In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-25-00047-CV

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children

On appeal from the
82nd District Court of Robertson County, Texas
Judge Bryan F. Russ, Jr., presiding
Trial Court Cause No. 24-05-21858-CV

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

Following a bench trial, the parental rights of the father of A.K., E.K.,

E.K., J.K., D.K., and D.K. (Father) were terminated. 1 The trial court found by

clear and convincing evidence that Father had violated Family Code

subsections 161.001(b)(1)(D) and (E) and that termination was in the children’s

best interest. See TEX. FAM. CODE ANN. § 161.001(b). In two issues, Father

contends that the evidence was legally and factually insufficient to support the

trial court’s termination findings. We will affirm.

1 Following a jury trial, the parental rights of the mother of A.K., E.K., E.K., J.K., D.K., and

D.K. (Mother) were also terminated, but she has not appealed.
The standards of review for legal and factual sufficiency of the evidence

in cases involving the termination of parental rights are well established and

will not be repeated here. See In re J.F.C., 96 S.W.3d 256, 264–68 (Tex. 2002)

(legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency).

In a bench trial, the trial court, as factfinder, is the sole judge of the witnesses’

credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

In a proceeding to terminate the parent-child relationship brought under

section 161.001 of the Family Code, the Department of Family and Protective

Services (the Department) must establish by clear and convincing evidence two

elements: (1) that the respondent parent committed one or more acts or

omissions enumerated under subsection (b)(1), termed a predicate violation,

and (2) that termination is in the best interest of the child. TEX. FAM. CODE

ANN. § 161.001(b); In re J.F.-G., 612 S.W.3d 373, 381 (Tex. App.—Waco 2020)

(mem. op.), aff’d, 627 S.W.3d 304 (Tex. 2021). Proof of one element does not

relieve the petitioner of the burden of proving the other. J.F.-G., 612 S.W.3d

at 381.

PREDICATE VIOLATIONS

Father first contends that the evidence was insufficient to support the

trial court’s findings that he violated Family Code subsections 161.001(b)(1)(D)

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 2
and (E). 2 We begin with Father’s argument that the evidence was insufficient

to support the trial court’s finding that he violated subsection (E).

Termination under subsection (E) requires clear and convincing evidence

that the parent has “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.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). To

“endanger” means to expose the child to loss or injury, to jeopardize. Tex. Dep’t

of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The relevant

inquiry under subsection (E) is whether sufficient evidence exists that the

endangerment of the child’s well-being was the direct result of the parent’s

conduct, including acts, omissions, or failures to act. In re E.M., 494 S.W.3d

209, 222 (Tex. App.—Waco 2015, pet. denied).

Scienter is not required for a parent’s own acts to constitute

endangerment under subsection (E). See In re L.S., No. 10-22-00119-CV, 2022

WL 3655395, at *2 (Tex. App.—Waco Aug. 24, 2022, no pet.) (mem. op.). It is

also not necessary to show that the parent’s conduct was directed at the child

or that the child suffered actual injury. Boyd, 727 S.W.2d at 533. The specific

danger to the child’s well-being may be inferred from the parent’s misconduct

2 In the statement of his issues in his initial appellant’s brief and then again in his reply brief,

Father additionally asserts that the evidence was insufficient to support a finding by the trial court
that he violated Family Code subsection 161.001(b)(1)(O); however, the trial court did not find that
Father violated subsection (O). Accordingly, we need not address this contention by Father.

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alone. Id. Furthermore, we may consider conduct both before and after the

child’s removal in an analysis under subsection (E). In re S.R., 452 S.W.3d

351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

The relevant evidence presented here was as follows: Father and Mother

married in 2010, and although Father testified that he did not intend to remain

married to Mother, they were still married at the time of trial in November

2024. At the time of trial, their daughters A.K. and D.K. were thirteen and six

years old, respectively, while their sons E.K., E.K., J.K., and D.K. were twelve,

eleven, ten, and seven years old, respectively. Mother testified that the

family’s first interaction with the Department was around March 2024, after

A.K. had run away from the family’s apartment home in Hearne. A.K. was

found at a McDonald’s and taken to the police department. A police officer and

someone from the Department returned A.K. home. Mother testified that A.K.

denied any abuse at that time. A.K. then ran away from home a second time.

She was later found at a gas station and returned home by the police. Mother

stated that the Department closed its case at that time but provided her

information about a program and therapy services for A.K. Mother did not

utilize those resources, however, because she could not afford them.

Lidia Chandler Davis testified that she was then called to a certain

restaurant in Hearne at about 7:45 a.m. on May 9, 2024, after the junior high

principal had seen A.K. there. Davis was employed by Hearne ISD at the time

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and had been A.K.’s academic adviser when A.K. had been enrolled in school

there for about a week. Mother testified that she had enrolled the children in

school at Hearne ISD but that the children had only stayed there for about a

week because she did not like the school system. Mother thereafter

homeschooled all the children.

Davis testified that she arrived at the restaurant and talked with A.K.

A.K. was “cold, dirty, bruised, and hungry” and appeared scared. Davis bought

A.K. five tacos, and she ate them all. Davis believed that A.K. needed help;

therefore, she drove A.K. to the HealthPoint clinic where A.K. was assessed.

Ashley Richardson, a family nurse practitioner at Hearne HealthPoint,

testified that it was her understanding that when school personnel brought

A.K. into the clinic on May 9, 2024, A.K. had been found walking or running

down the street. A.K. arrived at the clinic not wearing any shoes, but she was

wearing a trench coat and a beanie despite it being summertime. A.K. was

cold and trembling and would not make eye contact. Richardson opined that

A.K. did not look like a thirteen-year-old girl. Due to abuse concerns,

Richardson examined A.K.

Richardson testified that on the way back to the examination room, they

paused to determine A.K.’s height and weight. At that time, A.K. weighed in

at only sixty-three pounds. Richardson noted at trial that she remembered

that number because her own seven-year-old daughter weighed sixty-seven

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pounds at that time. Richardson explained that the typical weight for a

thirteen-year-old female is about one hundred pounds. Richardson continued

that even the fifth percentile for weight for a thirteen-year-old female is about

seventy-six to eighty pounds; therefore, A.K. was underweight. Richardson

further noted that A.K. was short but that, even considering A.K.’s short

stature, A.K. was underweight because a body mass index (BMI) that is below

18.0 is considered underweight, and A.K.’s BMI was 13.5. Richardson

additionally recounted that A.K. was eating when she arrived at the clinic, and

Richardson kept having to tell A.K. that she needed to slow down, or she would

throw up. A.K. told Richardson that she had not eaten since Tuesday. 3 A.K.

also kept saying, “Secret stash. Secret stash.” When Richardson questioned

A.K. about what she meant, A.K. asked Richardson if she had a secret stash of

hidden food.

Richardson testified that she then performed a head-to-toe assessment

of A.K. As she began her evaluation, the first thing that struck Richardson

was that A.K. had periorbital ecchymosis or “raccoon eyes.” Richardson

explained that raccoon eyes are typically the result of a lack of sleep. Once

A.K.’s beanie was removed, Richardson then noticed blood and a patch of hair

missing from A.K.’s scalp. Richardson asked A.K. what had happened, and

3 May 9, 2024, was a Thursday.

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A.K. responded that she had flipped her hair, which Mother “looked at to be

sexual in front of [Father],” so Mother had “ripped her dreads out.” Richardson

also observed bruising underneath A.K.’s left eye and scabbing of an abrasion

above her left eyebrow. When Richardson asked A.K. what had happened

there, A.K. responded that she was “getting a whooping” from Mother with a

belt when she tried to run but stumbled and hit the dresser. Richardson

additionally noted that A.K.’s left ear was full of dried blood. When she asked

A.K. what had happened there, A.K. responded, “Momma stuck something in

my ear.”

Richardson then testified that as she pulled up the long, dingy white

shirt that A.K. was wearing, A.K. stated that she had not been allowed to go

to the restroom. A.K. said, “Well, they had me locked from the inside, so I just

had to pee. Whatever I needed to do, I had to do in the room.” Richardson

stated that A.K. had different types of healing bruising on her upper chest

cavity and arms. A.K. explained to Richardson that those were additional

injuries from falling and hitting the dresser. Richardson then noted that A.K.

was very bony. Richardson observed that A.K.’s abdomen was “kind of caved

in” and that you could see her ribs. Richardson also observed desquamation or

shedding of the skin all the way down A.K.’s legs. Richardson explained that

skin shedding is usually the result of dehydration or malnourishment.

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Richardson testified that A.K. also had abrasions on her knees. When

Richardson asked A.K. what had happened there, A.K. explained that she had

received the abrasions when she was coming down from the second floor of the

building to get away. Richardson observed at that point that A.K. also had

“tight markings” on her wrists where something had been tight on her arms.

Richardson observed the same marks around A.K.’s ankles. A.K. told

Richardson that she had been tied up in a bedroom. Richardson asked A.K. if

she had been sexually abused in any way, and A.K. replied, “No. They only hit

me.” Richardson therefore determined, based on her examination of A.K., that

A.K. had been physically, emotionally, and psychologically abused.

Melanie Shiminski, a forensic nurse at Baylor Scott & White in College

Station, testified that she also assessed A.K. on May 9, 2024, when A.K. was

brought into the emergency room. Shiminski noted that when she first

encountered A.K., A.K. appeared disheveled and extremely malnourished with

poor dress and hygiene. A.K. had a quiet demeanor and did not maintain eye

contact. A.K. also flinched when Shiminski made any sudden movements

toward her. Shiminski further observed that A.K. smelled like she had not

showered in some time, which A.K. confirmed to her. A.K. also reported to

Shiminski that she had urinated on herself the day before because she had

been unable to hold it. A.K. reported to Shiminski that she had been having

trouble falling asleep and that it had been “a while” since she had had proper

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sleep. Shiminski stated that this was supported by the darkness around A.K.’s

eyes and the fact that her eyes were sunken in. When Shiminski then asked

A.K. about her eating habits, A.K. stated, “I eat, but [Mother] makes me work

for it.” A.K. discussed with Shiminski how she had to do chores to get food.

Shiminski then testified that A.K. reported that she was afraid of

Mother. A.K. reported to Shiminski that some months before, she had been

threatened by a gun but stated that she did not know if the gun was loaded.

A.K. also described to Shiminski an incident where Mother punched her in the

stomach because Mother got mad at her for asking a question. A.K. then talked

to Shiminski about being abused by Mother by being hit with a belt on her face

and her body. Additionally, A.K. described an incident from about two weeks

before Shiminski’s evaluation of her when Mother was mad at A.K. and

“shoved something from her makeup stuff” into A.K.’s ear. A.K. reported to

Shiminski that her ear had been bleeding ever since. When Shiminski then

asked A.K. if, in addition to the actual abuse committed, there had also been

threats of harm, A.K. said that Mother told her that she wished her dead. A.K.

further reported that she had had thoughts of suicide but that she had never

acted on those thoughts.

Shiminski testified that A.K. then reported that the night before, she and

Mother had had a disagreement and that Mother “kind of went overboard.”

A.K. explained that Mother pulled her hair and then choked her and lifted her

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 9
up off the ground with her hand to the point that A.K. could not breathe, had

blurry vision, and felt dizzy. A.K. stated that Mother finally released her just

when A.K. was about to pass out. A.K. reported that Mother then dragged her

to a bedroom, tied her arms behind her back, tied her feet together, and left

her lying on her stomach on the floor all night. A.K. stated that in the morning,

she had been able to untie herself and had escaped through the window. At

that point, Shiminski asked A.K. if anything like that had happened before.

A.K. reported that Mother had tied her up on three previous occasions. When

Shiminski asked A.K. if Father had also been involved in the physical abuse,

A.K. replied, “My dad would do the same things when he’s really, really mad;

but he usually doesn’t do much.”

Shiminski then testified that A.K. “had a significant amount of injuries

to her body.” Some of the injuries appeared to be more recent while others had

healed and scarred. A.K. explained that the healed scarring that she had all

over her body, including on her face, were from previous instances of Mother

hitting her with a belt. When Shiminski asked A.K. about two specific healed

scars on her hand, A.K. stated that she did not really want to talk about it but

noted that “it bled a lot when it happened.” Shiminski further noted that A.K.

had multiple areas with carpet burn-type injuries. A.K. explained to

Shiminski that she had received those injuries from being dragged. Shiminski

then noted that A.K. had markings on her wrist, which A.K. reported were

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 10
where she had had her hands tied with the belt. Shiminski also noted that the

skin on A.K.’s legs was extremely dry and flaking and had multiple small

pinpoint lesions going down them. A.K. reported that that was because she

had not “been able to take a good bath in about two weeks” and because Mother

did not let her use the soap.

Shiminski then finally testified that there was no medical reason that

she could ascertain for the general condition of A.K.’s body. Shiminski also

stated that she did not believe that any of A.K.’s injuries were self-inflicted.

When asked at trial if, based on her evaluation of A.K., Shiminski had

determined whether A.K. had experienced abuse or neglect, Shiminski replied

that she had made a determination. When asked what her determination was,

Shiminski stated:

Based on what I saw, it was obvious that she had, you know, injury
- - significant amount of injury over her body. That would not be
normal for an average 13-year-old. As well as her body - - she was
extremely malnourished. And you could tell that just the size and
physical appearance of her body is not the normal appearance of a
normal 13-year-old healthy child.

Gabriel Milam, the Department’s primary caseworker assigned to this

case, testified that all six of Mother’s and Father’s children were thereafter

removed from their care. All six children were found to be “medically

significantly malnourished.” All six children were also able to provide

eyewitness accounts of the “discipline” that A.K. was receiving, which

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 11
“absolutely” amounted to emotional abuse of the children. There were also

reports that all five of the younger children were trained to participate in

“disciplining” A.K.

In her testimony, Mother admitted to participating in some of the

conduct that A.K. described to Richardson and Shiminski. Mother admitted to

grabbing A.K. by the hair and to hitting A.K. in the stomach. Mother

acknowledged that the injury around A.K.’s eye occurred when A.K. was

getting a spanking. Mother stated that A.K. had “hit the floor” after A.K. was

“wiggling and moving around.” Mother also admitted to choking A.K. and to

putting her hands around A.K.’s throat. Mother explained that she and A.K.

were arguing because A.K. “wants to be part of the family and she’s sorry for

what she was doing, and I didn’t want to hear it.” A.K. then bit Mother, and

in response, Mother “put [her] hand around [A.K.’s] neck and . . . got her down

to the ground.” Mother denied that it hurt A.K., stating, “I didn’t stay there

long enough for it to hurt her.” Mother nevertheless admitted that she knew

that it was inappropriate discipline and was a situation that endangered the

health or well-being of A.K. Additionally, Mother admitted that she owned a

gun that she kept in the home, but she denied ever displaying the gun to A.K.

Mother also testified that about a month before the children were

removed, Father had caught A.K. trying to sneak out of the house. By that

time, A.K. had already run away from home twice before; therefore, Mother

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and Father decided to do something more to try to keep A.K. in the home.

Mother stated that it was Father’s idea to restrain A.K. by tying her in her

room so that she would stop running away, and Mother thought that that was

a good idea. Mother thereafter “locked [A.K.] in her room with a cord that goes

from the vacuum cleaner.” Mother also tied A.K.’s hands together with a belt.

Mother admitted that she restrained A.K. in this manner on four different

occasions. When asked if she was aware that the restraints had caused

bruising to A.K.’s wrists, Mother replied that A.K. had caused the bruising to

herself because she was trying to get out of the restraints. Mother further

noted that she told Father that A.K. was causing bruising to her wrists and

that both she and Father participated in restraining A.K.

Mother testified that during this time, A.K. was allowed to use the

bathroom and to take a shower whenever she wished but that Mother would

escort her to do so. When A.K. needed to go to the bathroom, she would “yell

out.” Mother would then untwine the cord from the vacuum cleaner and open

the door to the room in which A.K. had been locked. Mother would then make

sure that A.K. was not bringing anything into the bathroom with her before

closing the bathroom door. Once A.K. was done, Mother would take A.K. back

to the room. Mother testified that A.K. was getting mad because she could not

go to the bathroom on her own, so she started purposely urinating in her

clothes. Mother stated that A.K. would then take other clothes and clean up

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the mess, so she would not get caught. Mother said that she had to throw away

A.K.’s clothes because they had been sitting in the back of Father’s vehicle and

smelled like urine.

Mother testified that A.K. was also initially allowed to come out of the

room to do chores and to participate in what the rest of the family was doing.

Mother acknowledged that she then began excluding A.K. from family

activities. When asked what kind of activities A.K. was excluded from, Mother

replied that A.K. “liked learning a lot. . . . So because I knew that she liked it,

that’s something that I took away.” Mother further explained that A.K. was

running away so often because she could not get what she wanted. When asked

what A.K. wanted, Mother stated that A.K. “wanted to be part of her other

siblings and doing and participating in things that they was [sic] doing.”

Mother testified that in addition to running away, A.K. was also

disciplined because she “had been stealing for a long time.” Mother described

an incident where she had to take A.K. out of school because A.K.’s teacher had

seen A.K. “stealing all the kids’ snacks” in the classroom. Mother also stated

that A.K. would put things in her pocket at the grocery store. When Mother

was then asked if she had told anyone that she had to use handcuffs on A.K.

because A.K. had stolen food out of the refrigerator after not being fed for two

days, Mother replied, “Yes. I handcuffed her because I told her this is how it

feels when you sit there and steal, and you keep on stealing.” Mother

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additionally stated that she told a Department investigator that she had taken

away A.K.’s meals because A.K. “was taking the food that was supposed to be

for me.” Mother explained that she had not eaten in days, and A.K. “was in

there taking my food. So because she ate, and ate mine, then her food was

withheld.” Mother also admitted that A.K. was digging food out of the

trashcan, and Mother acknowledged that A.K. got in trouble on one occasion

for stealing a piece of bread and cheese. Mother explained that the bread had

been found underneath the couch and had been there for a couple of days but

that the youngest child came and told Mother that A.K. was in the refrigerator

trying to take the cheese. Mother stated that A.K. was thereafter disciplined

by being locked in her room.

Mother testified that she taught the other children to watch A.K. to make

sure that A.K. was not doing anything that she was not supposed to be doing.

Mother further acknowledged that she had shown the other children how to

lock A.K. in her room with the vacuum cord. Mother stated that the other

children also witnessed A.K. getting a spanking with a belt. Mother said that

this happened “twice a week; that’s if I even felt like talking to her.” Mother

additionally testified that the other children did not want to be around A.K.

The other children talked about how badly A.K. smelled. The other children,

mainly the oldest son, referred to A.K. as “trash.” The other children also

called A.K. “dumb-dumb,” “nasty,” “ugly,” and “lizard feet.”

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Mother testified that because of all the problems with A.K., she and

Father had discussed possibly sending A.K. with Father on the road while he

was truck driving for work. Mother stated that Father thought that that would

be the best thing for A.K., but Mother was not in favor of it and did not agree

to it. Mother testified that she kept A.K. away from Father because he “would

listen to her side of the story.” Mother further admitted that she did not tell

Father about punching A.K. in the stomach or putting her hand around A.K.’s

throat and putting her on the ground. Father later confirmed in his testimony

that he did not know that Mother had punched or choked A.K. Father

additionally stated that he thought that A.K. herself never told him what was

truly going on when he was away at work or out of the house because A.K. was

afraid of how Mother would react. Father described an incident where Mother

told him that A.K. was acting inappropriately with him, but he believes that

A.K. “had been trying to run up under [him] as a shield” for protection and that

Mother did not want him shielding her.

However, Father also testified that he knew that A.K. was being

physically restrained. Father testified that he did not like Mother locking A.K.

in her room and binding her hands and feet and that he and Mother “would

argue and fight about it.” But Father admitted at trial that he did nothing to

stop it.

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Father testified that, contrary to Mother’s testimony, it was not his idea

to physically restrain A.K. but that, about a week or two before the children

were removed, Mother told him over the phone about physically restraining

A.K. Father explained that he was driving a truck for work at that time. The

plant for which he drove was located about fifteen minutes from his home, and

he would drive a truck back and forth about an hour and a half from the plant.

Father acknowledged at trial that he was also aware that Mother was escorting

A.K. to the bathroom for urination, defecation, and showering. Father further

admitted that Mother told him that the other children were being taught how

to secure the room so that A.K. could not get out, and he admitted that he had

heard the other children calling A.K. nicknames. Father additionally testified

that he believed that the other children had witnessed Mother’s abuse of A.K.,

and he admitted that it endangered the children. Father ultimately

acknowledged at trial that he had “failed as a father.”

Father testified that he last saw A.K. the day before she snuck out in

May 2024. Father admitted that in the photos of A.K. at the time of removal

in May 2024, A.K. did not look like a thirteen-year-old who was safe and well

taken care of. When asked if he was not concerned about how small and thin

A.K. was at that time, Father replied:

I was a little. But, like [Mother] said, we was [sic] going through
a rough patch at the time and all of us were struggling. My wife
and I, we both skipped meals in order to make sure [the children]

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 17
had something to eat. So, in my opinion, we were all a little
underweight.

Father nevertheless acknowledged that when Mother went to have a

psychological, she had admitted to drinking at least a beer a day for the last

five years and that her drinking had increased in the two months before the

children were removed. Father stated that, in his opinion, Mother was

drinking a lot at that time. Father also acknowledged that Mother smoked.

Father therefore admitted that while they were missing meals because he and

Mother did not have enough food for themselves and the children, Mother was

spending money on alcohol and tobacco for herself. Father then further

admitted that he had also spent money on alcohol and tobacco for himself

during this time. And Father acknowledged that this endangered the children.

Father argues that the evidence is insufficient to show that he engaged

in conduct, or knowingly placed the children with persons who engaged in

conduct, that endangered their physical or emotional well-being because the

evidence shows that he was not directly involved in the abuse of the children

and was not aware of Mother’s abuse of the children until a week or two before

the children were removed. However, in his own testimony, Father admitted

that when he was made aware of Mother’s abuse of the children, he did nothing

to stop it. He stated only that he argued and fought with Mother about it. See

E.M., 494 S.W.3d at 222 (stating that parent may violate subsection (E)

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 18
through conduct including acts as well as omissions or failures to act).

Furthermore, the evidence, as outlined above, indicates that Father not only

failed to act but that, at times, he participated in acts that endangered the

physical or emotional well-being of the children. During the forensic nurse’s

assessment of A.K., A.K. told her that Father physically abused her when he

was “really, really mad.” Mother also testified that both she and Father

participated in the restraining of A.K. And Father admitted in his own

testimony that he had spent money on alcohol and tobacco for himself when

his children did not have enough food to eat.

Considering all the evidence presented in this case in the light most

favorable to the trial court’s finding and considering the evidence as a whole,

we conclude that the evidence was legally and factually sufficient to establish

that Father engaged in conduct that endangered the physical or emotional

well-being of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E).

Father points out that the trial court’s written findings of fact include

that he “plead[ed] guilty in Cause# 24-07-22260-CR in the 82nd District Court

for Robertson County, Texas on December 11, 2024 to the charge of Injury to a

Child, Elderly or Disabled Individual and was placed on 10 years Deferred

Adjudication” and “plead[ed] guilty in Cause# 24-07-22260-CR in the 82nd

District Court for Robertson County, Texas on December 11, 2024 to the charge

of Abandoning a Child and was placed on 10 years Deferred Adjudication.”

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 19
Father argues that the trial court improperly relied on such evidence to

support its termination findings because the record was closed on November

21, 2024. But even if the trial court erred in considering such evidence, the

error was harmless. See TEX. R. APP. P. 44.1(a)(1). Even without considering

the complained-of evidence, the overwhelming evidence, as outlined above,

supports the trial court’s finding that Father engaged in conduct or knowingly

placed the children with persons who engaged in conduct that endangered the

physical or emotional well-being of the children. See TEX. FAM. CODE ANN. §

161.001(b)(1)(E). Thus, we cannot conclude that such alleged error caused the

rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); New Process

Steel, L.P. v. Sharp Freight Sys., Inc., No. 01-04-00764-CV, 2006 WL 947764,

at *4 (Tex. App.—Houston [1st Dist.] Apr. 13, 2006, no pet.) (mem. op.) (“While

an erroneous finding of fact on an ultimate fact issue is harmful error, an

immaterial finding of fact is harmless and not grounds for reversal.”).

Moreover, having concluded that the evidence was legally and factually

sufficient to support the trial court’s finding that Father violated subsection

(E), we need not address Father’s argument that the evidence was legally and

factually insufficient to support the trial court’s finding that he violated

subsection (D). See In re N.G., 577 S.W.3d 230, 232–33, 237 (Tex. 2019) (per

curiam).

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 20
BEST INTEREST OF THE CHILDREN

Father next contends that the evidence was insufficient to support the

trial court’s finding that termination was in the best interest of the children.

In determining the best interest of a child, several factors have been

consistently considered, which were set out in the Texas Supreme Court’s

opinion of Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Holley

factors include: (1) the desires of the child; (2) the emotional and physical

needs of the child now and in the future; (3) the emotional and physical danger

to the child now and in the future; (4) the parental abilities of the individuals

seeking custody; (5) the programs available to assist these individuals; (6) the

plans for the child by these individuals; (7) the stability of the home; (8) the

acts or omissions of the parent that may indicate the existing parent-child

relationship is not a proper one; and (9) any excuse for the acts or omissions of

the parent. Id. This list is not exhaustive but simply identifies factors that

have been or could be pertinent in the best-interest determination. Id. at 372.

There is no requirement that all these factors be proven as a condition

precedent to parental termination. See C.H., 89 S.W.3d at 27. The absence of

evidence about some factors does not preclude a factfinder from reasonably

forming a strong conviction that termination is in the child’s best interest. Id.

In fact, while no one factor is controlling, the analysis of a single factor may be

adequate in a particular situation to support a finding that termination is in

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 21
the child’s best interest. In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied).

The Holley factors focus on the best interest of the child, not the best

interest of the parent. Dupree v. Tex. Dep’t of Protective & Regul. Servs., 907

S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). And evidence relating to the

predicate grounds under subsection 161.001(b)(1) may be relevant to

determining the best interest of the child. See C.H., 89 S.W.3d at 28.

As stated above, at the time of trial, A.K. E.K., E.K., J.K., D.K., and D.K.

were thirteen, twelve, eleven, ten, seven, and six years old, respectively. None

of the children testified, but Department caseworker Gabriel Milam testified

that although the children had expressed a desire to speak with their parents,

the children had requested to stay at their current placement.

Regarding the emotional and physical needs of the children now and in

the future, the need for permanence is the paramount consideration. In re

A.R.C., 551 S.W.3d 221, 227 (Tex. App.—El Paso 2018, no pet.); Dupree, 907

S.W.2d at 87. A parent’s incarceration is relevant to his ability to meet the

children’s present and future physical and emotional needs. A.R.C., 551

S.W.3d at 227. A parent’s incarceration at the time of trial makes the

children’s future uncertain. Id. Here, Milam testified that the children could

not be returned to Father at the time of trial because Father was currently

incarcerated.

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 22
Regarding the emotional and physical danger to the children now and in

the future, evidence of past misconduct or neglect can be used to measure a

parent’s future conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex.

App.—Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex.

App.—Waco 1992, no writ) (“Past is often prologue.”); see also In re V.A., No.

13-06-00237-CV, 2007 WL 293023, at *5–6 (Tex. App.—Corpus Christi–

Edinburg Feb. 1, 2007, no pet.) (mem. op.) (considering parent’s past history of

unstable housing, unstable employment, unstable relationships, and drug

usage). We already discussed above that the evidence, as outlined above,

indicates that Father not only failed to act but that he participated at times in

acts that endangered the physical or emotional well-being of the children.

Regarding the plans for the children by the individuals or agency seeking

custody and the stability of the home or proposed placement, the factfinder

may compare the parent’s and the Department’s plans for the child and

consider “whether the plans and expectations of each party are realistic or

weak and ill-defined.” In re J.D., 436 S.W.3d 105, 119–20 (Tex. App.—Houston

[14th Dist.] 2014, no pet.). A parent’s failure to show that he or she is stable

enough to parent children for any prolonged period entitles the factfinder “to

determine that [the] pattern would likely continue and that permanency could

only be achieved through termination and adoption.” In re B.S.W., No. 14-04-

00496-CV, 2004 WL 2964015, at *9 (Tex. App.—Houston [14th Dist.] Dec. 23,

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 23
2004, no pet.) (mem. op.). A factfinder may also consider the consequences of

its failure to terminate parental rights and that the best interest of the children

may be served by termination so that adoption may occur rather than the

temporary foster-care arrangement that would result if termination did not

occur. In re B.H.R., 535 S.W.3d 114, 124 (Tex. App.—Texarkana 2017, no pet.).

The goal of establishing a stable, permanent home for a child is a compelling

state interest. Dupree, 907 S.W.2d at 87.

Mother testified that she, Father, and the children had “moved around a

lot” over the years. Around the time that A.K. was born, they lived in an

apartment in Ocworth, Georgia. After living there about a year, they moved

to an extended stay motel “because of income.” When their second child was

born, Mother and Father were then living in a home in Biloxi, Mississippi.

When their third child was born, Mother and Father had then moved to

Cartersville, Georgia. Around that time, Father was “starting to become a

truck driver” and “was the main one that was working.”

Mother testified that they then ended up moving back to Mississippi

where their fourth child was born. When asked how many different places they

lived in Mississippi during that time, Mother replied, “I’m not sure.” When

asked if it was more than one place, Mother said, “Most likely.” Mother

testified that they had then moved back to Georgia by the time that their fifth

child was born. Mother then acknowledged that they were homeless three

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 24
times after their last child was born. Mother testified that during those times

Father “was in between little jobs, like, working at the temp services.” During

those times, they lived in their vehicle or stayed in homeless shelters.

Mother testified that the family moved to Texas around 2016 or 2017.

The family moved to Texas for Father to work in the oil industry. They were

then living at a motel in Bryan, and Father was making about $1,700 per week.

The family then moved to a home in Killeen where they stayed for three years.

At that time, Father stopped working in the oilfield and began working for a

cement company. Father worked for the cement company for years, off and on.

Mother testified that after COVID-19 happened, however, they moved back to

the motel in Bryan where Father worked for a trucking company. They then

moved to a manufactured home in Elmendorf for less than a year and then

back to the motel in Bryan. Eventually, they moved to Hearne and had been

living in the apartment there for about seven months when the children were

removed.

Father confirmed Mother’s testimony about the number of times that

they moved and the struggles that he had with providing for the family. Father

admitted that the children were struggling and that it was not good for them

to be living in a vehicle. Furthermore, Mother testified that Father had

attempted suicide around 2020 because she had been talking about divorce.

Mother stated that on the night of the incident, she left the children in the

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 25
vehicle while she went inside and found Father in the bathtub with a knife in

his hand, threatening to take his own life. Mother said that she stayed with

Father for about an hour that night while the children stayed in the vehicle.

Mother testified that Father also made a second attempt to commit suicide

while they were living in Killeen by overdosing on sleeping pills. When asked

why Father was so distraught that he was trying to commit suicide, Mother

replied that Father was “[j]ust dealing with life.” Mother said that Father was

just overwhelmed with everything, including dealing with six children, trying

to stay up on the bills, and helping her around the house. Mother stated that

Father was not getting any counseling, however. When asked why, Mother

replied, “Just dealing with it on our own.” As stated above, Milam also testified

that the children could not be returned to Father at the time of trial because

Father was currently incarcerated.

On the other hand, Milam testified that the children were doing

“[f]abulously” and “absolutely thriving” in their current placement. Milam

stated:

[The children] are healthy, up-to-date on all medical, dental
appointments. They receive weekly individual therapy. They are
involved in numerous extracurricular activities that include
karate, horseback riding, swimming, game nights, movie nights.

Outside of campus activities, they attend school every
weekday; of course, other than the holidays.

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 26
They have great relationships with other children at the
same placement. They have great relationships with the
caregivers at that placement.

Milam further testified specifically that A.K. had gained a healthy

amount of weight. Her bruises were gone, and her hair had begun to grow back

where it was pulled out. Her teeth were whiter. She also had been given

corrective lenses for her vision. Milam stated that when he first met A.K., she

would seclude herself, give only one-word answers, and refuse to make eye

contact. At the time of trial, however, A.K. talked to Milam in full sentences,

smiled, and did not hesitate to request what she wanted.

Milam testified that the Department’s plan for the children was for them

to continue at their current placement while exploring the possibility of

unrelated adoption. When asked if unrelated adoption meant that the children

could be separated, Milam replied that the Department would conduct

extensive research to make sure that the children would not have to be

separated.

There is a strong presumption that it is in the child’s best interest to

preserve the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.

App.—Houston [1st Dist.] 2003, no pet.). However, considering all the evidence

here in the light most favorable to the trial court’s finding and considering the

evidence as a whole, we hold that a reasonable factfinder could have formed a

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 27
firm belief or conviction that termination of Father’s parental rights was in the

best interest of all the children.

Moreover, as above, even if the trial court improperly considered

evidence that Father pleaded guilty in December 2024 to the offenses of injury

to a child, elderly, or disabled individual and abandoning a child and that he

was placed on ten years’ deferred adjudication for each offense, such error was

harmless. See TEX. R. APP. P. 44.1(a)(1). Even without considering the

complained-of evidence, the overwhelming evidence, as outlined above,

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

rights was in the best interest of the children. See TEX. FAM. CODE ANN. §

161.001(b)(2). Thus, we cannot conclude that such alleged error caused the

rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); New Process

Steel, L.P., 2006 WL 947764, at *4.

In light of the foregoing, we overrule Father’s issues and affirm the trial

court’s order of termination.

MATT JOHNSON
Chief Justice

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 28
OPINION DELIVERED and FILED: August 14, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
CV06

In the Interest of A.K., E.K., E.K., J.K., D.K., and D.K., Children Page 29