In the Interest of K.N., K.L., K.L., and K.L., Children v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00146-CV

IN THE INTEREST OF K.N., K.L., K.L., AND K.L., CHILDREN

On Appeal from the 223rd District Court
Gray County, Texas
Trial Court No. 40,562, Honorable Phil N. Vanderpool, Presiding

September 19, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.

Mother, CN, and Father, RL, appeal the trial court’s orders entered in this suit

affecting the parent-child relationship. The matter involves four children. Each had the

same mother, CN. One child, KN, had an “unknown” father. 1 The other three (KL1, KL2,

and KL3 or the KL siblings) were fathered by RL. Upon trial, a jury found statutory

grounds existed to terminate the parental relationship between him and the KL siblings.

The best interests of those siblings also favored termination, according to the jury. 2 The

1 The parental rights of the unknown father were terminated, as well. But, he did not appeal.

2 The finding also encompassed the best interests of KN, though she was not the biological
daughter of RL.
same is true regarding Mother and all four children, at least with regard to the existence

of statutory grounds supporting termination. Despite two of those grounds implicating

Mother’s endangerment of each child, the jury decided that the best interests of the KL

siblings did not favor termination, even though those of KN did. Confusing? Yes, but that

is the framework within which we consider the separate issues of Mother and Father and,

ultimately, affirm.

Mother’s Complaint about the Sufficiency of the Evidence

Mother posits that the Department failed to present sufficient evidence supporting

the two prongs implicit in terminating parental rights. Allegedly, the Department failed to

prove a requisite statutory ground and that best interests of KN favored termination. We

overrule the issue.

The standards for reviewing are well-established and described most recently in

In re J.F.-G., 627 S.W.3d 304 (Tex. 2021). We apply them here.

Statutory Grounds

The Texas Family Code permits termination if the parent knowingly placed or

knowingly allowed a child to remain in conditions or surroundings which endanger the

child’s physical or emotional well-being. TEX. FAM. CODE ANN. § 161.001(b)(1)(D). It also

provides for termination if the parent had engaged in conduct or knowingly placed the

child with persons who engaged in conduct which endangers the child’s physical or

emotional well-being. See id. § 161.001(b)(1)(E). To endanger is to expose to loss or

injury, to jeopardize. See In re J.W., 645 S.W.3d 726, 748 (Tex. 2022). These were two

of several grounds found by the jury.

2
Here, there is evidence that Mother’s discipline of KN crossed the line into abuse

in terms of lengthy wall stands or walls sits, by most accounts lasting for hours at a time,

beatings with a belt, and kneeling on grains of dry rice for extended periods. Punishment

of KN also included forms of food deprivation, that is, depriving KN of food given to other

family members. School officials became concerned with the way KN would eat and her

fear of her mother discovering that she ate breakfast at school. Other acts by Mother

directed at KN included dragging the child by her hair, injuring her shoulder, and making

her sleep in the dog’s bed. Abusive or violent conduct by a parent can support a

conclusion that a child’s physical or emotional well-being was endangered. In re

McElhaney, No. 07-04-0577-CV, 2005 Tex. App. LEXIS 236, at *1–2 (Tex. App.—

Amarillo Jan. 12, 2005, no pet.) (mem. op.).

When the Department got involved with the family, Mother refused to work any

services or cooperate in any meaningful way. Instead, she and Father moved the children

to Louisiana to escape what they considered interference by the Department. There, the

children were kept out of school to prevent their detection by the Department. See T.D.

v. Tex. Dep’t of Family & Protective Servs., 683 S.W.3d 901, 914 (Tex. App.—Austin

2024, no pet.) (observing that failing to educate children is endangering conduct).

Evidence further illustrates that the children were in need of medical or dental care but

were denied it. See In re J.H., No. 07-21-00059-CV, 2021 Tex. App. LEXIS 5209, at *9

n.4 (Tex. App.—Amarillo June 30, 2021, pet. denied) (mem. op.) (“[M]edical neglect

endangers the children.”).

We add that Mother also twice confronted the school’s staff member at the grocery

store resulting in criminal charges being brought against her. Criminal conduct is relevant

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to the endangerment analysis under subsections (D) and (E) as it subjects children to a

life of uncertainty. See In re B.J.F., No. 01-23-00522-CV, 2024 Tex. App. LEXIS 192, at

*78 (Tex. App.—Houston [1st Dist.] Jan. 11, 2024, pet. denied) (mem. op.).

We conclude that, based on the record before us, the evidence was legally and

factually sufficient to enable a factfinder to form a firm conviction and belief that Mother

endangered the physical well-being of KN. Because one predicate ground for termination

is sufficient to support the decision, we need not address Mother’s issues challenging the

sufficiency of the evidence to support the trial court’s findings under subsections (N) and

(O). See In re A.M.A., No. 07-16-00224-CV, 2016 Tex. App. LEXIS 10565, at *9–10 (Tex.

App.—Amarillo Sept. 27, 2016, pet. denied) (mem. op.) (citing In re A.V., 113 S.W.3d

355, 362 (Tex. 2003)).

Best Interest of the Child

In addition to finding that a predicate ground supports termination, the trial court

must also find by clear and convincing evidence that termination of the parent-child

relationship favors the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2).

When assessing the evidence regarding the trial court’s best-interest determination, we

consider the factors itemized in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). 3 Although

those factors are not exhaustive, they indicate a number of considerations which either

have been or would appear to be pertinent. Holley, 544 S.W.2d at 372. Additionally,

3 The Holley factors are as follows: 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 a proper one; and 9) any excuse
for the acts or omissions of the parent. Holley, 544 S.W.2d at 371–72.
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evidence establishing the statutory grounds for termination may also be considered in the

assessment of best interests. See In re E.P., No. 07-23-00449-CV, 2024 Tex. App. LEXIS

3671, at *5–6 (Tex. App.—Amarillo May 29, 2024, pet. denied) (mem. op.). Comparing

the evidence described earlier with Holley and other relevant indicia leads us to conclude

that the jury’s best interest finding had the support of both legally and factually sufficient

evidence.

KN clearly expressed her fear of having to return to her mother’s care. So too were

the children denied medical or dental care. The record indicates that the children’s current

social, educational, medical, and emotional needs are being attended to in their current

home. Furthermore, the abuse and danger posed by Mother to KN has been eliminated

through the placement while the younger children are insulated from witnessing it.

Though there is evidence that Mother undertook counseling outside the Department’s

family services plan, her failure to complete other services also tips against her in the

balance. See In re D.C., 128 S.W.3d 707, 717 (Tex. App.—Fort Worth 2004, no pet.)

(concluding that a parent’s refusal or inability to provide a stable home, remain gainfully

employed, or comply with a court-ordered service plan supports a finding that termination

is in the child’s best interest). And, again, both Mother and Father ignored the children’s

educational needs by refusing to enroll them in school after moving to Louisiana. Mother’s

acts and omissions that served to endanger KN’s physical and emotional well-being have

been detailed above and need not be reiterated. They too support the decision that

termination favors KN’s interests.

The maternal grandparents have provided a stable and loving environment for the

children. Family friends, with whom the children have an established relationship, also

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hope to care of the children as a unit to relieve the grandparents of the demands of raising

four children. So too is the extended family committed to the children staying together.

In sum, the foregoing is legally and factually sufficient evidence to support both the

finding that termination of the parent-child relationship between Mother and KN is in the

latter’s best interests and a statutory ground warranting termination. So, the purported

error complained of by Mother is non-existent.

Mother’s Issue on Conservatorship

As said earlier, the jury found that it was not in the best interests of the KL siblings

to terminate Mother’s parental rights. Because they remained intact, who to serve as

their managing conservator remained an open question. Ultimately, the trial court

designated the Department to so serve. Mother argues that the selection constituted an

example of abused discretion. We overrule the issue.

Generally, to appoint one other than a parent as managing conservator, a

preponderance of the evidence must illustrate that retaining the parent in that status

would not be in the child’s best interests because it would significantly impair the child’s

physical health or emotional development. See TEX. FAM. CODE ANN. §§ 105.005,

153.131(a), 263.404; In re J.A.J., 243 S.W.3d 611, 614 (Tex. 2007). Evidence must

support the logical inference that some specific, identifiable behavior or conduct of the

parent, demonstrated by specific acts or omissions, will probably cause serious harm.

R.H. v. D.A., No. 03-16-00442-CV, 2017 Tex. App. LEXIS 1743, at *10–11 (Tex. App.—

Austin Mar. 2, 2017, pet. dism’d) (mem. op.). If such is found and the trial court appoints

another, the determination is reviewed for abused discretion. See In re J.A.J., 243 S.W.3d

at 616. Within that setting, the legal insufficiency and factual insufficiency of the evidence

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underlying the decision are merely relevant factors in the assessment, not independent

grounds of error. See In re A.M., 604 S.W.3d 192, 197 (Tex. App.—Amarillo 2020, pet.

denied).

Acts or omissions that may significantly impair a child’s physical health or

emotional development include, but are not limited to, physical abuse, severe neglect,

abandonment, drug or alcohol abuse, parental irresponsibility, and bad judgment. See In

re M.L., No. 02-15-00258-CV, 2016 Tex. App. LEXIS 7189, at *11 (Tex. App.—Fort Worth

July 7, 2016, no pet.) (mem. op.); see also In re J.Y., 528 S.W.3d 679, 687 (Tex. App.—

Texarkana 2017, no pet.) (observing evidence of the mother’s “volatile emotions and

erratic behavior” as relevant to the conservatorship determination); In re S.T., 508 S.W.3d

482, 492 (Tex. App.—Fort Worth 2015, no pet.) (noting that a “parent’s treatment of other

children may be relevant” when determining conservatorship). Courts also examine other

considerations such as parental irresponsibility, a history of mental disorders and suicidal

thoughts, frequent moves, bad judgment, child abandonment, and an unstable,

disorganized, and chaotic lifestyle that has put and will continue to put the child at risk.

In re S.T., 508 S.W.3d at 492.

Here, the aforementioned abuse of KN and endangerment to which all the children

were exposed, the medical or dental neglect suffered by the children, the educational

neglect they experienced, Mother’s refusal to participate in services to improve her

parenting skills, the parental decision to move the family to Louisiana to evade the

Department’s supervision over the children, Mother’s anger issues exemplified by the

physical punishment inflicted on KN, and her screaming threats publicly in a Walmart

against someone who reported an instance of abuse to the Department constitute

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evidence from which the jury (and court) could determine that appointing Mother as

managing conservator would not serve the best interests of the children since it would

significantly impair the children’s physical health or emotional development. 4 See In re

E.M.T., No. 04-18-00805-CV, 2019 Tex. App. LEXIS 2358, at *7 (Tex. App.—San Antonio

Mar. 27, 2019, no pet.) (mem. op.) (noting evidence of the parent’s anger and use of

physical discipline as factors indicating the appointment of the parent as managing

conservator would significantly impair the child’s physical health and emotional

development).

Father’s Sufficiency Contentions

Father also challenges the sufficiency of the evidence to support termination of his

parental rights to the KL siblings under subsections (D) and (E). We overrule the issue.

Statutory Grounds

We reiterate the evidence noted above and supporting the termination of Mother’s

parental rights to KN. Though Father was not directly involved in the abuse of KN, he

was present when it occurred and knew of it. In fact, he acknowledged that Mother’s

behavior was aberrant and expressed that he had considered leaving with all the children,

but his plans “never panned out.” That is evidence of his knowingly placing the children

with a person who engaged in conduct which endangered the children’s physical or

emotional well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E). He had a

responsibility to the children to provide them a safe environment, free from abusive

4 Those threats resulted in criminal charges being filed against Mother. Additionally, Mother’s own
family expressed concerns regarding Mother’s anger issues, explaining that it was difficult to maintain a
relationship with her due to her anger and unpredictability. Whenever the family confronted Mother about
her mistreatment of KN, she would scream and leave. Father also expressed some apprehension about
Mother’s anger, having stated to Mother’s family that “at least it was [KN] and not him getting in trouble.”
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behavior. See In re C.N.L., No. 13-23-00591-CV, 2024 Tex. App. LEXIS 2860, at *11

(Tex. App.—Corpus Christi Apr. 25, 2024, no pet.) (mem. op.) (a child’s physical or

emotional well-being is endangered when a parent fails to remove them from a home in

which abusive or violent conduct is occurring). And, in that responsibility, he failed.

Additionally, the Department curtailed his visitations with the children due to a

positive drug test for amphetamine. Though claiming it to be the result of ingesting

prescribed medication, he refused to sign a medical release that would permit the

Department to confirm his excuse. And, evidence of his arrest in Louisiana for aggravated

flight from an officer, reckless operation, and possession of methamphetamine should

not be ignored. See In re McElhaney, 2005 Tex. App. LEXIS 236, at *1–2; see also In re

B.J.F., 2024 Tex. App. LEXIS 192, at *78 (“A parent’s criminal conduct, convictions, and

imprisonment also endangers [sic] a child’s physical and emotional well-being because it

subjects the child to a life of uncertainty and instability.”). That he was found with the

illegal contraband of methamphetamine when arrested tends to rebut his suggestion that

the earlier, positive drug test for amphetamine was the result of ingesting prescribed

medication.

We further note his 1) failure to participate in any services offered by the

Department, 2) involvement in thwarting the Department’s effort to care for the children

by moving them to Louisiana, and 3) involvement in restricting the children from attending

school to further evade the Department. So too did he neglect the children’s medical and

dental needs.

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Together, the foregoing constituted evidence permitting a rational factfinder to form

a firm conviction and belief that termination was warranted under subsections (D) and

(E). Father’s contention otherwise is simply wrong.

Best Interests of the Children

We reiterate the Holley factors mentioned earlier. Comparing them to the evidence

of record, we too conclude that the jury had ample basis to clearly and convincingly find

that termination of the parental relationship served the best interests of the KL siblings.

That evidence included 1) Father’s endangerment of the children’s physical and

emotional well-being, 2) his failure to meet their medical, dental, and educational needs,

3) his continued criminal behavior, 4) his seeming effort to defend or excuse the actions

of Mother, 5) his participation in the removal of the children from the Department’s

jurisdiction, 6) his refusal to perform services, and 7) the beneficial current placement of

the children.

Admission of Police Report

Father also complains about the admission of a Louisiana police report involving

his pursuit and eventual arrest in that state. Yet, it was not the sole evidence of that

escapade. The officer who authored the report testified, without objection, about the

attempted traffic stop of Father, the ensuing high-speed pursuit, his apprehension and

arrest, and the discovery of approximately four grams of methamphetamine in Father’s

pocket. Purported error concerning the admission of evidence is harmless when other

like evidence is admitted without objection. See In re L.T., No. 07-09-0280-CV, 2010 Tex.

App. LEXIS 2250, at *10 (Tex. App.—Amarillo Mar. 30, 2010, no pet.) (mem. op.). That

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having occurred here, we overrule Father’s complaint about admitting the police report

itself.

Father as Managing Conservator

Father seems to contend through his fifth issue that the trial court erred in failing

to appoint him managing conservator. To the extent he does, we overrule the issue based

upon 1) the very evidence supporting the termination of his parental rights and 2) the

evidence supporting the appointment in lieu of Mother. Our incorporating that evidence

here leads us to conclude that the trial court did not abuse its discretion in appointing the

Department managing conservator of the children. See In re C.N.S., No. 14-14-00301-

CV, 2014 Tex. App. LEXIS 8612, at *33 (Tex. App.—Houston [14th Dist.] Aug. 7, 2014,

no pet.) (mem. op.) (holding that the very evidence supporting termination insulated the

decision to appoint the Department as managing conservator from an allegation of

abused discretion).

Mother’s and Father’s Common Issue: Exclusion of Administrative Review
Report

Finally, both Father and Mother argue that the trial court erred in excluding from

evidence a report about an administrative review and investigative findings. The report

allegedly illustrated that an earlier finding by the Department about an instance of

emotional abuse between Mother and KN had been reversed. The trial court excluded

the evidence, conceding that it may bear some relevance but concluding its probative

value was substantially outweighed by a danger of unfair prejudice and confusing the

issues. See TEX. R. EVID. 403. Other reasons were also revealed by the trial court for

excluding the report. They included hearsay and the lack of evidence qualifying the

investigator issuing the report as an expert. In reviewing the trial court’s decision, we

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again apply the standard of abused discretion. In re D.D., No. 02-17-00368-CV, 2018

Tex. App. LEXIS 2440, at *34 (Tex. App.—Fort Worth Apr. 5, 2018, no pet.) (mem. op.)

(per curiam) (so requiring). And, upon doing so, we overrule the issue.

The administrative report in question indicated that an investigator ruled out

evidence of emotional abuse. Apparently, “emotional abuse” for the Department’s

administrative purposes, consisted of establishing that the parent “caused a mental or

emotional injury to her daughter that resulted in an observable and material impairment

in her growth.” Explicit within that test is proof of actual injury, that is, “observable” “mental

or emotional injury” resulting in material impairment. Yet, statute permits termination for

“endanger[ing] the physical or emotional well-being of the child.” TEX. FAM. CODE ANN.

§ 161.001(b)(1)(D), (E). Though endangering requires more than a threat of

metaphysical injury or the possible ill effects of a questionable family environment, the

child need not suffer actual injury to satisfy the parameters of either (D) or (E). In re J.J.,

No. 07-13-00117-CV, 2013 Tex. App. LEXIS 11194, at *10–11 (Tex. App.—Amarillo Aug.

29, 2013, no pet.) (mem. op.). So, the test utilized when determining whether to terminate

a parental relationship under the Family Code significantly differs from that used by the

Department in conducting its administrative affairs. The differing tests (i.e., the need for

trauma in the administrative setting versus the lack of need in the judicial setting) therefore

minimizes the relevance of the report in a termination trial. Utilizing it here to bar

termination under either (D) or (E) is like proving a piece of fruit is not an apple by showing

it is not an orange. One could reasonably view such a comparison as likely to interject

confusion; this is especially so when, like here, the administrative finding was based not

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on the lack of questionable conduct but rather the lack of injury from that conduct. 5 Given

these circumstances, we cannot say that a trial court’s exclusion of the report under Rule

403 because its nominal relevance was substantially outweighed by the risk of confusing

the issues would be unreasonable or an abuse of discretion.

Before closing, though, we note another matter. Interestingly, the same report

continued with: “[i]t should be noted that by no means does changing the disposition to

Rule Out negate the fact that risk was identified by the investigator and services were

recommended for this family.” (Emphasis added). Logically, the existence of a “risk”

furthers the notion of endangerment. That is, to “endanger” means to expose to loss or

injury or to jeopardize. Id. at *10-11. Exposing one to a risk of emotional harm nudges

the conduct closer towards the line of endangerment contemplated under (D) and (E).

So, admitting the report could well have fostered the Department’s position, which, in turn,

means excluding it from evidence minimized any harm to Mother or Father.

Having overruled the issues presented by both Mother and Father, we affirm the

trial court’s orders.

Brian Quinn
Chief Justice

5 The reported stated: “There is insufficient evidence that [KN] experienced significant or serious

negative effects on her intellectual or psychological development or functioning.”
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