In the Interest of H.J.E.Z, B.A.E.Z, J.J.M.E, J.J.E, D.D.E, Children v. Department of Family and Protective Services

Affirmed and Memorandum Opinion filed April 11, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00946-CV

IN THE INTEREST OF H.J.E.Z., B.A.E.Z., J.J.M.E., J.J.E., AND D.D.E.,
CHILDREN

On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2022-00066J

MEMORANDUM OPINION

In this appeal from a judgment terminating the parent-child relationship, the
Mother argues that the evidence is insufficient to support the trial court’s various
predicate findings, as well as the trial court’s other finding that termination is in the
best interest of the children. Because we conclude that the evidence is sufficient to
support at least one predicate finding and the best-interest finding, we overrule the
Mother’s arguments and affirm the trial court’s judgment.
BACKGROUND

This case involves five children. Law enforcement was dispatched to their
apartment to conduct a welfare check, and the children were discovered to have been
left alone for four days without food or adult supervision.

At the time of the welfare check, all of the children were under the age of ten,
and the youngest was slightly more than three months old. All of their clothes were
dirty. The three youngest children had soiled diapers. There was urine and feces on
the floor of the apartment.

The children were removed from the apartment and assigned to various
placements. The First Child and the Second Child were placed together in the same
foster home. The Third Child was placed into a different foster home. The Fourth
Child and the Fifth Child were placed together in a third foster home.

Criminal charges were brought against the Mother, who spent seven months
in jail before posting bond. Upon her release, she frequently missed her scheduled
visitations with the children.

The Department moved to terminate the Mother’s parental rights on several
predicate grounds, and the case proceeded to a nonjury trial. At the end of the first
day of trial, the child advocate recommended that the Mother’s parental rights should
be terminated as to the three younger children, but not as to the two older children.
The advocate explained that the two older children were the most bonded with the
Mother, and that they needed therapy before the Department proceeded with a
termination of the Mother’s parental rights.

The trial court agreed with the advocate’s recommendation. The trial court
then recessed the hearing so that the two older children could receive their
therapeutic services.

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When the trial reconvened more than two months later, the advocate indicated
that the two older children had received the recommended therapy. The advocate
then opined that termination of the Mother’s parental rights was in their best interest.

The trial court agreed with that opinion and signed a final decree finding that
the Department had proven predicate grounds (D), (E), and (O), and that termination
of the Mother’s parental rights was in the best interest of all five children. See Tex.
Fam. Code § 161.001(b)(1)(D) (endangerment by environment); Tex. Fam. Code
§ 161.001(b)(1)(E) (endangerment by conduct); Tex. Fam. Code § 161.001(b)(1)(O)
(failure to comply with family service plan).

The Mother now appeals from that judgment.

THE PREDICATE FINDING

To terminate the parent-child relationship, the trial court must make two
findings. See In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). First, the trial court must
find that a predicate ground for termination has been satisfied, which typically
requires proof by clear and convincing evidence that a parent has either committed
a prohibited act or has failed to perform a required act. See Tex. Fam. Code
§ 161.001(b)(1). If the trial court finds such a predicate ground for termination, the
trial court must then find by clear and convincing evidence that termination is in the
child’s best interest. See Tex. Fam. Code § 161.001(b)(2).

The trial court here found three predicate grounds for termination: grounds
(D), (E), and (O). And on appeal, the Mother argues that the evidence is legally and
factually insufficient to support each of these predicate findings.

We must affirm the trial court’s judgment if, in addition to upholding a
challenged best-interest finding, the evidence is sufficient to support just a single
predicate ground for termination. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)

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(“Only one predicate finding under section 161.001(1) is necessary to support a
judgment of termination when there is also a finding that a termination is in the
child’s best interest.”). But when there are appellate challenges to predicate grounds
(D) and (E), as there are here, we must consider whether the evidence is sufficient
to support either of those findings first. See In re N.G., 577 S.W.3d 230, 235 (Tex.
2019) (per curiam) (explaining that due process requires a consideration of predicate
grounds (D) and (E) because those grounds can have significant collateral
consequences for parents in future termination proceedings involving different
children).

We begin with the Mother’s appellate challenge to the trial court’s finding
under predicate ground (D).

To support a finding under predicate ground (D), the Department had the
burden of showing that the Mother “knowingly placed or knowingly allowed the
child to remain in conditions or surroundings which endanger the physical or
emotional well-being of the child.” See Tex. Fam. Code § 161.001(b)(1)(D). The
Department was also required to carry this burden by clear and convincing evidence,
which is greater than the simple preponderance standard that applies more
commonly in civil cases. See Tex. Fam. Code § 161.001(b)(2). Under the standard
for clear and convincing evidence, the measure or degree of proof must produce in
the mind of the trier of fact a firm belief or conviction that the allegation sought to
be established is true. See Tex. Fam. Code § 101.007. This heightened burden of
proof results in a “correspondingly searching standard of appellate review.” See In
re A.C., 560 S.W.3d 624, 630 (Tex. 2018).

When reviewing the legal sufficiency of the evidence in a parental termination
case, we consider all of the evidence in the light most favorable to the finding to
determine whether a reasonable factfinder could have formed a firm belief or

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conviction that its finding was true. See 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 have done so, and we disregard all evidence that a
reasonable factfinder could have disbelieved. Id. However, this standard does not
mean that we disregard all evidence that does not support the finding. Id. When
deciding whether the finding is supported by clear and convincing evidence, we must
also consider undisputed evidence contrary to the finding. Id.

In a factual-sufficiency review, we give due consideration to both the disputed
evidence contrary to the finding as well as all of the evidence favoring the finding.
Id. The evidence is factually insufficient 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. Id.

The Department’s evidence of endangerment consisted of the following
testimony from the caseworker:

Q. And can you refresh our memory and just summarize briefly the
nature of the removal?
A. Yes. So, law enforcement was contacted to come out to do a
welfare check. When they arrived, they noticed that they could
hear some children in the home. They were able to get the leasing
office to open up the door where they found all five of the
children in the home unaccompanied by an adult.
It was reported that the children had been left at the home with
no food for four days or adult supervision for four days. The
younger three children’s diapers were soiled. The children’s
clothes were dirty. There was no food or formula in the home for
the children. And there was an odor of urine and feces, as well as
urine and feces on the floor of the apartment.

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The very same information was conveyed in a removal affidavit, which,
though not published or discussed at trial, was also admitted into evidence.

The Mother begins her sufficiency challenge by focusing on the removal
affidavit. She acknowledges that the statements in the affidavit, “if proven,” are
sufficient to satisfy the Department’s burden under predicate ground (D), but she
argues that the Department did not actually prove those statements because the
affiant never testified. The Mother does not cite to any authority for her implied rule
that the affiant must testify before her affidavit may be considered. Nor are we aware
of any such rule. Because the affidavit was admitted for all purposes, the trial court
was free to consider it when making the predicate finding that the Mother knowingly
allowed her children to remain in conditions that endangered their physical or
emotional well-being.

The Mother argues next that the caseworker’s testimony was legally
insufficient because the caseworker did not have actual knowledge of the living
conditions at the time of the children’s removal, nor were there any photographs,
police reports, or other evidence corroborating the affiant’s statements. Even if true,
these points are not dispositive, because the affidavit alone is legally sufficient to
support the trial court’s finding. See In re S.N.R.-T., No. 14-23-00358-CV, 2023 WL
7498202, at *4 (Tex. App.—Houston [14th Dist.] Nov. 14, 2023, no pet.) (mem. op.)
(concluding that the evidence was legally and factually sufficient to support a finding
under predicate ground (D) where a removal affidavit described how the mother had
left her children without adult supervision for several hours, including one child who
was medically fragile).

The Mother also argues that all testimony regarding the living conditions at
the time of the removal was conclusory. The Mother does not draw our attention to
any particular line of testimony in her brief, which was her burden. See Tex. R. App.

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P. 38.1(i). We note that the affiant described the conditions as “uninhabitable,” but
that description was not conclusory because the affiant provided the factual basis for
her conclusion—namely, the affiant mentioned that there was no food in the
apartment and that the floors where the children had been sleeping were soiled with
urine and feces.

The Mother does not cite to any disputed evidence or perform any sort of
comparative analysis for a factual-sufficiency challenge to predicate ground (D). See
Lion Copolymer Holdings, LLC v. Lion Polymers, LLC, 614 S.W.3d 729, 733 (Tex.
2020) (per curiam) (indicating that a factual-sufficiency challenge should identify
countervailing evidence). And our independent review of the record does not reveal
any countervailing evidence that the Mother did not leave her children alone for four
days without food and in uninhabitable conditions. Absent such disputed evidence,
we conclude that the evidence is legally and factually sufficient to support the trial
court’s finding under predicate ground (D).

This conclusion likewise means that we need not consider the Mother’s
remaining arguments that the evidence is legally and factually insufficient to support
the trial court’s other findings under predicate grounds (E) and (O). See Tex. R. App.
P. 47.1; In re P.W., 579 S.W.3d 713, 728 (Tex. App.—Houston [14th Dist.] 2019,
no pet.).

THE BEST-INTEREST FINDING

We now consider whether the evidence is legally and factually sufficient to
support the trial court’s other finding that termination of the Mother’s parental rights
was in the best interest of the children.

No specific set of facts is required to establish that termination is in the best
interests of a child, but there are several nonexclusive factors that may guide the

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factfinder’s best-interest determination. See In re L.M., 572 S.W.3d 823, 837 (Tex.
App.—Houston [14th Dist.] 2019, no pet.). These factors include (1) the desires of
the child; (2) the child’s emotional and physical needs; (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 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) any 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); 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 a parent’s unwillingness and ability to provide the child with a safe
environment).

The Desires of the Children. None of the five children testified during the
trial, but other witnesses gave accounts about the desires of the two older children.
By the end of the trial, the caseworker testified that the two older children would be
okay remaining with their current placement, though their preference was to return
to the Mother. That testimony largely aligned with the testimony of the advocate,
though she mentioned that the Second Child was “adamant” about returning to the
Mother.

The Needs of the Children. The two older children were both diagnosed with
anxiety and behavioral disorders. They are each on psychotropic medications.

The Second Child has a learning disability in reading and math. He also has
dyslexia. He is receiving Section 504 accommodations in the form of a teacher’s
aide.

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The Third Child was diagnosed with a form of autism. When he first arrived
in foster care at age three, he was nonverbal and suffering from global developmental
delays. After more than a year of therapy, he has progressed to using two-word
phrases. The caseworker testified that the Mother still does not understand the Third
Child’s special problems or needs.

The Fourth Child and the Fifth Child also had speech delays when they arrived
in foster care. They each received various forms of therapy, from which they were
successfully discharged. They are both meeting all of their targets.

Dangers to the Children. The most significant danger concerned the stability
of the household. At the beginning of the trial, the Mother claimed that she worked
a cleaning job, but she had not provided proof of employment. Also, she had not
provided proof of stable housing. There was some indication that the Mother was
staying with her own mother, but that placement was not considered stable because
the Mother’s mother was not willing to care for any of the children.

By the end of the trial (after the recess), the child advocate opined that the
Mother had lacked motivation to establish her own housing, and that the children
would not be safe if they returned to her. The Mother controverted that opinion with
testimony that she had just moved into her own apartment within the past week.

The Mother’s Parental Abilities. The Mother completed a parenting class,
but she did not complete her counseling. She was unsuccessfully discharged from
therapy, and her therapist actually opined that she was not taking the necessary steps
to get her children back.

Since the five children in this case were removed from her care, the Mother
has given birth to another child, but that child is under the care of the Mother’s sister.

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Programs. There was no mention of any programs available to the Mother to
specifically assist her in caring for the children and promoting their best interests.

Plans. There was conflicting information about the plans for the two older
children. On the first day of trial, the caseworker testified that the foster mother did
not want to adopt the First Child and the Second Child. The Department hoped to
submit a legal risk broadcast, in search of an adoptive home for the children. The
Department also planned to begin the process of getting green cards for the children.
By the end of trial, a little more than two months later, the attorney ad litem
represented to the court that the foster parent was “very bonded” with the children—
as they were to her too—and that “she would in the future like to adopt them.”

There was no conflicting information about the younger children. The
testimony established that they were already in adoptive placements.

Stability of the Home. At the end of the trial, the Mother claimed that she had
just moved into her own apartment. The caseworker testified that the Mother only
had one kid’s bed in this apartment. The Mother controverted that testimony,
testifying that she had three beds total.

The Mother did not establish that she had a support system of friends or family
who could watch the children when she was away. Nor did the Mother provide any
explanation for what would happen to the children in the event that she were found
guilty of her criminal charges and imprisoned.

There was not much testimony about the stability of the foster placements,
other than that the fosters for the First Child and the Second Child have provided
structure and routine to their daily lives.

The Mother’s Acts and Omissions. There was testimony that the Mother had
a weekly visitation plan, but that she “no-showed” several times, both before the trial

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began and during its two-month long recess. The Mother was told that her absences
would sadden and “trigger” the children, but she still continued to no-show. The
Mother explained that the reasons for her no-shows were either a lack of
transportation or illness.

Even when the Mother would appear for visitation, the caseworker testified
that the Mother would mostly pay attention to the younger children, and not have
much interaction with the older children. However, the caseworker testified that the
Mother would give the older children candy, which the caseworker criticized
because the older children had serious dental problems.

Altogether, the evidence provided the trial court with a substantial basis for
doubting whether the Mother could provide the children with a safe and stable living
environment. Viewing the evidence in the light most favorable to the judgment for
our legal-sufficiency analysis, and viewing all of the evidence equally for our
factual-sufficiency analysis, we conclude that a reasonable factfinder could have
formed a firm belief or conviction that termination of the Mother’s parental rights
was in the best interest of all five children.

CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher
Chief Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.

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