COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00075-CV

IN THE INTEREST OF J.N.H., A 

CHILD

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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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Appellant E.B. appeals the termination of his parental rights to his 

daughter, J.N.H. He contends in four issues that the evidence is insufficient to 

support the jury’s findings that termination is in J.N.H.’s best interest and that he 

knowingly placed or allowed J.N.H. to remain in conditions or surroundings that 

endangered her, engaged in conduct that endangered her physical and 

emotional well-being, and voluntarily abandoned J.N.H.’s mother while failing to 

provide adequate support or medical care to her. We affirm.

 

1See Tex. R. App. P. 47.4.
2

Background Facts

J.N.H. is not appellant’s only child; appellant has two other children, both 

sons, whom he has not seen in several years. After his first son was born in April 

2003, appellant burglarized a vehicle in August 2003, was arrested for 

possession of crack cocaine in October 2003, and was placed on a three-year 

probation term for that offense in January 2004. In the early months of 2004, the 

State charged appellant with two other offenses for which he was eventually 

convicted: assault-family violence against his sons’ mother and unlawful carrying 

of a knife that the police found in a vehicle that appellant had stolen. Because 

appellant failed to report to his probation officer for his possession-of-crackcocaine offense, the State filed a motion to revoke the probation in April 2004, 

and after a court revoked the probation, appellant served time in three facilities. 

About a month before appellant’s December 2004 release from confinement, his 

first son’s mother, now pregnant with appellant’s second son, left appellant, and 

he has never again heard from her or his two sons.

In 2005, appellant began dealing drugs. Within just a few months after his 

release from confinement for his first possession-of-crack-cocaine offense, 

appellant committed, and was eventually convicted for, three deadly conduct

offenses

2

and possession of marijuana. Not long after appellant committed those 

 

2While appellant was in a car with people that he knew through selling 

drugs, he waived a gun at another car while chasing the car on a highway 

because someone in that car had ―flipped [appellant] off.‖
3

offenses, in April 2005, the police arrested him again for possession of crack 

cocaine, and he was incarcerated for eleven months. When authorities released 

appellant from confinement in 2006, he was approximately twenty-one years old, 

and he met J.N.H.’s mother, E.H., who was approximately sixteen years old. But

only two months after being released from confinement, in May 2006, appellant 

was yet again arrested for possession of crack cocaine. That offense resulted in 

him spending eight months in county jail before being convicted and receiving a 

sentence of time served; he was released from confinement on a condition that 

he live at a halfway house. Because appellant opted not to live at the halfway 

house, he was reconfined for two more months.

When appellant was released in approximately July 2007, he eventually 

started using drugs again. It was about that time that he became more closely 

acquainted with E.H. They began using heroin, mixed with Tylenol, ―just about 

every day‖ and had sex a few times, although appellant was then dating another 

woman who became his wife in October 2008.

In early 2008, E.H. informed appellant that she was pregnant with his child. 

According to appellant, E.H. used drugs while pregnant with J.N.H., and 

appellant told suppliers to not give drugs to E.H. According to E.H., appellant 

gave her $20 and told her to ―save it‖ for J.N.H., but he otherwise never 

supported E.H. or J.N.H. nor asked about E.H.’s or J.N.H.’s medical care.

3

 A few 

 

3Appellant testified that he does not recall giving money to E.H., but he 

said that she never asked for money.
4

months before J.N.H. was born, in the summer of 2008, the police arrested 

appellant for aggravated robbery with a deadly weapon, to which he pled guilty. 

Appellant had used a BB gun while taking a lady’s purse. A court sentenced him 

to twenty years’ confinement, which makes him eligible for parole in November 

2018. According to appellant’s mother, between October 2003 and the time of 

trial in February 2011, appellant spent only twenty-two months outside of 

confinement.

J.N.H. was born in August 2008 while appellant was in prison; E.H. wrote a 

letter to appellant to tell him about the birth. Appellant has never met J.N.H., 

although he sent her a card on her first birthday. Given his confinement, he was 

ruled out as a suspect in J.N.H.’s November 2009 injuries, for which the 

Department of Family and Protective Services (the Department) originally 

obtained custody of J.N.H. Specifically, J.N.H., who was eighteen months old at 

the time, had burn blisters on her feet, bruises on her body and face, swollen and 

bleeding eyes, and hair loss as a result of her hair being pulled out. The bruising 

appeared to have occurred over a period of time.4 J.N.H. also tested positive for 

 

4

Lishawa Jackson, a Child Protective Services (CPS) investigator, 

described J.N.H.’s injuries as the ―most severe . . . [she] had seen,‖ although 

Jackson was unsure who, between E.H. and E.H.’s girlfriend, caused them. E.H. 

was convicted of child endangerment and was sentenced to a year in state jail, 

and E.H.’s girlfriend was convicted for causing bodily injury to a child and was 

sentenced to ten years’ confinement.
5

heroin.

5

 The Department placed J.N.H. in foster care and sent a letter to 

appellant to explain that she had been removed from E.H. Appellant responded 

to the letter by acknowledging his paternity of J.N.H. and by asking the 

Department to allow J.N.H. to live with his mother or grandmother.

The Department filed a petition for the termination of J.N.H.’s parents’

rights. The trial court entered orders that named the Department as J.N.H.’s 

temporary sole managing conservator. In response to the Department’s petition, 

E.H., who was twenty years old at the time of the trial, voluntarily relinquished her 

parental rights to J.N.H. But appellant answered the petition, received appointed 

counsel, and contested the termination of his parental rights in a jury trial that 

included testimony from appellant, his mother and sister, E.H., E.H.’s cousin, a 

gang expert, a Court Appointed Special Advocates (CASA) representative, and 

two Department representatives.

The Department and CASA representatives recommended against placing 

J.N.H. in the home of appellant’s mother because although she passed criminal 

history and background checks, she never completed the home study 

administered by the Department; she repeatedly failed to respond to the 

Department’s efforts to gather necessary information regarding her ex-boyfriend 

of fourteen years. Andrea Calloway, the CASA volunteer who worked on 

J.N.H.’s case, believed that it was suspicious that appellant’s mother would not 

 

5Contrary to appellant’s testimony, E.H. testified that she stopped using 

heroin while pregnant with J.N.H. but began using it again after J.N.H.’s birth.
6

provide the information regarding her ex-boyfriend. Calloway said, ―If there was 

nothing to hide, then she would have provided it.‖ In addition, the Department’s

caseworker, Amanda Mention, expressed concern about the fact that appellant’s 

mother had allowed appellant to live with her while she knew that he was using 

drugs.6 The Department also ruled out placing J.N.H. with relatives on E.H.’s 

father’s side of the family because they had ―extensive criminal histor[ies] and 

CPS histor[ies].‖

Instead, the Department and Calloway recommended that E.H.’s cousin, 

who lives in Houston, adopt J.N.H., and E.H. and her cousin shared that desire. 

The Department completed a home study on E.H.’s cousin, and Calloway 

thought that E.H.’s cousin’s family was ―extremely appropriate‖ and that they 

would be a ―great placement‖ for J.N.H.

At the time of the jury trial, J.N.H. was approximately two and a half years 

old. E.H.’s cousin was a teaching assistant for high school special education

students, and she was married to a man who held a stable job. They had two 

children of their own, but they still wanted to adopt J.N.H. J.N.H. got along with 

the family, who had traveled a long distance to visit her for several hours on most 

weekends from December 2010 until the trial in February 2011.

 

6Appellant’s mother conceded that appellant ―probably‖ used drugs in her 

home and that she never tried to stop him from doing so. When she was asked 

whether it was important to her whether appellant was using drugs in her home, 

appellant’s mother said, ―I don’t know what to say there.‖
7

After hearing all of the testimony, the jury deliberated for only fifteen 

minutes before finding that the evidence supporting termination was clear and 

convincing. Specifically, the jury decided that termination was in J.N.H.’s best 

interest and was appropriate under subsections (D), (E), (H), and (Q) of family 

code section 161.001(1). Accordingly, the trial court rendered a judgment that 

terminates appellant’s parental rights to J.N.H. Appellant brought this appeal.

The Propriety of the Jury’s Termination Decision

A parent’s rights to ―the companionship, care, custody, and management‖ 

of his or her children are constitutional interests ―far more precious than any 

property right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 

1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). ―While parental rights 

are of constitutional magnitude, they are not absolute. Just as it is imperative for 

courts to recognize the constitutional underpinnings of the parent-child 

relationship, it is also essential that emotional and physical interests of the child 

not be sacrificed merely to preserve that right.‖ In re C.H., 89 S.W.3d 17, 26 

(Tex. 2002). In a termination case, the State seeks not just to limit parental rights 

but to erase them permanently—to divest the parent and child of all legal rights, 

privileges, duties, and powers normally existing between them, except for the 

child’s right to inherit. Tex. Fam. Code. Ann. § 161.206(b) (West 2008); Holick v. 

Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination 

proceedings in favor of the parent. Holick, 685 S.W.2d at 20–21; In re M.C.T., 

250 S.W.3d 161, 167 (Tex. App.—Fort Worth 2008, no pet.).
8

Termination decisions must be supported by clear and convincing 

evidence. Tex. Fam. Code Ann. § 161.001 (West Supp. 2011). Evidence is 

clear and convincing if it ―will produce in the mind of the trier of fact a firm belief 

or conviction as to the truth of the allegations sought to be established.‖ Id. § 

101.007 (West 2008). Due process demands this heightened standard because 

termination results in permanent, irrevocable changes for the parent and child. In 

re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).

Statutory ground for termination

In his first three issues, appellant challenges the sufficiency of the 

evidence to support the jury’s findings for the statutory grounds for termination 

under subsections (D), (E), and (H) of family code section 161.001(1). See Tex. 

Fam. Code Ann. § 161.001(1)(D), (E), (H). Under section 161.001, the petitioner 

must establish a ground listed under subsection (1) of the statute and prove that 

termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In 

re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Under the first element, only one 

predicate finding listed under subsection (1) is necessary to support a termination 

judgment. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re J.T.G., 121 S.W.3d 

117, 128 (Tex. App.—Fort Worth 2003, no pet.). Accordingly, in evaluating the 

first element, we need only address predicates necessary to support termination. 

See A.V., 113 S.W.3d at 362; see also Tex. R. App. P. 47.1 (requiring appellate 

court to address only issues necessary to disposition of appeal).
9

Appellant does not challenge the jury’s answer to question four of the jury 

charge, in which the jury found by clear and convincing evidence that appellant 

knowingly engaged in criminal conduct that resulted in his conviction, 

confinement, and inability to care for J.N.H. for two years from the date of the 

filing of the petition. Moreover, appellant presumes that his conviction for 

aggravated robbery with a deadly weapon, which resulted in his imprisonment 

without eligibility for parole until 2018, seven years from the petition date, 

satisfies the jury’s finding to terminate his parental rights under section 

161.001(1)(Q). See Tex. Fam. Code Ann. § 161.001(1)(Q); A.V., 113 S.W.3d at

360. Thus, we hold that the jury’s finding under section 161.001(1)(Q) is

dispositive of the first element required for termination, and we need not decide 

whether the jury’s termination decision was also appropriate under subsections 

(D), (E), and (H). See In re D.S., 333 S.W.3d 379, 388 (Tex. App.—Amarillo 

2011, no pet.). We overrule appellant’s first three issues. See J.T.G., 121 

S.W.3d at 128.

J.N.H.’s best interest

We must, however, consider appellant’s fourth issue on appeal: whether

the evidence is factually sufficient to establish that termination is in the best 

interest of the child. In reviewing the evidence for factual sufficiency, we must 

give due deference to the jury’s findings and not supplant the verdict with our 

own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine 

whether, on the entire record, the jury could reasonably form a firm conviction or 
10

belief that termination of the parent-child relationship is in J.N.H’s best interest. 

See Tex. Fam. Code Ann. § 161.001(2); C.H., 89 S.W.3d at 28. 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 in the truth of its finding, then 

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

There is a strong presumption that keeping a child with a parent is in the 

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, 

prompt and permanent placement of the child in a safe environment is also 

presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) 

(West 2008). Nonexclusive factors that the trier of fact in a termination case may 

use in determining the best interest of the child include the desires of the child,

the emotional and physical needs of the child now and in the future, the 

emotional and physical danger to the child now and in the future, the parental 

abilities of the individuals seeking custody, the programs available to assist these 

individuals to promote the best interest of the child, the plans for the child by 

these individuals or by the agency seeking custody, the stability of the home or 

proposed placement, the acts or omissions of the parent which may indicate that 

the existing parent-child relationship is not a proper one, and any excuse for the 

acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 

1976); In re Z.C., 280 S.W.3d 470, 475–76 (Tex. App.—Fort Worth 2009, pet. 

denied). Undisputed evidence of just one factor may be sufficient in a particular 
11

case to support a finding that termination is in the best interest of the child. C.H.,

89 S.W.3d at 27. On the other hand, the presence of scant evidence relevant to 

each factor will not support such a finding. Id.

J.N.H. is a young child with a history of traumatic physical abuse. The jury 

could have reasonably determined, therefore, that her best interest includes

shelter from additional harm and uncertainty. See Tex. Fam. Code Ann. 

§ 263.307(a), (b)(1), (3); In re T.T.F., 331 S.W.3d 461, 485 (Tex. App.—Fort 

Worth 2010, no pet.). While appellant did not contribute to J.N.H.’s injuries, he 

previously pled guilty to an assault-family violence charge, committed deadly 

conduct, and is currently serving a twenty-year sentence for aggravated robbery 

with a deadly weapon. The jury could have rationally concluded that it is in 

J.N.H.’s best interest for her future to be untangled from these kinds of offenses. 

See Tex. Fam. Code Ann. § 263.307(b)(12)(E); In re R.R., 294 S.W.3d 213, 235 

(Tex. App.—Fort Worth 2009, no pet.) (considering evidence of a father’s past 

convictions supportive to the trial court’s best interest finding).

Next, our evaluation of appellant’s parenting abilities cannot discount his 

participation in drugs and criminal conduct while being a father. See Tex. Fam. 

Code Ann. § 263.307(b)(12). Appellant’s use and dealing of drugs has been 

extensive, and appellant continued to use drugs after he fathered two sons. 

Despite several confinements for drug-related offenses, appellant consistently 

resumed taking drugs upon being released. Appellant suggests that his current 

imprisonment will break that cycle. Nevertheless, appellant’s frequent return to 
12

drugs is a factor that the jury was entitled to consider in evaluating J.N.H.’s best 

interest. See R.R., 294 S.W.3d at 235 (giving weight to a father’s history of 

alcohol abuse); see also In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston 

[14th Dist.] 2003, pet. denied) (op. on reh’g) (countering a parent’s assertion that 

he had changed and that past indiscretions should not be held against him by 

noting that the parent’s ―track record . . . raise[d] doubts about his ability to 

change‖).

After his first son was born, appellant was arrested for possession of crack 

cocaine in 2003, and he received three years’ probation in January 2004. 

Although it would have been better for his son for appellant to complete his threeyear probation, appellant never attempted to begin the probation, and after the 

probation was revoked, appellant was sentenced to confinement in state jail for 

ten months. Thus, appellant was removed from having direct contact with his 

son during that time. Upon being released from confinement, appellant dealt 

drugs and was again arrested for possessing crack cocaine. Later, he was 

arrested for three deadly conducts and pled guilty to those offenses. Appellant 

continued his drug use and criminal activity while E.H. was pregnant, including 

committing the offense for which he is currently incarcerated. Appellant provides 

no excuse for his criminal and drug activity. The jury could have reasonably 

adjudged this evidence to be in favor of termination. See In re J.M., No. 02-08-

00259-CV, 2009 WL 112679, at *10 (Tex. App.—Fort Worth Jan. 15, 2009, no 

pet.) (mem. op.) (considering a parent’s substance abuse history in evaluating 
13

the sufficiency of the evidence to show termination was in the child’s best 

interest).

E.H testified that appellant encouraged her to abort J.N.H. because 

appellant ―didn’t want to have a baby,‖ but appellant denied it and claimed he told 

her to keep the child because he would ―be there for her.‖ Assuming that 

appellant’s version of that story is the correct one, his inability to honor that 

commitment is significant: rather than being there for J.N.H., appellant has not 

even met her; he was incarcerated about two months before she was born for 

committing aggravated robbery with a deadly weapon while under the influence 

of crack cocaine and heroin. The fact that appellant has never met J.N.H. 

indicates that he likely does not possess an understanding of J.N.H.’s needs and 

capabilities. See Tex. Fam. Code Ann. § 263.307(b)(12)(F).

The jury could have also found that appellant’s association with a gang 

weighed in favor of terminating his parental rights to J.N.H. A gang expert, 

Armando Lopez, Jr., provided information on Puro Tango Blast (PTB), a gang 

that appellant had joined. Lopez explained that prisoners usually join PTB to 

protect themselves from other ―security threat‖ gangs that exist in prison. PTB 

members normally tattoo sports teams’ logos on their bodies as an identifying 

marker. To show his affiliation with PTB, appellant had tattooed several stars on

his body.7 Lopez testified that PTB is not a security threat gang like other prison 

 

7Appellant also has a tattoo on his neck that says, ―Trust No Bitch.‖
14

gangs. In addition, members can enter and exit the gang without committing a 

major crime. Appellant testified that he left the gang in 2009, but Lopez 

suggested that leaving the gang while in prison was difficult to believe. The jury 

had the discretion to find Lopez’s testimony more credible than appellant’s 

testimony. See In re R.W., 129 S.W.3d 732, 742 (Tex. App.—Fort Worth 2004, 

pet. denied). Lopez noted that PTB operates outside of prison and is active in 

dealing drugs, just as appellant has been. And the jury heard Calloway, the 

CASA volunteer, characterize a parent’s gang membership as threatening to a 

child’s safety. Thus, the jury could have reasonably found that appellant’s PTB 

affiliation raises concerns about his ability to provide J.N.H. with a safe home 

environment upon his release from prison. See Tex. Fam. Code Ann. 

§ 263.307(b)(12)(D), (E).

Our evaluation of J.N.H.’s best interest also cannot disregard appellant’s 

failure to do more to protect J.N.H. from the dangerous environment associated 

with E.H.’s drug use. Appellant testified that E.H. used drugs while she was 

pregnant and after J.N.H. was born. He claimed that he had asked E.H. to stop 

using drugs and had asked friends known to provide her with drugs to cease 

doing so. However, when those requests proved unsuccessful, he pursued no 

other protective action on behalf of J.N.H. The jury could have reasonably 

weighed this evidence in favor of terminating appellant’s parental rights. 

See J.M., 2009 WL 112679, at *7 (holding trial court could reasonably believe 
15

father knew child’s mother used drugs while pregnant, thus neglecting to provide 

a safe environment for the child).

Appellant admitted that he used heroin and crack cocaine in 2007 and 

2008 while living with his mother despite the fact that his fourteen-year-old sister 

also lived in the house. Moreover, appellant had friends come to his mother’s 

house to use drugs with him. Appellant recommended placing J.N.H. in his 

mother’s care while he served his prison sentence. The CASA and Department 

representatives discouraged placing J.N.H. with appellant’s mother because her 

parenting approach included allowing appellant to live with her and her fourteenyear-old daughter while knowing that he was using drugs, and she did nothing to 

address the endangerment that J.N.H.’s mother was inflicting on the child by 

using drugs while pregnant with her.

J.N.H. was too young at the time of the trial to express her desire about the 

termination of appellant’s parental rights, but J.N.H. had been happy and 

comfortable when she was around E.H.’s cousin. J.N.H.’s attorney ad litem 

recommended termination. J.N.H. typically feels afraid of people whom she does 

not know. Appellant has never met J.N.H., and appellant’s mother has only seen 

her once or twice.

J.N.H. is not afraid, however, of anyone in E.H.’s cousin’s family. In fact, 

J.N.H. runs and hugs E.H.’s cousin, and J.N.H.’s time with the family involves 

affection, laughing, and playing. In addition, E.H.’s cousin had already planned 

to test J.N.H. for any possible impairments and to visit a ―play therapist‖ who 
16

specializes in helping children who ―move from house to house.‖ E.H.’s cousin 

agreed to send pictures of J.N.H. to the parents as long as her address remained 

unknown to the parents, and once J.N.H. turned eighteen, E.H.’s cousin would 

allow the parents to directly contact J.N.H. if J.N.H. wanted to hear from them. 

E.H.’s cousin committed to providing for all of J.N.H.’s present and future needs.

Calloway testified that the termination of appellant’s rights is in J.N.H.’s 

best interest because J.N.H. ―deserves a permanent family, and she does not 

deserve to be left out in limbo while [her parents] may or may not get their [lives]

together. . . . She deserves the permanency.‖ Calloway also said that it is ―very 

important to a child to have [a] safe feeling of belonging‖ and that this goal could 

only be accomplished if J.N.H. is allowed to be adopted. For the same reasons, 

Calloway opined that it was not in J.N.H.’s best interest for the court to allow 

supervised visitation between J.N.H. and appellant. The jury could have 

reasonably found that the testimony from E.H.’s cousin and Calloway concerning 

their plans for J.N.H. supported termination of appellant’s rights. See Z.C., 280 

S.W.3d at 477 (giving weight to ad litem’s support of termination); see also U.P., 

105 S.W.3d at 231–32 (holding, in part, that evidence supported the trial court’s 

best interest finding because the child had bonded with the foster family seeking 

permanent adoption).

There are also some facts that the jury could have weighed in favor of 

retaining appellant’s parental rights. For example, E.H. testified that there was 

nothing in her personal experience with appellant that would indicate that he 
17

would pose a risk to J.N.H. Appellant said that he had played with his wife’s 

children, had never been violent with them, and had not used or dealt drugs 

around them. Appellant’s mother testified that appellant is a ―good kid‖ who has 

never argued with her. She testified that appellant played with his nieces and 

nephews and was ―real good‖ with his wife’s children. Appellant’s sister testified 

that appellant interacted well with her children and that she had no concerns 

about him being around the children. She said that appellant is usually a good 

person, but she recognized that appellant has made bad choices.

Considering all of the evidence admitted at trial, however, including 

appellant’s extensive criminal and drug histories, his gang affiliation, his lack of 

any emotional connection with J.N.H., his inability to physically parent her for the 

next several years, and the Department’s plan to provide a positive, permanent 

environment for J.N.H. through adoption by E.H.’s cousin, we conclude that the 

jury could have reasonably formed a firm conviction or belief that termination of 

the parent-child relationship is in J.N.H’s best interest. See Tex. Fam. Code Ann. 

§ 161.001(2); C.H., 89 S.W.3d at 28; Z.C., 280 S.W.3d at 475–76. We therefore 

hold that the evidence is factually sufficient to support the jury’s termination 

decision, and we overrule appellant’s fourth issue.
18

Conclusion

Having overruled all of appellant’s issues, we affirm the trial court’s 

judgment.

PER CURIAM

PANEL: LIVINGSTON, C.J., DAUPHINOT and WALKER, JJ.

DELIVERED: November 17, 2011