Opinion
05-23-00110-CV
08-14-2023
IN THE INTEREST OF N.J., A CHILD
On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-21-00655-X
Before Justices Reichek, Nowell, and Garcia
This case presents an accelerated appeal. An appellate court should dispose of an appeal from a judgment terminating parental rights, in so far as reasonably possible, within 180 days after the notice of appeal is filed. See Tex. R. Jud. Admin. 6.2(a). In this case, the notice of appeal was filed on February 7, 2023. Although appellant's brief initially was due on March 19, 2023, it was not filed until May 16, 2023. Likewise, while appellee's brief originally was due on June 5, 2023, the brief was not received until July 11, 2023, and not filed until July 13, 2023. Although more than 180 days have passed since the notice of appeal was filed, the Court issues the opinions in this case as soon as reasonably possible.
ERIN A. NOWELL, JUSTICE
Father appeals the trial court's January 23, 2023 Final Decree of Termination on Verdict of Court. In two issues, Father argues the evidence is legally and factually insufficient to support termination of his parental rights pursuant to section 161.001(b)(1)(E) and insufficient to find termination is in the child's best interest. We reverse the trial court's Decree of Termination as to the termination of Father's parental rights to N.J. and remand this case for further proceedings in accordance with this opinion.
We use pseudonyms or initials to refer to the child, parents, and other family members involved in this case. See Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8(b)(2).
The trial court also terminated Mother's parental rights. Mother did not appeal.
A. Standard of Review
The United States Constitution and the Texas Constitution protect parents' rights to raise and nurture their children. In re J.F.-G., 627 S.W.3d 304, 311 (Tex. 2021). For the State to deny these rights to parents, it must establish by clear and convincing evidence: (1) one or more of the statutory grounds for termination enumerated in the family code has been established; and (2) termination is in the child's best interest. Tex. Fam. Code § 161.001(b); see also In re J.F.-G., 627 S.W.3d at 311. "Clear and convincing evidence" is "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code § 101.007.
Our standard of review on appeal reflects the elevated burden of proof at trial. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). Evidence is legally sufficient if, viewing all the evidence in the light most favorable to the fact-finding, resolving all factual issues in favor of the finding, and considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or conviction that the finding was true. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). For factual sufficiency, we weigh the disputed evidence contrary to the finding and determine whether, in light of the entire record, the evidence that could not reasonably be credited in favor of the finding is so significant that it would prevent the formation of a firm belief or conviction that the finding is true. Id. at 631.
In this case, the trial court found clear and convincing evidence to support termination pursuant to section 161.001(b)(1)(E) of the family code. See Tex. Fam. Code § 161.001(b)(1)(E). A parent who has had his parent-child relationship terminated based on a finding under paragraph (E) may have his parent-child relationship with another child terminated on the basis of the prior termination. See id. § 161.001(b)(1)(M) (court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has "had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E)"). Thus, when a parent challenges a paragraph (E) finding, due process requires a heightened standard of review of a trial court's finding because of the potential consequences for parental rights to a different child. In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam).
A bench trial was conducted on November 9, 2022, January 5, 2023, and January 9, 2023. After considering the evidence, the trial court terminated Father's parental rights under section 161.001(b)(1)(E) of the family code, and it found termination was in the best interest of N.J. See Tex. Fam. Code § 161.001(b)(1)(E), (b)(2).
B. Finding Under Section 161.001(b)(1)(E)
In his first issue, Father challenges the legal and factual sufficiency of the evidence supporting the trial court's finding under subsection (E).
1. N.J. Placed with Paternal Grandmother
N.J. was born in February 2021, and the case began in July 2021 when her biological mother surrendered her to an adoption agency and never attempted to regain custody; the Department considered Mother's actions to be constructive abandonment. Father's paternity was established several months later. Father was not involved in or responsible for N.J. coming into the Department's care. No evidence was presented at trial about the relationship between Father and Mother.
In April 2022, Father, Father's mother, the Department, CASA, and the guardian ad litem entered into a binding mediated settlement agreement appointing Father's mother as N.J.'s Permanent Managing Conservator and Father as the Possessory Conservator. Several weeks after N.J. was placed with Father's mother, T.M., T.M. asked the Department to take the child back. T.M. told the Department that she did not "sign up to daycare [sic] for the next 18 years, and she was tired of raising [Father's] children." To effectuate transferring the child back to the Department's care, a Department caseworker, Priscilla Stewart-Sykes, went to T.M.'s home to obtain an affidavit from T.M. explaining that T.M. would not raise the baby. Father was present when Stewart-Sykes arrived at T.M.'s home.
Father told Stewart-Sykes that no one would be taking his child from him. When T.M. attempted to complete the form affidavit, Father became upset, banged on the kitchen table with his hand, was cursing and "hollering," repeatedly told T.M. the removal was "all her fault," and tore up the affidavit paper. He declared he would not forgive T.M., and "she was no longer his mama." Stewart-Sykes testified the "atmosphere was threatening . . . it was a lot of loud talking at that point with the banging on the table and me hearing things being tossed in the home."
Stewart-Sykes called her supervisor, Anika Jones. Jones could hear Father through the phone, and she described him as being "very loud and disruptive to the point where I asked [Stewart-Sykes] to leave the home because he was yelling at her, and he wouldn't calm down." Jones also advised Stewart-Sykes to call the police. The police arrived, but they would not remove N.J. from the home because Stewart-Sykes did not have the proper paperwork. Instead, the police asked Stewart-Sykes to leave the home, which she did.
At trial, Father testified he asked Stewart-Sykes for the paperwork showing she could remove N.J., and she did not have it; he was not willing to relinquish N.J. to Stewart-Sykes unless she had the proper paperwork.
When Stewart-Sykes arrived at the home, N.J. was in a pack-and-play. At some point during Stewart-Sykes's visit, the child was removed from the pack-and-play. Stewart-Sykes and T.M. asked Father where the child was, but he would not tell them. Before Stewart-Sykes left the home, Father permitted her to see N.J.; N.J. was not physically injured. The following day, T.M. brought the child to the Department, and the Department took possession of her.
2. Father's Services
In May 2022, after T.M. returned N.J. to the Department, Father was ordered to complete services, including parenting classes, a psychological evaluation, a psychiatric evaluation, and an anger management class. Stewart-Sykes testified the psychiatrist prescribed medication, and Father was compliant with his medication as far as she knew. Father testified he has bipolar disorder, takes medication daily, and is medically compliant. The psychological evaluation recommended Father participate in individual counseling, which he was doing when trial began in November 2022. Stewart-Sykes and Father testified he completed his services. However, Jones testified that Father did not because, although Father completed an anger management class in January 2022, he did not complete a second one after being ordered to do so in May 2022; additionally, she testified Father was terminated from his services for noncompliance. As to his services, the trial court judge stated on the record: "While the father may have successfully complied with the Court order for services in this case, there is still, to this day, an ongoing need for successful completion of anger management."
Father's sister, Q.P., is a Department caseworker who was not assigned to this case. On July 25, 2021, Q.P. initiated a virtual Family Group Conference (FGC) to discuss placement of N.J. Stewart-Sykes testified that during the FGC, Father was in "anger mode, upset and frustrated" about how the case was proceeding. Father wanted to complete his services and have N.J. placed with him. Jones testified the objectives of the FGC were not met because Father got mad at the beginning of the FGC, insisted the child be placed with him rather than a family member, and accused Jones of lying about his mother. The FGC coordinator ended the meeting.
Q.P. testified the FGC did not move forward because Father wanted his attorney present, and his attorney was unavailable. She maintained Father remained calm the entire time, he did not yell or raise his voice or show any anger and the FGC did not end because Father was upset and would not cooperate. However, the trial court stated on the record that Q.P. "completely lacks credibility."
3. Father's Criminal History
Jones testified the Department was concerned about Father's criminal history. Father has been arrested numerous times. He testified that, in 2009, he was arrested for burglary of a habitation; in 2010, he was arrested for driving while intoxicated; in 2013, he was arrested for assault family violence; in 2015, he "had a prostitution charge"; in 2018, he was arrested and charged with aggravated assault and, separately, with aggravated assault with a deadly weapon; in 2022, he was arrested for aggravated assault with a deadly weapon and for possession of marijuana. Father stated he "beat" the aggravated assault with a deadly weapon case and also testified that "[h]alf of the charges you [Department's attorney] brought up got dropped."
During the pendency of this case, Father was arrested for assault family violence against his father for an incident that allegedly occurred on August 2, 2022, he had been in jail the same week he testified at trial in January 2023, and he had one or two pending criminal cases when he testified; however, Father also testified he was not aware of being under indictment at the time of his testimony. Father testified he does not own a firearm and there are no firearms in the home.
The record is unclear whether any charges were pending in January 2023 when Father testified at trial, including a charge for aggravated assault with a deadly weapon.
No evidence was presented at trial showing Father has any criminal convictions or has served terms of incarceration.
4. Father's Family Life
Father attended each visitation with N.J. at the Department's office, and he brought his other children and other family members with him. Stewart-Sykes did not observe any threatening behavior during Father's visits. However, she believed Father drove himself to visitation even though he did not have a driver's license; additionally, she testified, "there was [sic] concerns about whether or not the kids had car seats."
Including N.J., Father has five children. The other children have not been removed nor do they have cases with the Department. Father sees all of his children except N.J. every day; "I try my best to make time, like I don't want to miss no moments, like school I walk to pick them up, I see my kids like daily." Three of the children live with T.M. and one lives with the child's mother. Father has a good relationship with that child's mother.
Stewart-Sykes testified the Department was not aware of any action or inaction by Father to directly harm N.J. or his other children. Q.P. was not aware of any other active cases involving the children or aware of any complaints about Father parenting his other children. There have never been any allegations that he abused, neglected, or injured his other children; none of the pending criminal charges involve his children. Jones also was not aware of any open investigations involving or court orders restricting Father's ability to see his other children. She was not aware of any incidents with his other children involving violent outbursts. To her knowledge, there was no evidence his other children have been medically neglected.
Father requested that N.J. be placed in his custody or that he be permitted to co-parent with another family member, and he said he is a "great father." He testified that he and his family could take care of all of N.J.'s needs.
5. Department's Basis for Termination
Stewart-Sykes believed Father's parental rights should be terminated based on her interaction with him when she went to T.M.'s home. She believed T.M. was afraid of Father, could not control his behavior, and was not capable of protecting N.J. from him. When asked whether, in her opinion, Father had "left the child in a situation in that is -- was unable to care for the child's emotional,[sic] and physical well-being," Stewart-Sykes answered, "Yes. The day I was trying to remover [sic] her." When asked whether the Department "believe[s] that this pattern expressed by [Father] will continue to place [N.J.] in danger if the child is placed either with him or with relatives," Stewart-Sykes again responded affirmatively, stating none of Father's relatives can control him or "help with his outburst[s]." Stewart-Sykes was asked on cross examination whether she believed Father had allowed N.J. to remain in conditions or surroundings that endangered her, and she replied: "My only - - at one point as when I didn't know where [N.J.] was when I went to the home to remove her, and she was staying away, that's what he said, he sent her away so, at that point I do - - I do believe." She believed Father engaged in conduct or placed N.J. with persons who engaged in conduct that endangered her well-being "[d]ue to me not knowing who she was with, or who she was sent with, yes."
Jones testified Father's actions and T.M.'s response on the day Stewart-Sykes visited T.M.'s home "proved to not keep the child safely [sic] because at a period, we did not know where [N.J.] was and [T.M.] stated, out of her own mouth, she didn't know where [N.J.] was." Jones believed N.J. would be in danger if returned to Father based on Stewart-Sykes's visit to T.M.'s home, her "personal altercations" with Father, and his criminal record. When asked about the personal altercations, Jones testified Father asked that she be removed from the case because "his case hasn't been worked right." Sometimes when he called her, he yelled; "[l]ike whenever something isn't going his way, he would like be aggressive and yell." The Department did not believe Father controlled his anger, including because he was arrested twice for assault during the pendency of the case. Additionally, Jones thought termination was appropriate because Father had not completed court-ordered services.
6. Analysis
The trial court terminated Father's parental rights based on acts and omissions described in section 161.001(b)(1)(E), which permits a trial court to terminate parental rights if it finds 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." Id. Under subsection (E), "endanger" means "to expose to loss or injury; to jeopardize." In re J.F.-G., 627 S.W.3d at 312. The conduct is not required to be directed at the child nor must the child actually suffer any injury. Id. An endangerment finding must be based on a voluntary, deliberate and conscious course of conduct by the parent; a single act or omission will not suffice. In re R.B., No. 05-21-00043-CV, 2021 WL 2943927, at *8 (Tex. App.- Dallas July 9, 2021, no pet.) (mem. op.).
The Department and the trial court relied on testimony surrounding Stewart-Sykes's visit to T.M.'s home, Father's expressions of anger, and his criminal history to show his conduct endangered N.J.'s physical or emotional well-being. We conclude that these bases, taken together, are insufficient to show by clear and convincing evidence that Father engaged in conduct as described in subsection (E).
Father was not involved in or responsible for N.J. coming into the Department's care. Rather, N.J. came into the Department's care when Mother constructively abandoned the infant. No evidence shows Father participated in Mother's decision to place N.J. in the Department's care, nor does any evidence show what relationship, if any, Father had with Mother at the time Mother abandoned N.J.
Father initially worked with the Department and entered into a binding mediated settlement agreement appointing his mother as Permanent Managing Conservator and himself the Possessory Conservator. Shortly thereafter, T.M. asked the Department to take possession of N.J. again because she was unwilling to provide daycare for N.J. or be responsible for raising the then-infant for 18 years.
Father became angry when he learned his mother was returning his child to the Department shortly after the MSA was put into place, and the Department was attempting to take his child away without any documentation showing the Department had a legal right to do so. While the Department expressed concerns that N.J. was removed from her pack-and-play during Stewart-Sykes's visit to T.M.'s home, there is no evidence about who took N.J. out of the pack-and-play, where she was taken, or how long she was gone; however, the evidence shows N.J. was unharmed when Stewart-Sykes saw her before leaving the home. Father also expressed anger about the duration of the pending case and his inability to have possession of his child.
Father's criminal history includes a myriad of arrests, but the record does not show he has been convicted of any crime. Father testified that half of the arrests or charges that the Department raised during its examination of him had been dropped, and no contradictory evidence was presented. No evidence was presented at trial showing Father has any criminal convictions or has served one or more terms of incarceration. The lack of evidence regarding convictions, if any, distinguishes this case from In re J.F.-G. and its progeny, in which parents' criminal histories that included convictions, some coupled with terms of incarceration, were considered in the context of subsection (E).
Father attended every visitation with N.J. and Stewart-Sykes did not observe any threatening behavior during Father's visits. He sees his other children every day, and there have been no allegations Father mistreated his other children. Father has bipolar disorder and is medication compliant. Father completed most of his services, except that he completed an anger management class a few months before the trial court ordered another one.
The dissent analogizes the facts before us to In re L.E.H., No. 05-18-00903-CV, 2018 WL 6839565 (Tex. App.-Dallas Dec. 31, 2018, no pet.) (mem. op.). We believe the cases are factually distinguishable. In L.E.H., as in the case before us, the record did not contain "complete information" about Father's criminal history. See id. However, the record in L.E.H. showed the father had been in and out of jail or prison four times: he was incarcerated for five years, was in jail for "the second half of 2016," returned to prison for drug possession, and was released from jail days before trial in the case. See id. The case was referred to the Department while the father was incarcerated and the children were in the mother's care. See id. The father told the Department's caseworker that he and the mother had "a romantic relationship that became violent," which was why he was in jail on one occasion. See id. at *2. The father knew the mother used drugs, and he used marijuana with her. See id.
At least ten hearings were held in the case, and the father attended only one. See id. He visited the children once while they were in the Department's care. See id. On that occasion, the father told the caseworker he wanted to take actions necessary to remove the children from foster care. See id. The caseworker instructed him to take a drug test and told him where to have the testing done; the father did not do so. The caseworker also made an appointment with the father to discuss a service plan, but the father did not show up. See id. During the one visit the father attended with the children, he gave his eleven-year-old son a BB gun, which looked like a real gun; the child took the gun to school, and the child's foster father had to intervene to prevent the child being removed from school for the incident. See id. The caseworker also testified the father had constructively abandoned the children. See id.
In L.E.H., the father's parental rights to two sons were terminated pursuant to subsection (E) and other provisions of the family code. See id. at *1, *4. On appeal, the father argued the evidence was insufficient to terminate his parental rights under 161.001(b)(1)(E). See id. at *5. This Court concluded the father engaged in a pattern of crime and imprisonment demonstrating a deliberate course of conduct that endangered his children's emotional and physical well-being. See id. Analyzing the facts of the case and concluding the evidence was legally and factually sufficient, this Court stated:
Regardless of the reasons for his incarceration, Father's continued criminality contributed to the neglectful and unstable environment in which the boys had lived. Father admitted he was aware of Mother's drug use. Yet he continued to engage in crime while his children were left in the care of a Mother using a host of illegal drugs. In addition, there was evidence of Father's use of marijuana and possession of PCP and violence against Mother.See id.
Unlike in L.E.H., in the case before us, there is no evidence Father has served any terms of incarceration; the evidence only shows Father has been arrested several times. There also is no evidence Father has an ongoing relationship with Mother, was violent toward Mother, knew about N.J.'s existence before this case began, or left N.J. with Mother in unsafe surroundings.
Unlike the father in L.E.H., Father attended all visitations with N.J. and the Department did not observe any threatening behavior during Father's visits. Father repeatedly expressed his interest in being N.J.'s father, and he completed all required services except taking a second anger management class - again, unlike the father in L.E.H. who failed to discuss the required services or to appear for a drug test after being told he must do so. While the Department believed Mother constructively abandoned N.J., there is no evidence it believed Father did so as well.
7. Conclusion
Having reviewed the record, and being particularly mindful that due process requires a heightened standard of review of a trial court's finding under subsection (E) because of the potential consequences for parental rights to other children, we conclude the evidence is legally insufficient to deny Father his constitutional rights to raise his child. See In re N.G., 577 S.W.3d at 235; In re J.F.-G., 627 S.W.3d at 311. The record does not contain clear and convincing evidence that Father exposed N.J. to loss or injury or jeopardized her physical or emotional well-being. See In re J.F.-G., 627 S.W.3d at 312; see also In re N.G., 577 S.W.3d at 235. Rather, the record shows Father became angry when the Department sought to remove his child without any paperwork entitling it to do so and he was angry because obtaining legal possession of his child took a long time; we cannot conclude these are attributes of a parent endangering a child. We sustain Father's first issue.
We do not address whether N.J.'s best interest is to be transferred immediately to Father's custody and control. "It is possible that her best interest is to remain for some time with [the Department] while Father's status is evaluated. But the Department is required to meet its burden of proof, and the evidence introduced at trial fails, at this juncture, to overcome the presumption in favor of preserving the parent-child relationship." In re M.K., No. 05-18-01297-CV, 2019 WL 2283886, at *6 (Tex. App.-Dallas May 29, 2019, no pet.) (mem. op.).
C. Conclusion
In light of our resolution of Father's first issue, we need not address his second issue in which he argues the evidence is insufficient to show termination of Father's parental rights is in N.J.'s best interest. See Tex. R. App. P. 47.1.
Having concluded that the trial court's termination of Father's parental rights was not supported by sufficient evidence, we reverse the trial court's termination of Father's parental rights to N.J. We remand this case for further proceedings in accordance with this opinion.
JUDGMENT
In accordance with this Court's opinion of this date, the trial court's January 23, 2023 Final Decree of Termination on Verdict of Court is REVERSED as to the termination of Father's parental rights to his child, N.J., and this cause is REMANDED to the trial court for further proceedings in accordance with this opinion.
Judgment entered this 14th day of August, 2023.
DISSENTING OPINION
DENNISE GARCIA, JUSTICE
I respectfully dissent from the majority's holding that the evidence is legally insufficient to support the trial judge's endangerment finding under Family Code § 161.001(b)(1)(E). I would overrule both of Father's issues and affirm the judgment of termination.
A. Endangerment
1. Applicable Law
The trial judge found by clear and convincing evidence that Father's acts and omissions endangered N.J., meaning that he jeopardized her well-being or exposed her to loss or injury. See In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021). Our role is limited to determining whether that finding was reasonable. See id. We must defer to the trial judge's credibility determinations, assume that she resolved all disputed facts in favor of her finding if a reasonable factfinder could do so, and disregard all evidence contrary to her finding that a reasonable factfinder could have disbelieved or found incredible. See id.
An endangerment finding must be based on a voluntary, deliberate, and conscious course of conduct by the parent; a single act or omission will not suffice. In re R.B., No. 05-21-00043-CV, 2021 WL 2943927, at *8 (Tex. App.-Dallas July 9, 2021, no pet.) (mem. op.).
Importantly for this case, endangerment can be proved by acts and omissions occurring (1) inside or outside the child's presence, (2) before or after the child's birth, and (3) before or after the child's removal. See id. at *8-9. "A parent's conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being." Id. at *9.
Thus, a parent's failure to complete court-ordered services can be evidence of child endangerment, both because it can lead to termination of the parent-child relationship and because it can indicate that past endangering conduct remains unaddressed and is likely to continue in the future. See In re T.J., No. 05-22-00954-CV, 2023 WL 1988838, at *9 (Tex. App.-Dallas Feb. 14, 2023, no pet.) (mem. op.). Similarly, a parent's criminal conduct may support an endangerment finding because it exposes the child to the possibility that the parent may be imprisoned and the child may be left alone. See Walker v. Tex. Dep't of Fam. & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.-Houston [1st Dist.] 2009, pet. denied).
2. Application of the Law to the Facts
Under our deferential standard of review, I would conclude that the trial judge could reasonably find the following facts by clear and convincing evidence:
• N.J.'s mother voluntarily surrendered N.J. for adoption and never attempted to regain custody.
• During this case, N.J. was placed with Father's mother, T.M., but after about a month she returned N.J. to the Department's custody.
• When a caseworker went to pick N.J. up from T.M.'s care, Father prevented T.M. from signing an affidavit, created a threatening atmosphere, and prompted the caseworker to press her "panic button" and summon the police. During this episode, the caseworker lost track of N.J., and Father told the caseworker that she could leave because N.J. "was gone anyway." However, before the caseworker left, she saw N.J. again when Father "c[a]me back in with her."
• During this case, Father became angry during a virtual family group conference about N.J.'s placement and said that he did not want N.J. to be placed with anyone in his family. Father's sister, Q.P., had been considered as a possible placement for N.J., but after the conference Q.P. removed herself from consideration.
• Father was repeatedly arrested during the years 2009 to 2022. Four of the charges involved assault. He was arrested for assaulting his father during the pendency of this case, he was in jail during the week of trial, and he was out of jail on bond during the trial.
• Although no direct evidence was presented that Father was convicted of any of these charges, he testified that half of the charges raised by the State were dropped. The trial judge could reasonably infer from this testimony that the other half were not
dropped, i.e., they were still pending or ended in convictions or deferred-adjudication orders.
• Father did not complete court-ordered anger-management services or individual-counseling services. He was terminated from court-ordered services for noncompliance.
Considering the evidence as a whole, I would conclude that the trial judge's endangerment finding was reasonable. The evidence supported a finding that T.M., Q.P., and N.J.'s mother were not willing to take custody of her. The trial judge could reasonably conclude that Father's long history of arrests, including a recent arrest for assaulting his father, and his incarceration during the week of trial endangered N.J.'s physical and emotional well-being by exposing N.J. to the possibility that Father would be imprisoned and unable to care for N.J. Likewise, his failure to complete court-ordered services endangered N.J. by threatening Father's ability to be reunited with N.J. and thus continuing a situation of instability and uncertainty for N.J.
Each case is unique, but we affirmed a termination order on somewhat similar facts in In re L.E.H., No. 05-18-00903-CV, 2018 WL 6839565 (Tex. App.-Dallas Dec. 31, 2018, no pet.) (mem. op.). In that case, two children were removed from their mother's custody after a referral for negligent supervision and drug use by their mother; the children's father was in jail at the time because his relationship with the mother had become violent. Id. at *1, *2. After his release during the pendency of the case, the father visited the children only once, and he was jailed again during the case for drug possession. Id. at *1. Although the evidence did not make the father's incarceration history entirely clear, we concluded that the evidence that the father endangered the children was sufficient because the father's "continued criminality contributed to the neglectful and unstable environment in which the boys had lived," in addition to the evidence regarding the father's drug possession and violence towards the mother. Id. at *5. In the instant case, Father's criminal history is not entirely clear either, but his long history of arrests, including arrests for assault offenses, is probative evidence that he endangered N.J.'s well-being by making it likely that he would be unable to care for her. Additionally, Father endangered N.J.'s well-being by failing to complete his court-ordered services and by his angry outbursts during events pertinent to this case.
Moreover, the majority's attempt to distinguish our L.E.H. opinion is unpersuasive. The majority emphasizes that the father in L.E.H. definitely served time in prison, while the evidence in this case did not establish that Father served any "terms of incarceration." The majority also considers Father's assaultive behavior in this case distinguishable from that in L.E.H. because, while the trial court could reasonably infer violence by Father against a family member, it did not involve the child's mother like the violence in L.E.H. did. These distinctions ignore the main point of L.E.H.: criminal conduct and violations of court orders are endangering to a child even if the child is not immediately threatened by the conduct because that conduct can cause instability and uncertainty in the child's life, can lead to termination of the parent-child relationship, and can indicate that past endangering conduct remains unaddressed and is likely to continue in the future. See In re T.J., 2023 WL 1988838, at *9. But the majority would require a different result because the parents in these cases had different criminal histories and did not comply with the court-ordered plans in different ways.
Giving due deference to the trial judge, and following our holding in L.E.H., I would conclude that the evidence was legally and factually sufficient to support the endangerment finding.
B. Best Interest
I would also conclude that the evidence was legally and factually sufficient to support the trial judge's finding that terminating Father's parental rights to N.J. was in N.J.'s best interest.
Some factors relevant to the best-interest determination include (1) the child's age and vulnerabilities; (2) whether there is a history of abusive or assaultive conduct by the child's family; (3) whether the child's family is willing and able to seek, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; (4) whether the child's family demonstrates adequate parenting skills; (5) the child's physical and emotional needs; (6) any emotional and physical dangers to the child; and (7) the parties' plans for the child and the stability of the home or proposed placement. See Tex. Fam. Code Ann. § 263.307(b); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
The evidence in this case was legally and factually sufficient to support the finding that N.J.'s best interest would be served by terminating Father's parental rights. N.J. was only one year old at the time of trial, and thus she was very vulnerable and in need of protection. Father's arrest history supports a conclusion that he has a history of committing assaultive conduct. Some evidence supports the premise that Father was not willing to complete court-ordered services or to cooperate with Department supervision during this case. The CPS supervisor on the case testified that Father would "be aggressive and yell" whenever something was not going his way. There is also evidence that N.J. has special needs in the form of developmental delays for speech.
Additionally, a Department caseworker testified that N.J.'s foster parents were good at making sure that N.J.'s needs were met and her appointments were kept. She also testified that the Department believed that the foster parents could provide a safe environment for N.J. in the future. And she testified that N.J. was in a "Foster to Adopt" foster home. Father, on the other hand, testified that his mother would take care of N.J. while Father's sister was working, and at other times his sister would help be a primary caregiver for N.J., and he would help out any way he could. But the trial judge was in the best position to judge Father's credibility, and she was entitled to discount his testimony, particularly in light of other evidence that tended to show that Father's mother and sister were not eager to raise N.J.
In sum, the evidence is sufficient to support the trial judge's best-interest finding.
I would overrule both of Father's issues and affirm the trial court's judgment. Because the majority does not, I respectfully dissent.