J. M. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00435-CV

J. M., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY

NO. 321,340-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING

MEMORANDUM OPINION

J.M. (Father) appeals from a judgment terminating his parental rights to his son

(Child) aged two years at the time of trial. 1 Father argues that the district court never acquired

personal jurisdiction over him and, in the alternative, challenges the legal and factual sufficiency

of the evidence supporting the four statutory predicates and the finding that termination is in

Child’s best interest. We affirm.

BACKGROUND

Child was born in January of 2020. Father and Mother were sixteen years old at

the time and living with their respective mothers. Father later testified that he had little

involvement in Child’s life at this point because Mother’s family did not want him around.

1 We refer to Child’s parents and his other relatives by their relationship to him and an

alias. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.

Mother would sometimes “sneak” Father into the house so that he could watch Child while

Mother slept.

Child lived with Mother at Maternal Grandmother’s house until August of 2020,

when the Department of Family and Protective Services removed Mother and her siblings from

that house because of allegations of physical abuse and neglect. According to the removal

affidavit, Mother made an outcry that “[Maternal Grandmother] had physical altercations with

her in the past,” and her brother had been injured in a fight and left alone in the hospital because

Maternal Grandmother arrived intoxicated. The Department placed Mother and Child together

and Mother’s siblings in a separate home. Child stayed with Mother because, according to the

removal affidavit, “[T]here were no concerns for [Child’s] safety at the time of the removal.”

That changed in November of 2020 when the caregiver of Mother’s brother

reported that Mother came to the house “attempting to start a fight” and threatened to have her

uncle “spray their house.” Mother did not have Child with her at the time and refused to divulge

his location. According to the Department’s caseworker, Mother and Child were on “runaway”

status for two weeks. For part of that time, Mother and Child stayed with Father and later with

Maternal Grandmother. After the Department found Mother and Child, they both tested positive

for cocaine and marijuana. The Department removed Child from Mother. The Department

considered placing Child with Father until he tested positive for marijuana and

methamphetamines. Child was placed with a foster family, where he remained throughout

the case.

On December 1, 2020, the Department filed its original petition seeking to

terminate the rights of both parents. On the same day, citation was issued to Mother, Father, and

their respective mothers. None of the first round of citation was served. The Department

2

eventually served Paternal Grandmother “as parent of minor child [Father].” Nothing in the

record indicates that Father was ever personally served with citation. Father appeared in court

with his appointed counsel the following week. Father subsequently filed a counterpetition

seeking to vacate the acknowledgment of paternity that he signed at Child’s birth. He attached to

the counterpetition an affidavit from Paternal Grandmother verifying the truth of the allegations.

However, neither Paternal Grandmother nor another guardian appeared on Father’s behalf before

he turned eighteen at the end of March 2021. See Tex. R. Civ. P. 44 (minors must appear in

court through guardian or next friend). The district court granted the counterpetition, and genetic

testing later established Father’s paternity.

The parties tried the case to the bench on March 30 and April 27, 2022. The

associate judge admitted exhibits offered by the Department, including the Department’s final

report to the court and the affidavit supporting removal of Child. The Department’s caseworker,

Father, and Father’s Virginia caseworker Mary Chamblis testified. The Department’s

caseworker testified that the Department created a service plan for Father laying out the steps

necessary to obtain custody of Child. The service plan required Father to regularly drug test,

attend and complete counseling, take all prescribed medications, and undergo a psychological

and a psychiatric evaluation. The caseworker testified that Father told her that he would not drug

test or fulfill any other requirement of the plan until his paternity was established. Father also

informed her that he had been diagnosed with bipolar disorder but did not want treatment.

Shortly after the start of the case, Father moved to Virginia to live with his

grandmother (Great Grandmother). The Department informed him at that time that he was

responsible for finding and paying for his services. The caseworker testified that Father never

provided the Department with drug test results or proof that he was engaging in the services

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required by his plan. Father testified that he was engaging in services but that he was “not

comfortable” providing documentation to the caseworker or in signing a release. Father

explained that he did not drug test until the day before the final hearing because he “wasn’t ready

yet.” Father also testified that he started a job at a McDonalds three weeks beforehand and was

working 50 hours a week. When the final hearing resumed on April 27, 2022, however, he was

no longer employed. He did not specify whether he was fired or quit and expressed his plans to

work at Walmart.

After Father moved to Virginia, the Department arranged for him to have virtual

visits with Child. The caseworker testified that the visits initially went well until August

of 2021, when Father stopped regularly attending. Father told the caseworker that the change

occurred because he had moved from Great Grandmother’s house to his father’s house. Great

Grandmother had requested custody of Child and the Department indicated that the request

would be denied if he lived in the same house. Father told the caseworker that he could not do a

virtual visit from his new residence and lacked reliable transportation to Great Grandmother’s

house. Father’s virtual visits with Child were suspended in January of 2022 because he had not

provided drug test results.

Great Grandmother died in January of 2022. After her death, the caseworker and

Paternal Grandmother discussed a potential placement, but Paternal Grandmother decided

against it. The caseworker explained that Paternal Grandmother wanted custody of Child but

had limited mobility and “did not feel that she could keep up with an active 2-year-old.”

The Department’s caseworker testified that Father was arrested “around the

beginning” of the case for unlawful carrying of a weapon. She was unaware of the status of the

charge but reported that Father told her the week before “that he didn’t have the time available to

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work services because of pending criminal charges.” In his initial testimony, Father

acknowledged that he had pending criminal charges at the start of the case. After the first day of

the final hearing, Father traveled to Texas and entered a plea agreement with the county attorney

where he was placed on deferred-adjudication probation.

The court also heard testimony from Mary Chamblis, who described herself as a

“case manager” at the “Life Management Program at Western Tidewater Community Services

Board” in Virginia. Father had enrolled in the program, which provides “wraparound therapeutic

services.” According to Chamblis, at the time of trial, Father was meeting with a psychiatrist,

attending weekly therapy sessions, and receiving outpatient drug treatment.

The caseworker testified that the foster parents can meet all of Child’s needs and

intend to adopt him if Father’s rights are terminated. Child’s guardian ad litem testified that

Child’s foster parents are meeting his needs. She recommended that the court terminate the

rights of both parents so that the foster parents could adopt Child.

Following the hearing, the associate judge rendered judgment terminating the

rights of both parents. With respect to Father, the judge found that the Department had proven

four predicate grounds for termination and that termination is in Child’s best interest. See Tex.

Fam. Code § 161.001(b)(1)(D), (E), (N), (O), (b)(2). Father requested a de novo hearing before

the district court. The district court heard testimony from the caseworker and one of Child’s

foster parents and admitted evidence from the hearing before the associate judge. The district

court subsequently rendered judgment terminating Father’s rights on the same grounds as the

associate judge. Father timely appealed.

5

PERSONAL JURISDICTION

Father argues in his first issue that the district court never acquired personal

jurisdiction over him because he was a minor when the case began. Whether personal

jurisdiction exists is a question of law that we review de novo. Old Republic Nat’l Title Ins.

v. Bell, 549 S.W.3d 550, 558 (Tex. 2018).

To render a valid judgment, “a court must have both subject-matter jurisdiction

over a case and personal jurisdiction over the party it purports to bind.” In re Guardianship of

Fairley, 650 S.W.3d 372, 379 (Tex. 2022). Establishing personal jurisdiction over a party

requires “citation issued and served in a manner provided for by law.” Id. at 380 (citing

In re E.R., 385 S.W.3d 552, 563 (Tex. 2012)). In a suit seeking termination of parental rights,

citation “shall be issued and served as in other civil cases.” Tex. Fam. Code § 102.009(c). “If

service is invalid, it is ‘of no effect’ and cannot establish the trial court’s jurisdiction over a

party.” E.R., 385 S.W.3d at 563 (quoting Uvalde Country Club v. Martin Linen Supply Co.,

690 S.W.2d 884, 885 (Tex. 1985) (per curiam)). A “complete failure of service deprives a

litigant of due process and a trial court of personal jurisdiction; the resulting judgment is void

and may be challenged at any time.” Id. at 566.

Generally, a party waives complaints about service of process by making a

general appearance. See Tex. R. Civ. P. 120 (stating that general appearance has “the same force

and effect as if the citation had been duly issued and served as provided by law”); Baker

v. Monsanto Co., 111 S.W.3d 158, 161 (Tex. 2003) (stating that “general appearance in action

waives any defect in the manner of service”). “[A] party enters a general appearance when it

invokes the judgment of the court on any question other than the court’s jurisdiction, recognizes

by its acts that an action is properly pending, or seeks affirmative action from the court.” J.O.

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v. Texas Dep’t of Fam. & Protective Servs., 604 S.W.3d 182, 189 (Tex. App.—Austin 2020, no

pet.) (citing Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (per curiam)).

Father, however, was a minor at the time the Department filed its original petition.

Minors are considered to be under a legal disability and are therefore “unable to sue or be sued in

their individual capacities; they are required to appear in court through a legal guardian, a ‘next

friend,’ or a guardian ad litem.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.

2005). “Consequently, a minor cannot waive service or consent to the jurisdiction of the court.”

N.J. v. Texas Dep’t of Fam. & Protective Servs., 613 S.W.3d 317, 321 (Tex. App.—Austin

2020), vacated as moot, 644 S.W.3d 189 (Tex. 2022) (citing In re W.L.C., 562 S.W.2d 454, 455

(Tex. 1978) (per curiam)); see Wheeler v. Ahrenbeak, 54 Tex. 535, 539 (Tex. 1881) (explaining

that waiver of service is “the voluntary act of the party himself” and “that to be binding it must

have been done by one legally capable of performing it”). Generally, when a minor is named

party to a suit, the minor must be personally served. See N.J., 613 S.W.3d at 321; In re Estate of

Bean, 120 S.W.3d 914, 920 (Tex. App.—Texarkana 2003, pet. denied). Under certain

circumstances, minors may be properly joined through their legal guardian or next friend.

See American Gen. Fire & Cas. Co. v. Vandewater, 907 S.W.2d 491, 492 (Tex. 1995); N.J.,

613 S.W.3d at 321. When that occurs, whether the court acquired personal jurisdiction depends

on “whether the minor’s interests have been properly protected and whether a deficiency in

notice or due process has been shown.” Vandewater, 907 S.W.2d at 492.

Father presumes that this rule governs because he was a minor at the time the

Department served him through Paternal Grandmother. Father relies entirely on cases where the

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minor party had not become an adult when the trial court rendered judgment. 2 Cf., e.g., N.J.,

613 S.W.3d at 321 (“Because the record establishes that N.J. was a minor during the proceedings

below, including when the trial court signed the judgment terminating her parental rights, we

disagree with the Department’s assertion that N.J.’s appearance in the suit relieved it of its duty

to ensure that she was properly served with citation.”); Estate of Bean, 120 S.W.3d at 920–21.

Father cites only one authority holding that a person who becomes an adult before the trial court

renders judgment cannot waive defects in service by entering an appearance. See In re M.M.S.,

No. 14-16-00349-CV, 2016 WL 6134456 (Tex. App.—Houston [14th Dist.] Oct. 20, 2016, pet.

denied) (mem. op.). We do not find that case persuasive.

In M.M.S., the Department served the minor parent three weeks before she turned

eighteen. Id. at *3. The minor was not served with citation after becoming an adult. Id. After

becoming an adult, the parent signed a mediated settlement agreement. Id. She later participated

in an adversarial hearing where she sought to set aside the agreement. Id. On appeal, she argued

that the court never obtained personal jurisdiction over her because she was not represented by a

parent, guardian, or next friend when she was served. Id. The Department responded that she

had waived service by participating in the adversary hearing. Id. Our sister court rejected the

Department’s argument, reasoning that she was a minor when she was served and her “later

appearance after turning eighteen does not cure her lack of capacity at the time she was served.”

Id. at *4. The court cited the supreme court’s decision in E.R., which states the general

proposition that “[i]f service is invalid, it is ‘of no effect’ and cannot establish the trial court’s

jurisdiction over a party.” 385 S.W.3d at 563. But the court did not explain why the parent

2 We observe that Father turned eighteen over a year before the final judgment in

this case.

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could not enter a general appearance after becoming an adult, and it relied entirely on authorities

concerning persons who were minors at the time the lower court rendered judgment. See

M.M.S., 2016 WL 6134456, at *3. Father has cited no other authorities holding that an adult

person cannot enter a general appearance prior to the judgment because the person was a minor

when the action began, and we are aware of none. Absent further guidance from the supreme

court, we will apply the general rule that an adult may waive any complaints about service by

entering a general appearance. See Tex. R. Civ. P. 120; Baker, 111 S.W.3d at 161 (stating that

“general appearance in action waives any defect in the manner of service”).

We now determine whether Father entered a general appearance. Texas courts

“routinely hold that a court-appointed attorney who files an answer or seeks affirmative action

from the court invokes the court’s jurisdiction and thus enters a general appearance on behalf of

the client.” Fairley, 650 S.W.3d at 386. In the context of termination of parental rights, courts

have held that when an attorney ad litem attends a hearing and announces “not ready” but

participates in the hearing by objecting to the admissibility of evidence, or by questioning

witnesses about information relevant to the termination of the parent’s parental rights, “the

attorney’s actions constitute a general appearance and establish the court’s personal jurisdiction

over the parent.” In re M.D.M., 579 S.W.3d 744, 759 (Tex. App.—Houston [1st Dist.] 2019, no

pet.) (citing In re P.Y.M., No. 04-13-00024-CV, 2013 WL 4009748, at *2 (Tex. App.—San

Antonio Aug. 7, 2013, pet. denied) (mem. op.)). Here, at the final hearing held after Father

became an adult, Father’s counsel announced ready, questioned each of the Departments’

witnesses about information relevant to Father’s fitness as a parent and his relative responsibility

for Child’s removal. At the end of the hearing, counsel asked the district court to find the

Department had not met its burden and to return Child to Father. Further, Father testified that he

9

was asking the court to return Child to his custody. We conclude that Father waived any defects

in service by appearing and seeking the court’s judgment on the merits of the Department’s

petition to terminate his parental rights. See M.D.M., 579 S.W.3d at 759; In re D.M.B.,

467 S.W.3d 100, 103–04 (Tex. App.—San Antonio 2015, pet. denied) (holding parent entered

general appearance through court-appointed counsel, who participated at hearing and opposed

Department’s requests). We overrule Father’s first issue.

SUFFICIENCY CHALLENGES

Having rejected Father’s jurisdictional challenge, we turn to his challenges to the

sufficiency of the evidence.

A court may render judgment terminating the parent-child relationship if it finds

by clear and convincing evidence that the parent’s acts or omissions satisfy at least one statutory

ground for termination and that termination is in the best interest of the child. Tex. Fam. Code

§ 161.001(b)(1), (2). “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. “This heightened proof standard carries the weight and gravity due

process requires to protect the fundamental rights at stake.” In re A.C., 560 S.W.3d 624, 630

(Tex. 2018).

The heightened burden of proof in parental termination cases requires “a

concomitantly heightened standard of appellate review.” In re Z.N., 602 S.W.3d 541, 545 (Tex.

2020) (per curiam). In reviewing for legal sufficiency, a court should look at “all the evidence in

the light most favorable to the finding.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Under

the clear-and-convincing standard, the reviewing court “cannot ignore undisputed evidence

10

contrary to the finding” but “must otherwise assume the factfinder resolved disputed facts in

favor of the finding.” A.C., 560 S.W.3d at 630–31. Evidence is legally insufficient if, after

conducting this review, the reviewing court concludes that “no reasonable factfinder could form

a firm belief or conviction that the matter that must be proven is true.” Z.N., 602 S.W.3d at 545

(citing J.F.C., 96 S.W.3d at 266).

Factual-sufficiency review, in contrast, “requires weighing disputed evidence

contrary to the finding against all the evidence favoring the finding.” Id. “In a

factual-sufficiency review, the appellate court must consider whether disputed evidence is such

that a reasonable factfinder could not have resolved it in favor of the finding.” Id. “Evidence is

factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder

could not have credited in favor of a finding is so significant that the factfinder could not

have formed a firm belief or conviction that the finding was true.” Id. Under either standard,

the trier of fact remains “the sole judge of the witnesses’ credibility and the weight to be given

to their testimony.” A.A. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00307-CV,

2021 WL 5893695, at *4 (Tex. App.—Austin Dec. 14, 2021, no pet.) (mem. op.).

Predicate Findings

The district court found that the Department had proven four predicate grounds

for termination. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (O). We begin with the

Subsection (D) and (E) findings because the supreme court has held that allowing Subsection

“(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to the

court thus violates the parent’s due process and due course of law rights.” In re N.G.,

577 S.W.3d 230, 237 (Tex. 2019) (per curiam).

11

Termination of the parent-child relationship may be ordered under Subsection (D)

if clear and convincing evidence establishes that the parent has “knowingly placed or knowingly

allowed the child to remain in conditions or surroundings which endanger the physical or

emotional well-being of the child,” Tex. Fam. Code § 161.001(b)(1)(D), and under Subsection

(E) if the evidence establishes that the parent “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). These grounds are intertwined; Subsection (D) focuses on the

child’s environment—which includes the child’s living conditions and the environment

produced by the conduct of the parents or others in the home—and whether the

environment itself endangered the child, while Subsection (E) focuses on the parent’s conduct

and whether the parent engaged in a voluntary, deliberate, and conscious course of conduct that

endangered the child. S.G. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00085-CV,

2021 WL 3437890 at *11 (Tex. App.—Austin Aug. 6, 2021, no pet.) (mem. op.); see also In re

C.V.L., 591 S.W.3d 734, 750 (Tex. App.—Dallas 2019, pet. denied). Both subsections require

proof of endangerment, which means exposing a child to loss or injury or jeopardizing a child’s

emotional or physical well-being. See Texas Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533

(Tex. 1987); A.C. v. Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 698–99 (Tex.

App.—Austin 2019, pet. denied). A finding of endangerment requires more than the threat of

metaphysical injury or possible ill effects from a less-than-ideal family environment, but the

Department does not have to prove that the conduct was directed at the child or that the child

suffered an actual injury. See In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); A.C., 577 S.W.3d

at 699.

12

Father argues that there is insufficient evidence to support the Subsection (D)

finding because he was unaware that Child was in a dangerous environment. See In re J.E.M.M.,

532 S.W.3d 874, 881 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“[S]ubsection D is not a

basis for termination of parental rights if the parent was unaware of the endangering

environment.”). He relies on his uncontradicted testimony that he was unaware of Mother’s drug

use or the conditions in Grandmother Melissa’s home that led to the removal of Mother and her

siblings, did not hide her from the Department during the two weeks that she was on runaway

status, and did not supply her with drugs. The caseworker also acknowledged that while Father

was aware of Mother’s whereabouts, “I don’t believe that he knew the circumstances of her CPS

case. So he may not have known that there was an issue.” But the factfinder is the ultimate

arbiter of the credibility of the witnesses and the weight to be given to their testimony. A.A.,

2021 WL 5893695, at *4. The district court also heard testimony that Father was present in the

home with Child while Mother was sleeping, suggesting that he had first-hand knowledge of the

conditions of the home. Moreover, Father conceded that Mother told him “what was going on”

and that he did not alert the Department to her location. Under the circumstances, the district

court could have reasonably concluded that Father’s testimony that he was unaware of Mother’s

drug use or the conditions in Maternal Grandmother’s home was not credible. Taken together,

the evidence supports the finding that Father knowingly allowed Child to remain in a dangerous

environment. See F.H. v. Texas Dep’t of Fam & Protective Servs., No. 03-22-00231-CV, 2022

WL 4540839, at *4–5 (Tex. App.—Austin Sept. 29, 2022, pet. denied) (mem. op.) (holding

testimony that father was present in mother’s home during her pregnancy supported finding that

he was aware of her drug use).

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The record also supports the finding that Father engaged in a course of

endangering conduct required for termination under Subsection (E). “As a general rule, conduct

that subjects a child to a life of uncertainty and instability endangers the physical and emotional

well-being of a child.” In re J.O.A., 283 S.W.3d 336, 345 n.4 (Tex. 2009). Endangering conduct

“may include the parent’s actions before the child’s birth.” Id. at 345. Evidence of a parent’s

criminal history and convictions may establish an endangering course of conduct. J.G. v. Texas

Dep’t of Fam. & Protective Servs., 592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no pet.).

“Routinely subjecting a child to the probability that she will be left alone because her parent is in

jail, endangers the child’s physical and emotional well-being.” Id. at 525–26 (citing In re J.S.,

584 S.W.3d 622, 635 (Tex. App.—Houston [1st Dist.] 2019, no pet.)). Father was arrested for

unlawfully carrying a weapon less than three months after the Department petitioned to terminate

his parental rights. He left the state with that charge still pending and did not resolve it until after

the final hearing began even though he told the Department that he takes regular trips to Texas.

Further, Father was charged with possession of marijuana in 2017 and arrested and adjudicated

delinquent for burglary of a habitation in 2018. The court reasonably could have considered

these offenses “‘as part of a voluntary, deliberate, and conscious course of conduct’ that has the

effect of endangering [Child].” See J.S., 584 S.W.3d at 636 (quoting In re S.M., 389 S.W.3d

483, 492 (Tex. App.—El Paso 2012, no pet.)).

Father’s drug use is also evidence of endangerment. See J.O.A., 283 S.W.3d at

345 (“[A] parent’s use of narcotics and its effect on his or her ability to parent may qualify as an

endangering course of conduct”). His initial positive test for methamphetamines precluded the

Department from placing Child with him. When asked why he did not take drug tests after his

paternity was confirmed, Father replied: “I wasn’t ready yet” and “I had to keep my mind

14

stable.” Father stated that he took a drug test the day before the final hearing but did not have

the results. The court reasonably could have inferred that Father was refusing to drug test

because he was using drugs. See F.H., 2022 WL 4540839, at *5 (“A factfinder may reasonably

infer from a parent’s refusal to take a drug test that the parent was using drugs.” (citing J.K.

v. Texas Dep’t of Fam. & Protective Servs., No. 03-18-00814-CV, 2019 WL 1646268, at *2

(Tex. App.—Austin Apr. 17, 2019, pet. denied))). Evidence that a “parent continued to use

illegal drugs when he knew his parental rights were in jeopardy ‘is conduct showing a

voluntary, deliberate, and conscious course of conduct, which by its nature, endangers a

child’s well-being.’” See id. (quoting J.B. v. Texas Dep’t of Fam. & Protective Servs.,

No. 03-21-00325-CV, 2021 WL 5456653, at *6 (Tex. App.—Austin Nov. 17, 2021, pet. denied)

(mem. op.)).

Considering the entire record, we conclude that a reasonable factfinder could form

a firm belief or conviction that Father knowingly allowed Child to remain in dangerous

conditions and knowingly engaged in a course of endangering conduct himself. See Tex. Fam.

Code. § 161.001(b)(1)(D), (E). The evidence is therefore factually sufficient to support those

findings. Because the evidence is factually sufficient, it is necessarily legally sufficient. See

A.F. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00670-CV, 2022 WL 2068818, at *7

(Tex. App.—Austin June 9, 2022, pet. denied) (mem. op.) (“Evidence that is factually sufficient

to support a trial court’s finding necessarily satisfies the legal-sufficiency standard.”). We

overrule Father’s fourth and fifth issues. We do not address his second and third issues, which

challenge the other predicate findings. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (noting

that Section 161.001 requires proof of only one statutory predicate to support termination).

15

Best Interest

Father argues in his final issue that the record contains legally and factually

insufficient evidence that termination is in Child’s best interest. The best-interest analysis “is

child-centered and focuses on the child's well-being, safety, and development.” A.C.,

560 S.W.3d at 631. “[T]here is a strong 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). To

determine whether termination is in a child’s best interest, we consider the non-exclusive

Holley factors:

• the child’s wishes;

• the child’s present and future emotional and physical needs;

• any emotional and physical danger to the child now and in the future;

• the parental abilities of the individuals seeking custody;

• the programs available to assist the individuals seeking custody;

• the plans for the child by the individuals or agency seeking custody;

• the stability of the proposed placement;

• parental acts or omissions which may indicate that the existing parent-child

relationship is improper; and

• any excuse for the parent’s acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). A best-interest finding does not require

proof of a specific factor or set of factors. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

We begin with Child’s wishes. Child—twenty-six months at the start of the final

hearing and twenty-eight months at the de novo hearing—was too young to express his desires.

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“When a child is too young to express [his] desires, the factfinder may consider that the child has

bonded with the foster family, is well cared for by them, and has spent minimal time with a

parent.” In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)

(citing In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.)). The

caseworker testified that Child is “well bonded” with the foster family and has spent most of his

life with them. In contrast, Father has spent minimal time with Child since his birth and stopped

regularly attending visitations in August of 2021.

Turning to Child’s present and future physical and emotional needs, “it is

well settled that stability and permanence are paramount considerations in evaluating the

needs of a child.” N.K. v. Texas Dep’t of Fam. & Protective Servs., No. 03-22-00028-CV,

2022 WL 2673236, at *8 (Tex. App.—Austin July 12, 2022, no pet.) (mem. op.). “A parent who

lacks stability, income, and a home is unable to provide for a child’s emotional and physical

needs.” In re J.R.W., No. 14-12-00850-CV, 2013 WL 507325, at *9 (Tex. App.—Houston [14th

Dist.] Feb. 12, 2013, pet. denied) (mem. op.) (citing In re C.A.J., 122 S.W.3d 888, 894 (Tex.

App.—Fort Worth 2003, no pet.)). Father testified that he was employed for three weeks during

the case but did not explain why his employment ended. He was not employed by the end of the

final hearing but testified to having an upcoming interview at Walmart. But self-serving

testimony of such a “speculative” and “hypothetical” nature does not constitute evidence of a

concrete plan for a child. See, e.g., In re A.P.S., No. 07-11-00476-CV, 2012 WL 1835688, at *7

(Tex. App.—Amarillo May 21, 2012, no pet.) (mem. op.); Gonzalez v. Texas Dep’t of Fam.

& Protective Servs., No. 03-06-00004-CV, 2008 WL 2309208, at *6, *9 (Tex. App.—Austin

June 5, 2008, no pet.) (mem. op.). Moreover, the caseworker testified that Father never provided

her with pay stubs or any other proof of income.

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With respect to the present and future danger to Child, Father argues that there is

“no direct evidence of emotional or physical danger” to [Child]. He asserts that the caseworker

conceded as much when she agreed with his counsel that there is “no reason [Father] can’t have

contact in the future as far as the Department’s concerned.” The caseworker testified that while

she saw no reason they could not have virtual contact, Father should provide proof that he is not

using illegal drugs before meeting in person. Regarding Father’s larger point that there is no

evidence he posed a direct danger to Child, endangering conduct need not be directed at the child

or result in an actual injury. See E.N.C., 384 S.W.3d at 803; A.C., 577 S.W.3d at 699. Father

engaged in a pattern of criminal conduct that could have resulted in his incarceration

and inability to care for Child. See E.N. v. Texas Dep’t of Fam. & Protective Servs.,

No. 03-21-00014-CV, 2021 WL 2460625, at *7 (Tex. App.—Austin June 17, 2021, no pet.)

(mem. op.) (“Routinely subjecting a child to the probability that she will be left alone because

her parent is in jail, endangers the child’s physical and emotional well-being.” (citing J.S.,

584 S.W.3d at 635)).

With respect to the parenting abilities of the persons seeking access to Child,

Father’s history of arrests reflects negatively on his parenting abilities. See F.H.,

2022 WL 4540839, at *7 (parent’s repeated arrests “suggest that his parenting skills are seriously

suspect” (citing In re A.M., No. 02-16-00208-CV, 2016 WL 7046858, at *4 (Tex. App.—Fort

Worth Dec. 2, 2016, no pet.) (mem. op.))). Also relevant is Father’s lack of a steady income,

long-term residence, and instability. See J.D., 436 S.W.3d at 119 (“A parent’s . . . unstable

lifestyle, lack of a home and income, lack of parenting skills, and poor judgment may be

considered when looking at the children’s best interest.”). For unexplained reasons, Father was

unable to keep a job for more than three weeks during the case and was unemployed when the

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final hearing ended. Moreover, Father never provided the Department with drug test results even

though he knew testing was a condition on his visits with Child.

Father points out that the caseworker testified that “while [Father’s] parenting

abilities may be limited, he could work with [Paternal Grandmother] to provide adequate care for

[Child].” But the quotation is taken out of context. The caseworker in fact said that she had

concerns regarding both Paternal Grandmother and Father. The caseworker is not concerned by

Paternal Grandmother’s parenting skills but with her mobility; she is concerned by Father’s lack

of parenting skills, history of drug use, lack of income, and likely inability to provide a stable

home. She never testified that Paternal Grandmother’s involvement would ameliorate her

concerns regarding Father.

Regarding plans for Child, Father testified that he intends to “be there by his side

each and every step.” He gave no specifics beyond that his extended family will help him care

for Child. See A.P.S., 2012 WL 1835688, at *7 (self-serving “hypothetical” does not constitute

evidence of concrete plans). The caseworker testified that the Department intends to leave Child

in his current placement while the foster family applies for adoption. Foster Mother testified that

her family plans to adopt Child if both parents’ rights are terminated. Foster Mother added that

she has not received any support from Father and that he has not sent any gifts, cards, or pictures.

Finally, we consider any evidence that the parent-child relationship is improper

and any excuses for the parent’s conduct. Father’s arrests and conviction are indicators of an

improper relationship, see N.K., 2022 WL 2673236, at *9, as are his failure to provide drug test

results and proof that he completed other parts of his service plan, see In re E.C.R., 402 S.W.3d 239,

249 (Tex. 2013) (holding that evidence parent failed to complete court-ordered service plan can

support best-interest finding); In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.—Houston [1st

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Dist.] 2017, pet. denied) (“A fact finder may infer from a parent’s failure to take the initiative to

complete the services required to regain possession of his child that he does not have the ability

to motivate himself to seek out available resources needed now or in the future.”). It is

especially relevant that Father failed to provide evidence that he tested negative for drugs when

doing so resulted in the abatement of his virtual visits with child. See, e.g., J.M.T., 519 S.W.3d

at 270 (“[D]espite being offered substance-abuse counseling and individual therapy, Father did

not refrain from illegal drug use and did not complete either program.”).

Father attributes any shortcomings to his relative youth, citing the caseworker’s

testimony that there is no reason why Father could not learn parenting skills. He argues that

presumption in favor of preserving the parent-child bond precludes termination in this instance.

Although courts presume that preserving the parent-child relationship is in the best interest of

the child, it is the “child’s need for permanence through the establishment of a stable,

permanent home” that is “the paramount consideration in a best-interest determination.” E.N.,

2021 WL 2460625, at *8 (citing L.G.R., 498 S.W.3d at 205). Taken together, the record before

us would enable a reasonable factfinder to conclude that Father would be unable to provide that

stability in the future. See J.G., 592 S.W.3d at 525 (“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.” (citing In re B.R., 456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015,

no pet.))).

Considering the entire record, we conclude that a reasonable factfinder could have

formed a firm belief or conviction that termination is in Child’s best interest. Thus, the evidence

is factually sufficient to support that finding. Because the evidence is factually sufficient, it is

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necessarily legally sufficient. See A.F., 2022 WL 2068818, at *7. We overrule Father’s

sixth issue.

CONCLUSION

We affirm the district court’s judgment.

__________________________________________

Edward Smith, Justice

Before Chief Justice Byrne, Justices Triana and Smith

Concurring Opinion by Justice Triana

Affirmed

Filed: January 17, 2023

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