Court of Appeals of Texas, Fourth District, San Antonio
IN THE INTEREST OF T.H.J., C.H.J., J.H.J., and P.H.J., Children
the 150th Judicial District Court, Bexar County, Texas Trial
Court No. 2018-PA-00096 Honorable Charles E. Montemayor,
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C.
Martinez, Justice Liza A. Rodriguez, Justice.
BRYAN MARION, CHIEF JUSTICE.
appeals the trial court's order terminating his parental
rights. The only issue presented on appeal is whether the
evidence is legally and factually sufficient to support the
trial court's finding that termination was in the
children's best interest. We affirm the trial court's
January 17, 2018, the Texas Department of Family and
Protective Services filed a petition to terminate P.J.'s
parental rights to T.H.J., C.H.J., J.H.J., and P.H.J. On May
2, 2019, a bench trial was held. The trial court terminated
P.J.'s parental rights, and he appeals.
of Review and Statutory Requirements
terminate parental rights pursuant to section 161.001 of the
Texas Family Code, the Department has the burden to prove by
clear and convincing evidence: (1) one of the predicate
grounds in subsection 161.001(b)(1); and (2) that termination
is in the best interest of the child. See Tex. Fam.
Code Ann. §§ 161.001, 161.206(a); In re
A.V., 113 S.W.3d 355, 362 (Tex. 2003). In this case, the
trial court found clear and convincing evidence of the
following four predicate grounds under subsection
161.001(b)(1) to terminate P.J.'s parental rights: (1)
knowingly placed or knowingly allowed the children to remain
in conditions or surroundings which endangered their physical
and emotional well-being; (2) engaged in conduct or knowingly
placed the children with persons who engaged in conduct which
endangered their physical or emotional well-being; (3)
constructively abandoned the children; and (4) knowingly
engaged in criminal conduct that resulted in P.J.'s
conviction of an offense and confinement or imprisonment and
inability to care for the children for not less than two
years from the date of the filing of the petition.
See Tex. Fam. Code Ann. §§
161.001(b)(1)(D), (E), (N), (Q); see also In re
C.H., 89 S.W.3d 17, 28 (Tex. 2002) (noting evidence that
proves one or more statutory grounds for termination may be
probative in proving termination is in the child's best
interest). The trial court also found clear and convincing
evidence that terminating P.J.'s parental rights was in
the children's best interest.
evaluate the legal and factual sufficiency of the evidence to
support the trial court's findings under the standards of
review established by the Texas Supreme Court in In re
J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). Under these
standards, "[t]he trial court is the sole judge of the
weight and credibility of the evidence, including the
testimony of the Department's witnesses." In re
F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex.
App.-San Antonio Jan. 30, 2017, no pet.) (mem. op.).
determining the best interest of a child, courts apply the
non-exhaustive Holley factors to shape their
analysis. Holley v. Adams, 544 S.W.2d 367, 371-72
(Tex. 1976). Those factors include: (1) the desires of the
child; (2) the present and future emotional and physical
needs of the child; (3) the present and future emotional and
physical danger to the child; (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 held by the individuals seeking
custody of the child; (7) the stability of the home of the
parent and the individuals seeking custody; (8) the acts or
omissions of the parent which 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.
The foregoing factors are not exhaustive, and "[t]he
absence of evidence about some of [the factors] would not
preclude a factfinder from reasonably forming a strong
conviction or belief that termination is in the child's
best interest." In re C.H., 89 S.W.3d at 27.
"A trier of fact may measure a parent's future
conduct by his past conduct [in] determin[ing] whether
termination of parental rights is in the child's best
interest." In re E.D., 419 S.W.3d 615, 620
(Tex. App.-San Antonio 2013, pet. denied).
was incarcerated when the children were removed by the
Department in 2018. On April 24, 2014, P.J. pled nolo
contendere to the offense of injury to a child causing bodily
injury which is a third degree felony punishable by not less
than two years or more than ten years' imprisonment.
See Tex. Penal Code Ann. §§ 12.34(a),
22.04(a)(3), (f). Although his sentence was suspended and he
was placed on community supervision, P.J. was sentenced to
the maximum term of ten years. The victim, A.B., was thirteen
at the time of the offense and a relative of the children. At
trial, P.J. described the offense as his having "stepped
on her hand." Given that P.J. was sentenced to the
maximum term for the offense, the trial court could have
believed from P.J.'s testimony that he failed to accept
the serious nature of the offense.
March 15, 2016, the State filed a motion to revoke P.J.'s
community supervision alleging numerous violations of his
terms and conditions, including committing the offense of
assault on or about March 10, 2016. P.J. pled true to
committing the offense and was sentenced to four years'
imprisonment on April 12, 2016. See Brooks v. State,
995 S.W.2d 762, 763 (Tex. App.-San Antonio 1999, no pet.)
("A plea of true, standing alone, is sufficient to
support [a] trial court's order of revocation.").
P.J. testified that he assaulted the children's mother
and described the offense as "family household assault
strangulation." In re M.G., No. 14-15-00644-CV,
2015 WL 9241300, at *10 (Tex. App.-Houston [14th Dist.] Dec.
15, 2015, no pet.) (mem. op.) (referring to father's
incarceration for assault of mother as evidence in support of
finding that termination was in child's best interest).
P.J. remained incarcerated throughout the pendency of the
case and was not due to be released until February 24, 2020,
almost ten months after the date of trial. At the time of the
trial, the children were eight, seven, six, and four, and
P.J. had been absent from their lives due to his
incarceration for three years. P.J. testified he had a parole
review hearing in June and could be released in October of
2019; however, he admitted he had previously been denied
parole three times.
conduct and incarceration affects a parent's life and the
ability to parent, thereby subjecting a child to potential
emotional and physical danger." In re S.A.M.,
No. 04-18-00607-CV, 2019 WL 573469, at *5 (Tex. App.-San
Antonio Feb. 13, 2019, pet. denied) (mem. op.). Additionally,
"[a] parent's incarceration is relevant to his
ability to meet the child's present and future physical
and emotional needs." In re J.G.S., 550 S.W.3d
698, 706 (Tex. App.-El Paso 2018, no pet.). "[A]
parent's incarceration at the time of trial makes the
child's future uncertain." Id. Therefore,
based on P.J.'s criminal conduct and incarceration, the
trial court could have believed P.J.'s conduct subjected
the children to potential emotional and physical danger, made
him unable to meet the children's physical and emotional
needs, and made the children's future uncertain. The
trial court could further have found that P.J.'s
minimization of the injury he inflicted on A.B. raised
concerns regarding the danger he posed to the children. Such
a finding is further supported by the CASA volunteer's
testimony that the children are currently in therapy and
"always" complain in therapy of being afraid and
fearful of P.J. and that one child is afraid P.J. is
"going to come and get her." See In re
A.D.K., No. 06-19-00019-CV, 2019 WL 2607599, at *5 (Tex.
App.-Texarkana June 26, 2019, pet. denied) (mem. op.)
(recognizing evidence that children were afraid of father
supported finding that termination was in children's best
interest); see also In re F.M., 2017 WL 393610, at
*4 ("[E]vidence of only one [Holley] factor may
be sufficient for a factfinder to form a reasonable belief or
conviction that termination is in a child's best
interest- especially when undisputed evidence shows that the
parental relationship endangered the child's
evidence at trial established the Department had previously
removed the children from their parents' care in 2013.
P.J. was not incarcerated during the pendency of that case.
P.J. testified he completed a parenting class at that time,
but the CASA volunteer testified P.J. did not appear for
hearings or engage in services in that case. The
Department's legal worker testified P.J. received a copy
of his service plan in the underlying case while incarcerated
in March of 2018, and a second copy on April 15, 2019.
Although P.J. denied receiving the plan in March of 2018, the
trial court could have chosen to believe the legal worker.
The legal worker also testified P.J. is offered services
while incarcerated; however, he only completed a parenting
class. Although P.J. testified he completed other services,
the trial court could have disbelieved him. In re
S.B., 207 S.W.3d 877, 887-88 (Tex. App.-Fort Worth 2006,
no pet.) (noting failure to comply with service plan supports
a finding that termination is in the best interest of the
time of trial, the children had been living at Legacy Ranch
for approximately four months. The legal worker testified the
children are receiving the educational and counseling
services they need at Legacy Ranch which she described as a
good placement for them. The Department's plan for the
children is an unrelated adoption by a previous foster family
who was interested in adopting the children but wanted to
ensure the parents' rights were first terminated. In
re C.H., 89 S.W.3d at 28 (noting the relevant inquiry on
appeal is "whether, on the entire record, a factfinder
could reasonably form a firm conviction or belief that
termination of the parent's rights would be in the
child's best interest-even if the agency is unable to
identify with precision the child's future home
reviewed the record, we hold the evidence is legally and
factually sufficient to support the trial court's finding
that terminating P.J.'s ...