NUMBER 13-24-00136-CV

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG

 

IN THE INTEREST OF J.F. AND J.F., CHILDREN

 

ON APPEAL FROM THE 430TH DISTRICT COURT

OF HIDALGO COUNTY, TEXAS

 

MEMORANDUM OPINION 

Before Justices Benavides, Longoria, and Silva

Memorandum Opinion by Justice Longoria

Appellant J.L.F. (Father) appeals a judgment terminating his parental rights to his 

children, twins J.F. and J.F. (Jack and Joe).1 In four issues, which we reorganize as one, 

Father argues that the evidence was legally and factually insufficient to support the 

statutory termination grounds and that termination was not in the childen’s best interest.2

1 To protect the identity of minor children in an appeal from an order terminating parental rights, 

parents, children, and other family members are referred to by their initials or an alias. See TEX. FAM. CODE 

ANN. § 109.002(d).

2 The parental rights of A.R., mother of the children, were also terminated. However, she is not a 
2

We affirm.

I. BACKGROUND

A. Pretrial Proceedings

Father and A.R. (Mother) have two children together, Jack and Joe. According to 

the affidavit in support of emergency removal, on February 20, 2022, appellee, Texas 

Department of Family and Protective Services (the Department), received a report

alleging neglectful supervision of the children after they tested positive for cocaine at birth. 

The report also indicated that Mother admitted to using cocaine during her pregnancy. 

Vivian Garza, a Child Protective Services (CPS) specialist, and Gerardo Cavazos, a CPS 

investigator, met with Mother and the children’s maternal grandmother on April 7, 2022. 

Mother indicated that she was the victim of domestic violence by Father, who was 

incarcerated at the time. Mother, who was thirty-nine years old at the time, admitted that 

she had been using cocaine since she was eighteen and “would use twice a day every 

day and has been doing it ever since.” Mother also stated that she last used cocaine when 

the children were born. Garza discussed a safety plan with Mother and maternal 

grandmother and advised that Mother could not be alone with the children at any point 

due to her testing positive for cocaine. Garza also explained to Mother that the 

Department recommended that she participate in services to “address the dynamics of 

domestic violence, parenting skills, protective measures, and substance abuse sessions.” 

Mother agreed to participate in individual counseling and implement changes to ensure 

child safety.

party to this appeal.
3

According to the affidavit, the Department sought removal of the children due to 

Mother’s continuing use of cocaine and having the children alone under her care. It also 

noted that Mother’s family members were unable to help Mother and the children due to 

Mother’s pattern of leaving the children with them while she used drugs. Mother was also 

unable to identify suitable caregivers or potential caregivers to monitor her while she was 

with the children. The affidavit also noted that Mother referred to Father as the “alleged 

father” of Jack and Joe and that she had indicated she was the victim of domestic violence 

by Father. The affidavit included an extensive list of Father’s criminal history, including 

both arrests and convictions.

The Department sought removal and temporary managing conservatorship of Jack

and Joe alleging “a continuing danger to the physical health or safety of the children,” 

which was granted by an associate judge on May 24, 2022.3 See TEX. FAM. CODE ANN.

§ 201.005 (authorizing a judge of a court to refer a suit under Title 5 of the family code, 

including § 262.001, to an associate judge). Subsequently, the associate judge issued 

temporary orders regarding visitation and a family plan of service for Mother.

On July 26, 2022, the associate judge signed an order requiring Father to submit 

to genetic testing to determine his parentage to Jack and Joe. On October 28, 2022, DNA 

test results were submitted to the associate judge. On December 20, 2022, the associate 

judge signed its adjudication of parentage and found that Father was the biological father 

of Jack and Joe. On February 13, 2023, the associate judge signed its order imposing 

services for Father.

3 The Department’s original petition seeking removal of the children pursuant to TEX. FAM. CODE 

ANN. § 262.001 was filed on the same day.
4

B. Trial Record

On May 3, 2023, the associate judge presided over a bench trial for the 

Department’s petition for termination of Father’s parental rights.4

Garza testified that Jack and Joe were born on February 20, 2022, and that she 

worked with Mother after the children were removed. Mother informed Garza that Father 

was the biological father of the children, but Mother did not offer Father as a placement 

for the children because he was incarcerated. Garza sent Father a letter at the jail 

informing him about the case being opened and the children having been removed. 

Father sent a reply letter, which was forwarded to Cassandra Ovalle, a conservatorship 

caseworker with the Department. Ovalle testified that she was assigned to Mother’s case 

from May 23, 2022, through June 27, 2022. Mother had explained to Ovalle that she and 

Father had incidents of domestic violence or physical altercations in their relationship. 

Ovalle later located Father and found that he was incarcerated in Huntsville, Texas. 

According to Garza, Father was not part of the initial report when CPS got involved and 

that he was, at that time, a “non-offending parent.”

Erica Perez, a caseworker for the Department, testified that she took over for 

Ovalle in June 2022 and that the Department’s goal changed from family reunification to 

unrelated adoption on September 7, 2022. Perez stated this goal changed, as it related 

to Father, because “[he was] in state jail and he was not expected to be released until 

[October] 2024, and he had just been denied parole.” According to Perez, Mother 

4 The bench trial also concerned the Department’s petition for termination of Mother’s parental 

rights, which is not at issue in this appeal. We limit our recitation of the testimony elicited at trial to that 

which is necessary to resolve the issues presented on appeal. See TEX. R. APP. P. 47.1 (“The court of 

appeals must hand down a written opinion that is as brief as practicable but that addresses every issue 

raised and necessary to final disposition of the appeal.”).
5

indicated that she was with Father while she was pregnant and that there was domestic 

violence between them, which resulted in his incarceration. Perez stated that the 

Department considered placing the children with T.F., Father’s sister. A home study was 

attempted but T.F. withdrew herself from consideration. The Department conducted a 

home study of Mother’s sister, P.C., which was favorable, and the children were placed 

with P.C. on October 6, 2022. At the time of trial, the children had been residing with P.C. 

for seven months.

Perez also testified that she sent letters to Father in prison that addressed his 

family plan and services. Though he had not been established as the biological father of 

the children at the time Perez worked with Father, Perez explained that the Department 

recommended “a psychological, [a] psychosocial, individual counseling, substance abuse 

assessment, necessary treatment” as well as random drug testing and paternity testing. 

Perez noted that she referred Father to Windham Independent School District (WISD) 

because they offered services to inmates in the Texas jail system that included 

“substance abuse, changing lifestyles, making better choices, not reoffending, [and] 

parenting.” However, Father was classified as a “G5” inmate,5 and therefore did not meet 

the criteria to participate in services offered by WISD. Perez noted that Father’s inability 

to participate in services with WISD would be reconsidered if his behavior improved and 

he “went down to a G4.” Perez stated that, although Father was not an offending parent 

at the time of the children’s removal, he was not available to take in the children due to 

5 Father testified that a “G5” was the level designated for the most violent offenders within the 

prison, and because he was designated at that level, he was confined to his cell most of the day and 

permitted to be out of his cell for two hours per day.
6

his incarceration. Perez noted that Father has a lengthy criminal history and that Mother 

had concerns over Father’s access to the children because he was violent and she did 

not feel they would be safe with him.

Christina Vaughn testified that she was assigned as the Department’s courtesy 

worker for Father and that she visited him monthly from October 2022 to January 2023 

while he was incarcerated at the Estelle Unit in Huntsville. Vaughn stated that no services 

ordered by the trial court were available to Father because he was in the “high-security 

wing [within the prison]” due to his involvement in an altercation with another inmate. 

According to Vaughn, the Estelle Unit did not make available services for inmates in the 

high-security wing.

Vaughn also testified regarding statements Father made during Vaughn’s last visit 

in January 2023. Vaughn stated that Father was unhappy when she informed him that 

the Department’s concurrent goals were that the caregivers of the children be appointed 

as permanent managing conservators and related adoption. According to Vaughn, Father 

asked her “what if he had went over there to the caregiver[’]s home and shot her.” Vaughn 

replied that she would not have that conversation, and Father then stated, “[I]t’s not 

something that I would do but that is something that CPS makes parents think about.” 

Father also told Vaughn not to visit him if the Department chose to terminate his rights 

and requested a caseworker to mail him a letter informing him of the outcome of the case. 

Vaughn stopped visiting Father by his own request after that visit.

Ariel Espitia, a conservatorship caseworker with the Department, was assigned to 

Father’s case in mid-October 2022 and took over for Perez. Espitia kept in contact with 

Father by sending him letters monthly and having Vaughn visit him in jail monthly. Espitia 
7

testified that she informed Father by letter in March 2023 regarding the court-ordered 

services he was required to engage in. This letter was admitted into evidence. In the letter, 

Espitia stated that, “The Department referred you for services with [WISD] back in August 

2022. [WISD] is not able to offer you services due to your current custody level of a G5. 

In order for you to be eligible your level must be lowered to a G4.” According to Espitia, 

Father was ordered to complete “a psychological [assessment], a substance abuse 

assessment with necessary treatment, parenting [classes], individual counseling, anger 

management, and [Battery Intervention Prevention Program].”6 Though Father received 

a certificate for completing the Voyagers program while incarcerated, Espitia noted that 

Voyagers did not directly address any of the services ordered by the court and was not 

particularly tailored to the children or the relationship with the children’s caregivers.

Espitia further testified that Father’s conviction for “assault on a family member [by] 

imped[ing] airway and circulation” was the reason he was incarcerated in the Estelle Unit. 

Mother was the victim of that offense, and she had been six months pregnant with the 

children at the time. The judgment of this offense was admitted into evidence and 

indicates that Father pleaded guilty to the offense on January 19, 2022, that the offense 

constituted a third-degree felony, and that Father was sentenced to three years’ 

imprisonment. Espitia also stated that Father had previously committed four other 

assaults, including two “bodily injury charges.” According to Espitia, Father was classified 

as a level G5 inmate at the Estelle Unit in September 2022 because he had assaulted a 

corrections officer, and he could not lower his level because he had subsequent fights 

6 The associate judge imposed services on Father via written order signed on February 13, 2023.
8

while classified as a G5.

Espitia testified that Father sent her letters, seven in total, from October 2022 to 

April 2023. According to Espitia, though Father inquired about his children and asked for 

pictures in these letters, he never communicated any plans for his children’s future, how 

he planned to raise them, where he planned to reside upon release from jail, or where he 

would work. However, Father expressed that he wanted to see his children after he was 

released from prison and did not want to relinquish his parental rights. Regarding the 

possibility of Father visiting his children, Espitia stated that P.C. expressed concern about 

the well-being of herself, her husband, and the children because she was aware of 

Father’s violent history and “heard from [Mother] what has happened.” Espitia noted that 

the trial court had granted a non-disclosure order which prohibited the disclosure of the 

address and contact information of P.C. and her husband to Father. Espitia also stated 

that T.F. had withdrawn from the home study because she was afraid of what Father 

would do if he got out of jail and she had the children in her care. Espitia recommended 

to P.C. and her husband that they adopt the children. Espitia opined that it was in the best 

interest of the children to have no contact with Father because of his extensive criminal 

history and the reason for his incarceration.

Father testified that he was last in a relationship with Mother on September 13, 

2021. Father stated that Mother lived with him in McAllen at that time, that she was 

unemployed, and that he provided her food, clothing, and money. Father stated that they 

lived at his brother’s trailer, and that twelve people lived there. Father also stated that he 

had been unemployed but mowed lawns and washed cars. According to Father, Mother 

was ten weeks pregnant when he learned about the pregnancy. Regarding his assault of 
9

Mother, Father stated that the assault occurred at a friend’s house and Mother had just 

bonded him out from an evading arrest charge just prior to the incident. Father stated that 

Mother went to the restroom, took out a “little baggy” from her bra, and told him it was 

cocaine. Father then told Mother it was not cocaine “because it was brown [in] color,” that 

Mother did not want to give the substance to him, that he took the substance from her, 

and that the substance was “China white heroin.” Father then stated he “blanked out” and 

strangled Mother because she was “feeding [his] kids heroin and [he] didn’t want them to 

become heroin babies.” Father also admitted that Mother had bruising on her neck and 

that she had been four months pregnant at the time. The following exchange occurred:

[The Department]: So, at th[e] time[ of the assault], you didn’t care 

that she was carrying your children, right?

[Father]: Yes, I did. That’s why—why she has those 

marks because I took away the heroin in her 

hand. That’s why we had all the scratches on 

our faces. She broke her phone on my face.

. . . .

[The Department]: Would you be surprised to learn that law

enforcement didn’t collect any heroin evidence?

[Father]: I had threw it away.

[The Department]: Okay, and you didn’t make those allegations

against her at that time—or her having 

possession of heroin?

[Father]: No, ma’am.

[The Department]: And you were the only one arrested that night,

correct?

[Father]: Yes, ma’am. I turned myself in, matter of fact.

[The Department]: Do you know that . . . if you hadn’t stopped 
10

choking her you could have lost your children 

that day?

[Father]: Ma’am, I didn’t choke her out like that. I put

pressure but I didn’t choke her to the point 

where she would pass out, none of that. I put 

pressure to hold her back.

Father testified that he knew that Mother had a drug problem while they were 

dating and that the two used drugs together. Father stated that he did not use the drugs 

that Mother used, that her drug of choice was crack cocaine, and that he smoked 

marijuana during her pregnancy. Father also stated that he did not provide Mother with 

drugs, but she purchased drugs with the money he gave her, and that this “was before 

[he] knew she was pregnant.” Father admitted to never trying to get Mother treatment for 

her drug abuse because it would “just cause problems” and that she would hit him every 

time he tried to stop her. According to Father, Mother would resort to prostitution if he did 

not give her money for drugs.

Father stated that he did not qualify for services through WISD because he had 

been classified as a G5, the level for the most violent of offenders, at the beginning of 

serving his sentence. Father also stated that he had not had any phone calls or video 

chats with the children because he was a G5. According to Father, he had to abstain from 

altercations during his incarceration in order for his status to be lowered, that he had to 

“[serve] a year before anything happens to even get my G2 back or G4,” that he had been 

incarcerated for a year and a half, and that his discharge date was October 2024. Father 

admitted to being in and out of prison for most of the last eleven years and that he would 

typically end up back in prison after being out a year or two. Father stated that a lot of his 

previous crimes were crimes of violence and that he had “quite a few” prior felony 
11

convictions. Father admitted to having convictions for assault of a public servant in 2015, 

aggravated assault with a deadly weapon in 2012, possession of a controlled substance 

in a school zone in 2010, possession of marijuana “5 pounds, maximum,” and robbery. 

Father also admitted to violating protective orders established for C.G., the mother of his 

daughter, and being arrested for assault causing bodily injury to a family member in 2015. 

Father also admitted to committing thefts when out of jail.

Father denied that he stated he would shoot the children’s caregivers if he learned 

of their residence or indicated a plan to take the children from their caregivers when he 

was released from prison. Father admitted that he stated that “CPS makes 

people . . . think . . . to hurt somebody for taking away their rights, taking away their kids,” 

and that “it makes [him] angry.”

Father also testified that after he got into a fight at “Garza West,” he voluntarily 

participated in Voyagers, a six week “class where you learn character, forgiveness, 

parenting, drug addiction.” He stated he did the course “[t]o learn about [him]self, to try to 

become a better person, to try to just stay out of prison.” Father also stated that he knew 

that he needed to do something better with his life because he wanted to be with his 

children. Father’s Voyagers certificate of completion was admitted into evidence.

Father stated that after he was released from prison, he planned to live in Corpus 

Christi with his grandparents and work in restaurants or construction. Father also stated 

he plans for the children to live with him when he gets a house or apartment. Father 

agreed that the children should stay with P.C. in the interim but asked that his parental 

rights not be terminated. Father stated that he would not be violent with the children and 

that he has patience.
12

The children’s guardian ad litem recommended that it was in the children’s best 

interest for Father’s parental rights to be terminated and that the children be put up for 

adoption, preferably to people that did not know Father so as to avoid problems for the 

adoptive parents.7 When making this determination, the guardian ad litem stated that 

Father “has a very violent nature about him,” that he did not seem to be improving, and 

that he was still having problems with violence in prison.

At the conclusion of the evidence, the Department moved for termination of 

Father’s parental rights. The associate judge granted the Department’s request and 

terminated Father’s parental rights.

C. Termination Orders

On May 16, 2023, the associate judge signed his written order terminating Father’s 

parental rights to Jack and Joe. Father filed a timely request for a de novo hearing before 

the referring trial court. See TEX. FAM. CODE ANN. § 201.015. Upon conducting its de novo 

hearing on January 23, 2024, the trial court informed the parties that he had reviewed all 

the hearings conducted by the associate judge, that it agreed with the associate judge’s 

decision, and that it had found by clear and convincing evidence that Father’s parental 

rights should be terminated.

8

On January 25, 2024, the trial court signed its written “Order of Termination After 

De Novo [Hearing] as to [Father],” which terminated the parent-child relationship between 

Father and the children.9 The trial court found three grounds for termination, including 

7 The children’s guardian ad litem opined that Father was going to find out where P.C. lived when 

he gets out of prison and cause problems.

8 The parties did not present further witnesses.

9 The order also terminated Mother’s parental rights and appointed the Department as permanent 
13

that Father:

[(1)] engaged in conduct or knowingly placed the child[ren] with persons 

who engaged in conduct which endangers the physical or emotional wellbeing of the child[ren], pursuant to § 161.001(b)(1)(E), Texas Family Code;

[(2)] constructively abandoned the child[ren] who ha[d] been in the 

permanent or temporary managing conservatorship of the 

Department . . . for not less than six months and . . . the Department has 

made reasonable efforts to return the child[ren] to [Father,] [Father] has not 

regularly visited or maintained significant contact with the child[ren,] and

[Father] has demonstrated an inability to provide the child[ren] with a safe 

environment, pursuant to § 161.001(b)(1)(N), Texas Family Code; [and]

[(3)] knowingly engaged in criminal conduct that has resulted in [Father’s]

conviction of an offense and confinement or imprisonment and inability to 

care for the child[ren] for not less than two years from the date of filing the

petition,” pursuant to § 161.001(b)(1)(Q), Texas Family Code.

The trial court further found that termination of Father’s parental rights was in the 

children’s best interest. See id. § 161.001(b)(2). This appeal followed.

II. STATUTORY GROUNDS & BEST INTEREST

In his sole issue, Father contends that the evidence was legally and factually 

insufficient to support each termination ground and the trial court’s best-interest finding.

A. Standard of Review & Applicable Law

“Because the natural right between a parent and his child is one of constitutional 

dimensions, Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985), termination proceedings 

must be strictly scrutinized.” In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). Due process 

requires that parental termination be supported by clear and convincing evidence. In re 

S.M.R., 434 S.W.3d 576, 580 (Tex. 2014); In re K.M.L., 443 S.W.3d at 112. Clear and 

convincing evidence is “the measure or degree of proof that will produce in the mind of 

managing conservator of the children.
14

the trier of fact a firm belief or conviction as to the truth of the allegations sought to be 

established.” TEX. FAM. CODE ANN. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 

2002). To terminate parental rights, a court must find one of the grounds for termination 

specified in § 161.001(b)(1) of the family code and that termination is in the best interest 

of the child. TEX. FAM. CODE ANN. § 161.001(b)(1), (2).

In our legal sufficiency analysis, we must view the evidence in the light most 

favorable to the finding, we “must assume that the factfinder resolved disputed facts in 

favor of its finding if a reasonable factfinder could do so,” and we “should disregard all 

evidence that a reasonable factfinder could have disbelieved or found to have been 

incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re 

J.F.C., 96 S.W.3d at 266). However, this does not mean that we must disregard all 

evidence that does not support the finding. In re J.F.C., 96 S.W.3d at 266. Because of the 

heightened standard, we must also be mindful of any undisputed evidence contrary to the 

finding and consider that evidence in our analysis. Id. If we determine that no reasonable 

trier of fact could form a firm belief or conviction that the matter that must be proven is 

true, we must hold the evidence to be legally insufficient and render judgment in favor of 

the parent. Id.

In a factual sufficiency review, “[w]e must determine whether, on the entire record, 

a fact[ ]finder could reasonably form a firm conviction or belief that the parent violated a 

provision of [§] 161.001[(b)](1) and that the termination of the parent’s parental rights 

would be in the best interest of the child.” In re M.C.T., 250 S.W.3d 161, 168 (Tex. App.—

Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)). Under this 

standard, we consider whether the “disputed evidence is such that a reasonable factfinder 
15

could not have resolved that disputed evidence in favor of its finding.” In re J.F.C., 96 

S.W.3d at 266. If we conclude that “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, then the evidence is factually 

insufficient.” Id.

“To affirm a termination judgment on appeal, a court need uphold only 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 

230, 232–33 (Tex. 2019) (per curiam). However, regardless of whether other grounds for 

termination are unchallenged on appeal, an appellate court must always review issues 

alleging the evidence was insufficient to support findings of endangerment under grounds

(D) or (E). See id. at 234, 237 (holding that “due process and due course of law 

requirements mandate that an appellate court detail its analysis for an appeal of 

termination of parental rights” on endangerment grounds because an endangerment 

finding “becomes a basis to terminate that parent’s rights to other children” under 

§ 161.001(b)(1)(M)); see also In re A.A.Z., Nos. 13-21-00160-CV & 13-21-00161-CV, 

2021 WL 5225440, at *5 n.7 (Tex. App.—Corpus Christi–Edinburg Nov. 10, 2021, pet. 

denied) (mem. op.).

B. Discussion

1. Termination under Subsection (E)

Father argues that his incarceration alone cannot be the basis for termination 

under subsection (E), and that his assault on Mother could not support termination under 

subsection (E) because the children did not exist, and he did not know that Mother was 
16

pregnant at the time of the offense.

Section 161.001(b)(1)(E) allows termination if the parent has engaged in conduct 

or knowingly placed the child with persons who engage in conduct which endangers the 

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

Subsection (E) requires evidence of a “voluntary, deliberate, and conscious course of 

conduct by the parent” and generally more than a single act or omission. In re D.L.W.W., 

617 S.W.3d 64, 78 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (quoting In re J.T.G., 

121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)). “Endangering conduct 

under subsection (E) need not ‘be directed at the child’” In re J.F.-G., 627 S.W.3d 304, 

312 (Tex. 2021) (quoting Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 

1987)). “Nor must the child ‘actually suffer[ ] injury.’” Id. (citing Boyd, 727 S.W.2d at 533). 

“Rather, ‘endanger’ means to expose to loss or injury; to jeopardize.” Id. (citing Boyd, 727 

S.W.2d at 533). In addition, “endangering conduct may include the parent’s actions before 

the child’s birth.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).

Regarding imprisonment, the Texas Supreme Court has stated:

In . . . Boyd, we acknowledged that “Texas cases have considered the 

involuntary termination of the rights of an imprisoned parent, and have held 

that mere imprisonment will not, standing alone, constitute engaging in 

conduct which endangers the emotional or physical well-being of a child,” 

but we nevertheless held that incarceration 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 wellbeing of the child.”

In re J.F.-G., 627 S.W.3d at 312–13 (quoting Boyd, 727 S.W.2d at 533–34). “A parent’s 

criminal history—taking into account the nature of the crimes, the duration of 

incarceration, and whether a pattern of escalating, repeated convictions exists—can 
17

support a finding of endangerment.” Id. at 313. (citing In re J.O.A., 283 S.W.3d at 345–

46). “Imprisonment thus ‘is certainly a factor’ the trial court may weigh when considering 

endangerment.” Id. (quoting Boyd, 727 S.W.2d at 533). In addition, a parent’s use of 

narcotics and its effect on their ability to parent may also qualify as an endangering course 

of conduct. In re J.O.A., 283 S.W.3d at 345.

An offense committed by a parent before the birth of the parent’s child “can be a 

relevant factor in establishing an endangering course of conduct.” In re E.N.C., 384 

S.W.3d 796, 804–05 (Tex. 2012). Here, the evidence established that Father pleaded

guilty to strangling Mother when she was four months’ pregnant with the children. 

“Domestic violence may be considered evidence of endangerment.” In re C.J.O., 325 

S.W.3d 261, 265 (Tex. App.—Eastland 2010, pet. denied) (“If a parent abuses or neglects 

the other parent or other children, that conduct can be used to support a finding of 

endangerment even against a child who was not yet born at the time of the conduct.”). In 

addition, contrary to his suggestion on appeal, Father testified that he knew Mother was 

pregnant at the time of the assault.10 “A child is endangered when the parent’s course of 

conduct creates a potential for danger about which the parent is aware but disregards.” 

In re E.J.M., 673 S.W.3d 310, 329 (Tex. App.—San Antonio 2023, no pet.) (en banc) 

(citing In re I.I.T., 648 S.W.3d 467, 475 (Tex. App.—San Antonio 2021, no pet.)). Father’s 

actions in choking Mother risked the health of both Mother and the unborn children. See 

id. Regarding this offense, Father was sentenced to three years’ imprisonment, which the 

10 To the extent that Father argues that he did not know Mother was pregnant at the time of the 

assault, which we find is not supported by the record, we note that knowledge of paternity is not a 

prerequisite to a showing of a parental course of conduct which endangers a child under Subsection (E). 

See A.S. v. Tex. Dept. of Family & Protective Servs., 394 S.W.3d 703, 713 (Tex. App.—El Paso, 2012 no 

pet.).
18

trial court could have considered in determining endangerment. See In re J.F.-G., 627 

S.W.3d at 313.

Father also stated that he knew that Mother had a drug problem, and that he and 

Mother used drugs together. See In re J.O.A., 283 S.W.3d at 345 (“[A] parent’s use of 

narcotics and its effect on his or her ability to parent may qualify as an endangering course 

of conduct.”). According to Father, Mother’s drug of choice was crack cocaine and, 

although he did not procure drugs for her, he knew that she would buy drugs with money 

he had given her. Father seemed to suggest that this pattern of behavior occurred before 

he knew Mother was pregnant 11 but admitted he had never sought to get Mother 

treatment because it would “just cause problems,” that Mother would hit him if he tried to 

stop her or would resort to prostitution if he did not give her money for drugs. 

“Endangerment can include knowledge that a child’s mother abused drugs while 

pregnant, the father knew, and the father did not try to stop her.”12 See In re E.J.M., 673 

S.W.3d at 330 (cleaned up); see also In re R.S.-T., 522 S.W.3d 92, 110 (Tex. App.—San 

Antonio 2017, no pet.) (concluding trial court could have formed a firm belief or conviction 

that father endangered R.S.-T.’s physical or emotional well-being because record showed 

mother used drugs during her pregnancy and father was aware of her drug use; both 

parents acknowledged the domestic violence; when questioned by the Department, father 

made light of the domestic abuse, explaining things simply “got out of hand”). In 2022, the 

11 Father did not explicitly testify that he and Mother stopped using drugs together once he learned

she was pregnant, or that he stopped giving Mother money in an effort to prevent her from purchasing 

drugs. The trial court, as factfinder, was free to disbelieve the inference suggested by Father’s testimony.

12 Father testified that he choked Mother in an effort to stop her from using heroin. However, Father 

also stated that he threw away the heroin and did not make those allegations at the time he was arrested. 

Without any further proof, the trial court, as factfinder, was free to disbelieve this testimony.
19

Texas Supreme Court agreed with this proposition because “holding otherwise would 

effectively endorse a parent’s willful ignorance of the significant risk that a pregnant 

mother’s drug use poses,” which it declined to do. In re J.W., 645 S.W.3d 726, 750 (Tex. 

2022). However, the J.W. Court did not “endorse attributing any and all known dangers 

posed to a child during the mother’s pregnancy to the other parent.” Id. “As is often the 

case in parental-termination proceedings, the inquiry is necessarily dependent on the 

facts and circumstances.” Id. Here, other facts and circumstances also support the trial 

court’s endangerment finding.

In addition to his assault of Mother, Father was previously convicted of numerous 

serious crimes, including aggravated assault with a deadly weapon, possession of 

controlled substances (including marijuana), and robbery. See In re J.F.-G., 627 S.W.3d 

at 313. Father admitted to violating a protective order established for the mother of his 

daughter, committing thefts, and being arrested for assault of a family member. Father 

also admitted that he had been in and out of prison for most of the last eleven years and 

that many of his previous convictions were for crimes of violence. Father’s criminal record 

shows a pattern of escalating conduct, not an isolated incident. See id. Thus, the trial 

court could have fairly considered Father’s criminal history and determined that it 

supported a finding of endangerment. See id. Furthermore, the evidence also established 

that Father’s violent conduct continued after he was incarcerated for strangling Mother. 

Father was classified as level G5 within the Estelle Unit for his involvement in assaults

while in prison. The trial court could have properly considered Father’s persistent violent 

conduct in prison when assessing endangerment. See In re J.F.-G., 627 S.W.3d at 313.

Viewing the evidence in the light most favorable to the trial court’s judgment, we 
20

conclude a reasonable trier of fact could have formed a firm belief or conviction that Father 

“engaged in conduct . . . which endanger[ed] the physical or emotional well-being of the 

child[ren].” See TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Thus, the evidence is legally 

sufficient to support this finding. See In re J.P.B., 180 S.W.3d at 573. Further, after 

considering the record, including any disputed or contrary evidence, we conclude the 

evidence is factually sufficient to support the trial court’s termination under subsection 

(E). See In re M.C.T., 250 S.W.3d at 168. Because the evidence is legally and factually 

sufficient to support the trial court’s finding under subsection (E), we need not address 

the sufficiency of the evidence supporting the remaining grounds for termination. See In 

re N.G., 577 S.W.3d at 232–33. We overrule Father’s issue as it relates to the statutory 

grounds for termination.

2. Best Interest

Father also argues that the evidence was insufficient to support the trial court’s 

finding that termination was in the children’s best interest.

When considering the best interest of the child, we recognize the existence of a 

strong presumption that the child’s best interest is served by preserving the parent-child 

relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). “[T]he best interest 

standard does not permit termination [of parental rights] merely because a child might be 

better off living elsewhere.” In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio 

2013, no pet.) (citation omitted). However, we also presume that prompt and permanent 

placement of the child in a safe environment is in the child’s best interest. TEX. FAM. CODE 

ANN. § 263.307(a). The Texas Legislature has provided several factors for courts to 

consider regarding a parent’s willingness and ability to provide a child with a safe 
21

environment,13 and the Texas Supreme Court has provided a similar list of factors to 

determine a child’s best interest. See TEX. FAM. CODE ANN. § 263.307(b); Holley v. Adams, 

544 S.W.2d 367, 371–72 (Tex. 1976).

The non-exclusive Holley factors include: (1) the child’s desires; (2) the child’s 

emotional and physical needs now and in the future; (3) any emotional and physical 

danger to the child now and in the future; (4) the parental abilities of the individuals 

13 The statutory factors include: 

(1) the child’s age and physical and mental vulnerabilities;

(2) the frequency and nature of out-of-home placements;

(3) the magnitude, frequency, and circumstances of the harm to the child;

(4) whether the child has been the victim of repeated harm after the initial report and 

intervention by the department;

(5) whether the child is fearful of living in or returning to the child’s home;

(6) the results of psychiatric, psychological, or developmental evaluations of the child, the 

child’s parents, other family members, or others who have access to the child’s home;

(7) whether there is a history of abusive or assaultive conduct by the child’s family or others 

who have access to the child’s home;

(8) whether there is a history of substance abuse by the child’s family or others who have 

access to the child’s home;

(9) whether the perpetrator of the harm to the child is identified;

(10) the willingness and ability of the child’s family to seek out, accept, and complete 

counseling services and to cooperate with and facilitate an appropriate agency’s close 

supervision;

(11) the willingness and ability of the child’s family to effect positive environmental and 

personal changes within a reasonable period of time;

(12) whether the child’s family demonstrates adequate parenting skills . . . ; and 

(13) whether an adequate social support system consisting of an extended family and 

friends is available to the child.

TEX. FAM. CODE ANN. § 263.307(b).
22

seeking custody; (5) the programs available to assist the individuals seeking custody to 

promote 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) the 

parent’s acts or omissions which may indicate that the existing parent-child relationship 

is improper; and (9) any excuse for the parent’s acts or omissions. Holley, 544 S.W.2d at 

371–72.

“A best-interest finding does not require proof of any particular factors,” and 

“[e]vidence of a single factor may be sufficient for a factfinder to form a reasonable belief 

or conviction that termination is in the child’s best interest.” In re E.J.M., 673 S.W.3d at

332 (cleaned up). “A trier of fact may measure a parent’s future conduct by his past 

conduct [in] determin[ing] whether termination of parental rights is in the child’s best 

interest.” In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). 

“In analyzing these factors, the court must focus on the best interest of the child, not the 

best interest of the parent.” In re E.J.M., 673 S.W.3d at 332 (cleaned up).

Regarding the first Holley factor, the children are too young to express their 

desires. See Holley, 544 S.W.2d at 371–72. When children are too young to express their 

desires, the factfinder may consider whether the children have bonded with their 

caregivers, is well-cared for by them, and whether the child has spent minimal time with 

a parent. See In re S.J.R.-Z, 537 S.W.3d 677, 693 (Tex. App.—San Antonio 2017, pet. 

denied). At the time of trial, the children were about fourteen months old and had been 

placed with their caregivers for seven months. It is undisputed that the children were well 

cared for by their caregivers, and Father testified that he agreed that they should stay 

with them. The evidence also demonstrated that Father had not spent any time with the 
23

children since their birth due to his incarceration, indicating that the children were not 

bonded to Father. In light of this testimony, this factor weighs in favor of the trial court’s 

best interest finding.

Evidence of Father’s incarceration and his behavior while incarcerated supports

the trial court’s best interest finding under the second, fourth, and fifth Holley factors: the 

emotional and physical needs of the children now and in the future, Father’s parental 

abilities, and the available programs to assist Father in promoting the best interest of the 

children. See Holley, 544 S.W.2d at 371–72. Here, the record supported a finding that 

Father was unable to provide for the children’s emotional or physical needs now and in 

the future because he was incarcerated before the children were born; at the time of trial, 

he was scheduled to be released from prison seventeen months later; and he has an 

extensive history of reoffending. Father was also designated as a level G5 inmate 

because of assaults he committed during his incarceration, and he testified he was unable 

to have any phone calls or video chats with the children due to that status. The trial court 

could have considered the undisputed evidence of Father’s failure to maintain contact 

with the children in making its best interest determination. Likewise, the trial court could 

have also considered Father’s inability to participate or complete any of the court-ordered 

services required to secure reunification due to his status as a G5. See id.; see also In re 

J.T.G., No. 14-10-00972-CV, 2012 WL 171012, at *17 (Tex. App.—Houston [14th Dist.] 

Jan. 19, 2012, pet. denied) (mem. op.).

Evidence of domestic violence in the home supports the trial court’s best-interest 

finding under the third, fourth, and seventh Holley factors: the emotional and physical 

danger to the children now and in the future, Father’s parental abilities, and stability of the 
24

home. See In re R.J., 579 S.W.3d 97, 116 (Tex. App.—Houston [1st Dist.] 2019, pet. 

denied) (citing Holley, 544 S.W.2d at 371–72). Here, the evidence showed that Father 

was convicted for strangling Mother during her pregnancy, which threatened the health 

and safety of Mother and the unborn children. “Evidence that a person has engaged in 

abusive conduct in the past permits an inference that the person will continue violent 

behavior in the future.” Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.—Houston [1st 

Dist.] 2010, pet. denied). Given the evidence of Father’s felony conviction for assaulting 

Mother, his criminal history and admission that he had committed many crimes of violence 

in the past, and his assaultive conduct while incarcerated, the trial court was permitted to 

infer that Father would continue his violent behavior in the future, further supporting the 

best-interest finding. See TEX. FAM. CODE ANN. § 263.307(b)(7), (12)(D)–(E) (providing 

that courts may consider whether there is history of abusive or assaultive conduct by a 

child’s family or others who have access to a child’s home and whether adequate 

parenting skills are demonstrated by providing a child with a safe physical home 

environment and protection from repeated exposure to violence); In re J.I.T.P., 99 S.W.3d 

841, 846 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (explaining that domestic 

violence, even when the child is not the intended victim, supports a finding that termination 

is in child’s best interest).

“[P]arental substance abuse reflects poor judgment and may be a factor to 

consider in determining a child’s best interest.” In re R.J., 579 S.W.3d at 117; see also

TEX. FAM. CODE ANN. § 263.307(b)(8) (stating courts may consider history of substance 

abuse by a child’s family or others who have access to a child’s home). Father admitted

that he used drugs with Mother and that he smoked marijuana during Mother’s pregnancy. 
25

Father also had prior convictions for possession of controlled substances and admitted 

that he knew Mother had a drug problem but did not seek to have her receive treatment 

for her substance abuse. This evidence supports the trial court’s best-interest finding 

under the second and third Holley factors: the emotional and physical needs of the 

children now and in the future and the emotional and physical danger to the children now 

and in the future. See Holley, 544 S.W.2d at 371–72; In re R.J., 579 S.W.3d at 117.

We acknowledge that some evidence exists in the record weighing against the 

best-interest findings. Regarding Father’s plans for the children, Father stated that he 

planned to move in with his grandparents in Corpus Christi upon his release from prison 

and work at restaurants or construction. Father also stated that he planned for the children 

to live with him once he got his own house or apartment. In addition, Father completed 

the Voyagers program while in prison, which he stated was a “class where you learn 

character, forgiveness, parenting, drug addiction.” Nonetheless, evidence cannot be read 

in isolation and must be read in the context of the entire record. See In re R.J., 579 S.W.3d 

at 119. In termination cases, it is the sole province of the factfinder to weigh the credibility 

of witnesses. See In re S.L., 188 S.W.3d 388, 394 (Tex. App.—Dallas 2006, no pet.) 

(citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) 

(explaining that the factfinder “is the sole judge of the credibility of witnesses and the 

weight to be given to their testimony”)). Here, the balance of the record evidence 

demonstrates that Father is unable to meet the current and future physical and emotional 

needs of the children, is unable to protect the children from current and future emotional 

and physical danger, lacks key parenting abilities, and lacks stability.
26

After viewing all the evidence in the light most favorable to the best-interest

findings, we conclude that the evidence was sufficiently clear and convincing that a 

reasonable factfinder could have formed a firm belief or conviction that termination of the 

parent-child relationship between Father and the children was in the children’s best

interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.P.B., 180 S.W.3d at 573. We 

also conclude that, viewed in light of the entire record, any disputed evidence could have 

been reconciled in favor of the trial court’s findings that termination of the parent-child 

relationship between Father and the children was in the children’s best interest or was 

not so significant that the trial court could not reasonably have formed a firm belief or 

conviction that termination was in the children’s best interest. See In re M.C.T., 250 

S.W.3d at 168. Therefore, after considering the relevant factors under the appropriate 

standards of review, we hold the evidence is legally and factually sufficient to support the 

trial court’s finding that termination of the parent-child relationship between Father and 

the children was in the children’s best interest. See In re J.P.B., 180 S.W.3d at 573; In re 

M.C.T., 250 S.W.3d at 168. We overrule Father’s issue as it relates to the best interest 

finding. 

III. CONCLUSION

The judgment of the trial court is affirmed.

NORA L. LONGORIA 

 Justice 

 

Delivered and filed on the

25th day of July, 2024.