommended that, while DFPS waits to find a family that can adopt all

four children, the children remain in their current placements.

      The trial court signed decrees terminating Mother’s and Father’s parental

rights to the children under Family Code subsections 161.001(b)(1)(D), (E), and (O).

The trial court also found that termination of both parents’ parental rights was in the

best interest of the children and appointed DFPS as the children’s sole managing
                                          12
conservator. The trial court’s final decrees dismissed Grandfather’s suit in

intervention. Father’s appeal followed.

                             Best Interest of the Children

       In his sole issue on appeal, Father contends that DFPS failed to present

factually sufficient evidence to support the trial court’s determination that

termination of his parental rights was in the best interest of the children under Family

Code section 161.001(b)(2). Father does not challenge the sufficiency of the

evidence to support the statutory predicate grounds for termination under section

161.001(b)(1), nor does he challenge the legal sufficiency of the evidence supporting

the trial court’s best interest finding.

A.     Standard of Review

       A trial court may order termination of the parent-child relationship if DFPS

proves, by clear and convincing evidence, one of the statutorily enumerated

predicate findings for termination and that termination of parental rights is in the

best interest of the children. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017);

see In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012) (stating that federal due process

clause and Texas Family Code both mandate “heightened” standard of review of

clear and convincing evidence in parental-rights termination cases). DFPS must

prove both elements—a statutorily prescribed predicate finding and that termination

is in the children’s best interest—by clear and convincing evidence. In re E.N.C.,


                                           13
384 S.W.3d at 803. The Family Code defines “clear and convincing evidence” as

“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 ANN. § 101.007 (West 2014); In re E.N.C., 384 S.W.3d at 802.

      When a parent challenges the factual sufficiency of the evidence supporting

the trial court’s findings, we review all of the evidence, including disputed or

conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). We should

inquire whether the evidence is such that a factfinder could reasonably form a firm

belief or conviction about the truth of the allegations. In re H.R.M., 209 S.W.3d 105,

108 (Tex. 2006) (per curiam). “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 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 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). In applying this

standard, our review “must not be so rigorous that the only factfindings that could

withstand review are those established beyond a reasonable doubt.” In re H.R.M.,

209 S.W.3d at 108 (quoting In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)); see also In

re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (stating that we must still provide due

deference to decisions of factfinder, which had full opportunity to observe witness

testimony and was sole arbiter of assessing witness credibility and demeanor).


                                          14
B.    Factors Relevant to Best Interest Determination

      “[T]he prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a)

(West Supp. 2017). There is a strong, but rebuttable, presumption that the best

interest of a child is served by keeping the child with a parent. In re R.R., 209 S.W.3d

112, 116 (Tex. 2006) (per curiam); see TEX. FAM. CODE ANN. § 153.131(b) (West

2014); Jordan v. Dossey, 325 S.W.3d 700, 729 (Tex. App.—Houston [1st Dist.]

2010, pet. denied) (noting that parent-child relationship has constitutional

underpinnings, but courts must not sacrifice child’s emotional and physical interests

“merely to preserve that right”).

      The Texas Legislature has set out several factors that courts should consider

in determining whether a child’s parent is willing and able to provide the child with

a safe environment, including: (1) the child’s age and physical and mental

vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the

magnitude and frequency of harm to the child; (4) whether the child has been the

victim of repeated harm after the initial intervention by DFPS; (5) the willingness of

the child’s family to seek out, accept, and complete counseling services; (6) the

willingness and ability of the child’s family to effect positive environmental and

personal changes within a reasonable period of time; and (7) whether the child’s

family demonstrates adequate parenting skills, including providing the child with


                                          15
minimally adequate health and nutritional care, care consistent with the child’s

physical and psychological development, guidance and supervision consistent with

the child’s safety, a safe physical home environment, and an understanding of the

child’s needs and capabilities. TEX. FAM. CODE ANN. § 263.307(b).

      The Texas Supreme Court has also set out several non-exclusive factors that

we should consider when determining whether the termination of a parent’s rights is

in the child’s best interest, including (1) the child’s desires; (2) the child’s current

and future physical and emotional needs; (3) the current and future physical danger

to the child; (4) the parental abilities of the person seeking custody; (5) whether

programs are available to assist the person seeking custody in promoting the best

interests of the child; (6) the plans for the child by the person seeking custody; (7) the

stability of the home; (8) the acts or omissions of the parent that may indicate the

parent-child relationship is not proper; and (9) any excuse for acts or omissions of

the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re A.C., 394

S.W.3d 633, 641–42 (Tex. App.—Houston [1st Dist.] 2012, no pet.). These factors

are not exhaustive, and it is not necessary that DFPS prove all of these factors “as a

condition precedent to parental termination.” In re C.H., 89 S.W.3d at 27. The

absence of evidence concerning some of the factors does not preclude a factfinder

from forming a firm belief or conviction that termination is in the children’s best

interest. In re A.C., 394 S.W.3d at 642.


                                           16
      Proof concerning the statutory predicate findings under section 161.001(b)(1)

does not relieve DFPS of its burden of proving that termination is in the children’s

best interest, but “the same evidence may be probative of both issues.” In re C.H.,

89 S.W.3d at 28. The best-interest analysis may consider circumstantial evidence,

subjective factors, and the totality of the evidence as well as the direct evidence. In

re B.R., 456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.). “A trier of

fact may measure a parent’s future conduct by his past conduct and determine

whether termination of parental rights is in the child’s best interest.” Id.; see In re

C.H., 89 S.W.3d at 28 (stating that past performance as parent “could certainly have

a bearing on [parent’s] fitness to provide for” child, and courts should consider prior

history of child neglect in best-interest analysis). Although evidence concerning

placement plans and adoption of the children are relevant to a best interest finding,

the lack of evidence concerning definitive placement plans is not dispositive. In re

C.H., 89 S.W.3d at 28 (“[T]he inquiry is whether, on the entire record, a factfinder

could reasonably form a firm conviction or belief that termination of the parent’s

rights would be in the child’s best interest—even if the agency is unable to identify

with precision the child’s future home environment.”).

C.    Analysis

      DFPS presented evidence that Father has a lengthy history with the

Department, including referrals involving his older children who are not the subjects


                                          17
of the underlying proceedings. See id. (noting that parent’s prior history of child

neglect is factor relevant to best interest finding); In re E.A.F., 424 S.W.3d 742, 751

(Tex. App.—Houston [14th Dist.] pet. denied) (“A parent’s past behavior is

indicative of the quality of future care that the parent is capable of providing.”);

Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 619–20 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied) (considering parent’s past history with

Florida CPS as evidence of lack of parenting abilities).

      One of the referrals to DFPS involved a report that Father’s older children

were found sitting unsupervised in the middle of a street, where they were nearly hit

by an oncoming car. With regard to the children involved in the present case, DFPS

received a report that Wesley was found crawling in the street, and it received

referrals that Luke frequently escaped the house without Mother and Father noticing

and that, on one occasion, he was hit by a car, although he was not seriously injured.

DFPS also received multiple referrals concerning the cleanliness of Mother’s and

Father’s home, as well as the lack of safety features intended to keep the children

from surreptitiously leaving the house, although the caseworkers noted that, during

the pendency of DFPS’s investigation, Mother and Father did make some progress

in remedying these deficiencies. See In re J.M., 156 S.W.3d 696, 707 (Tex. App.—

Dallas 2005, no pet.) (stating that physical danger to children “now and in the future”

was shown by father’s “inability to keep a house safe for the children”).


                                          18
      The record also included evidence concerning the severe injuries that Luke

suffered when handcuffs became locked around his ankles and Mother and Father

were unable to find the key to open the handcuffs. Mother stated that they did not

immediately seek medical attention or call first responders because they already had

an open DFPS case stemming from Luke’s earlier escape from the house that led to

his being hit by a car, and they knew it would appear as though they had abused

Luke. Instead of immediately seeking help, Mother and Father tried several methods

of removing the handcuffs, including using an electric grinder, which caused further

injuries to Luke’s ankles, and they did not seek medical attention for several days

after the incident, when Luke’s injuries had become infected. See In re C.H., 89

S.W.3d at 28 (noting that father had failed to arrange medical care for child’s mother

during her pregnancy and failed to provide medical care for child); In re C.A.J., 122

S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.) (stating that courts may

consider parent’s inability to provide adequate care and poor judgment when

determining best interest).

      The attending physician at Texas Children’s Hospital noted that Luke’s

injuries were severe enough that a plastic surgery consultation was necessary, as

there was a possibility that he might need skin grafts, and the physician also noted

that Luke had a new fracture to his left shoulder and a healing fracture to his right

arm, both of which were indicative of physical abuse. See In re J.D., 436 S.W.3d


                                         19
105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (considering injuries child

suffered while in parent’s care and stating that factfinder may infer from parent’s

past inability to meet child’s physical and emotional needs that parent would be

unable or unwilling to meet those needs in future). Mother pleaded guilty to the

offense of injury to a child arising out of this incident, and, at the time of the final

hearing, Father was awaiting trial on the same charge.

      DFPS presented Luke’s and Wesley’s medical records, which demonstrated

that both children had special needs. Luke had been diagnosed with ADHD and he

also had several learning disabilities, and Wesley had been diagnosed with cerebral

palsy. Wesley’s medical records reflected health issues from birth, including

suffering from a pulmonary hemorrhage, several seizures, developmental delay, and

gross motor delay. Wesley’s medical records also indicated that Mother and Father

had been told that, given his health issues, Wesley needed follow-up appointments

with cardiology and neurology specialists, but Mother and Father repeatedly delayed

making those necessary appointments for Wesley. See In re C.H., 89 S.W.3d at 28.

      Gomez, the DFPS caseworker, testified that both Luke and Wesley were

receiving therapy and had made progress during their foster-care placements and

that Nathan and Samantha, the two youngest children, were physically healthy and

developmentally “on target.” “When children are too young to express their desires,

the fact finder may consider that the children have bonded with the foster family, are


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well-cared for by them, and have spent minimal time with a parent.” In re J.D., 436

S.W.3d at 118; In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.]

2003, pet. denied). Here, at the time the trial court named DFPS the temporary

managing conservator of the children in August 2016, the court ordered that neither

Mother nor Father should have any visits with the children “until further order of the

court.” The record contained no indication that, as of the time of the final hearing in

January 2018, Father had had any visitation with the children. A permanency report

dated December 4, 2017, and admitted into evidence at the final hearing, stated that

the children were doing well in their current foster placements, they were bonded

with their caregivers, and they enjoyed their visits with each other. See In re D.M.,

452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.) (considering, in

assessing child’s physical and emotional needs, that child was “healthy, happy, and

well-adjusted” after approximately eighteen months in care of foster family).

      DFPS also presented evidence that although Mother and Father had both

completed a parenting course, as required by their respective family service plans,

Father, in particular, had not completed several other requirements listed in his

service plan. See In re E.A.F., 424 S.W.3d at 752 (stating that, in assessing best

interest, courts may appropriately consider whether parent complied with court-

ordered family service plan for reunification with child). Gomez testified that Father

had not maintained contact with DFPS, he had not participated in individual


                                          21
counseling, he had not completed a psychosocial assessment, he had not provided

proof of legal employment or stable housing, and he had not participated in “regular”

drug testing. See In re C.A.J., 122 S.W.3d at 893 (stating that “[w]ithout stability,

income, or a home,” parent was unable to provide for child’s emotional and physical

needs); see also In re J.D., 436 S.W.3d at 120 (stating that stability of proposed

home environment is important consideration in determining best interest); In re

E.A.F., 424 S.W.3d at 752 (noting that parent performed some court-ordered

services, but did not establish that he maintained stable housing and employment).

Gomez testified that Father had participated in sporadic drug testing throughout the

pendency of the case, and, on one occasion, he tested positive for marijuana usage.

See In re D.R.A., 374 S.W.3d 528, 536 (Tex. App.—Houston [14th Dist.] 2012, no

pet.) (considering failed drug test, among other factors, as evidence that parent-child

relationship was not appropriate).

      Gomez further testified that terminating Mother’s and Father’s parental rights

to the children was in their best interest, stating:

      It’s in their best interest due to the fact that they are now being taken
      care of and not neglected as previous CPS investigations have found.
      They are being provided all of the needs that they need, including
      therapeutic needs, stable housing, clothes. They’re clean. The children
      have progressed a lot. [Luke] is speaking a lot more. [Wesley] has
      learned to walk. [Wesley] is speaking a lot more. The children are going
      to be in a home free from drug use and abuse—physical abuse.




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See In re E.A.F., 424 S.W.3d at 752 (considering fact that child was healthy and

doing well in foster home even though that was not potential adoptive placement).

Gomez stated her belief that DFPS had a “good chance” of finding an adoptive home

for the children if the court terminated Mother’s and Father’s parental rights.

McCartney, an expert in child welfare and placements, testified that it was in the

best interest of the children to remain in their current placements until DFPS could

find a family willing to adopt all four children and that was able to care for two

children with special needs. She emphasized that although Wesley was in a different

placement from Luke, Nathan, and Samantha at the time of the final hearing, the

children should be kept together for their final placement.

      Father argues that DFPS failed to present factually sufficient evidence to

support the trial court’s best interest finding. Specifically, he argues that the trial

court failed to recognize that the children “have a natural connection to their mother

and father”; that the trial court “effectively severed the natural connection these

children enjoy with their extended family,” such as Grandfather and his fiancée, and

severing these familial ties was not in their best interest; that terminating Father’s

parental rights denied the children “consistency, familiarity, and bonding”; and that

the children should not “have been deprived of the continued opportunity to bond

with their father.”




                                          23
      Although there is a strong presumption that the best interest of a child is served

by keeping the child with a parent, that presumption is rebuttable. See TEX. FAM.

CODE ANN. § 153.131(b); In re R.R., 209 S.W.3d at 116. As this Court has previously

noted, although we must recognize the constitutional underpinnings of the parent-

child relationship, we must not sacrifice the emotional and physicals interests of a

child “merely to preserve that right.” See Jordan, 325 S.W.3d at 729. Here, DFPS

put on ample evidence that the emotional and physical interests of these children

would best be served by terminating Father’s parental rights. Father displayed a

pattern of neglecting his children by failing to provide safe and clean housing and

failing to adequately supervise his children, requiring repeated DFPS intervention.

Father also demonstrated an unwillingness to seek necessary medical attention for

his children, as indicated by the long delay in following up with specialists

concerning Wesley’s serious health needs and by his failure to seek immediate

assistance for Luke’s injuries after his ankles were trapped in handcuffs.

      Father completed the parenting course required by his family service plan, but

he did not complete any of his other required services. There is no indication in the

record that Father possesses the parenting abilities or is willing to seek assistance

from the Department or other support organizations to acquire the skills needed to

raise his four young children, two of whom have special needs and require ongoing

therapy. See In re U.P., 105 S.W.3d at 231 (considering fact that father had not


                                          24
shown how he intended to care for child with special medical needs); see also In re

J.E.M.M., 532 S.W.3d 874, 888–89 (Tex. App.—Houston [14th Dist.] 2017, no pet.)

(stating that parent’s failure to complete clinician’s treatment recommendations was

some evidence “that she did not take advantage of the services the Department

offered and so casts some measure of doubt on her parenting abilities”). Father

asserts that he has a bond with his children, but that bond alone does not outweigh

the evidence presented by the Department supporting the trial court’s determination

that terminating Father’s parental rights was in the children’s best interest.

      In addressing the Holley factors and arguing that there is factually insufficient

evidence to support the best interest finding, Father repeatedly points out that DFPS

has not yet identified the children’s potential adoptive caregivers, and therefore

consideration of the children’s future needs, future dangers to the children, parenting

abilities of future caregivers, plans for the children by future caregivers, and stability

of the proposed future home is speculative and uncertain. See Holley, 544 S.W.2d at

372 (listing factors courts have considered in determining best interest). The Texas

Supreme Court has pointed out that the focus of the best-interest inquiry is whether

there is sufficient evidence that termination of the parent’s parental rights would be

in the child’s best interest; the lack of evidence concerning a definite placement for

the children is not dispositive. See In re C.H., 89 S.W.3d at 28. The fact that DFPS,

at the time of the final hearing, had not yet identified adoptive caregivers for the


                                           25
children does not outweigh the evidence that termination of Father’s parental rights

is in the children’s best interest. See In re E.A.F., 424 S.W.3d at 752 (upholding

finding that termination of parental rights was in child’s best interest even though

child’s current foster home was not potential adoptive placement).

      Viewing the evidence in a neutral light, as we must, we conclude that the trial

court reasonably could have formed a firm belief or conviction that termination of

Father’s parental rights was in the children’s best interest. See In re J.O.A., 283

S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266. We hold that factually sufficient

evidence supports the trial court’s finding that termination of Father’s parental rights

was in the children’s best interest.

      We overrule Father’s sole issue.

                                       Conclusion

      We affirm the decrees of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Bland, and Lloyd.




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