INTEREST OF v. << (2026)

OPINION

The trial court terminated Mother's and Father's parental rights to their young daughter, P.Y. (“Patty”), on predicate grounds of endangering conduct and inability to care for the child due to incarceration. See Tex. Fam. Code § 161.001(b)(1)(E), (Q).¹ The court also found that termination was in Patty's best interest and appointed the Department of Family and Protective Services as Patty's sole managing conservator. Only Father appeals.

Father argues that the trial court's termination order did not sufficiently and specifically describe, as purportedly required by Family Code section 161.001(f) and (g), the continuing danger in the home preventing Patty's return from the Department's care. He also challenges the legal and factual sufficiency of the evidence supporting findings that the Department made reasonable efforts to return Patty home and that a continuing danger prevented her return, as well as the legal and factual sufficiency of the evidence to support the predicate grounds and the best-interest finding.

We abated the appeal and remanded for further findings. On December 18, 2025, the trial court signed an amended order of termination (the “Amended Order”), which has been filed in a supplemental clerk's record. We reinstated the appeal on January 2, 2026.

After review of the record as supplemented, we overrule Father's first issue as unpreserved because he did not request findings of fact in the trial court, or object to the trial court's claimed failure to make required findings, or otherwise request additional findings. Under these circumstances, Father may not complain for the first time on appeal of the trial court's asserted failure to make findings required under Family Code section 161.001(f) and (g).

We further conclude that the trial court's supplemented findings that the Department undertook reasonable efforts to reunite Patty with Father, and that a continuing danger existed in the home reasonably preventing such reunification, are supported by legally and factually sufficient evidence. We also hold that legally and factually evidence supports the predicate ground for termination under Family Code section 161.001(b)(1)(E). Finally, we conclude that the evidence supporting the trial court's best-interest finding is also legally and factually sufficient and that Father does not challenge the conservatorship finding. Accordingly, we affirm the trial court's order of termination.

Background

Rose Evans-Stinson is the Department investigator assigned to Patty's case. The initial intake was based on a report for neglectful supervision and visible neglect of Patty and her half-brother, K.C., who were living with their maternal Grandmother at the time.² Evans-Stinson said that Grandmother reported to law enforcement that Patty “was being sexually abused by [Grandmother's] boyfriend.” When law enforcement arrived, “they found crack cigarettes on the porch and in the children's reach.”

Patty was one year old at the time of removal. Mother was in county jail, and Father was incarcerated in the Texas Department of Criminal Justice (“TDCJ”). Grandmother had a long history of drug use and a history of “CPS cases.” After removal, the Department placed Patty with a maternal aunt, “Carol.” Evans-Stinson made contact with Mother, who approved the placement.

Evans-Stinson agreed that there was nothing that indicated Father “was aware about the abuse from any of the bases which led to the removal in this case,” nor was there evidence that indicated Father “refused to remove the child from the situation [she was] going through.”

Jamie Guedry is the conservatorship worker assigned to Patty's case. Guedry testified that she never visited Father in prison but assigned a “courtesy worker,” who visited Father. The courtesy worker attempted to personally deliver the family service plan to Father, but TDCJ restrictions prevented it. The Department, however, mailed a copy of the service plan to Father and his attorney. Although the Department was unable to arrange for any assessments, classes, or testing to be completed while Father was incarcerated, the family plan contemplated that Father would complete certain tasks upon his release. Father is projected to be released in October 2026.

Carol testified that Grandmother's house was a “toxic environment,” and she was concerned “every day” that Patty was there. Carol said that she did not think she would allow Patty to see Grandmother in the future but was not sure: “Only because she could get herself together, be sober, you know, things like that maybe but right now, no.” Carol agreed that, if Father's rights were terminated, she would be willing to “provide him with updates, pictures of [Patty].”

Father testified that he was incarcerated at the time of removal and remained incarcerated throughout the pendency of the case, explaining that his confinement resulted from a violation of his “parole” from juvenile aggravated robbery cases. The record reflects that Father was adjudicated as a juvenile in March 2018 for two counts of aggravated robbery. It further shows that in November 2023, approximately two months after Patty's birth, Father was also arrested for evading arrest with a vehicle, a felony offense for which he was placed on deferred adjudication community supervision for a three-year period. The record demonstrates that Father was unsatisfactorily discharged from that supervision in March 2024.

Father further testified that, during the pendency of this case, a Department representative visited him twice. The representative reviewed the service plan with Father and explained “what was expected” from him, which included completing a parenting class upon release from prison. No one asked him to submit to drug testing or psychological assessment. Father testified that, if someone from the Department had “asked [him] to do those things,” he would have been willing. In Father's opinion, the Department did not give him a fair opportunity to complete his service plan.

While incarcerated, Father received his “OSHA certificate [and his] NCR certificate,” pertaining to “power tools and hand tools at construction sites.” Upon release, Father planned to “get[ ] his own place,” although he acknowledged that he may need to “stay with [his] mom” for a while. Father testified that he believed he could provide a safe and stable home for Patty. He denied engaging in conduct that placed Patty's safety or well-being in danger and denied being aware of the alleged conduct against Patty that led to her removal by the Department.

The trial court found by clear and convincing evidence that Father's parental rights should be terminated under sections 161.001(b)(1)(E) and (Q) and that termination was in Patty's best interest. Father now appeals.

Standard of Review

Our standards of review reflect the elevated burden of proof at trial in a parental termination case of clear and convincing evidence. In re N.G., 577 S.W.3d 230, 235 (Tex. 2019). Under both legal- and factual-sufficiency standards, an appellate court considers all the evidence, defers to the factfinder's determinations as to witness credibility, and determines whether the factfinder could reasonably form a firm belief or conviction that the grounds for termination were proven. Id.; see also In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (describing the factfinder as “the sole arbiter when assessing the credibility and demeanor of witnesses”). The distinction between the two standards lies in the extent to which an appellate court may consider disputed evidence contrary to a finding. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).

In a legal-sufficiency review, we credit evidence that supports the finding if a reasonable factfinder could have done so, and disregard contrary evidence unless a reasonable factfinder could not have done so. In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). However, an appellate court does not disregard undisputed facts that do not support the finding. Id. at 113. Even evidence that does more than raise surmise and suspicion will not suffice as clear and convincing unless it can produce a firm belief or conviction that the allegation is true. Id. If no reasonable factfinder could form a firm belief or conviction that the allegation is true, the evidence is legally insufficient. Id.

In a factual-sufficiency review, by contrast, an appellate court must weigh disputed evidence contrary to the finding against all the evidence that supports the finding. In re A.C., 560 S.W.3d at 631. Evidence is factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true. Id. And in making this determination, the reviewing court must undertake “an exacting review of the entire record with a healthy regard for the constitutional interests at stake.” See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

Analysis

A. Statutory Findings under Family Code Sections 161.001(f) and (g)

1. Specificity

In his first issue, Father argues that the trial court abused its discretion when it terminated his parental rights without making certain statutorily required findings and without describing them with specificity in a separate section of the termination order. Particularly, Father claims the court failed to specifically describe why a continuing danger remains in the home preventing Patty's return.

In 2023, the Texas Legislature amended section 161.001 of the Family Code to require a trial court to make certain written findings a condition of ordering the termination of parental rights.³ As amended, subsections (f) and (g) provide that:

(f) In a suit for termination of the parent-child relationship filed by the Department of Family and Protective Services, the court may not order termination of the parent-child relationship under Subsection (b)(1) unless the court finds by clear and convincing evidence and describes in writing with specificity in a separate section of the order that:

(1) the department made reasonable efforts to return the child to the parent before commencement of a trial on the merits and despite those reasonable efforts, a continuing danger remains in the home that prevents the return of the child to the parent; or

(2) reasonable efforts to return the child to the parent, including the requirement for the department to provide a family service plan to the parent, have been waived under Section 262.2015.

(g) In a suit for termination of the parent-child relationship filed by the Department of Family and Protective Services in which the department made reasonable efforts to return the child to the child's home but a continuing danger in the home prevented the child's return, the court shall include in a separate section of its order written findings describing with specificity the reasonable efforts the department made to return the child to the child's home.

Tex. Fam. Code § 161.001(f), (g).

Here, the Department sought, and the court granted, termination of Father's parental rights under subsection 161.001(b)(1). Therefore, the Amended Order must comply with subsections (f) and (g).

In section 6 of the Amended Order, entitled “Reasonable Efforts to Return the Child and Continuing Danger,” the trial court made the following findings:

6.1. The Court finds by clear and convincing evidence that the Department made reasonable efforts to return the child to the parents.

6.2. The Court specifically finds that those reasonable efforts include the following:

6.2.1. The Department created a family service plan that is narrowly tailored to address any specific issues identified;

6.2.2. The Department made a referral for services;

6.2.3. Visited [Mother] in jail;

6.2.4. Assigned a courtesy worker to [Father];

6.2.5. Asked parents for relative/fictive kin placement options;

6.2.6. At the time the suit was filed, both parents were incarcerated;

6.2.7. At the time the suit was filed, [Father] was an alleged father;

6.2.8. At the time the suit was filed, [Father] was in TDCJ in Beeville, Texas;

6.2.9. [Father] had trouble with the law in 2018 and after the birth of the child, as [he] continued to have issues with breaking the law;

6.2.10. [Father] failed to complete his community supervision and committed another crime, resulting in his incarceration after the birth of the child;

6.2.11. [Father] was served on September 26, 2024 and was put on notice that he may be the father of the child;

6.2.12. [Father] was appointed an attorney to represent his interests prior to October 10, 2024;

6.2.13. A Family Service Plan was filed for [Father] on October 28, 202[4];

6.2.14. On January 16, 2025 [Father] was adjudicated the father of the child;

6.2.15. An amended Service Plan was filed for [Father] on March 9, 2025;

6.2.16. The Department had a courtesy caseworker visit [Father] on three occasions in prison;

6.2.17. The Department mailed his service plan to him and attempted to hand delivery [sic] a copy to him in prison;

6.2.18. The Department's attempts to serve the service plan were hindered by the prison rules;

6.2.19. A status hearing occurred on April 8, 2025 wherein [Father] had not yet signed the service plan, nor reviewed the service plan and ․ the requirements were all predicated on his release from incarceration;

6.2.20. The Department was unable to provide services that [Father] could work during incarceration due to the prison rules;

6.2.21. [Father] was unable to provide for the child in a parental capacity due to his incarceration;

6.2.22. [Father] was unable to provide for the basic needs of the child due to his incarceration;

6.2.23. The Department discussed safe placement options with [Father] through the courtesy worker, but his aunt [ ] never communicated back with the caseworker, and no other names were provided; and

6.2.24. The Department placed the child with another maternal relative.

6.3. The Court finds, however, despite those reasonable efforts to return the child home to the parents, a continuing danger remains in the home that prevents return, specifically:

6.3.1. Both parents were incarcerated at the date of the trial of this case;

6.3.2. [Father's] incarceration prevents him from working any services;

6.3.3. [Father] is unable to provide for the child in a parental capacity due to his incarceration;

6.3.4. [Father] is unable to provide for the basic needs of the child due to his incarceration;

6.3.5. [Father] lacks family support to properly care for the child;

6.3.6. [Father] has no relationship with the child; and

6.3.7. Due to the child's prior neglect, resulting in sexual abuse of the child, [Father's] continued incarceration exacerbates the risks and dangers to the child by allowing the child access to unknown caregivers.

The Amended Order specifically stated that the court found by clear and convincing evidence that the Department made reasonable efforts to return Patty to Father and that a continuing danger remains in the home that prevents her return.

According to Father, the trial court was required to find not only that a continuing danger remained in the home that prevented Patty's return but also to describe the facts supporting such a finding with specificity. Father claims the trial court's finding's fail in this respect.⁴ Although Father's first issue challenged the findings as stated in the original termination order, Father has filed a supplemental brief following the filing of the Amended Order and has not withdrawn, amended, or supplemented his first issue.

Generally, to preserve error for appellate review, the complaining party must make his complaint to the trial court by a timely request, objection, or motion that states the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A). This rule applies in civil parental termination proceedings. See In re J.S., 670 S.W.3d 591, 605–06 (Tex. 2023) (holding parent did not preserve complaint that trial court failed to make statutorily required findings because parent did not timely object); In re B.L.D., 113 S.W.3d 340, 351 (Tex. 2003) (noting termination proceedings are governed by civil rules of procedure).

The trial court signed the original termination order on August 5, 2025. Father filed his notice of appeal on August 19, 2025. The clerk's record does not contain any document showing that Father timely apprised the trial court of its alleged failure either to make the required findings or to state them with greater specificity. Father filed no motion for new trial, no request for findings of fact, no request for additional findings of fact, and no other objection apprising the court of the complaint Father now raises on appeal. Because he did not object to the trial court's alleged failure to comply with section 161.001(f) and (g), that error cannot be asserted for the first time on appeal. See In re J.S., 670 S.W.3d at 605–06.

We overrule Father's first issue.

2. Sufficiency

In his second issue, Father challenges the legal and factual sufficiency of the evidence to support the court's findings that the Department made reasonable efforts to return Patty to Father before commencement of trial on the merits and that, despite those efforts, a continuing danger remained in the home that prevented Patty's return to Father. See Tex. Fam. Code § 161.001(f), (g).

The phrase “reasonable efforts to return the child to the parent” is not new to section 161.001 with the 2023 enactment of subsections (f) and (g); it appears in section 161.001(b)(1)(N), known as the “constructive abandonment” statutory termination ground. See Tex. Fam. Code § 161.001(b)(1)(N). We presume that the Texas Legislature enacted subsections (f) and (g) with knowledge of the prevailing judicial understanding of “reasonable efforts to return the child to parent” under section 161.001(b)(1)(N). See JCB, Inc. v. Horsburgh & Scott Co., 597 S.W.3d 481, 486 (Tex. 2019) (construing statutory text under the presumption that the legislature enacted the statute “with full knowledge of the existing condition of the law,” including common law, “and with reference to it”). As such, when addressing whether the Department proved by clear and convincing evidence that it made reasonable efforts to return Patty to Father, we may look to relevant judicial determinations regarding the Department's reunification efforts under section 161.001(b)(1)(N).

The trial court found that the Department's reasonable efforts in this case included: creating a family plan, making a referral for services, assigning a courtesy worker to Father, and asking the parents for relative/fictive kin placement options. The Department's implementation of a family service plan is generally considered a reasonable effort to return the child to the parent. See, e.g., In re L.E.R., 650 S.W.3d 771, 786 (Tex. App.—Houston [14th Dist.] 2022, no pet.). Father argues that the Department did not afford him the opportunity to complete his service plan, pointing to Guedry's acknowledgement that Father's assigned TDCJ unit did not provide any services while he was in custody. Based on Guedry's testimony, and the absence of any evidence to the contrary, we agree that the Department's creation of a family service plan during Father's incarceration did not, by itself, constitute a reasonable effort to return Patty when Father's compliance with any part of the plan was not, and is not, reasonably achievable until his release.⁵

However, evidence of a service plan is not the exclusive means of establishing the Department's reasonable efforts to return the child. See In re Y.T.A.-D., No. 14-24-00161-CV, 2024 WL 3715392, at *7 (Tex. App.—Houston [14th Dist.] Aug. 8, 2024, no pet.) (mem. op.); In re L.C.M., 645 S.W.3d 914, 921 (Tex. App.—El Paso 2022, no pet.). Ultimately, “the issue is whether the Department made reasonable efforts, not ideal efforts.” In re J.A., No. 04-20-00242-CV, 2020 WL 5027663, at *2 (Tex. App.—San Antonio Aug. 26, 2020, no pet.) (mem. op.); In re G.K.G.A., No. 01-16-00996-CV, 2017 WL 2376534, at *5 (Tex. App.—Houston [1st Dist.] June 1, 2017, pet. denied) (mem. op.).

In constructive abandonment cases involving incarcerated parents, “the Department's undertaking of reasonable reunification efforts ‘does not necessarily mean the child must be physically delivered to the incarcerated parent.’ ” In re L.C.M., 645 S.W.3d at 921 (quoting In re J.G.S., 550 S.W.3d 698, 704 (Tex. App.—El Paso 2018, no pet.)). Instead, “efforts to place the child with relatives may constitute legally and factually sufficient evidence to support the trial court's finding that the Department made reasonable efforts.” Id.; see also In re D.S.A., 113 S.W.3d 567, 573 (Tex. App.—Amarillo 2003, no pet.) (an incarcerated parent may leave the child with a spouse or relative, and the child could be returned from the Department's custody).

For example, the Eighth Court of Appeals held that placing the child with the incarcerated father's relative “show[ed] that the Department has made substantial efforts” to return the child. In re J.G.S., 550 S.W.3d at 705. It applied the same logic in another case when an incarcerated father asserted on appeal that the absence of a service plan proved the Department did not make reasonable reunification efforts. In re L.C.M., 645 S.W.3d at 921–22. The Department attempted to engage the father during his incarceration and after his release and “explore[d] the possibility of placing [the child] with Father's other relatives.” Id. at 921. Consequently, the court found that “the trial court could have found that the Department made reasonable efforts to return the child to Father under the circumstances.” Id. at 922.

Here, Father suggested only one placement option, his aunt, whom Guedry contacted and asked for “all the house members’ information.” However, Father's aunt never responded to the Department's inquiry. Although unsuccessful, this is evidence that the Department made a reasonable effort to reunify Patty with Father or Father's family. See In re K.J.T.M., No. 06-09-00104-CV, 2010 WL 1664027, at *3 (Tex. App.—Texarkana Apr. 27, 2010, no pet.) (mem. op.) (the Department's efforts to place the child with a relative while the parent is incarcerated, “although futile,” supported reasonable efforts finding under subsection (N)).

Additionally, sufficient evidence exists to support the finding that, despite these efforts, a continuing danger remained preventing Patty's return to Father. Father's incarceration rendered him physically unable to care for the child, and thus there was no paternal home in which the child could reside safely during Father's absence. Father suggested only one placement option, his aunt, who was unavailable or unwilling. Moreover, given the evidence that Grandmother's house was an endangering environment with accessible drugs and the threat of sexual assault, the trial court reasonably could have concluded that there existed a substantial risk of continuing danger to Patty if returned home. See, e.g., Tex. Fam. Code § 101.009 (“ ‘Danger to the physical health or safety of a child’ includes exposure of the child to loss or injury that jeopardizes the physical health or safety of the child without regard to whether there has been an actual prior injury to the child.”).

In sum, we conclude that legally and factually sufficient evidence supports the trial court's finding in the Amended Order that the Department made reasonable efforts to return Patty to Father, but a continuing danger prevented the child's return. See id. § 161.001(f), (g).

We overrule Father's second issue.

B. Predicate Ground

Family Code section 161.001(b) permits involuntary termination of parental rights if clear and convincing evidence shows that a parent engaged in one or more of the twenty-one enumerated grounds and that termination is in the child's best interest. Tex. Fam. Code § 161.001(b)(1)(A)–(U), (b)(2). To affirm a termination order on appeal, a court need only uphold one termination ground—in addition to upholding a challenged best-interest finding—even if the trial court based the termination on more than one ground. In re N.G., 577 S.W.3d at 232; In re L.M., 572 S.W.3d 823, 832 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

Section 161.001(b)(1)(E) allows termination if clear and convincing evidence shows that a parent “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.” Tex. Fam. Code § 161.001(b)(1)(E). Section 161.001(b)(1)(M) further allows termination if a parent previously had his parental rights terminated under subsections (D) or (E). Id. § 161.001(b)(1)(M). Thus, a prior termination under subsection (E) provides a basis to terminate rights to additional children. See In re N.G., 577 S.W.3d at 234–35. Because these grounds carry significant collateral consequences, we are required to review the sufficiency of the evidence under subsection (E) when raised on appeal. Id. at 235.

1. Endangerment

In his third issue, Father challenges the legal and factual sufficiency of the evidence to support the trial court's finding that his parental rights should be terminated under subsection (E). The trial court determined that Father knowingly placed Patty with persons who engaged in conduct that endangered her physical or emotional well-being or, as relevant here, that Father engaged in conduct that endangered her physical or emotional well-being. Tex. Fam. Code § 161.001(b)(1)(E).

The supreme court has previously interpreted “endanger” in subsection (E). In re J.W., 645 S.W.3d 726, 748 (Tex. 2022). In Texas Department of Human Services v. Boyd, the supreme court stated:

While we agree that “endanger” means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury. Rather, “endanger” means to expose to loss or injury; to jeopardize.

727 S.W.2d 531, 533 (Tex. 1987) (internal citations omitted).

A finding of endangerment under subsection (E) requires evidence that the endangerment resulted from the parent's conduct, including acts, omissions, or failures to act. In re S.R., 452 S.W.3d 351, 360–61 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). As a general rule, “[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 M.T.R., 579 S.W.3d 548, 568 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).

Termination of the parent-child relationship under subsection (E) must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. Id. A court properly may consider actions and inactions occurring both before and after a child's birth to establish a course of conduct. In re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).

Additionally, in cases where termination under subsection (E) rests on evidence of a parent's incarceration and criminal conduct, our review is guided by the supreme court's analysis in Boyd. 727 S.W.2d at 534; see also In re L.D.T.P., No. 14-22-00815-CV, 2023 WL 3115756, at *5 (Tex. App.—Houston [14th Dist.] Apr. 27, 2023, no pet.) (mem. op.).

In Boyd, the father was arrested and jailed for burglary two days before the child's birth. 727 S.W.2d at 533. He and the child's mother never married, and paternity was not adjudicated until the trial court terminated his parental rights. Id. at 532–33. Boyd saw the child for the first time eight months after he was paroled from his burglary conviction. Id. He lived with the child and the child's mother for approximately five months before he was again arrested and jailed for burglary. Id. Boyd was sentenced to five years. Id. During the five-month period that Boyd was out on parole, “[t]he evidence [was] vague, at best, as to the nature and amount of support he provided the child.” Id. The supreme court held that “imprisonment is certainly a factor to be considered by the trial court on the issue of endangerment” and further clarified that when the evidence, including evidence of imprisonment, demonstrates a course of conduct that endangers the child's physical or emotional well-being, a finding of endangerment is supported on that basis. Id. at 533–34.

Both this court and the supreme court continue to follow Boyd. In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (“[I]ncarceration does support an endangerment finding ‘if the evidence, including the imprisonment, shows a course of conduct which has the effect of endangering the physical or emotional well-being of the child.’ ”) (quoting Boyd, 727 S.W.2d at 534); In re L.D.T.P., 2023 WL 3115756, at *5; In re M.M., No. 14-18-00881-CV, 2019 WL 1387964, at *8 (Tex. App.—Houston [14th Dist.] Mar. 28, 2019, no pet.) (“The court's holding in Boyd continues unabated.”).

Here, Father argues only that the evidence is insufficient to support termination under subsection (E) because neither he nor Mother engaged in endangering conduct at the time of removal. He suggests that Patty was not endangered because Carol, her maternal aunt, had already agreed to care for Patty before the Department opened its case. But as stated above, we may properly consider a parent's actions or inactions both before and after the child's birth to establish a course of conduct. In re A.L.H., 515 S.W.3d at 91. And the conduct need not be directed at the child, nor must the child actually suffer injury. Boyd, 727 S.W.2d at 533.

The evidence shows that Father engaged in a course of conduct that endangered Patty's physical and emotional well-being. The record demonstrates that for nearly seven years, Father engaged in a pattern of criminal conduct that included incarceration, commission of a new law violation while under supervision, violations of his “parole,” an unsatisfactory termination of his community supervision, and a denial of release under parole. As a juvenile, he was adjudicated for two counts of aggravated robbery, demonstrating a propensity for aggravated violence and serious criminal behavior prior to Patty's birth. See Tex. Penal Code § 29.03(b) (identifying aggravated robbery as a first-degree felony); Tex. Code Crim. Proc. art. 17.03(b-3)(2)(P) (defining aggravated robbery as an offense involving violence).

Although this occurred five years before Patty was born, his pattern of criminal conduct continued well after she was born. In fact, Father remains incarcerated with an expected release date of October 1, 2026. See In re N.L.S., 715 S.W.3d 760, 765 (Tex. 2025) (“Although half of Father's crimes occurred before N.L.S.’s birth ․ Father's endangering course of conduct continued after N.L.S. was born, with Father continuing to engage in criminal behavior resulting in incarceration.”). We are cognizant that Father was not adjudicated to be Patty's parent until January 16, 2025. However, “a father's conduct prior to the establishment of paternity may be considered as evidence of an endangering course of conduct.” In re A.R.M., No. 14-13-01039-CV, 2014 WL 1390285, at *7 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) (citing In re R. W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied)). “While knowledge of paternity may be a prerequisite to a showing of knowing placement of a child in an endangering environment under subsection D, it is not a prerequisite to a showing of a course of conduct which endangers a child under subsection E.” Id.

When Patty was two months old and Father was on “parole” for the two aggravated felony offenses, Father was re-arrested for a new felony offense. On April 21, 2023, Father was arrested for the felony offense of evading arrest in a motor vehicle and received three years’ deferred adjudication community supervision in November 2023. See Tex. Penal Code § 38.04 (identifying evading arrest as a third-degree felony when the actor uses a vehicle).

The record contains no details regarding Father's conduct while on community supervision, but the result is undisputed: Father's community supervision was unsatisfactorily terminated, and he was ultimately incarcerated in TDCJ for violating his “parole” from his juvenile adjudication, leaving him absent from Patty's life from the outset of this case until his projected release on October 1, 2026, when she will be approximately three-and-a-half years old. See In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“Although incarceration alone will not support termination, evidence of criminal conduct, convictions, and imprisonment may support a finding of endangerment under subsection (E).”).

The dissent notes that “the evidence that was presented shows conclusively that Father has not engaged in criminal conduct after learning he was Patty's parent.” Albeit true, he has presumably not done so because he remains incarcerated. Even so, for nearly seven years, Father has demonstrated a voluntary, deliberate, and conscious course of conduct that endangered Patty's physical and emotional well-being because it subjected her to a life of uncertainty and instability. See In re M.T.R., 579 S.W.3d at 568; 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.”).

Additionally, Father provided little to no care, support, or protection for Patty. During Father's absence, Grandmother reported to law enforcement that Patty “was being sexually abused by [Grandmother's] boyfriend,” which triggered the Department's investigation and subsequent removal. Although Father asserted that he would have intervened had he known, the record contains no evidence explaining how he could have done so given his lack of meaningful involvement in her life. See In re J.F.-G., 627 S.W.3d at 315.

His repeated criminal conduct, prolonged absence, and failure to provide support created instability, deprived Patty of a safe and protective parental presence, and exposed her to a real risk of harm. In re M.T.R., 579 S.W.3d at 568. While Mother testified that she has attempted to keep in contact with Patty since her arrest and desired to maintain a relationship with her, the record does not reflect that Father made similar efforts. See In re J.F.-G., 627 S.W.3d at 317–18 (noting that a parent's minimal efforts to contact child can support an endangerment finding).

As factfinder, the trial court was not limited to considering the endangering conduct only at the time of Patty's removal. The court could consider, among other things, the circumstances of Patty's removal, Father's criminal history, the nature of his offenses, the duration of his incarceration, and his absence from Patty's life. See id. at 312–13. These actions and inactions constitute legally and factually sufficient evidence to support the trial court's endangerment finding under subsection (E). See Tex. Fam. Code § 161.001(b)(1)(E).

We therefore need not consider Father's sufficiency challenge to the evidence supporting the trial court's finding that his parental rights should be terminated under former subsection (Q). See In re N.G., 577 S.W.3d at 232; In re L.M., 572 S.W.3d at 832.

We overrule Father's third and fourth issues.

C. Best Interest

In his fifth issue, Father challenges the legal and factual sufficiency of the evidence to support the trial court's best-interest finding.

The best interest inquiry is child-centered and focuses on the child's well-being, safety, and development. In re A.C., 560 S.W.3d at 631. The trier of fact may consider several factors to determine the child's best interest, including: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons seeking custody; (5) the programs available to assist those persons seeking custody in promoting the best interest of the child; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate; and (9) any excuse for the parent's acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (the “Holley factors”); In re E.R.W., 528 S.W.3d at 266; see also Tex. Fam. Code § 263.307(b) (listing factors to consider in evaluating parent's willingness and ability to provide the child with a safe environment).

Courts apply a strong presumption that the best interest of the child is served by keeping the child with the child's natural parent, and it is the Department's burden to rebut that presumption. In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement in a safe environment also is presumed to be in the child's best interest. Tex. Fam. Code § 263.307(a). A finding in support of “best interest” does not require proof of any unique set of factors, nor does it limit proof to any specific factors. See Holley, 544 S.W.2d at 371–72. Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d at 28. And a factfinder may measure a parent's future conduct by his past conduct in determining 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).

We review the non-exclusive Holley factors considering the evidence at trial. Here, no one presented testimony regarding two-year-old Patty's desires. When a child is too young to express her desires, the factfinder may consider that the child has bonded with the foster family, is well cared for by them, and has spent minimal time with a parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Carol testified that Patty is bonded with Carol, Carol's husband, and Carol's daughter, the latter with whom Patty shares a bedroom.

Patty does not have any developmental delays or special needs, and Guedry testified that Carol was meeting Patty's educational, medical, and emotional needs. Guedry further testified that Patty “is very well cared for and loved” in Carol's home. She believed it was in Patty's best interest that parental rights be terminated because Patty has been with Carol most of her life. There, she is safe, stable, and has a predicable routine.

At the time of trial, Patty was not in daycare, but Carol testified that her husband did “a really good job” with teaching Patty her colors, numbers, and letters. She further testified that she and her husband recently moved to a larger home and desired to adopt Patty. See Tex. Fam. Code § 263.307(a) (providing that prompt and permanent placement of a child in a safe environment is presumed to be in the child's best interest). Carol also stated that she is willing to facilitate a future relationship between Father and Patty as well as coordinate sibling visits between Patty and K.C.

Father, on the other hand, cannot supply a safe, stable environment for Patty. Father has been incarcerated from the outset of this case and is not projected to be released until October 1, 2026 when Patty is three-and-a-half years old. See L.B. v. Tex. Dep't of Family & Protective Servs., No. 14-21-00552-CV, 2022 WL 906020, at *3 (Tex. App.—Houston [14th Dist.] Mar. 29, 2022, no pet.) (mem. op.) (“A child's need for performance through the establishment of a ‘stable, permanent home’ has also been recognized as the paramount consideration in the best interest determination.”). He, however, did testify that if given the chance, he would provide a safe and stable home for Patty, either on his own or with his mother.

Although Father characterizes himself as a “good father,” the record contains no evidence demonstrating his parenting abilities. There is no indication that he has ever seen, communicated with, or even met Patty, which is unsurprising given his incarcerated status. Even further, the record is silent as to whether he was aware of his paternity prior to this termination proceeding. Father was also unable to complete any Department-mandated services while incarcerated, but he completed work certifications to improve his employment chances post-release.

Father's relevant acts and omissions have already been discussed above: his repeated criminal conduct, prolonged absence, and failure to provide support. But there is no evidence of any other acts or omissions by Father that indicated that he would knowingly place Patty with persons who would place her in emotional or physical danger.

Applying the applicable Holley factors to the evidence, the factfinder reasonably could have determined that Father was incarcerated and thus currently unable to care for Patty or provide a stable environment; for nearly seven years, Father has demonstrated a voluntary, deliberate, and conscious course of conduct that endangered Patty's physical and emotional well-being; that Patty has spent most of her short life with Carol; that Carol has provided a safe, stable, and loving home for Patty; that Patty has bonded with Carol and her family; that Carol wishes to adopt Patty; and that quickly achieving permanency through adoption served Patty's best interests. We conclude that legally and factually sufficient evidence supports the trial court's finding that termination of Father's parental rights is in Patty's best interest. See L.B., 2022 WL 906020, at *3; see also Tex. Fam. Code § 161.001(b)(2).

We overrule Father's fifth issue.

Conclusion

We affirm the judgment of the trial court terminating Father's parental rights.

DISSENTING OPINION

Supported by a thorough opinion, the court today affirms the termination of Father's parental rights. However, I cannot agree fully with the court's reasoning and disposition. I would hold that the trial court's best-interest finding is not supported by factually sufficient evidence. I would not reach Father's challenge to the predicate finding under section 161.001(b)(1)(E), and I would affirm the trial court's predicate finding under section 161.001(b)(1)(Q). Thus, I would affirm in part and reverse and remand in part for a new trial limited to the best-interest issue.

In his fifth issue, Father challenges the legal and factual sufficiency of the evidence to support the trial court's best-interest finding. The best-interest inquiry is child-centered and focuses on the child's well-being, safety, and development. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). The trier of fact may consider several factors to determine the child's best interest, including: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons seeking custody; (5) the programs available to assist those persons seeking custody in promoting the best interest of the child; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate; and (9) any excuse for the parent's acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (the “Holley factors”); In re E.R.W., 528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Tex. Fam. Code § 263.307(b) (listing factors to consider in evaluating parent's willingness and ability to provide the child with a safe environment).

Courts apply a strong presumption that the best interest of the child is served by keeping the child with the child's natural parent, and it is the Department’s burden to rebut that presumption. In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement in a safe environment also is presumed to be in the child's best interest. Tex. Fam. Code § 263.307(a). A finding in support of “best interest” does not require proof of any unique set of factors, nor does it limit proof to any specific factors. See Holley, 544 S.W.2d at 371-72. Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). And a factfinder may measure a parent's future conduct by his past conduct in determining 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).

I evaluate evidence of the Holley factors focusing on factual-sufficiency standards, which demand that we weigh disputed evidence contrary to the finding against all the evidence that supports the finding. In re A.C., 560 S.W.3d at 631. Evidence is factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true. Id. In making this determination, the reviewing court must undertake “an exacting review of the entire record with a healthy regard for the constitutional interests at stake.” See In re C.H., 89 S.W.3d at 26.

First, no one presented testimony regarding two-year-old Patty's desires. However, the Department presented evidence that Patty is bonded with Carol, Carol's husband, and Carol's daughter, the latter with whom Patty shares a bedroom. Such evidence is properly considered given Patty's youth. See In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). There is no evidence, however, that Father has had any opportunity to bond with Patty. And Evans-Stinson did not contact Father during the Department's investigation.

Patty does not have any developmental delays or special needs, and Guedry testified that Carol was meeting the child's educational, medical, and emotional needs. At the time of trial, Patty was not in daycare. Guedry testified that Patty “is very well cared for and loved” in Carol's home, but no witness testified about plans for Patty's future. The Department did not present any evidence tending to show that Father was incapable of meeting Patty's physical and emotional needs once he is released from prison, and Father suggested that he was willing to do so. Father testified that the Department never asked him to submit to drug or psychological testing while in prison, but he would have agreed to both had he been asked. The Department presented no evidence of drug use by Father.

There was also no evidence that Father presented a physical or emotional danger to Patty. Father was not the cause of Patty's removal from Mother, and he was not even aware of the circumstances prompting removal. He did not learn that he was Patty's father until well after the events causing her removal occurred.¹ There was no evidence that Father refused an opportunity to help Patty, and he testified that, had he been aware of Patty's situation with her maternal grandmother, he would have done something to help remove her.

There was no evidence of Father's parental abilities. As mentioned, Father was not adjudicated Patty's father until the Department had already removed her from Grandmother's care. There is no evidence that Father was aware of his paternity prior to this termination proceeding. Father was unable to complete any Department-mandated services while incarcerated, but he completed work certifications to improve his employment chances post-release. I find it important that he made the effort to appear at the trial and testify without controversion that he desired to be a good father to Patty, that he intended to get a job based on the training he received in TDCJ, and that if his rights were not terminated he would provide a safe and stable home for the child, either on his own or with his mother. There was no evidence of any acts or omissions by Father that indicated his relationship with Patty was improper or that Father had placed or would place Patty in emotional or physical danger.² Guedry acknowledged that Father suggested an alternative placement option, which did not materialize through no fault of Father's.

The State argues—and the court agrees—that termination is in Patty's best interest because of Father's criminal history. In 2018, five years before Patty was born and when Father was a juvenile, he was found to have engaged in delinquent conduct, namely two felony counts of aggravated robbery. Yet the Department offered no details about the robbery or the aggravating element. In 2023, when Patty was two months old, Father was arrested for intentionally evading arrest; but again, no details were admitted at trial. For that offense, Father received three years’ deferred adjudication community supervision. Father was incarcerated in TDCJ during the pendency of the Department's present case, and his projected release date is October 1, 2026, at which time Patty will be three-and-a-half years old. I note the Department presented no evidence that Father engaged in criminal conduct after learning that he was Patty's father.

The reporter's record is a scant 52-pages and consists of the Department's case against both Mother and Father. I have considered the evidence that the factfinder could have credited in support of its finding that termination of Father's parental rights was in Patty's best interest. I recognize that the factfinder reasonably could have determined that Father was incarcerated and thus is currently unable to care for Patty, that Patty has spent most of her short life with Carol, that Carol has provided a safe, stable, and loving home for Patty, that Patty has bonded with Carol and her family, and that Carol wishes to adopt Patty. Thus, I agree with the court that legally sufficient evidence supports the trial court's finding that termination would be in Patty's best interest.

In a factual sufficiency review, however, we must weigh all of the disputed and undisputed evidence and balance the Holley factors accordingly. That evidence includes Father's and Evans-Stinson's undisputed testimony that Father was unaware of the circumstances at Grandmother's house; Father's expressed desire to be a good father and provide a safe and stable home for Patty; Father's efforts, while incarcerated, to improve his future employment prospects; and the Department's inability to arrange for Father to complete his service plan while in his TDCJ unit. The details of Father's pre-fatherhood criminal history were not developed at trial, and even the evidence that was presented shows conclusively that Father has not engaged in criminal conduct after learning he was Patty's parent.

According to the majority, Father “cannot supply a safe, stable environment for Patty.” (Maj. Op. at ––––). This statement is based on Father's criminal history. Unlike the majority, I am hesitant to conclude that he has yet been afforded a reasonable opportunity to do so.

Considering the record as a whole and given the presumption that a child should remain with her parent and the high evidentiary standard the statute requires the Department to meet to rebut that presumption, I conclude that the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the trial court could not have formed a firm belief or conviction that termination of Father's parental rights was in Patty's best interest. “ ‘Undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child, but the presence of scant evidence relevant to each Holley factor will not support such a finding.’ ” In re G.X.H., No. 14-19-00053-CV, 2022 WL 481773, at *9 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (mem. op.) (quoting Yonko v. Dep't of Fam. & Protective Servs., 196 S.W.3d 236, 243 (Tex. App.—Houston [1st Dist.] 2006, no pet.)); see also In re C.H., 89 S.W.3d at 27 (concluding evidence was legally sufficient to support trial court's best-interest determination but factually insufficient).

Because I believe there is factually insufficient evidence to support the trial court's best-interest finding, I would sustain in part Father's fifth issue. See In re J.G.S., 574 S.W.3d 101, 128 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (legally sufficient but not factually sufficient evidence to support best-interest finding); see also In re S.R.L., 243 S.W.3d 232, 236 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (“Given this evidence of changes in appellant's life and the judge's finding that appellant has never ‘done anything bad’ to these children, we conclude the evidence is factually insufficient for the trial court to have formed a firm conviction or belief that terminating appellant's parental rights is in the children's best interest.”). I would reverse the trial court's final order regarding termination of Father's parental rights and remand for further consistent proceedings. See In re J.G.S., 574 S.W.3d at 129. Because the court does not do so, I respectfully dissent.

FOOTNOTES

1.   The judgment is based on the 2023 version of Family Code section 161.001(b).

2.   K.C. was “dismissed from the suit and placed with the father,” who is not Patty's Father.

3.   See Act of May 29, 2023, 88th Leg., R.S., ch. 675, §§ 1, 8, 2023 Tex. Sess. Law. Serv. 1646–47.

4.   Father filed his appellant's brief before the trial court issued the Amended Order. In the original termination order, the trial court's relevant findings were these:6. Reasonable Efforts to Return the Child6.1. The Court finds by clear and convincing evidence that the Department made reasonable efforts to return the child to the parents. However, despite those reasonable efforts to return the child home to the parents, a continuing danger remains in the home that prevents return.6.2. The Court specifically finds that those reasonable efforts include the following: The Department created a family service plan that is narrowly tailored to address any specific issues identified; The Department made a referral for services.6.3 The Department made the following additional reasonable efforts to return the child home to the parents: Visited [Mother] in jail; Assigned a courtesy worker to [Father]; Asked parents for relative/fictive kin placement options.

5.   The Department argues that prison rules prevented its ability to provide any services to Father. Regardless, the fact remains that the Department did not implement a service plan with which Father was capable of complying before his release, and thus we cannot consider it as a reasonable reunification effort.

1.   The record does not reveal when Father became aware of Patty. He was not adjudicated to be Patty's parent until January 16, 2025.

2.   I acknowledge Father's incarceration. But I would not reach Father's evidentiary challenge to the predicate finding under section 161.001(b)(1)(E), and I express no opinion on it.

Maritza Antú, Justice

(Jewell, J., dissenting).