In the Interest of L.G.B., a Child v. the State of Texas

Opinion filed September 19, 2024

In The

Eleventh Court of Appeals
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No. 11-24-00077-CV
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IN THE INTEREST OF L.G.B., A CHILD

On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 10762-CX

MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and father of L.G.B. See TEX. FAM. CODE ANN. § 161.001 (West
Supp. 2023). Both the mother and father appealed. We affirm the trial court’s order
of termination.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. FAM. §§ 161.001(b), 161.206(a), (a-1) (West 2022). To terminate one’s
parental rights under Section 161.001, it must be shown by clear and convincing
evidence that the parent has committed one of the acts listed in
Section 161.001(b)(1)(A)–(V) and that termination is in the best interest of the child.
Id. § 161.001(b). In this case, the trial court found that the mother had committed
two of the acts listed in Section 161.001(b)(1)—those found in subsections (D) and
(E). The trial court also found that termination of the mother’s parental rights was
in the best interest of the child. See id. §§ 161.001(b)(2), 161.003(a)(5). The trial
court found that the father had also committed two of the acts listed in
Section 161.001(b)(1)—those found in subsections (E) and (O), and that termination
was in the best interest of the child. See id. §§ 161.001(b)(1)(D), (E), (b)(2).
To determine if the evidence is legally sufficient in a parental termination
case, we review all of the evidence in the light most favorable to the finding and
determine whether a rational trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
To determine if the evidence is factually sufficient, we give due deference to the
finding and determine whether, on the entire record, a factfinder could reasonably
form a firm belief or conviction about the truth of the allegations against the parent.
In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We note that the factfinder is the sole
arbiter of the credibility and demeanor of witnesses. In re A.B., 437 S.W.3d 498,
503 (Tex. 2014) (citing In re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (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 to promote the best interest of the
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child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
Procedural and Factual Background
In October of 2021, the Department of Family and Protective Services (the
Department) received an intake regarding domestic violence between the mother and
father, as well as substance abuse. The Department received another intake that
same month, and a case was officially opened in December 2021. As part of the
mother’s Family Plan of Service, she was ordered to attend parenting education and
domestic violence classes, complete a substance abuse assessment, and submit to
random drug screens. The mother completed all aspects of her plan aside from the
consistent completion of all requested drug screens. The father was incarcerated at
the start of the case, but successfully completed a parenting education course as
ordered.
At the final termination hearing in March 2023, the Department presented
evidence demonstrating that the mother, father, and L.G.B. tested positive for
methamphetamine multiple times throughout the pendency of the case. In
December 2021, three-year-old L.G.B. tested positive for methamphetamine. In
March 2022, the father tested positive for methamphetamine while incarcerated. In
July 2022, the mother tested positive for methamphetamine. The mother testified
that this was her first time to use methamphetamine, and that she does not know why
she decided to start using while the case was pending. In February 2023, the
mother tested negative for all substances, but in July 2023, the mother again
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tested positive for methamphetamine. In August 2023, L.G.B. tested positive for
methamphetamine. And in December 2023, the mother received a negative
urinalysis test and a positive hair follicle test for methamphetamine. According to
the permanency case manager, L.G.B. tested positive three times throughout the
pendency of the case.
The trial court granted the mother a monitored return of L.G.B. in May 2023,
which ended after the mother’s positive test in July 2023. The mother subsequently
completed an inpatient treatment program and testified that she was committed to
staying in the outpatient program and working with her recovery coach.
The father was incarcerated at the start of the case and was released in
January 2023. Following his release, he did not contact the permanency case
manager. The father only maintained communication with the case manager after
the father was later confined in jail in August 2023. The father was incarcerated for
the entirety of the case, except for a period between January and August 2023.
Additional evidence was presented about the father’s criminal history from
2001 to 2023, which included at least three convictions for driving while intoxicated,
five convictions for state-jail felony theft, assault-family-violence offenses, a
protective-order violation, an assault offense, and a criminal-trespass offense. Of
those offenses, one theft conviction, two assault-family-violence offenses, the
violation of a protective order, and the assault all occurred following L.G.B.’s birth.
The father testified that he is currently in a substance abuse treatment facility (SATF)
as a condition of his deferred adjudication community supervision for his felony
family-violence offenses, and that he has been able to learn anger management skills.
He indicated that upon his release from this program, he expects to have a better
foundation to be successful—money saved, current on probation fees, and able to
find a place to live—and that he was just “tired of this.”

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The case manager testified that L.G.B. was “bonded” to both parents.
Initially, L.G.B. did not bond with the father, but as they were able to have visitation,
she developed a bond to him. L.G.B. had not seen her father in “over a year and a
half” at the time visitation began.
At the time of the hearing, L.G.B. was in a foster placement and was doing
very well. The foster family was not moving forward with adoption, and the
Department was in the process of conducting home studies with the mother’s niece
and the father’s sister. The case manager testified that termination of the mother’s
and father’s parental rights was in the best interest of L.G.B.
Father’s Appeal
Endangering Conduct
In the father’s first issue, he challenges the findings made by the trial court
under Section 161.001(b)(1)(E). We must address a parent’s challenge to a trial
court’s findings under (E). See In re N.G., 577 S.W.3d 230, 234–35 (Tex. 2019)
(addressing due process and due course of law with respect to appellate review of
grounds (D) and (E) and holding that an appellate court must provide a detailed
analysis if affirming the termination on either of these grounds).
Under subsection (E), the relevant inquiry is whether 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 D.O., 338 S.W.3d 29, 34 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and
conscious course of conduct by the parent is required. In re D.T., 34 S.W.3d 625,
634 (Tex. App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228
(Tex. App.—Eastland 1999, no pet.). With respect to the sufficiency of the evidence
to support a finding under subsection (E), “endangering conduct is not limited to
actions directed towards the child.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009)
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(citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). The
endangering conduct may include the parent’s actions before the child’s birth and
may relate to the parent’s actions while the parent had custody of other children. Id.;
In re S.T., No. 11-19-00363-CV, 2020 WL 2610393, at *3–4 (Tex. App.—Eastland
May 18, 2020, pet. denied) (mem. op.) (upholding finding under subsection (E)
based upon parent’s conduct with other children). Additionally, domestic violence
may constitute evidence of endangerment. C.J.O., 325 S.W.3d at 265.
If a parent is imprisoned, that imprisonment alone is not enough to constitute
an engagement in a course of conduct, which would endanger the emotional or
physical well-being of a child. In re J.F.-G., 627 S.W.3d 304, 312–313 (Tex. 2021)
(citing Boyd, 727 S.W.2d at 533). “[I]ncarceration does support an endangerment
finding if the evidence, including imprisonment shows a course of conduct which
has the effect of endangering the physical or emotional well-being of the child.” Id.
at 313 (internal quotation marks omitted) (citing Boyd, 727 S.W.2d at 533–34).
However, the criminal history of a parent—considering the nature of the crimes,
duration of incarceration, and the pattern of escalating or repeated convictions—can
support a finding of endangerment. Id. (citing J.O.A., 283 S.W.3d at 345–46). Thus,
a parent’s imprisonment and criminal history are certainly a factor that the trial court
may weigh when considering endangerment. Id. (citing Boyd, 727 S.W.2d at 533).
Here, support for a finding under subsection (E) is enough to uphold the
termination of the parental rights of the father, and the evidence presented at trial
clearly supports such a finding. The record shows that the father committed at least
five crimes since the child was born. Over a year prior to the final hearing, he was
placed on deferred adjudication community supervision for assaulting L.G.B.’s
mother, this offense was enhanced to a third-degree felony due to his prior family-
violence convictions. The record also shows that the father violated a protective

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order, and as a result was not allowed supervised visitation with L.G.B. at the start
of the case.
Based upon the evidence presented at trial, the trial court could have
reasonably found by clear and convincing evidence that the father engaged in a
course of conduct that would endanger the well-being of L.G.B. See In re J.W., 645
S.W.3d 726, 749 (Tex. 2022). Evidence of the serious nature of the father’s crimes,
along with the many periods of imprisonment not only prevented him from
establishing a relationship with her before she was five, but also clearly shows a lack
of consideration of endangering circumstances for his child. See J.F.-G., 627
S.W.3d at 315. The father argues that incarceration alone is not enough to support
a finding under subsection (E). However, the father ignores the violent nature of his
lengthy criminal history and its impact on his relationship with L.G.B.—the course
of conduct. The father’s convictions are for increasingly violent crimes—rising
from theft to assaultive offenses. Domestic violence, even if not directed toward the
child, is relevant to the risk of endangerment of the child’s well-being. J.O.A., 283
S.W.3d at 345. Further, the father was incarcerated for most of the case, and only
began visiting with L.G.B. in October or November 2023. These are acts and
omissions properly considered by the trial court as they relate to the physical and
emotional well-being of L.G.B.
We must view the facts in a light favorable to the finding of the trial court.
See id. Therefore, we hold that the evidence is legally and factually sufficient to
support the trial court’s finding under subsection (E). Accordingly, we overrule
the father’s first issue. Because only one statutory ground is necessary to
support termination, and because we have upheld the trial court’s finding as to
subsection (E), we need not address the father’s arguments in his second issue
regarding subsection (O). See FAM. § 161.001(b)(1); N.G., 577 S.W.3d at 234–35;
see also TEX. R. APP. P. 47.1.
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Best Interest
In the father’s third issue, he challenges the sufficiency of the evidence to
support the trial court’s finding that termination of his parental rights was in the best
interest of L.G.B.
With respect to L.G.B.’s best interest, the evidence set forth above shows that
the father was not able to meet L.G.B.’s physical or emotional needs, or that he could
provide her with a safe and stable home environment. Clear and convincing
evidence shows that the father’s escalating conduct in the home clearly endangered
the physical and emotional well-being of L.G.B. Testimony shows that he had not
spent much time with L.G.B., that he was prone to violence, and that he was unable
to refrain from engaging in dangerous criminal activity. At the time of the
termination hearing, the Department had identified multiple possible long-term
placement options for L.G.B. Furthermore, the case manager testified that it would
be in L.G.B.’s best interest to terminate the parental rights of the father.
The trial court, as the factfinder, is the sole judge of the witnesses’ credibility.
A.B., 437 S.W.3d at 503. In light of the deference to be given the trial court in this
regard, the evidence presented at trial, and the Holley factors, we conclude that the
trial court could reasonably have formed a firm belief or conviction that termination
of the father’s parental rights would be in L.G.B.’s best interest. See Holley, 544
S.W.2d at 371–72. Upon considering the record as it relates to the emotional and
physical needs of the child now and in the future, the emotional and physical danger
to the child now and in the future, the parental abilities of those involved, the plans
for the child by the Department, the acts or omissions of the father that may indicate
the existing parent-child relationship is not a proper one, and considering any excuse
for the acts or omissions of the father, we hold that the evidence is legally and
factually sufficient to support the trial court’s finding that termination of the father’s
parental rights is in the best interest of L.G.B. See id. The record supports the trial
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court’s findings as to the child’s best interest, see C.H., 89 S.W.3d at 27, and we
cannot hold that the trial court’s findings in this case as to best interest are not
supported by clear and convincing evidence. Accordingly, we overrule the father’s
third issue.
Mother’s Appeal
Best Interest
In the mother’s sole issue, she challenges the sufficiency of the evidence to
support the trial court’s findings that termination of her parental rights would be in
the best interest of L.G.B. The mother does not challenge the trial court’s findings
under subsections (D) or (E).
With respect to L.G.B.’s best interest, the evidence set forth above shows that
the mother was not able to meet the needs of L.G.B. and was not able to take care of
herself in a manner that would ensure L.G.B.’s safety. Clear and convincing
evidence shows that placing L.G.B. in a home with the mother would create a risk
of danger to the child’s safety. Testimony showed that, notwithstanding her efforts,
the mother was not able to maintain sobriety and could not provide any reason why
she began using methamphetamine after the Department intervened. Further, she
was unwilling or unable to identify how L.G.B. tested positive for methamphetamine
three times in a three-year period.
At the time of the termination hearing, the Department had identified multiple
possible long-term placement options for L.G.B. Furthermore, the case manager
testified that it would be in L.G.B.’s best interest to terminate the parental rights of
the mother.
The trial court, as the factfinder, is the sole judge of the witnesses’ credibility.
A.B., 437 S.W.3d at 503. In light of the deference to be given the trial court in this
regard, the evidence presented at trial, and the Holley factors, we conclude that the
trial court could reasonably have formed a firm belief or conviction that termination
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of the mother’s parental rights would be in L.G.B.’s best interest. See Holley, 544
S.W.2d at 371–72. Considering the record as it relates to the emotional and physical
needs of the child now and in the future, the emotional and physical danger to the
child now and in the future, the parental abilities of those involved, the plans for the
child by the Department, the acts or omissions of the mother that may indicate the
existing parent-child relationship is not a proper one, and considering any excuse for
the acts or omissions of the mother, we hold that the evidence is legally and factually
sufficient to support the trial court’s finding that termination of the mother’s parental
rights is in the best interest of L.G.B. See id. We defer to the trial court’s findings
as to the child’s best interest, see C.H., 89 S.W.3d at 27, and we cannot hold in this
case that the trial court’s findings as to best interest are not supported by clear and
convincing evidence. Accordingly, we overrule the mother’s sole issue.
Further, and based upon our review of the entire record, we hold that the trial
court reasonably could have formed a firm belief or conviction that termination of
the parent–child relationship between the mother and L.G.B. was in the child’s best
interest. See Holley, 544 S.W.2d at 371–72; see also C.H., 89 S.W.3d at 25–26. The
record demonstrates the mother’s efforts to comply with the permanency plan
ordered by the trial court. On the other hand, the mother did not deny that she had
used, and tested positive for, methamphetamine while under the court-ordered
permanency plan. In fact, the mother chose to begin using methamphetamine after
L.G.B.’s removal. Additionally, the mother used methamphetamine again following
the start of a monitored return with L.G.B. The child tested positive for
methamphetamine while in the care of the mother, and the mother had no
explanation as to why. Further, the father was arrested and prosecuted for
assault family violence against the mother and the mother testified that L.G.B.
was present in the home at the time of the assault. The mother also testified that she
called 9-1-1 “plenty of times.” The mother does not contest the trial court’s
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endangerment findings under (D) or (E), and her conduct and omissions demonstrate
that she was unable to be a safe caretaker for L.G.B.
Giving due consideration to evidence that the factfinder could reasonably
have found to be clear and convincing, we must affirm the trial court’s finding. See
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Thus, we conclude that the evidence
is legally and factually sufficient to support the trial court’s finding that termination
of the mother’s parental rights is in the best interest of L.G.B.
This Court’s Ruling
We affirm the trial court’s order of termination.

W. BRUCE WILLIAMS
JUSTICE

September 19, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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