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concluding that parent’s "failure to provide appropriate medical care constituted endangering conduct for purposes of subsection E"
Summary of this case from In re J.D.G.Opinion
NO. 01-18-00023-CV
07-03-2018
IN THE INTEREST OF J.I.G. AND A.D.G., CHILDREN
On Appeal from the 315th District Court Harris County, Texas
Trial Court Case No. 2016-03202J
MEMORANDUM OPINION
D.C.G. appeals the trial court's decree terminating his parental rights to two of his children. The children's mother, A.M.D., does not appeal the termination of her rights. D.C.G. argues that the evidence is legally and factually insufficient to support the trial court's predicate findings for termination and its finding that termination of his parental rights is in the children's best interest. See TEX. FAM. CODE § 161.001(b).
A.M.D. and D.C.G. have a third child, their youngest, who is not the subject to this suit and does not reside with them. Their youngest child resides with the foster family caring for the two older children who are the subject of this suit.
Because the evidence is legally and factually sufficient, we affirm.
Background
The Department of Family and Protective Services sought and obtained termination of D.C.G.'s parental rights to two of his children—four-year-old John and two-year-old Alice—based on endangerment and failure to comply with his family service plan. This appeal arises out of the termination order.
The Department's petition also sought termination of the parental rights of the children's mother, A.M.D.
D.C.G. and the Department
The Department's involvement with this family began in October 2012, when John was three weeks old. The Department received a referral alleging physical abuse and neglect by the mother, A.M.D. The referral asserted that A.M.D. participated in a physical fight while holding John, and that she abused prescription pills and did not adequately feed or care for John. The Department conducted an investigation and "ruled out" the case because John did not have any unusual marks or bruises and the doctor reported that he was on target.
The Department received a second referral in March 2013 alleging neglectful supervision of John because A.M.D. allowed a friend to be John's primary caregiver, although that friend had had her own children removed by the Department. The Department "ruled out [the case] with no significant factors" because A.M.D. said she was unaware of her friend's history and found an alternative daycare for John.
In November 2013, the Department received a third referral alleging neglectful supervision of John because A.M.D. allegedly left John with an inappropriate caregiver when she was arrested and incarcerated. The disposition of that referral was "unable to determine."
The Department received a fourth referral on August 14, 2014 alleging physical neglect of then two-year-old John and two-week-old Alice by both D.C.G. and A.M.D., as well as physical abuse of John by an unknown person, and neglectful supervision of John by A.M.D. When the Department investigated, it learned that John had a black eye, Alice was not being fed properly, and Alice had a skull fracture. The parents' description of how Alice's skull fracture occurred was inconsistent with the physician's assessment of injury.
Based on the four referrals, the Department filed a petition for protection and conservatorship and for termination of A.M.D.'s and D.C.G.'s parental rights. The children were removed from the home, and the Department was granted temporary managing conservatorship over the children. After the parents completed their family service plan, however, the Department returned the children.
Three months later, the Department received a fifth referral alleging physical abuse of John. On May 24, 2016, the Department filed a petition for protection and conservatorship and for termination of A.M.D.'s and D.C.G.'s parental rights.
Removal
In its removal affidavit, the Department stated that then three-year-old John was "observed with a red bruise on his chest, two parallel purple, red linear bruises about 6 cm in length on his left lateral hip/lower back." Department caseworkers interviewed John's teacher and daycare director. John told them that his mother hit him.
The director of the children's daycare also informed the caseworkers that one-year-old Alice had had three seizures in the past week. The director told both parents about the seizures, but A.M.D. was "distant" and said Alice was not having seizures, and D.C.G. asserted that the doctor had taken Alice off of her seizure medication. At the parents' request, the daycare did not provide either child with any medication. The director also stated that Alice was being brought to the daycare each morning wearing the same diaper she left in the day before.
A.M.D. informed the caseworkers that Alice's doctor prescribed drops for Alice if she had a seizure lasting five minutes or more. But neither she nor D.C.G. gave the drops to Alice's daycare.
A.M.D. also admitted that although the children were on Medicaid when they were returned home, their coverage had expired, and she and D.C.G. had not obtained new medical coverage for the children. A.M.D. told the caseworkers that she did not know where John got his bruises, but she assumed that he got them at a birthday party he attended with D.C.G.
D.C.G. told the caseworkers that Alice has seizures, but he said he was unaware that Alice had been coming to daycare in the same diaper from the previous day. He asserted that John's bruises were caused by running into a stake and tarp holding down a bounce house at a birthday party. The hospital doctor who examined John's bruises disagreed. He said the marks were consistent with belt wounds.
Following a hearing, the trial court signed an order appointing the Department as temporary managing conservator of the children. Several weeks later, the Department filed a family service plan.
Trial
The case proceeded to a bench trial on November 17, 2017. Numerous witnesses testified.
Pediatrician. Dr. Girardet, a pediatrician who is board-certified in child abuse pediatrics, testified about her examination of John. She said that John has ADHD, disruptive behavior syndrome, and febrile seizures (seizures when feverish). John also has a chromosomal abnormality that predisposes him to behavior problems. With respect to the bruising, Dr. Girardet testified that based on her training and experience, John's bruising was caused by belt lashes—not an accidental fall.
Child Advocate. Susan Imre, the court-appointed child advocate, explained that Child Advocates recommended termination of both parent's rights. Imre testified that Alice and John have special needs requiring "significant medical attention," but "neither of the parents have a total grasp of what that means and what that entails."
Child Advocates also opposed returning the children to the parents in February 2016.
According to Imre, Alice developed febrile seizures during the three-month period that she was home with her parents. Alice also "had a noticeable issue, neurological issue." She was "very, very wobbly when she walked and she looked out the tops of her eyes . . . . [l]ike, she would like look out the tops of her eyes like that they were almost up inside of her head."
John, in turn, has a genetic chromosomal deletion that predisposes him to ADHD as well as autism spectrum and behavioral disorders. In school, he received speech therapy and occupational therapy and was specially monitored for his behavior problems. Under the care of his psychiatrist, John was prescribed Guanfacine to manage hyperactivity and Ritalin to manage impulsiveness, as well as another medication to be used as needed. In addition to the services he received at school, John had two sessions of in-home speech therapy and two sessions of in-home occupational therapy weekly. He also went every other week to a play therapist and was on the waiting list for ABA therapy, which is "40 hours of pretty intense therapy done with the family for behavior." Although John was making progress, he was still behind in school, at the lower bottom of his class, and having trouble performing at a pre-k level although he was in kindergarten.
Based on Imre's two-and-a-half years serving as the children's child advocate, she believed that the parents did not proactively engage with their children's special needs. For instance, Imre testified that the parents did not take Alice to the doctor for her neurological condition; neither of the parents even mentioned it. When Imre asked D.C.G. about it, he told her, "That's just part of her seizure thing."
Imre testified that the parents disregarded medical instructions to bring Alice for a follow-up MRI after a recent hospitalization for seizures. When Child Advocates questioned them about it, A.M.D. said that Alice was "fine" and "doesn't need one;" D.C.G. said it would be "done right away," but "it never got made." The hospital informed the foster mother that its staff repeatedly attempted to make the follow-up appointment, but no one returned the calls.
Imre also spoke with D.C.G. about a skull fracture that Alice sustained while in his and A.M.D.'s care, including the fact that the fracture resulted in vision loss. D.C.G. expressed unawareness that the vision loss was permanent.
It took the parents weeks to get John enrolled in his school's program for children with special needs. In fact, Imre received a call from the principal asking her to help get John enrolled because no one had enrolled him. Moreover, Imre attended a meeting at John's school at which the speech teacher expressed concern about John's lack of speech progress. The parents asked no questions.
Imre expressed concern about A.M.D. caring for two special needs children in addition to an infant (the third child of A.M.D. and D.C.G., who has also been removed and is the subject of a separate proceeding). Imre noted that John "is a very challenging child and needs constant monitoring," and Alice "with her vision loss and the PTU, she needs—she need[s] monitoring. They can't be left together alone. They can't be sent out to the backyard to play by themselves." Imre also testified that D.C.G. was "away a lot" with work, which meant that the bulk of the child care responsibilities fell to A.M.D.
Moreover, Imre testified that A.M.D. seemed unable or unwilling to "grasp the magnitude and the severity of her children's condition[s]." For example, at a recent hearing, A.M.D. laughed throughout Imre's testimony.
As to John's bruising, Imre stated that D.C.G. called her on May 20, 2016 and said: "We don't hit him, we use . . . the snapping of the belt to get his attention." Imre asked D.C.G. what had happened to the time out system they previously were using, and D.C.G. said it was not working anymore, so "We use the threat of the whipping." Imre expressed concern that the "children could be seriously injured."
Imre emphasized that even after the parents completed services and had their children returned to them, it "appear[ed] they clearly did not learn what we had hoped they were going to learn from the services." Imre did not believe they were capable of taking care of the children.
After being removed, the children "had negative reactions to seeing both of their parents, particularly [D.C.G.]." When told he was going to see his parents, John would say, "No, no." Alice "was clinging to the foster mom and not wanting to go see her parents and we [Imre and the foster mother] kind of had to push her into the room." Alice would "hide behind, grabbing onto the leg of the foster mom and [saying] 'No, no, no.'" When the visit location was changed to a play therapist's office, the children "settled down" and no longer showed "overt fear" when they saw D.C.G.
In contrast, according to Imre, the foster home met "every single one of [the children's] needs . . . . They are thriving and they are doing extremely well. And if you compare to how they were when they first came into care, they've—it's a night and day difference." The foster parents "have shown great attention to the special needs of these children," "take them to all of their required therapy and doctor's appointments," and "even though the children at times continue to have outbursts and concerning behavioral issues, . . . seem in it for the long haul." The foster parents are "very patient" with the children, give them "a lot of love and show[] them a lot of support," and "continue to work to make these children healthier versions of themselves." These foster parents are able and willing to adopt them. And the children have a "significant" bond with the foster parents.
Caseworker. Lakeela Caraway, the caseworker, testified that she believed that termination of both parents' rights was in the best interest of the children. The current foster placement of the children was meeting the physical and emotional needs of the children and "going really well." The children were thriving. The Department's plan was adoption by the current foster parents, and Caraway testified about the importance of achieving permanency in the children's lives. In Caraway's view, the Department offered the parents as much help as it could, but the parents were "still not able to provide a safe and stable environment" for the children.
On the other hand, Caraway acknowledged that the children were not in danger during their supervised play therapy visits with the parents and that the children's bond with the parents had improved over the course of the play therapy. She conceded that one alternative to termination was to keep the children in the foster placement, but not terminate the parents' rights. She also acknowledged that the parents had engaged in therapy and completed required assessments. The parents also attended special needs parenting classes, and D.C.G. had a full-time job.
D.C.G. D.C.G. testified that he wanted the children to be placed in A.M.D.'s and his care and that he was able to meet the educational, emotional, physical, and financial needs of the children.
But D.C.G. also conceded that he had not gone to the hospital to discuss the children's conditions with their doctors and did not know who the children's doctors were. He acknowledged that it is important for a parent to take care of his children's needs, and that if one does not know what his children's medical needs are, he cannot care for the children. Although he had a right to review the children's medical records, he admittedly had not done so (although he testified that he did not know before trial that he could inquire about the medical records). Moreover, he admitted that he had not obtained genetic testing or counseling for the children, despite a court order to do so (he denied knowledge of the order). As to the delay in enrolling John in school, D.C.G. asserted that they were trying to enroll him in a neighboring school district.
D.C.G. said he had no concerns about leaving the children alone with A.M.D. He testified that neither he nor A.M.D. caused Alice's skull fracture; he said that it occurred when John pulled Alice off of a mattress.
Regarding the bruising on John, D.C.G. testified that John hurt himself in a bounce house. D.C.G. testified that he neither hit John with a belt nor saw A.M.D. do so. But he conceded that he would "pop" a belt when John misbehaved. He said that timeouts did not work, but the sound of the belt would "bring [John] out of it."
According to D.C.G., he and A.M.D. became better parents after completing the first and second family service plans. D.C.G. testified that therapy helped them understand "different ways of managing things, of dealing with situations between our relationship and also with our children and our family." And special needs parenting classes helped them learn about available resources and tools.
The Department introduced several judgments showing D.C.G. had been convicted of crimes. In September 2012, one month after John was born, D.C.G. pleaded guilty to failure to comply with sex offender registration requirements and was sentenced to two years' confinement. D.C.G. had previously been convicted one other time of failure to register as a sex offender. In January 2013, D.C.G. pleaded true to a motion to adjudicate on another charge of failure to register in exchange for a recommendation that he be sentenced to eight months in state jail and fined $100. All of these convictions stemmed from a 2003 conviction for sexual assault.
A.M.D. Like D.C.G., A.M.D. testified that Alice's skull fracture was caused by John pulling her off the bed, but she acknowledged that the hospital disagreed with that explanation. A.M.D. denied striking John with a belt.
A.M.D. acknowledged that Child Advocates and the trial judge advised them on multiple occasions that they needed to set up genetic counseling for their children. But neither she nor D.C.G. ever did so.
A.M.D. also testified that although she had done research online about her children's special needs, she had not spoken with the children's doctors and did not know who they were. She asserted that she orally asked the Department for the doctors' names "five, four, or three, something like that" times.
According to A.M.D., the services they received improved their ability to parent. She also testified that she had learned in therapy how to better manage her anger and "[w]hat to do in stressful situations." A.M.D. testified that they paid for therapy out of pocket before the court ordered the Department to pay for it.
Both parents asked the court to return the children to them, and if not, to at least preserve their parental rights.
Foster Mother. The children's foster mother testified that she and her husband planned to adopt John and Alice if the parents' rights were terminated. She testified that she attended all ARD meetings for school services for both children since the children came into their care. She had also been taking John to a psychiatrist, genetics appointments, and neurologist appointments. With respect to Alice, the foster mother works with her school "on her needs as far as her vision goes and we monitor her at home to make sure that she's safe and learning her environment well." The foster mother asserted a willingness to love the children and to address all of their varied special needs.
If the parents' rights were not terminated, the foster parents were willing to continue to care for all three children (the two subject to this suit and the third subject to a separate suit) if the Department covered medical costs.
Therapist. Michele Criddle, a marriage and family therapist, testified that A.M.D. contacted her in June 2017 looking for therapy. Criddle met with D.C.G. and A.M.D. individually every other week and with them together for a couples' session on the opposite week. She also helped with crisis intervention as needed. She stated that the parents paid for their first four sessions out-of-pocket. And she explained that the parents regularly attend therapy.
According to Criddle, the parents have made progress on learning how to regulate, communicate, and parent together as a team. With respect to D.C.G., Criddle testified that they looked at how his early childhood experiences impacted his beliefs and parenting skills. She asserted that some of the parents' lack of bonding with the children resulted from the children being out of their care, and she thought that redeveloping bonds was "feasible."
Criddle believed that A.M.D. could ensure a safe and stable environment for the children, although "[w]e have to educate her about what that is. Her past experiences with her parental upbringing didn't give her the guidelines that she needs to be the parent that she should be now; but I think that we can do that and she's actually very willing." Criddle stated: "I'm very pleased with the way that they parent. And they've got a good game plan as to how they want to do this[.]" When asked whether she thought the parents would ultimately get to a place where they could appropriately parent their children, Criddle responded:
There is no absolutes in the world and we all know that but I do think that with the resources and the guidance that they are learning how to develop now to get now that they've got the foundation.
Yet Criddle also asserted that, were the trial court not to terminate parental rights, the parents should continue in therapy, and the family would need "a little bit more intense therapy to see how the interaction is with the parents and the kids." They would need "continued parent monitoring [] where there is some involvement in the house to see how they're doing. And to educate what the needs are."
Criddle also acknowledged that she was not familiar with all the circumstances, and she was unable to render an opinion as to whether the parents were fit to have the children returned. She asked the Department to meet with the children and parents together, but the Department denied her request because the family was already working with another therapist.
With respect to the children's injuries, Criddle believed "that the parents are being truthful with me and very consistent with me in regards to what happened."
Criddle testified that she believed the parents' relationship was stable. But she also acknowledged that, two weeks before trial, A.M.D. left a note saying that she was leaving and went to a bus station with the intention of leaving D.C.G.
Court order. After trial, the court signed an order terminating A.M.D.'s and D.C.G.'s parental rights. D.C.G. appeals.
Discussion
D.C.G. asserts that the evidence was legally and factually insufficient to support the trial court's predicate findings regarding endangerment and failure to complete the service plan. See TEX. FAM. CODE § 161.001(b)(1)(D), (E) (endangerment), (O) (failure to complete service plan). He also disputes the trial court's determination that termination of his parental rights was in the children's best interest. See id. § 161.001(b)(2).
A. Standard of Review
To terminate parental rights under section 161.001, the Department must establish by clear and convincing evidence that (1) the parent committed one or more of the enumerated acts or omissions justifying termination and (2) termination is in the child's best interest. Id. § 161.001(b); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). "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; see also In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
"Only one predicate finding under section 161.001[b](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); see In re T.G.R.-M., 404 S.W.3d 7, 13 (Tex. App.—Houston [1st Dist.] 2013, no pet.). "Thus, if multiple predicate grounds are found by the trial court, we will affirm on any one ground because only one is necessary for termination of parental rights." T.G.R.-M., 404 S.W.3d at 13.
In conducting our legal-sufficiency review, we look at the entire record to determine whether the evidence, viewed in the light most favorable to a finding, is such that a reasonable factfinder could have formed a firm belief or conviction that the finding was true. See J.O.A., 283 S.W.3d at 344-45 (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We "assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so," and we "disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. at 344 (quoting J.F.C., 96 S.W.3d at 266).
In conducting a factual-sufficiency review, we review all evidence, including disputed or conflicting evidence. Id. at 345. The evidence is factually insufficient only if, "in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction" regarding the finding under review. Id. (quoting J.F.C., 96 S.W.3d at 266).
B. Challenge to Predicate Findings for Termination
The trial court terminated D.C.G.'s parental rights based on predicate findings under subsection (D), (E), and (O) of section 161.001(b)(1). D.C.G. concedes that only one predicate finding (along with a best-interest finding) is necessary to support the trial court's termination. See A.V., 113 S.W.3d at 362. He nonetheless asks us to review the evidence supporting the trial court's endangerment findings because subsection (D) and (E) predicate findings can have collateral consequences in subsequent termination proceedings involving other children. See TEX. FAM. CODE § 161.001(b)(1)(M) (allowing termination where parent has had parental rights terminated for another child based on findings under subsections (D) or (E)). Accordingly, because its subsection (D) and (E) predicate findings could affect D.C.G. in future termination proceedings, we begin by evaluating the sufficiency of the evidence supporting those findings. We consider the evidence supporting all three of the predicate findings in conducting our review of the trial court's best-interest determination. C.H., 89 S.W.3d at 28 (evidence that establishes a predicate finding under section 161.001(b)(1) may be probative of best-interest issue).
1. Applicable Law
Both (D) and (E) of Family Code section 161.001(b)(1) concern child endangerment. In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing In re S.M.L., 171 S.W.3d 472, 476 (Tex. App.—Houston [14th Dist.] 2005, no pet.)). (D) and (E) differ with regard to the source and proof of endangerment. Id. (citing S.M.L., 1717 S.W.3d at 476).
Subsection (D) focuses on the child's living environment and requires evidence that the parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings [that] endanger the physical or emotional well-being of the child." TEX. FAM. CODE § 161.001(b)(1)(D); A.S., 261 S.W.3d at 83.
In contrast, under subsection (E), the danger must be the direct result of the parent's conduct. TEX. FAM. CODE § 161.001(b)(1)(E); A.S., 261 S.W.3d at 83. The inquiry under subsection (E) is whether the evidence shows that the child's endangerment was the result of the parent's conduct—including acts, omissions, or failures to act. TEX. FAM. CODE § 161.001(b)(1)(E); see In re K.P., 498 S.W.3d 157, 171 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
Under subsection (E), it is not necessary that the parent's conduct be directed at the child or that the child actually suffer injury. TEX. FAM. CODE § 161.001(b)(1)(E); Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); K.P., 498 S.W.3d at 171. The danger to the child's well-being may be inferred from parental misconduct. Boyd, 727 S.W.2d at 533; K.P., 498 S.W.3d at 171. And a parent's past endangering conduct may create an inference that such conduct could recur and further jeopardize a child's present or future well-being. See In re C.R., No. 01-17-00725-CV, 2018 WL 1161810, at *4 (Tex. App.—Houston [1st Dist.] Mar. 6, 2018, pet. filed) (mem. op.); In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.). Moreover, a parent's conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. In re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
2. Discussion
We begin with D.C.G.'s assertion that the evidence was legally and factually insufficient to support a finding that he endangered his children's physical and mental well-being under Family Code section 161.001(b)(1)(E). It was not.
The record reflects that D.C.G. neglected Alice's and John's medical needs. Among other things, the record shows that the parents:
• Failed to provide Alice's daycare provider with the medication she had been prescribed for her seizure disorder;
• Failed to obtain medical coverage for the children;
• Did not take Alice to a doctor to be seen regarding neurological symptoms;
• Did not make a follow-up MRI appointment for Alice, contrary to hospital instructions;
• Did not set up genetic testing or genetic counseling for the children, who have known genetic chromosomal abnormalities;This failure to provide appropriate medical care constitutes endangering conduct for purposes of subsection E. See In re H.M.O.L., Nos. 01-17-00775-CV, 01-17-00776-CV, 2018 WL 1659981, at *13 (Tex. App.—Houston [1st Dist.] April 6, 2018, pet. denied) (mem. op.) (parent's failure to provide appropriate medical care may constitute endangering conduct for purposes of subsection E) (citing Smith v. Tex. Dep't of Fam. & Protective Servs., Nos. 01-09-00173-CV, No. 01-09-00390-CV, 2009 WL 4359267, at *8 (Tex. App.—Houston [1st Dist.] Dec. 3, 2009, no pet.) (mem. op.)); Wyatt v. Dep't of Fam. & Protective Servs., 193 S.W.3d 61, 68 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (parent's pattern of medical neglect supported finding of endangerment of physical and emotional well-being); see also In re M.C., 917 S.W.2d 268, 270 (Tex. 1996) (per curiam) ("neglect can be just as dangerous to the well-being of a child as direct physical abuse").
• Routinely failed to change Alice's diaper between the time she left daycare and returned the next day; and
• Failed to promptly enroll John in an educational program for children with special needs.
In addition, the record reflects that John sustained severe bruising that, according to the medical professionals who examined him, could not have been caused by an accidental fall. See, e.g., In re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005) (trier of fact was entitled to judge father's demeanor and decide to disbelieve his testimony that he did not know how his child was injured).
The record also reflects that D.C.G. engaged in illegal conduct that resulted in his imprisonment. Specifically, D.C.G. was convicted twice (after John was born) of failure to register as a sex offender, and he received jail sentences in both instances. See In re S.M., 389 S.W.3d 483, 492 (Tex. App.—El Paso 2012, no pet.) (evidence of criminal conduct, convictions, imprisonment, and their effects on parent's life and ability to parent, may establish endangering course of conduct); In re V.V., 349 S.W.3d 548, 554 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) ("Intentional criminal activity that exposes a parent to incarceration is conduct that endangers the physical and emotional well-being of a child."); see also Walker v. Tex. Dep't of Fam. & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (routinely subjecting children to probability that they will be left alone because their parent is in jail endangers children's physical and emotional well-being).
Considering the evidence in the light most favorable to the trial court's finding under section 161.001(1)(b)(E), a reasonable trier of fact could have formed a firm belief or conviction that D.C.G.'s conduct endangered his children's physical or mental well-being. We further conclude that, viewed in light of the entire record, any disputed evidence either could have been reconciled in favor of a finding of endangerment under section 161.001(1)(b)(E) or was not so significant that the factfinder could not reasonably have formed a firm belief or conviction regarding endangerment. Accordingly, we hold that legally and factually-sufficient evidence supports the trial court's finding under section 161.001(b)(1)(E).
Because termination based on either a subsection (D) or (E) predicate finding is sufficient to invoke paragraph (M) in a future proceeding, and we have found sufficient evidence of the trial court's finding under (E), we need not separately address the sufficiency of evidence supporting the trial court's finding under paragraph (D). See In re D.S.J., No. 01-17-00678-CV, 2018 WL 1003635, at *7 (Tex. App.—Houston [1st Dist.] Feb. 22, 2018, pet. denied) (mem. op.).
We overrule D.C.G.'s first issue. In light of our holding, we need not address the trial court's finding of a predicate act pursuant to section 161.001(b)(1)(O).
C. The Children's Best Interest
D.C.G. next argues that the evidence is insufficient to establish that termination of his parental rights was in his children's best interest. We disagree.
There is a strong presumption that the best interest of a child is served by preserving the parent-child relationship. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). In assessing whether termination is in a child's best interest, courts are guided by the non-exclusive list of factors set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The 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 to promote the best interest of the 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 which may indicate that the existing parent-child relationship is not proper, and (9) any excuse for the acts or omissions of the parent. Id.; K.P., 498 S.W.3d at 172-73.
The Department "need not prove all of the factors as a condition precedent to parental termination, 'particularly if the evidence were undisputed that the parental relationship endangered the safety of the child.'" K.P., 498 S.W.3d at 173 (quoting In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)). But the burden is on the Department to rebut the presumption that the best interest of the child is served by keeping custody in the natural parents. Vasquez v. Tex. Dep't of Protective & Regulatory Servs., 190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
A consideration of the Holley factors supports the trial court's determination that termination of D.C.G.'s parental rights was in the children's best interest.
We begin with the emotional and physical needs of the children now and in the future—the second Holley factor. The record shows that the children have significant emotional, physical, and medical needs that require ongoing care and monitoring. Among other things, John has a chromosomal abnormality that predisposes him to having behavior problems, ADHD, speech impairment, disruptive behavior syndrome, and febrile seizures. He requires speech therapy, occupational therapy, and takes several different medications to manage various of his conditions. Alice, in turn, sustained a skull fracture that has permanently affected her vision. She also has a seizure disorder, a neurological condition, and febrile seizures. The record shows that the children's foster family is meeting the children's needs and is committed to meeting those needs in the future. In contrast, the record shows that the parents failed to meet those needs, and, to some extent, denied (or minimized) that their children had special needs, so there is reason for concern regarding their ability to meet the children's future needs.
The sixth Holley factor—the plans for the child—also supports the trial court's best interest finding. The current foster family plans to adopt the children. That family is meeting all of the children's needs, and the children are thriving.
The third, eight, and ninth Holley factors (which address the emotional and physical danger of the children now and in the future, as well as acts or omissions by the parents that may indicate that the existing parent-child relationship is not a proper one) are in accord. Evidence of past misconduct or neglect can be used to measure a parent's future conduct. In re A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco 2012, pet. denied). Thus, the evidence discussed in support of the trial court's finding under section 161.001(b)(1)(E) is also probative of the children's best interest. See Walker, 312 S.W.3d at 619 ("The evidence regarding endangerment, discussed in support of the trial court's finding under section 161.001[b](1)(E) above, is also probative of a finding as to danger in determining the child's best interest."); see also C.R., 2018 WL 1161810, at *7.
No evidence directly addresses the first Holley factor, the desires of the children. But the evidence showed that the children were at times afraid of D.C.G., although this fear subsided in the context of play-therapy office visits.
The fourth and fifth Holley factors—D.C.G.'s parenting abilities and the programs available to him—do not sway balance in D.C.G's favor. Yes, D.C.G. completed most of the services in his plan. He testified that therapy provided him skills, and his therapist, Michelle Criddle, testified that the parents had improved in their parenting skills. But Criddle also testified that the parents still needed ongoing counseling and that the children could not be safely returned without ongoing support. And importantly, the parents demonstrated poor parenting abilities even after fully completing the first family service plan.
The record reflects that D.C.G. did not fully comply with the plan because he did not attend all scheduled visitations, court hearings, and permanency conferences. A factual dispute exists regarding whether D.C.G. knew that he was supposed to be obtaining genetic testing and counseling for the children and whether that was actually a requirement of the plan.
Finally, we consider the seventh Holley factor—the plans for the children and the stability of the home. On balance, the trial court could have concluded that this factor weighed against D.C.G. The evidence shows that D.C.G. has a stable job and housing. But the evidence also showed that A.M.D., who was the children's primary caregiver in the home, threatened to leave D.C.G. only two weeks before trial. She has also not appealed the termination of her rights. The evidence showed that D.C.G. and A.M.D. failed to properly care for the children.
After reviewing all of the evidence in the light most favorable to the trial court's best-interest finding, we conclude that a reasonable factfinder could have formed a firm belief or conviction that termination of D.C.G.'s parental rights was in the children's best interest. We further conclude, viewed in light of the entire record, that any disputed evidence that a reasonable factfinder could not have resolved in favor of the best-interest finding was not so significant that the factfinder could not reasonably have formed a firm belief or conviction. Thus, we hold the evidence was legally and factually sufficient to support termination of D.C.G.'s parental rights to Alice and John.
Conclusion
We affirm the judgment of the trial court.
Jennifer Caughey
Justice Panel consists of Justices Higley, Brown, and Caughey.