Opinion issued April 2, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                               NO. 01-18-00728-CV
                            ———————————
          IN THE INTEREST OF S.G. AND D.D.-G.P., CHILDREN



                    On Appeal from the 314th District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-02466J


                          MEMORANDUM OPINION

      This is an appeal from a judgment terminating the parental rights of a mother

as to her son and daughter, terminating the parental rights of the father of the son

and the parental rights of the father of the daughter, and appointing the Department

of Family and Protective Services as the children’s managing conservator. The

mother and both fathers challenge the legal and factual sufficiency of the evidence
supporting the jury findings underlying the termination of their parental rights. The

mother also contends that the jury charge’s instruction on conservatorship was

defective. Finding no error, we affirm the judgment of the trial court.

                                  BACKGROUND

                                       Pre-Trial

       The Department opened a child-neglect investigation as to the mother and her

6-year-old son, Don, and 3-year-old daughter, Sally, after receiving allegations that

the mother was doing drugs and the children were living in deplorable conditions.1

The children came into the Department’s care after the mother tested positive for

cocaine and marijuana.

       Don and Sally have different fathers, both of whom appeared in the case. They

also tested positive for drugs at the outset of the investigation.

       The Department initially sought to reunify Don and Sally with their mother,

but this changed after she continued to test positive for illegal drug use, including

two relapses during the pendency of this case after participating in drug-

rehabilitation programs. By the mother’s own admission, her history of drug abuse

spans more than two decades. She tested positive for drugs in two prior child-

protection cases.




1
    “Don” and “Sally” are pseudonyms. See TEX. R. APP. P. 9.8(b)(2).
                                           2
      The Department sought termination of the mother’s rights as well as the rights

of both fathers. The mother demanded trial by jury, and the grounds for termination

as to all three parents were tried to the same jury.

                                      The Mother

      The children’s mother, now 39 years old, testified that she first began using

marijuana when she was 18 and started using cocaine a decade ago. She admitted

that she’s had a drug problem and has been to rehab three times since 2000. She

stated that she believed her drug use has harmed Don, and she agreed that her

children deserve a sober parent. She denied using methamphetamine,

notwithstanding that she tested positive for using it less than four months before trial.

Her drug-recovery coach, the program coordinator at the Houston Recovery Center,

testified that the mother had told her that she’s been using methamphetamine,

cocaine, and marijuana for years and expressed concern as to the mother’s denial of

methamphetamine use at trial because honesty is the number one principle of

recovery. The mother acknowledged relapsing twice during the pendency of this

case. Her drug-test results show that she used cocaine in addition to the

aforementioned use of methamphetamine.

                                    Sally’s Father

      Sally’s father was in county jail when Sally was removed from the home.

When he appeared after his release, he tested positive for methamphetamine,


                                           3
cocaine, and marijuana. His test results indicated chronic cocaine abuse. In several

later drug tests, the father’s urine showed no drug use, but he did not give hair

samples because he did not have enough hair on his head or body to test. He

explained at trial that his lack of hair was due to his job as a millwright and welder,

which involves hot working conditions. He characterized his cocaine use as

occasional and denied methamphetamine and marijuana use entirely.

      The Department introduced evidence of Sally’s father’s criminal history,

which included two convictions for burglary of a habitation, a conviction for

possession of cocaine, three convictions for assault, one of which involved family

violence, and a conviction for the unlawful carrying of a weapon. The father agreed

that he had a substantial criminal record, but he disputed his responsibility for the

most recent assault, which involved the wife of the mother’s brother. The mother

testified that the children were present when this incident occurred.

      Sally’s father testified that Sally’s mother is a good mom. He stated that they

had done drugs together before she became pregnant with Sally, but that he was

unaware of any drug use by the mother afterward.

                                    Don’s Father

      Don’s father tested positive for cocaine and marijuana when he appeared in

the case. His results indicated chronic marijuana use. But at trial he denied chronic

marijuana use and said that he had only used cocaine on a single occasion.


                                          4
      He was convicted of aggravated sexual assault of child in 2001. He was 20

years old at the time of the offense; his victim was a 13-year-old girl. He was placed

on deferred adjudication community supervision initially but was incarcerated after

he violated the terms of his supervision. He was released from prison for this offense

in 2008 but he is required to register as a sex offender for the rest of life. He

explained his conviction to the jury in this case by saying that he had been young

and made a mistake.

      Don’s father stated that he and Don’s mother discontinued their relationship

when Don was around 2 years old. He saw Don only twice between 2013 and 2015.

He said he lacked the transportation to see Don, given that the mother lived on the

opposite side of town. He did not pay child support, despite being employed since

his release from prison.

      He testified that Don’s mother was a good mom. He said he never saw her use

drugs and did not know that she had.

                                 Special Investigator

      Lisa McCartney, a special investigator and child abuse expert for the

children’s attorney ad litem, testified that further contact with their parents was not

in Don and Sally’s best interest. She noted that the children already have been in the

Department’s care for almost two years and require permanency. She opined that the




                                          5
sole possibility for a permanent placement for the children requires termination of

the parents’ rights.

      Among the circumstances that McCartney considered in deciding that

termination of parental rights was in the children’s best interest, she noted that:

      ●   the mother has a nearly 20-year history of drug use, specifically cocaine
          and marijuana;
      ●   the parents falsely minimize their drug use and generally are not honest
          about matters relevant to their children’s welfare;
      ●   Sally’s father has a lengthy criminal history; and
      ●   Don’s father has not played an active role in his son’s life, has not paid
          child support, and is a lifetime registered sex offender.

According to McCartney, none of the children’s parents has shown an ability to

provide a safe, stable environment for the children.

                               Directed Verdict Motion

      After the Department rested, Don’s father moved for a directed verdict, which

the trial court denied. No other party moved for a directed verdict.

                                     Jury Verdict

      The trial court’s charge submitted several grounds for termination of parental

rights in the disjunctive as to each parent. The jury found that there was clear and

convincing evidence:

      (1) to terminate the mother’s rights under section 161.001(b)(1)(D), (E), (O),
          or (P) of the Family Code and that termination was in their best interest;

      (2) to terminate Sally’s father’s rights under section 161.001(b)(1)(D), (E), or
          (O) of the Family Code and that termination was in her best interest; and
                                           6
      (3) to terminate Don’s father’s rights under section 161.001(b)(1)(D), (E), or
          (L) of the Family Code and that termination was in his best interest.

The jury further found that the Department should be appointed as the children’s

managing conservator. The trial court entered a decree of termination in conformity

with the jury’s verdict.

                                      Post-Trial

      Both fathers moved for a new trial on evidentiary insufficiency grounds. The

mother did not move for a new trial. All parents appeal.

                                    DISCUSSION

I.    Applicable Law, Standard of Review, and Error Preservation

      A.     Legal standard for termination of parental rights

      A parent’s rights to the care, custody, and management of his or her children

are constitutional in scope. Santosky v. Kramer, 455 U.S. 745, 758–59 (1982); In re

M.S., 115 S.W.3d 534, 547 (Tex. 2003). But parental rights are not absolute; the

Department may terminate the rights of those who are not fit to accept the

responsibilities of parenthood. In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). The

primary focus in a termination suit is protecting the children’s best interest. Id.

      To terminate parental rights under the Family Code, the Department must

establish that a parent committed one or more statutorily enumerated predicate acts

or omissions, and that termination is in the children’s best interest. TEX. FAM. CODE

§ 161.001(b)(1), (2). The Department need only establish one of these predicate acts

                                           7
or omissions, along with the best-interest finding. See id.; A.V., 113 S.W.3d at 362.

But the Department must make these showings by clear and convincing evidence.

TEX. FAM. CODE § 161.001(b). Clear and convincing evidence is “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.” Id. § 101.007.

      Section 161.001(b)(2)’s best-interest finding is a separate inquiry from section

161.001(b)(1)’s predicate acts and omissions. In re S.R.L., 243 S.W.3d 232, 235

(Tex. App.—Houston [14th Dist.] 2007, no pet.). Evidence used to prove predicate

acts or omissions nevertheless may be probative in deciding a child’s best interest.

In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied).

      Multiple non-exclusive factors bear on a child’s best interest. Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include:

      ●    the desires of the child;
      ●    the emotional and physical needs of the child now and in the future;
      ●    the emotional and physical danger to the child now and in the future;
      ●    the parental abilities of those seeking custody;
      ●    the programs available to assist them to promote the child’s best interest;
      ●    their plans for the child or the plans of the agency seeking custody;
      ●    the stability of the home or proposed placement;
      ●    the acts or omissions of the parent that may indicate the existing parent-
           child relationship is not proper; and
      ●    any excuse for the parent’s acts or omissions.
                                            8
Id.; Yonko v. Dep’t of Family & Protective Servs., 196 S.W.3d 236, 243 (Tex.

App.—Houston [1st Dist.] 2006, no pet.). These factors are not exhaustive, no one

factor is controlling, and a single factor may be adequate to support termination on

a particular record. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); In re J.M.T., 519

S.W.3d 258, 268 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

      B.     Legal and factual sufficiency review in termination cases

      In conducting a legal-sufficiency review in an appeal from a termination

order, we examine the evidence in a light favorable to the findings and determine

whether a reasonable jury could have formed a firm belief or conviction that the

finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the

jury resolved disputed facts in favor of its finding if a reasonable jury could do so

and disregard all evidence that a reasonable jury could have disbelieved or found not

to have been credible. Id. If we determine that no reasonable jury could form a firm

belief or conviction that the matter that must be proven is true, then we must

conclude that the evidence is legally insufficient. Id.

      In conducting a factual-sufficiency review, we determine whether,

considering the entire record, a jury reasonably could have formed a firm conviction

or belief about the truth of the matter on which the Department bore the burden of

proof. See id.; C.H., 89 S.W.3d at 25. We consider whether the disputed evidence is

such that a reasonable jury could not have resolved the disputed evidence in favor


                                           9
of its finding. J.F.C., 96 S.W.3d at 266. Viewed in light of the whole record, if the

disputed evidence that a reasonable jury could not have credited in favor of a finding

is so significant that the jury could not reasonably have formed a firm belief or

conviction, then the evidence is factually insufficient. Id.

      Deciding whether and to what degree to credit the evidence introduced at trial

is the jury’s role, not ours. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). The jury

is the sole evaluator and arbiter of witness credibility. Id.

      C.      Preservation of error as to legal and factual sufficiency

      In an appeal from a judgment rendered on the basis of a jury verdict, including

a judgment terminating parental rights, a party cannot complain about the legal and

factual sufficiency of the evidence for the first time on appeal. See TEX. R. CIV. P.

33.1(d). To preserve a challenge to the legal sufficiency of the evidence for appellate

review, a party must:

      ●    move for an instructed verdict;
      ●    object to the submission of a jury question;
      ●    move for judgment notwithstanding the verdict; or
      ●    move for a new trial.

In re J.M.S., 43 S.W.3d 60, 62 (Tex. App.—Houston [1st Dist.] 2001, no pet.); In re

C.E.M., 64 S.W.3d 425, 427 (Tex. App.—Houston [1st Dist.] 2000, no pet.). To

preserve a challenge to the factual sufficiency of the evidence, a party must move

for a new trial. TEX. R. CIV. P. 324(b)(2), (3); In re A.C., 394 S.W.3d 633, 639 (Tex.

                                             10
App.—Houston [1st Dist.] 2012, no pet.); J.M.S., 43 S.W.3d at 62. The party’s

motion or objection also must be reasonably specific as to the nature of the

evidentiary sufficiency challenge that is being made to preserve error on that point.

See TEX. R. APP. P. 33.1(a)(1)(A); TEX. R. CIV. P. 268, 274, 301, 321–22; see, e.g.,

C.E.M., 64 S.W.3d at 428 (instructed-verdict motion “on all grounds” too general to

preserve error; new-trial motion challenging implied best-interest finding did not

preserve error as to findings on statutory predicate acts or omissions).

II.   Mother’s Appeal

      The mother demanded trial by jury and received one.

      She contends that the evidence is legally and factually insufficient to support

findings that termination of her parental rights was warranted under section

161.001(b)(1)(D), (E), (O), and (P) or that it was in the children’s best interest. But

she did not move for an instructed verdict, object to the submission of a jury

question, move for judgment notwithstanding the verdict, or move for a new trial.

Thus, she did not preserve these issues for review. See J.M.S., 43 S.W.3d at 62.

      The mother also contends that the charge was defective in that it did not

properly instruct the jury as to the circumstances under which it could find that the

Department should be appointed as the children’s managing conservator. She did

not, however, object to the charge in the trial court. She therefore did not preserve

this issue for review either. See TEX. R. APP. P. 33.1(a); TEX. R. CIV. P. 274, 279.


                                          11
III.   Sally’s Father’s Appeal

       Sally’s father contends that the evidence is legally and factually insufficient

to show that he did not comply with his court-ordered family services plan by failing

to submit to random drug testing. He argues that he provided a urine sample on each

test date and that he did not provide hair samples for testing only because he lacked

adequate hair to be tested due to his employment as a welder. He further contends

that the evidence is legally and factually insufficient to show that he endangered

Sally’s well-being or that termination of his parental rights is in Sally’s best interest.

       A.    Applicable law

       A finding that a parent “failed to comply with the provisions of a court order

that specifically established the actions necessary for the parent to obtain the return

of the child” may support termination. TEX. FAM. CODE § 161.001(b)(1)(O). This

includes failure to comply with a court-ordered family service plan’s drug tests.

J.M.T., 519 S.W.3d at 269. A jury may conclude that a parent’s refusal to provide

samples for testing, including hair or fingernail samples, reflects an attempt to

conceal drug use. Id.

       Drug use and its impact on a parent’s life and his ability to parent also may

establish in some cases a course of conduct sufficient to support termination for

engaging in conduct that endangers the physical or emotional well-being of the child.

TEX. FAM. CODE § 161.001(b)(1)(E); J.O.A., 283 S.W.3d 345; Toliver v. Tex. Dep’t


                                           12
of Family & Protective Servs., 217 S.W.3d 85, 98 (Tex. App.—Houston [1st Dist.]

2006, no pet.). There need not be any direct evidence showing that the parent’s drug

use injured the child to warrant termination for endangerment. Walker v. Tex. Dep’t

of Family & Protective Servs., 312 S.W.3d 608, 617–18 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied). Because parental drug use exposes a child to the possibility

that the parent may be impaired or incarcerated, drug use can suffice to support an

endangerment finding. Id. at 617–18; Toliver, 217 S.W.3d at 98.

      Parental drug abuse also reflects poor judgment and an unwillingness to

prioritize a child’s safety and welfare and thus may be considered in determining a

child’s best interest. A.C., 394 S.W.3d at 642. The jury is entitled to give great weight

to a parent’s drug-related conduct in assessing his child’s best interest. In re E.R.W.,

528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Failure to

complete all tasks and services required by a family service plan likewise may reflect

parental unfitness and thus support a finding that termination is in a child’s best

interest. In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013); J.M.T., 519 S.W.3d at 269–

70.

      B.     Analysis

      Sally’s father was initially drug-tested in May 2016. The test results from his

urine sample were negative for drugs. The results from his hair sample were positive




                                           13
for marijuana, cocaine, and methamphetamine, and they specifically indicated that

his use of cocaine was chronic and that he used methamphetamine more than once.

      The urine and hair results are not contradictory. Urine testing reveals current

use of drugs—generally use within three days of the test—while hair testing reveals

drug use that is remoter in time from the date of the test.

      The trial court later ordered the father to complete a family service plan. As

part of the plan, he agreed to not use drugs and to submit to further drug tests. The

plan stated that “drug testing will be an ongoing task throughout this case,

understanding that failure to do so is considered by the agency to indicate current

use of drugs.”

      Afterward, Sally’s father was drug-tested in June 2016, September 2016,

November 2016, July 2017, November 2017, and March 2018. His urine sample in

June 2016 was positive for cocaine and his hair sample on that date showed

marijuana use and chronic cocaine use. On each subsequent occasion, the father

provided a clean urine sample but did not provide a hair sample because he did not

have adequate hair for testing on his head or body.

      Notwithstanding the positive drug-test results, the father denied having used

marijuana or methamphetamine at trial. He admitted to using cocaine but

characterized his use as occasional or on-and-off over time.




                                          14
      As to the inability to provide hair samples for testing after June 2016, Sally’s

father explained that, as a millwright and welder working in hot conditions, he

shaves his body hair, because he gets a rash, hives, and abscesses if he allows his

hair to grow out. The owner of the company that tested the father for drugs

corroborated the father’s explanation that welders generally have short hair and

sometimes shave their underarms due to their work conditions.

      In sum, the jury heard evidence that Sally’s father tested positive for drug

abuse at the outset of the case, including chronic cocaine use, and that he

subsequently failed to provide the hair samples necessary to detect long-term chronic

use. He explained to the jury that his job as a welder prevented him from having hair

long enough to provide a sample, but the jury was not obligated to accept his

explanation and we cannot second-guess the jury’s credibility determinations. See

J.O.A., 283 S.W.3d at 346. Setting aside the jury’s prerogative in evaluating witness

demeanor, we note that Sally’s father denied using marijuana and methamphetamine

even though he tested positive for these drugs, and he described his use of cocaine

as occasional, contrary to the test results showing chronic use. On this record,

reasonable jurors could have formed a firm belief or conviction that Sally’s father

was removing his hair to prevent the collection of hair samples that would have

revealed his continued drug abuse, and, as a result, could have resolved the disputed

evidence in favor of this finding.


                                         15
       We thus conclude that the evidence was legally and factually sufficient to

show by clear and convincing evidence that termination was warranted under section

161.001(b)(1)(E) and section 161.001(b)(1)(O). Having decided that the evidence

suffices to support these findings, we need not consider whether it would support the

other predicate ground for termination—section 161.001(b)(1)(D)—considered by

the jury. See TEX. R. APP. P. 47.1; A.V., 113 S.W.3d at 362; In re S.C.F., 522 S.W.3d

693, 701 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

       This evidence also is legally and factually sufficient to support the jury’s

finding that termination of Sally’s father’s parental rights was in her best interest.

The jury reasonably could have found that her father frequently used cocaine,

continued to do so even after his parental rights were at stake, and tried to conceal

his continued use instead of discontinuing it. The jury reasonably could have

concluded further that this course of conduct showed that termination of his parental

rights would safeguard Sally from emotional and physical danger now and in the

future and that her father lacked the ability to place Sally’s well-being ahead of his

desire to do drugs. Moreover, Sally’s father was incarcerated when she came into

the Department’s care, and he has a lengthy criminal history, including convictions

for:

       ●   burglary of a habitation in 1991;
       ●   possession of cocaine in 1991;
       ●   burglary of a habitation in 1992;
                                            16
      ●   assault in 2004;
      ●   unlawful carrying of a weapon in 2005;
      ●   assault/family violence in 2010; and
      ●   assault in 2015.

When considered in conjunction with chronic drug use, a reasonable jury could have

concluded based on this criminal history that Sally’s father was a source of

substantial instability that could jeopardize her emotional and physical needs. See

Walker, 312 S.W.3d at 617 (repeated criminal conduct subjecting child to probability

of separation from parent due to parent’s incarceration endangers child’s physical

and emotional well-being).

      The father contends on appeal that he has a strong bond with Sally and

believes that she desires him to play a role in her life. While the desires of the child

are a relevant consideration, Sally is at a tender age and thus cannot provide

meaningful input as to whether termination is in her best interest. Indeed, her youth

and consequent vulnerability weighs in favor of the jury’s finding that termination

is in her best interest. See In re M.F., No. 01-17-008350-CV, 2018 WL 1630180, at

*7 (Tex. App.—Houston [1st Dist.] Apr. 5, 2018, pet. denied) (mem. op.) (child’s

young age weighed in favor of best-interest finding). A child’s love for a parent

merits less weight when the parent has engaged in conduct that is a danger to the

child’s well-being. In re J.J.S., No. 14-17-00359-CV, 2017 WL 4518595, at *11

(Tex. App.—Houston [14th Dist.] Oct. 10, 2017, pet. denied).

                                          17
       On this record, a reasonable jury could have formed a firm belief or

conviction that the termination of the father’s parental rights was in Sally’s best

interest and the disputed evidence was not such that the jury could not have resolved

these disputes in favor of its best-interest finding. We thus conclude that the evidence

was legally and factually sufficient to show by clear and convincing evidence that

termination of her father’s parental rights was in Sally’s best interest.

IV.   Don’s Father’s Appeal

      Don’s father contends that the evidence is legally and factually insufficient to

show that he was convicted of aggravated sexual assault of a child under

circumstances in which he was criminally responsible for serious injury of the child.

He also contends that this conviction was too distant or remote in time to support

termination and that the evidence is legally and factually insufficient to support the

jury’s finding that termination of his parental rights was in Don’s best interest.

      A.     Applicable law

      A finding that a 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 Penal

Code’s provision pertaining to aggravated sexual assault may support termination.

TEX. FAM. CODE § 161.001(b)(1)(L)(viii). A person who engages in a sexual act with




                                          18
a child less than 14 years of age commits an aggravated sexual assault. TEX. PENAL

CODE § 22.021(a)(1)(B), (a)(2)(B).

      The Family Code does not define “serious injury,” so we give these words

their ordinary meaning. In re A.L., 389 S.W.3d 896, 900–01 (Tex. App.—Houston

[14th Dist.] 2012, no pet.). “Serious” means “having important or dangerous

possible consequences” and “injury” connotes “hurt, damage, or loss sustained.” Id.

(relying on definition adopted in C.H. v. Dep’t of Family & Protective Servs., No.

01-11-00385-CV, 2012 WL 586972 (Tex. App.—Houston [1st Dist.] Feb. 23, 2012,

pet. denied) (mem. op.)). The offense therefore need not involve bodily injury;

emotional or psychological hurt suffices. C.H., 2012 WL 586972, at *5.

      Certain convictions imply infliction of serious injury. In re W.J.B., No. 01-15-

00802-CV, 2016 WL 1267847, at *7 (Tex. App.—Houston [1st Dist.] Mar. 31, 2016,

no pet.) (mem. op.) (citing In re L.S.R., 92 S.W.3d 529 (Tex. 2002) (per curiam)).

This includes convictions for aggravated sexual assault of a child. See In re M.A.S.,

No. 06-16-00059-CV, 2016 WL 7405849, at *2 (Tex. App.—Texarkana Dec. 22,

2016, no pet.) (mem. op.) (aggravated sexual assault committed by father at age of

17 against unrelated 12- or 13-year-old victim serious enough offense to imply

serious injury).




                                         19
       B.     Analysis

       Don’s father was convicted of the sexual assault of a child in 2001. He was

20 years old at the time of the offense and his female victim, with whom he engaged

in fellatio and sexual intercourse, was 13 years old. The father initially was placed

on deferred adjudication community supervision for five years, but was later

convicted of the offense after violating the terms of his community supervision. He

also is required to register as a sex offender for the rest of his life as a result, because

an aggravated sexual assault conviction is categorized as a sexually violent offense.

See TEX. CODE CRIM. PROC. art. 62.001(6)(A), 62.101(a)(1).

       The father admitted to the offense on the stand. He explained, “I was young,

making mistakes.” But he insisted that he has changed since he committed the

offense, some 18 years earlier.

       Don’s father contends that, while inappropriate, his sexual encounter with his

13-year-old victim was consensual and that there is no evidence that she suffered

serious injury. As an initial matter, we note that he did not testify as to the

circumstances of the aggravated sexual assault and the record is devoid of evidence

that the underlying acts were consensual. At any rate, his victim’s age categorically

precluded consent. See May v. State, 919 S.W.2d 422, 424 (Tex. Crim. App. 1996)

(child under 14 years of age cannot legally consent to sex and consent therefore is

not an available defense); accord In re B.W., 313 S.W.3d 818, 821 (Tex. 2010). This


                                            20
bright-line rule rests on a longstanding judgment that “children under fourteen lack

the capacity to understand the significance of agreeing to sex.” B.W., 313 S.W.3d at

822. We thus reject Don’s father’s argument that the purportedly consensual nature

of the sexual conduct underlying the offense contradicts or undermines a finding of

serious injury. Sexual activity is always accompanied by a possibility of important

or dangerous consequences, including emotional or psychological hurt, and the

possibility of realizing these consequences is magnified where children under 14

years of age are concerned due to their inability to meaningfully apprehend the

nature of sex and its possible outcomes. See id. at 822–23; see also Mathews v. State,

918 S.W.2d 666, 669 (Tex. App.—Beaumont 1996, pet. ref’d) (defendant convicted

of aggravated sexual assault of child younger than 14 years after deferred

adjudication probation revoked; noting that sexual intercourse with girl of such

tender years has high probability of resulting in mental and emotional scarring). We

therefore hold that the jury could infer serious injury from Don’s father’s conviction

for aggravated sexual assault of a child under 14 years of age for the purpose of

termination under section 161.001(b)(1)(L).

      Don’s father also contends that his conviction for aggravated sexual assault

was too distant or remote in time to constitute legally or factually sufficient evidence

supporting termination under section 161.001(b)(1)(L). He relies on decisions

stating that misconduct occurring long ago will not support termination. E.g.,


                                          21
Hendricks v. Curry, 401 S.W.2d 796, 800 (Tex. 1966). But this is not a universal

principle; the dispositive inquiry is whether the past continues to bear on the present.

As the Court said in Hendricks, termination may not be “based solely upon

conditions which existed in the distant past but no longer exist.” Id.; accord Avery

v. State, 963 S.W.2d 550, 552 (Tex. App.—Houston [1st Dist.] 1997, no writ). The

father’s conviction for aggravated sexual assault of a child less than 14 years of age

requires him to register as a sex offender for the rest of his life. See TEX. CODE CRIM.

PROC. art. 62.001(6)(A), 62.101(a)(1). In requiring lifetime registration, the

Legislature has made a policy decision that the crime for which Don’s father was

convicted will never be so remote that it will no longer be a matter of legitimate

public concern. See Young v. State, 341 S.W.3d 417, 426 (Tex. Crim. App. 2011)

(concern about repeat sex offenses and desire to thwart future sex crimes underlies

registration requirement). We therefore hold that Don’s father’s 2001 conviction

constitutes legally and factually sufficient evidence to support the jury’s finding in

favor of the termination of his parental rights under section 161.001(b)(1)(L).

      We thus conclude that the evidence was legally and factually sufficient to

prove by clear and convincing evidence that termination was warranted under

section 161.001(b)(1)(L). Having decided that the evidence adequately supports this

finding, we need not consider whether it would support the other predicate grounds

for termination—sections 161.001(b)(1)(D) and 161.001(b)(1)(E)—considered by


                                          22
the jury. See TEX. R. APP. P. 47.1; A.V., 113 S.W.3d at 362; S.C.F., 522 S.W.3d at

701.

       Don’s father further contends that his conviction for aggravated sexual assault

of a child under 14 years of age is not legally and factually sufficient to support the

jury’s finding that termination was in Don’s best interest. The father argues that he

has a close relationship with Don and has been a father to his other children without

incident. Evidence that a parent has sexually abused one child, however, is a relevant

consideration when a jury decides whether the parent poses a danger to the emotional

and physical well-being of other children. See In re R.W., 129 S.W.3d 732, 742 (Tex.

App.—Fort Worth 2004, pet. denied). Don’s father acknowledged his conviction

and explained to the jury that he made a mistake but has changed. The jury, however,

was free to disbelieve him based on its assessment of his demeanor and credibility

and conclude that he posed a danger to Don’s emotional or physical well-being. See

J.O.A., 283 S.W.3d at 346; see also R.W., 129 S.W.3d at 743 (evidence of father’s

past inappropriate sexual relationship with a 16-year-old girl relevant to jury’s

decision as to whether he posed danger to child).

       To the extent that the father contends evidence of his close relationship with

Don fatally undermines the jury’s best-interest finding, we note that Don is merely

6 years old and that the natural affection that he feels for his father does not

necessarily outweigh the seriousness of his father’s status as a registered sex


                                          23
offender. See J.J.S., 2017 WL 4518595, at *11. In addition, the record shows that

Don’s father, for the most part, has not given Don the consistent emotional and

economic support that a child needs to thrive. The jury heard evidence that Don’s

father hardly saw him after the mother and father stopped seeing one another. The

father conceded that he saw Don just twice between 2013 and 2015. He also admitted

that he did not know exactly where his son lived and “didn’t go and checkup on

him.” Don has never been in his father’s care, and the father has not paid child

support despite being continuously employed since his release from prison in 2008.

      On this record, a reasonable jury could have formed a firm belief or conviction

that the termination of the father’s parental rights was in Don’s best interest. Further,

the disputed evidence was not such that the jury could not have resolved these

disputes in favor of its best-interest finding. We thus hold that the evidence was

legally and factually sufficient to show by clear and convincing evidence that

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

                                   CONCLUSION

      We affirm the judgment of the trial court.

                SUPPLEMENTAL OPINION ON REHEARING

      The mother moves for rehearing. Her counsel advises that the mother filed a

motion for new trial but that counsel failed to include it in the appellate record.

Counsel has requested that the district clerk supplement the record with copies of


                                           24
the mother’s new-trial motion and the trial court’s order denying it. Because she

moved for new trial, the mother contends that she preserved her evidentiary

sufficiency points for review and requests that we decide them on the merits.

      We deny the mother’s motion for rehearing, but withdraw our opinion of

February 12, 2019, and substitute this opinion, including its supplemental opinion

on rehearing in the original opinion’s place. Our judgment remains unchanged.

      The jury found that the mother’s parental rights should be terminated under

section 161.001(b)(1)(D), (E), (O), or (P) of the Family Code and that termination

was in the children’s best interest. Subsections (D), (E), (O), and (P) provide for

termination if a jury finds by clear and convincing evidence that the parent has:

      (D) knowingly placed or knowingly allowed the child to remain in
      conditions or surroundings which endanger the physical or emotional
      well-being of the child;
      (E) engaged in conduct or knowingly placed the child with persons who
      engaged in conduct which endangers the physical or emotional well-
      being of the child;
                                        ***

      (O) failed to comply with the provisions of a court order that
      specifically established the actions necessary for the parent to obtain
      the return of the child who has 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 child’s removal
      from the parent under Chapter 262 for the abuse or neglect of the child;
      (P) used a controlled substance, as defined by Chapter 481, Health and
      Safety Code, in a manner that endangered the health or safety of the
      child.


                                         25
TEX. FAM. CODE § 161.001(b)(1)(D), (E), (O), (P).

      When the children came into the Department’s care, the mother tested positive

for cocaine and marijuana. Her test results indicated that she had used cocaine more

than once but not every day and that she was a chronic user of marijuana.

      While this case was pending, the mother tested positive for drugs twice more.

She tested positive for cocaine in July 2017 and her results indicated more than one-

time use. She later tested positive for both cocaine and methamphetamine in March

2018. Her test results once again indicated more than one-time use of cocaine.

      The mother testified that she has been using marijuana for two decades and

cocaine for a decade. She denied intentionally using methamphetamine,

notwithstanding the positive test result for that drug. She speculated that perhaps

methamphetamine had been mixed into the cocaine she used.

      The mother agreed that her children deserve a sober parent and conceded that

her drug use has harmed Don. She agreed that she failed to stay sober, contrary to

the terms of her family service plan. She has been to rehab three times since 2000,

including in October 2017, after which she again tested positive for drugs. She

testified that she believes that she has quit using cocaine for good now. But she

admitted that staying sober is difficult and that relapses are possible.

      Kimberly Isaac, a drug-recovery coach who worked with the mother for

several months, testified about the mother’s drug use and her efforts to remain sober.


                                          26
Isaac described the mother as an engaged participant in the drug-recovery program.

But Isaac also had some concerns. Honesty, Isaac testified, is important to recovery,

and the mother has not always been honest. At trial, the mother denied using

methamphetamine, but admitted to Isaac that she did use it. Isaac acknowledged that

the relapse rate for users of methamphetamine and cocaine is very high, and that

there is no guarantee that the mother will not continue to use drugs. The mother

participated in three drug rehab programs and relapsed all three times.

      Based on this evidence, reasonable jurors could have formed a firm belief or

conviction that:

      ●   the mother continued to use illegal drugs despite her service plan’s
          directive that she refrain from doing so;
      ●   her illegal drug use endangered the children’s health and safety; and
      ●   her illegal drug use endangered the children’s physical or emotional well-
          being.

See J.M.T., 519 S.W.3d at 269; J.O.A., 283 S.W.3d 345; Walker, 312 S.W.3d at 617–

18; Toliver, 217 S.W.3d at 98. Given the record, reasonable jurors could have

resolved the disputed evidence in favor of these findings. In particular, we note that

credibility assessments belong solely to the jury, which was free to disbelieve the

mother’s professed commitment to sobriety.

      We therefore conclude that the evidence is legally and factually sufficient to

show by clear and convincing evidence that termination was warranted under section

161.001(b)(1)(D), 161.001(b)(1)(O), and 161.001(b)(1)(P). Having decided that the
                                         27
evidence suffices to support these findings, we need not consider whether it would

support the other predicate ground for termination—section 161.001(b)(1)(E)—

found by the jury. See TEX. R. APP. P. 47.1; A.V., 113 S.W.3d at 362; S.C.F., 522

S.W.3d at 701.

      The evidence of the mother’s longstanding and continued drug abuse likewise

is legally and factually sufficient to support the jury’s finding that termination of her

parental rights was in her children’s best interest. See A.C., 394 S.W.3d at 642; In re

E.R.W., 528 S.W.3d at 266. The jury reasonably could have found that she had

habitually used marijuana, regularly used cocaine, and continued doing drugs even

after her parental rights were at stake. The jury also reasonably could have found

that she was not entirely honest about the extent of her drug abuse. The mother

conceded that her children deserved a sober parent, and the jury reasonably could

have found that it was not likely that she would remain sober, given her long history

of drug abuse, including continued use after multiple tries at rehabilitation.

      A reasonable jury could have formed a firm belief or conviction that the

termination of the mother’s parental rights was in the children’s best interest and the

disputed evidence was not such that the jury could not have resolved these disputes

in favor of its best-interest finding. Accordingly, we conclude that the evidence was

legally and factually sufficient to show by clear and convincing evidence that

termination of the mother’s parental rights was in her children’s best interest.


                                           28
                                        ***

      Don’s father and Sally’s father also moved for rehearing. We have denied

their respective motions by separate orders. In an accelerated appeal, like this one,

we “may deny the right to file a motion for rehearing.” TEX. R. APP. P. 49.4. As all

three parents have availed themselves of the opportunity to seek rehearing, the court

will not entertain further motions for rehearing after the issuance of this opinion.




                                               Gordon Goodman
                                               Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.




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