       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-19-00382-CV


                                         T. L., Appellant

                                                 v.

                Texas Department of Family and Protective Services, Appellee


               FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY
     NO. D-1-FM-17-007178, THE HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                             MEMORANDUM OPINION


                T.L., herein “Thomas,” appeals the trial court’s decree terminating his parental

rights to his daughter “Janet” who was ten years old at the time of the bench trial.1 Thomas

contends that the evidence was legally and factually insufficient to support the trial court’s

findings that five statutory grounds existed for terminating his rights and that termination was in

Janet’s best interest. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (F), (N), (Q), (b)(2). We will

affirm the trial court’s decree.


                                   STANDARD OF REVIEW

                To terminate the parent-child relationship, the Family Code requires the factfinder

to find by clear and convincing evidence that (1) the parent has engaged in conduct set out as

a statutory ground for termination and (2) termination is in the child’s best interest.         Id.


        1
        We will refer to the child and other family members involved in this case by
pseudonyms. See Tex. R. App. P. 9.8.
§ 161.001(b)(1), (2); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Clear and convincing evidence

is the level 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 § 101.007; In re

K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In reviewing the sufficiency of the evidence, we must

“provide due deference to the decisions of the factfinder, who, having full opportunity to observe

witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of

witnesses.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re J.P.B., 180 S.W.3d 570, 573

(Tex. 2005).

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

consider all the evidence in the light most favorable to the trial court’s finding and determine

whether a reasonable factfinder could have formed a firm belief or conviction that its finding was

true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). This includes assuming that the factfinder

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

disregarding all evidence that a reasonable factfinder could have disbelieved or found to have

been incredible. Id.

               When reviewing the factual sufficiency of the evidence, we view all of the

evidence in a neutral light and determine whether a reasonable factfinder could have formed a

firm belief or conviction that a given finding was true. See C.H., 89 S.W.3d at 18–19. We assume

that the factfinder resolved disputed facts in favor of its finding if a reasonable person could do

so, and we disregard evidence that a reasonable factfinder could have disbelieved or found

incredible. See J.F.C., 96 S.W.3d at 266. Evidence is factually insufficient only if a reasonable

factfinder could not have resolved the disputed evidence in favor of its finding and if that



                                                 2
disputed evidence is so significant that the factfinder could not reasonably have formed a firm

belief or conviction that its finding was true. Id.


                                      FACTUAL SUMMARY

               The Department of Family and Protective Services removed Janet and her one-

month-old brother from their mother’s care on November 25, 2017, and filed a petition for parental

rights’ termination and/or managing conservatorship of the children.2 The Department attached

to its petition the affidavit of CPS investigator Anna Sallows, who averred that the Department

removed the children because they were in “immediate danger” due to their mother’s appearing

with them at a restaurant late at night “disoriented and out of it,” possibly due to drugs or a

mental-health crisis. Unbeknownst to the Department, Thomas was incarcerated in Georgia when

it removed the children from their mother’s care and filed its petition.

               The bench trial occurred in May 2019, at which a Department caseworker, a Court

Appointed Special Advocate (CASA) volunteer, and a CASA supervisor testified. Thomas also

testified via telephone from prison and the children’s attorney ad litem made representations to

the court about their best interests. The trial court admitted two exhibits: Sallows’s removal

affidavit and a copy of the October 9, 2013 judgment of conviction from the Superior Court of

Candler County, Georgia, sentencing Thomas to eight years’ confinement in state prison for

the felony offense of possession of cocaine and the misdemeanor offenses of possession of

marijuana, fleeing from law enforcement, and driving without a license.




       2
          The petition sought to terminate the parental rights of Thomas, the children’s mother,
and the father of Janet’s brother. Neither the children’s mother nor the father of Janet’s brother
is a party to this appeal, and the termination of their respective parental rights is not at issue here.
                                                   3
               Caseworker Shatalya Shield testified that the Department was unable to locate

Thomas at the beginning of this case and conducted a diligent search for him. The trial court

took judicial notice of the diligent-search reports the Department filed on November 28, 2017.

Shield testified that the Department first discovered Thomas’s whereabouts and mailing address

in September 2018, when it learned that he was in Ware State Prison, Georgia, and that it sent

him parenting packets and a family plan of service in October 2018. After receiving no response

from Thomas, the Department resent him the information in February 2019 but again received no

response. Shield testified that to her knowledge Thomas had never sent Janet any letters or gifts

or inquired about her well-being or whereabouts.

               Shield testified that for some indeterminate period before this case, Janet had

lived with Thomas and her paternal grandmother in Georgia. That period ended when Thomas

and the paternal grandmother “ask[ed] mom to come get [Janet] because of [her] behavioral

issues.” She said that during the pendency of this case, Janet found her paternal family and father

on Facebook and “reached out” to them on the site. Shield testified that Janet had expressed

wanting to live with her foster parents since the beginning of the case until shortly before trial

when, after speaking with her paternal grandmother over the phone, she expressed a new desire

to live with her paternal grandmother.

               Shield explained that an ICPC (Interstate Compact on the Placement of Children)

home study for Janet’s paternal grandmother was pending in Georgia, but that the Department’s

current recommendation was that Janet and her brother be adopted by their foster family. She

explained that she had concerns about separating Janet and her little brother, who were very

bonded, and that the foster family was able and willing to adopt both children. She said that the

foster family was willing to allow the children to have post-adoption contact with their biological

                                                4
families. Shield acknowledged that the paternal grandmother expressed a willingness to have

Janet live with her and that the Department was awaiting the results of the ICPC home study

before deciding whether Janet would be able to live with her paternal grandmother.

              Thomas testified that he first became aware of this case in September 2018 when

his court-appointed attorney contacted him. He said that he provided his counsel the name of his

mother as a potential placement for Janet and requested through counsel that his mother undergo

an ICPC home study. He hoped Janet would be placed with his mother. He said that he last saw

Janet in 2016 when she and her mother came from Texas to Georgia and that, after Janet left

Georgia with her mother a couple months later, he had trouble keeping in contact because Janet’s

mother “changed her social media accounts frequently.” He explained that, while he wanted

Janet to remain with him, he allowed her to leave Georgia with her mother because “her

momma was [Janet’s] best friend” and Janet wanted to stay with her. He testified that he had

heard rumors that Janet’s mother was “jumping from house to house” and did not have stable

living arrangements and that he thought she was “lying to [his] face” about being good, straight,

and stable. Nonetheless, he allowed Janet to leave Georgia and return to Texas with her mother.

              Thomas further testified that, prior to 2016, the last time he saw Janet was in

2009, the year she was born. He explained that Janet, her mother, and he had lived with his

mother until the end of 2009, when Janet and her mother left Georgia. He testified that he had

been working during that year and providing Janet support. He said that he has seen Janet a total

of “twice in her life”—in 2009 and 2016. He explained that he was currently in prison due to a

parole violation in September 2018—a “residential technicality”—because he did not properly

inform his parole officer of his new address. Before the violation, he had been on parole for

about two years. He did not know when his next parole date was, but his maximum release date

                                               5
is August 2021. The original criminal charges for which he was convicted were brought against

him in 2011.

               Thomas testified that during his approximate two years on parole, he provided

financial support for Janet “one time” in the amount of $400 in response to Janet’s mother’s

request that he wire her some money. He did not testify about any further financial support he

has provided for Janet, although he had been working two jobs during the time he was on parole,

making close to $1000 per month. He also testified that since learning about this case, he sent

one letter to Janet, through CASA, and has not made any phone calls to her. He said that the last

time he talked to Janet on the phone was in 2016. He explained that after Janet and her mother

left Georgia in 2016, he had trouble keeping in contact with Janet but never sought help from the

police in locating her and never filed for any custody rights.

               Thomas testified that he never received any phone calls, packets, or letters from

the Department but has received “about weekly” phone calls from his counsel. He said that he

received correspondence from CASA and sent a letter in response, asking CASA “to get in touch

with my daughter to have her [] write me or send pictures and letters and that I love her, and I

will get her one day, when I get out of here.”

               CASA volunteer Elana Schulman testified that when she first met the children,

in December 2017, Janet was having behavioral issues—outbursts, trouble sleeping, and general

agitation. She said that Janet is “a completely different child now,” well adjusted and “seemingly

normal.” She explained that Janet and her brother are thriving in their current foster home and

that Janet is getting good grades and engaged in after-school activities. She said that Janet has

been in therapy and is currently on psychotropic medication. Schulman said that when Thomas

was assigned an attorney, CASA was able to locate his mailing address and sent him a letter in

                                                 6
January 2019, to which he responded. Thomas’s letter “stated concern” for Janet and asked CASA

to reach out to his mother. Apart from Thomas’s letter in response, Schulman was not aware of

any other letters that Thomas sent, either to CASA or to Janet herself. Schulman also testified

that she was aware of one phone call between Thomas and Janet, in the spring of 2018, after

Janet used her foster mother’s cell phone to find her paternal family members on Facebook.

               Schulman testified that she believed it was in Janet’s best interest to terminate

Thomas’s parental rights because the child “does not have a significant relationship” with him

and the foster home is able and willing to adopt her and her brother, providing the children the

permanency and stability they need, especially with the “many traumas” that Janet has suffered

and the amount of caretaking she will need. She testified that Janet’s foster mother is an

“unbelievable advocate” for her at school, sitting in on her classes “to make sure that she’s

behaving,” having daily contact via text with her teachers and counselors, and being at the

school frequently. Schulman stated that Janet never asked her about her paternal family and was

“nonchalant” about them when Schulman mentioned them. She said that Janet “really didn’t

care about her [paternal grandmother] or the relationship” until the recent phone call that she had

with her paternal grandmother. Janet also told Schulman that she had been “very uncomfortable”

during the short period she had lived with her paternal grandmother.

               CASA supervisor Erin Taylor testified that she did not feel Thomas had

maintained a significant relationship with Janet because he has not had contact with her since

2016; he did not contact CASA via phone or letter since his initial response letter, despite CASA

providing him with its contact information; and none of his family had reached out to Janet

after her initial phone call to them after finding them on Facebook. She explained that CASA’s

position was that, other than the initial response letter, Thomas has not taken any actions

                                                7
demonstrating his desire to be involved in Janet’s life. She testified that CASA attempted to

reach Janet’s paternal grandmother in the fall of 2018 and was able to speak with her after

several attempts. She said that she believed it was in Janet’s best interest for Thomas’s parental

rights to be terminated.

                Janet’s attorney ad litem, Robert Galvin, represented to the court that until the eve

of trial, Janet had consistently told him that she wanted to remain with her brother and with her

foster family if she could not be with her mother. Galvin explained that the day before trial,

“things kind of took a turn a little” when Janet was “very clear that she wanted to go live

with her paternal grandmother,” to whom she had spoken on the phone the week before. Janet

expressed her belief that if she lived with her paternal grandmother, she would be able to see her

father and visit her little brother. Galvin explained that he did not think Janet had a “grasp of the

termination concept.” He explained that he believed adoption would be best for Janet, whether

by the foster family or her paternal grandmother, because she would then be entitled to receive

post-adoptive services and “will need therapeutic intervention . . . long after [the Department] is

out of her life.”


                                          DISCUSSION

                In his first through fifth issues, Thomas contends that the evidence is legally and

factually insufficient to support the trial court’s findings that he engaged in conduct satisfying

five of the statutory grounds supporting termination by: (1) knowingly placing or allowing Janet

to remain in conditions or surroundings that endangered her physical or emotional well-being;

(2) knowingly engaging in conduct or placing her with persons who engaged in conduct that

endangered her physical or emotional well-being; (3) failing to support her in accordance with



                                                  8
his ability during a period of one year ending within six months of the date of the petition’s

filing; (4) constructively abandoning her; (5) and knowingly engaging in criminal conduct that

has resulted in his conviction, confinement, and inability to care for her for at least two years

from the petition’s filing. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (F), (N), (Q). In his

sixth issue, Thomas challenges the evidentiary sufficiency supporting the trial court’s finding

that termination of his rights was in Janet’s best interest. See id. § 161.001(b)(2).


Subsection E finding

               We first consider the trial court’s finding that Thomas “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.” Id. § 161.001(b)(1)(E). Subsection E requires proof of

child endangerment, i.e., exposing a child to loss or injury or jeopardizing a child’s emotional

or physical well-being. Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

Endangerment need not be established as an independent proposition but may be inferred from

parental misconduct. Id. Although “‘endanger’ means more than a threat of metaphysical injury

or the possible ill effects of a less-than-ideal family environment, it is not necessary that the

conduct be directed at the child or that the child actually suffers injury.” Id. “Conduct” under

subsection E includes omissions and failures to act, In re J.T.J., 121 S.W.3d 117, 125 (Tex.

App.—Fort Worth 2003, no pet.), and imprisonment is “certainly a factor to be considered by the

trial court on the issue of endangerment,” Boyd, 727 S.W.2d at 533. Additionally, conduct that

“subjects a child to [a] life of uncertainty and instability endangers a child’s physical and

emotional well-being.” Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.]

2010, pet. denied). A parent’s lengthy absence from a child’s life can be conduct that endangers


                                                  9
the child’s emotional well-being, see In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied) (concluding that father’s drug dealing and lengthy incarceration,

leaving “emotional vacuum” in child’s life, was endangering conduct), and a factfinder may infer

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

the child’s emotional well-being, see In re M.D.M., 579 S.W.3d 744, 765 (Tex. App.—Houston

[1st Dist.] 2019, no pet.).

                The record conclusively shows that, while Janet was very young, Thomas

engaged in drug-related criminal conduct resulting in a felony conviction and an eight-year

prison sentence, which he was still serving at the time of trial. Although he was released on

parole in 2016 and spent some time outside of prison, evidence showed that he violated his

parole, was reincarcerated, would remain incarcerated until 2021, and was not aware of another

parole release date. The record also shows that Thomas saw Janet for only two periods over her

ten years of life, once for about a year after she was born and then again for a couple months

while he was on parole, after which he allowed Janet to return to Texas under her mother’s

care despite having concerns about the stability of her mother’s living arrangements. Evidence

showed that Thomas did not maintain significant contact with his daughter at any time over the

years—by phone, letter, or otherwise—and did not attempt to exercise his parental rights or have

visitation or a meaningful relationship with her except for one letter he sent to CASA asking

about Janet. Evidence also showed that Thomas did not provide financially for Janet except for a

one-time payment to her mother of $400. No evidence was presented that Thomas made any

arrangements for another person to provide care for Janet on his behalf during his incarceration.

                Considering all of the evidence, including Thomas’s criminal conduct,

incarceration, failure to financially or emotionally support Janet, lengthy absence from the

                                                10
child’s life, and acquiescence in her placement with her mother despite his suspicion that she

could not provide a stable and secure environment, we conclude that a reasonable factfinder

could have formed a firm belief or conviction that Thomas’s conduct jeopardized Janet’s

emotional or physical well-being. See J.F.C., 96 S.W.3d at 266. Furthermore, there was no

significant disputed evidence that would render such finding unreasonable. See id. Because the

evidence was legally and factually sufficient to support the trial court’s finding under subsection

E, we need not address Thomas’s remaining issues contesting the trial court’s other statutory

predicate findings. See In re N.G., 577 S.W.3d 230, 235, 239 (Tex. 2019) (per curiam) (requiring

appellate courts reviewing termination findings that are based on subsection D or E to ensure that

evidence is sufficient to support at least one of those two grounds because finding under either

could be used in future proceedings to terminate parent’s rights to other children); A.C. v. Texas

Dep’t of Family & Protective Servs., 577 S.W.3d 689, 698–99 & n.2 (Tex. App.—Austin 2019,

pet. filed) (noting that when appellant challenges both subsection D and E findings, appellate

court needs to ensure that evidence is sufficient to support either ground); see also Tex. Fam. Code

§ 161.001(b)(1)(M) (“The court may order termination of the parent-child relationship if the

court finds by clear and convincing evidence that the parent has had his or her parent-child

relationship terminated with respect to another child based on a finding that the parent’s conduct

was in violation of Paragraph (D) or (E).”).


Best-interest finding

               We next consider Thomas’s complaint that the evidence is legally and factually

insufficient to support the trial court’s best-interest finding. See Tex. Fam. Code § 161.001(b)(2).

A factfinder’s best-interest determination is reviewed in light of the non-exhaustive list of


                                                11
considerations set out in Holley v. Adams: the child’s wishes, if the child is of an appropriate age

to express such wishes; the child’s present and future emotional and physical needs; present and

future emotional and physical danger to the child; the parenting abilities of the individuals

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

plans for the child by the people or agency seeking custody; the stability of the home or proposed

placement; the parent’s acts or omissions that may indicate that the parent-child relationship is

improper; and any excuse for the parent’s acts or omissions. 544 S.W.2d 367, 371–72 (Tex. 1976).

               The Department is not required to prove all of the Holley factors “as a condition

precedent to parental termination,” and a lack of evidence of some of the factors does not

“preclude a factfinder from reasonably forming a strong conviction or belief that termination is

in the child’s best interest, particularly if the evidence were undisputed that the parental

relationship endangered the safety of the child.” C.H., 89 S.W.3d at 27. Evidence presented

to satisfy a predicate statutory-ground finding may also be probative of the child’s best interest.

Id. at 28. We summarize the evidence bearing on only those Holley factors on which there is

relevant evidence in the record.

               Janet did not testify at trial, but Shield, Schulman, and Galvin spoke to the issue

of her desires. Galvin and Shield stated that for some time before trial, Janet had expressed a

desire to live with her foster parents. However, shortly before trial and after a phone call with

her paternal grandmother, Janet told Galvin and Shield that she wanted to live with her paternal

grandmother and expressed to Galvin her belief that if she lived with her paternal grandmother,

she would still be able to visit her little brother, with whom she was very bonded. Shield

testified that the foster family was willing to adopt both children. Adoption of both children by

the foster family would guarantee Janet’s continued contact with her brother. Schulman testified

                                                12
that Janet had been “nonchalant” towards her paternal relatives and had reported being “very

uncomfortable” living with them during the short period of time that she spent with them in

Georgia in 2016.

               “The need for permanence is the paramount consideration when determining

a child’s present and future physical and emotional needs.” M.R. v. Texas Dep’t of Family &

Protective Servs., No. 03-17-00715-CV, 2018 WL 1023899, at *3 (Tex. App.—Austin Feb. 23,

2018, no pet.) (mem. op.). Evidence showed that when she came into the care of the Department,

Janet demonstrated significant behavioral issues, both at school and in her foster homes, but that

her behavior has improved since she was placed in her current foster home due to the stability

and structure it has offered and her foster mother’s strong advocacy for her at school. According

to Schulman, Janet’s past trauma and instability mean that she will “require a lot of caretaking,”

and Galvin similarly believed that Janet would require further therapeutic services, to which she

would be entitled if adopted.

               Evidence showed that Thomas knowingly returned Janet to her mother’s care

even though he suspected that she did not have a stable housing situation; violated his parole and

was reincarcerated for his prior felony and misdemeanor drug offenses; failed to support Janet

financially or emotionally for most of her life; and failed to establish or maintain a meaningful,

long-term, and stable relationship with her. A factfinder may infer that past conduct endangering

a child’s well-being may recur in the future if the child is returned to the parent and may give “great

weight” to the “significant factor” of drug-related conduct. Id. at *4. Evidence demonstrating

past endangerment and drug-related conduct is inextricably linked to a child’s best interests.

               Thomas explained that he did not receive the Department’s parenting packets and

family service plan and did not have greater contact with Janet over the years because her mother

                                                  13
was difficult to find. However, the trial court could have given little credence to this testimony

or weighted other factors concerning Janet’s best interest more heavily.

               In sum, the evidence showed that Thomas had little to no meaningful relationship

or connection to Janet over her ten years of life and did not have contact with her more than two

different spans of time; did not provide her financial support; allowed her to return to Texas with

her mother despite having suspicions about her mother’s stability and fitness to parent; engaged

in drug-related criminal conduct during her early years for which he would remain incarcerated

for at least two years after this cause began and would be unable to care for Janet; did not seek

custody or visitation with her; did not complete parenting packets the Department sent him or

otherwise demonstrate an ability or willingness to parent her appropriately; and did not identify a

suitable caregiver who has agreed to fulfill his parental duties while he is in prison. Considering

the evidence in the light most favorable to the trial court’s best-interest finding, we conclude that

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

Thomas’s parental rights was in Janet’s best interest. See J.F.C., 96 S.W.3d at 266. Furthermore,

there was no significant disputed evidence that would render such finding unreasonable. See id.

Therefore, the evidence was legally and factually significant to support the trial court’s best-

interest finding, and we accordingly overrule Thomas’s sixth and final issue.


                                         CONCLUSION

               We affirm the trial court’s decree terminating Thomas’s parental rights to his

child Janet.




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                                            __________________________________________
                                            Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed

Filed: November 6, 2019




                                              15
