Opinion issued April 2, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00728-CV

———————————

IN THE INTEREST OF S.G. AND D.D.-G.P., CHILDREN

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Case No. 2016-02466J

MEMORANDUM OPINION

This is an appeal from a judgment terminating the parental rights of a mother 

as to her son and daughter, terminating the parental rights of the father of the son 

and the parental rights of the father of the daughter, and appointing the Department 

of Family and Protective Services as the children’s managing conservator. The 

mother and both fathers challenge the legal and factual sufficiency of the evidence 
2

supporting the jury findings underlying the termination of their parental rights. The 

mother also contends that the jury charge’s instruction on conservatorship was 

defective. Finding no error, we affirm the judgment of the trial court.

BACKGROUND

Pre-Trial

The Department opened a child-neglect investigation as to the mother and her 

6-year-old son, Don, and 3-year-old daughter, Sally, after receiving allegations that 

the mother was doing drugs and the children were living in deplorable conditions.1

The children came into the Department’s care after the mother tested positive for 

cocaine and marijuana. 

Don and Sally have different fathers, both of whom appeared in the case. They 

also tested positive for drugs at the outset of the investigation. 

The Department initially sought to reunify Don and Sally with their mother, 

but this changed after she continued to test positive for illegal drug use, including 

two relapses during the pendency of this case after participating in drugrehabilitation programs. By the mother’s own admission, her history of drug abuse

spans more than two decades. She tested positive for drugs in two prior childprotection cases. 

 

1

“Don” and “Sally” are pseudonyms. See TEX. R. APP. P. 9.8(b)(2).
3

The Department sought termination of the mother’s rights as well as the rights 

of both fathers. The mother demanded trial by jury, and the grounds for termination 

as to all three parents were tried to the same jury.

The Mother

The children’s mother, now 39 years old, testified that she first began using 

marijuana when she was 18 and started using cocaine a decade ago. She admitted 

that she’s had a drug problem and has been to rehab three times since 2000. She 

stated that she believed her drug use has harmed Don, and she agreed that her 

children deserve a sober parent. She denied using methamphetamine, 

notwithstanding that she tested positive for using it less than four months before trial.

Her drug-recovery coach, the program coordinator at the Houston Recovery Center,

testified that the mother had told her that she’s been using methamphetamine, 

cocaine, and marijuana for years and expressed concern as to the mother’s denial of 

methamphetamine use at trial because honesty is the number one principle of 

recovery. The mother acknowledged relapsing twice during the pendency of this 

case. Her drug-test results show that she used cocaine in addition to the 

aforementioned use of methamphetamine. 

Sally’s Father

Sally’s father was in county jail when Sally was removed from the home.

When he appeared after his release, he tested positive for methamphetamine, 
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cocaine, and marijuana. His test results indicated chronic cocaine abuse. In several 

later drug tests, the father’s urine showed no drug use, but he did not give hair 

samples because he did not have enough hair on his head or body to test. He 

explained at trial that his lack of hair was due to his job as a millwright and welder, 

which involves hot working conditions. He characterized his cocaine use as 

occasional and denied methamphetamine and marijuana use entirely. 

The Department introduced evidence of Sally’s father’s criminal history, 

which included two convictions for burglary of a habitation, a conviction for 

possession of cocaine, three convictions for assault, one of which involved family 

violence, and a conviction for the unlawful carrying of a weapon. The father agreed 

that he had a substantial criminal record, but he disputed his responsibility for the 

most recent assault, which involved the wife of the mother’s brother. The mother 

testified that the children were present when this incident occurred.

Sally’s father testified that Sally’s mother is a good mom. He stated that they 

had done drugs together before she became pregnant with Sally, but that he was 

unaware of any drug use by the mother afterward.

Don’s Father

Don’s father tested positive for cocaine and marijuana when he appeared in 

the case. His results indicated chronic marijuana use. But at trial he denied chronic 

marijuana use and said that he had only used cocaine on a single occasion. 
5

He was convicted of aggravated sexual assault of child in 2001. He was 20 

years old at the time of the offense; his victim was a 13-year-old girl. He was placed 

on deferred adjudication community supervision initially but was incarcerated after 

he violated the terms of his supervision. He was released from prison for this offense 

in 2008 but he is required to register as a sex offender for the rest of life. He 

explained his conviction to the jury in this case by saying that he had been young 

and made a mistake. 

Don’s father stated that he and Don’s mother discontinued their relationship

when Don was around 2 years old. He saw Don only twice between 2013 and 2015. 

He said he lacked the transportation to see Don, given that the mother lived on the 

opposite side of town. He did not pay child support, despite being employed since 

his release from prison. 

He testified that Don’s mother was a good mom. He said he never saw her use

drugs and did not know that she had. 

Special Investigator

Lisa McCartney, a special investigator and child abuse expert for the 

children’s attorney ad litem, testified that further contact with their parents was not 

in Don and Sally’s best interest. She noted that the children already have been in the 

Department’s care for almost two years and require permanency. She opined that the 
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sole possibility for a permanent placement for the children requires termination of 

the parents’ rights. 

Among the circumstances that McCartney considered in deciding that 

termination of parental rights was in the children’s best interest, she noted that:

● the mother has a nearly 20-year history of drug use, specifically cocaine 

and marijuana;

● the parents falsely minimize their drug use and generally are not honest 

about matters relevant to their children’s welfare;

● Sally’s father has a lengthy criminal history; and

● Don’s father has not played an active role in his son’s life, has not paid

child support, and is a lifetime registered sex offender.

According to McCartney, none of the children’s parents has shown an ability to 

provide a safe, stable environment for the children. 

Directed Verdict Motion

After the Department rested, Don’s father moved for a directed verdict, which 

the trial court denied. No other party moved for a directed verdict.

Jury Verdict

The trial court’s charge submitted several grounds for termination of parental 

rights in the disjunctive as to each parent. The jury found that there was clear and 

convincing evidence:

(1) to terminate the mother’s rights under section 161.001(b)(1)(D), (E), (O), 

or (P) of the Family Code and that termination was in their best interest;

(2) to terminate Sally’s father’s rights under section 161.001(b)(1)(D), (E), or 

(O) of the Family Code and that termination was in her best interest; and
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(3) to terminate Don’s father’s rights under section 161.001(b)(1)(D), (E), or 

(L) of the Family Code and that termination was in his best interest.

The jury further found that the Department should be appointed as the children’s 

managing conservator. The trial court entered a decree of termination in conformity 

with the jury’s verdict. 

Post-Trial

Both fathers moved for a new trial on evidentiary insufficiency grounds. The 

mother did not move for a new trial. All parents appeal.

DISCUSSION

I. Applicable Law, Standard of Review, and Error Preservation 

A. Legal standard for termination of parental rights 

A parent’s rights to the care, custody, and management of his or her children

are constitutional in scope. Santosky v. Kramer, 455 U.S. 745, 758–59 (1982); In re 

M.S., 115 S.W.3d 534, 547 (Tex. 2003). But parental rights are not absolute; the 

Department may terminate the rights of those who are not fit to accept the 

responsibilities of parenthood. In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). The 

primary focus in a termination suit is protecting the children’s best interest. Id.

To terminate parental rights under the Family Code, the Department must 

establish that a parent committed one or more statutorily enumerated predicate acts 

or omissions, and that termination is in the children’s best interest. TEX. FAM. CODE

§ 161.001(b)(1), (2). The Department need only establish one of these predicate acts 
8

or omissions, along with the best-interest finding. See id.; A.V., 113 S.W.3d at 362.

But the Department must make these showings by clear and convincing evidence. 

TEX. FAM. CODE § 161.001(b). Clear and convincing evidence is “proof that 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.

Section 161.001(b)(2)’s best-interest finding is a separate inquiry from section 

161.001(b)(1)’s predicate acts and omissions. In re S.R.L., 243 S.W.3d 232, 235 

(Tex. App.—Houston [14th Dist.] 2007, no pet.). Evidence used to prove predicate 

acts or omissions nevertheless may be probative in deciding a child’s best interest. 

In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet. 

denied).

Multiple non-exclusive factors bear on a child’s best interest. Holley v. 

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These 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 those seeking custody;

● the programs available to assist them to promote the child’s best interest;

● their plans for the child or the plans of the agency seeking custody;

● the stability of the home or proposed placement;

● the acts or omissions of the parent that may indicate the existing parentchild relationship is not proper; and

● any excuse for the parent’s acts or omissions.
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Id.; Yonko v. Dep’t of Family & Protective Servs., 196 S.W.3d 236, 243 (Tex. 

App.—Houston [1st Dist.] 2006, no pet.). These factors are not exhaustive, no one 

factor is controlling, and a single factor may be adequate to support termination on 

a particular record. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); In re J.M.T., 519 

S.W.3d 258, 268 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

B. Legal and factual sufficiency review in termination cases

In conducting a legal-sufficiency review in an appeal from a termination 

order, we examine the evidence in a light favorable to the findings and determine 

whether a reasonable jury could have formed a firm belief or conviction that the 

finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the 

jury resolved disputed facts in favor of its finding if a reasonable jury could do so 

and disregard all evidence that a reasonable jury could have disbelieved or found not 

to have been credible. Id. If we determine that no reasonable jury could form a firm 

belief or conviction that the matter that must be proven is true, then we must 

conclude that the evidence is legally insufficient. Id.

In conducting a factual-sufficiency review, we determine whether, 

considering the entire record, a jury reasonably could have formed a firm conviction 

or belief about the truth of the matter on which the Department bore the burden of 

proof. See id.; C.H., 89 S.W.3d at 25. We consider whether the disputed evidence is 

such that a reasonable jury could not have resolved the disputed evidence in favor 
10

of its finding. J.F.C., 96 S.W.3d at 266. Viewed in light of the whole record, if the 

disputed evidence that a reasonable jury could not have credited in favor of a finding 

is so significant that the jury could not reasonably have formed a firm belief or 

conviction, then the evidence is factually insufficient. Id.

Deciding whether and to what degree to credit the evidence introduced at trial 

is the jury’s role, not ours. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). The jury 

is the sole evaluator and arbiter of witness credibility. Id.

C. Preservation of error as to legal and factual sufficiency

In an appeal from a judgment rendered on the basis of a jury verdict, including 

a judgment terminating parental rights, a party cannot complain about the legal and 

factual sufficiency of the evidence for the first time on appeal. See TEX. R. CIV. P. 

33.1(d). To preserve a challenge to the legal sufficiency of the evidence for appellate 

review, a party must:

● move for an instructed verdict;

● object to the submission of a jury question;

● move for judgment notwithstanding the verdict; or

● move for a new trial.

In re J.M.S., 43 S.W.3d 60, 62 (Tex. App.—Houston [1st Dist.] 2001, no pet.); In re 

C.E.M., 64 S.W.3d 425, 427 (Tex. App.—Houston [1st Dist.] 2000, no pet.). To 

preserve a challenge to the factual sufficiency of the evidence, a party must move 

for a new trial. TEX. R. CIV. P. 324(b)(2), (3); In re A.C., 394 S.W.3d 633, 639 (Tex. 
11

App.—Houston [1st Dist.] 2012, no pet.); J.M.S., 43 S.W.3d at 62. The party’s 

motion or objection also must be reasonably specific as to the nature of the 

evidentiary sufficiency challenge that is being made to preserve error on that point. 

See TEX. R. APP. P. 33.1(a)(1)(A); TEX. R. CIV. P. 268, 274, 301, 321–22; see, e.g., 

C.E.M., 64 S.W.3d at 428 (instructed-verdict motion “on all grounds” too general to 

preserve error; new-trial motion challenging implied best-interest finding did not 

preserve error as to findings on statutory predicate acts or omissions).

II. Mother’s Appeal

The mother demanded trial by jury and received one.

She contends that the evidence is legally and factually insufficient to support 

findings that termination of her parental rights was warranted under section 

161.001(b)(1)(D), (E), (O), and (P) or that it was in the children’s best interest. But 

she did not move for an instructed verdict, object to the submission of a jury 

question, move for judgment notwithstanding the verdict, or move for a new trial. 

Thus, she did not preserve these issues for review. See J.M.S., 43 S.W.3d at 62.

The mother also contends that the charge was defective in that it did not 

properly instruct the jury as to the circumstances under which it could find that the 

Department should be appointed as the children’s managing conservator. She did 

not, however, object to the charge in the trial court. She therefore did not preserve 

this issue for review either. See TEX. R. APP. P. 33.1(a); TEX. R. CIV. P. 274, 279.
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III. Sally’s Father’s Appeal

Sally’s father contends that the evidence is legally and factually insufficient 

to show that he did not comply with his court-ordered family services plan by failing 

to submit to random drug testing. He argues that he provided a urine sample on each 

test date and that he did not provide hair samples for testing only because he lacked 

adequate hair to be tested due to his employment as a welder. He further contends 

that the evidence is legally and factually insufficient to show that he endangered 

Sally’s well-being or that termination of his parental rights is in Sally’s best interest.

A. Applicable law

A finding that a parent “failed to comply with the provisions of a court order 

that specifically established the actions necessary for the parent to obtain the return 

of the child” may support termination. TEX. FAM. CODE § 161.001(b)(1)(O). This 

includes failure to comply with a court-ordered family service plan’s drug tests.

J.M.T., 519 S.W.3d at 269. A jury may conclude that a parent’s refusal to provide 

samples for testing, including hair or fingernail samples, reflects an attempt to 

conceal drug use. Id.

Drug use and its impact on a parent’s life and his ability to parent also may 

establish in some cases a course of conduct sufficient to support termination for 

engaging in conduct that endangers the physical or emotional well-being of the child. 

TEX. FAM. CODE § 161.001(b)(1)(E); J.O.A., 283 S.W.3d 345; Toliver v. Tex. Dep’t
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of Family & Protective Servs., 217 S.W.3d 85, 98 (Tex. App.—Houston [1st Dist.] 

2006, no pet.). There need not be any direct evidence showing that the parent’s drug 

use injured the child to warrant termination for endangerment. Walker v. Tex. Dep’t

of Family & Protective Servs., 312 S.W.3d 608, 617–18 (Tex. App.—Houston [1st 

Dist.] 2009, pet. denied). Because parental drug use exposes a child to the possibility 

that the parent may be impaired or incarcerated, drug use can suffice to support an 

endangerment finding. Id. at 617–18; Toliver, 217 S.W.3d at 98.

Parental drug abuse also reflects poor judgment and an unwillingness to 

prioritize a child’s safety and welfare and thus may be considered in determining a 

child’s best interest. A.C., 394 S.W.3d at 642. The jury is entitled to give great weight 

to a parent’s drug-related conduct in assessing his child’s best interest. In re E.R.W., 

528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Failure to 

complete all tasks and services required by a family service plan likewise may reflect 

parental unfitness and thus support a finding that termination is in a child’s best 

interest. In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013); J.M.T., 519 S.W.3d at 269–

70.

B. Analysis

Sally’s father was initially drug-tested in May 2016. The test results from his 

urine sample were negative for drugs. The results from his hair sample were positive 
14

for marijuana, cocaine, and methamphetamine, and they specifically indicated that 

his use of cocaine was chronic and that he used methamphetamine more than once. 

The urine and hair results are not contradictory. Urine testing reveals current 

use of drugs—generally use within three days of the test—while hair testing reveals 

drug use that is remoter in time from the date of the test. 

The trial court later ordered the father to complete a family service plan. As 

part of the plan, he agreed to not use drugs and to submit to further drug tests. The

plan stated that “drug testing will be an ongoing task throughout this case, 

understanding that failure to do so is considered by the agency to indicate current 

use of drugs.” 

Afterward, Sally’s father was drug-tested in June 2016, September 2016, 

November 2016, July 2017, November 2017, and March 2018. His urine sample in 

June 2016 was positive for cocaine and his hair sample on that date showed 

marijuana use and chronic cocaine use. On each subsequent occasion, the father 

provided a clean urine sample but did not provide a hair sample because he did not 

have adequate hair for testing on his head or body. 

Notwithstanding the positive drug-test results, the father denied having used

marijuana or methamphetamine at trial. He admitted to using cocaine but 

characterized his use as occasional or on-and-off over time. 
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As to the inability to provide hair samples for testing after June 2016, Sally’s 

father explained that, as a millwright and welder working in hot conditions, he 

shaves his body hair, because he gets a rash, hives, and abscesses if he allows his 

hair to grow out. The owner of the company that tested the father for drugs 

corroborated the father’s explanation that welders generally have short hair and 

sometimes shave their underarms due to their work conditions. 

In sum, the jury heard evidence that Sally’s father tested positive for drug 

abuse at the outset of the case, including chronic cocaine use, and that he 

subsequently failed to provide the hair samples necessary to detect long-term chronic 

use. He explained to the jury that his job as a welder prevented him from having hair 

long enough to provide a sample, but the jury was not obligated to accept his 

explanation and we cannot second-guess the jury’s credibility determinations. See

J.O.A., 283 S.W.3d at 346. Setting aside the jury’s prerogative in evaluating witness 

demeanor, we note that Sally’s father denied using marijuana and methamphetamine 

even though he tested positive for these drugs, and he described his use of cocaine 

as occasional, contrary to the test results showing chronic use. On this record, 

reasonable jurors could have formed a firm belief or conviction that Sally’s father 

was removing his hair to prevent the collection of hair samples that would have 

revealed his continued drug abuse, and, as a result, could have resolved the disputed

evidence in favor of this finding. 
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We thus conclude that the evidence was legally and factually sufficient to 

show by clear and convincing evidence that termination was warranted under section 

161.001(b)(1)(E) and section 161.001(b)(1)(O). Having decided that the evidence 

suffices to support these findings, we need not consider whether it would support the 

other predicate ground for termination—section 161.001(b)(1)(D)—considered by 

the jury. See TEX. R. APP. P. 47.1; A.V., 113 S.W.3d at 362; In re S.C.F., 522 S.W.3d 

693, 701 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

This evidence also is legally and factually sufficient to support the jury’s 

finding that termination of Sally’s father’s parental rights was in her best interest.

The jury reasonably could have found that her father frequently used cocaine, 

continued to do so even after his parental rights were at stake, and tried to conceal 

his continued use instead of discontinuing it. The jury reasonably could have 

concluded further that this course of conduct showed that termination of his parental 

rights would safeguard Sally from emotional and physical danger now and in the 

future and that her father lacked the ability to place Sally’s well-being ahead of his 

desire to do drugs. Moreover, Sally’s father was incarcerated when she came into

the Department’s care, and he has a lengthy criminal history, including convictions 

for:

● burglary of a habitation in 1991;

● possession of cocaine in 1991;

● burglary of a habitation in 1992;
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● assault in 2004;

● unlawful carrying of a weapon in 2005;

● assault/family violence in 2010; and

● assault in 2015.

When considered in conjunction with chronic drug use, a reasonable jury could have 

concluded based on this criminal history that Sally’s father was a source of 

substantial instability that could jeopardize her emotional and physical needs. See 

Walker, 312 S.W.3d at 617 (repeated criminal conduct subjecting child to probability 

of separation from parent due to parent’s incarceration endangers child’s physical 

and emotional well-being).

The father contends on appeal that he has a strong bond with Sally and

believes that she desires him to play a role in her life. While the desires of the child 

are a relevant consideration, Sally is at a tender age and thus cannot provide 

meaningful input as to whether termination is in her best interest. Indeed, her youth

and consequent vulnerability weighs in favor of the jury’s finding that termination 

is in her best interest. See In re M.F., No. 01-17-008350-CV, 2018 WL 1630180, at 

*7 (Tex. App.—Houston [1st Dist.] Apr. 5, 2018, pet. denied) (mem. op.) (child’s 

young age weighed in favor of best-interest finding). A child’s love for a parent 

merits less weight when the parent has engaged in conduct that is a danger to the 

child’s well-being. In re J.J.S., No. 14-17-00359-CV, 2017 WL 4518595, at *11 

(Tex. App.—Houston [14th Dist.] Oct. 10, 2017, pet. denied).
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On this record, a reasonable jury could have formed a firm belief or 

conviction that the termination of the father’s parental rights was in Sally’s best 

interest and the disputed evidence was not such that the jury could not have resolved 

these disputes in favor of its best-interest finding. We thus conclude that the evidence 

was legally and factually sufficient to show by clear and convincing evidence that 

termination of her father’s parental rights was in Sally’s best interest.

IV. Don’s Father’s Appeal

Don’s father contends that the evidence is legally and factually insufficient to 

show that he was convicted of aggravated sexual assault of a child under 

circumstances in which he was criminally responsible for serious injury of the child. 

He also contends that this conviction was too distant or remote in time to support 

termination and that the evidence is legally and factually insufficient to support the 

jury’s finding that termination of his parental rights was in Don’s best interest.

A. Applicable law

A finding that a parent has “been convicted or has been placed on community 

supervision, including deferred adjudication community supervision, for being 

criminally responsible for the death or serious injury of a child” under the Penal 

Code’s provision pertaining to aggravated sexual assault may support termination. 

TEX. FAM.CODE § 161.001(b)(1)(L)(viii). A person who engages in a sexual act with 
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a child less than 14 years of age commits an aggravated sexual assault. TEX. PENAL 

CODE § 22.021(a)(1)(B), (a)(2)(B).

The Family Code does not define “serious injury,” so we give these words 

their ordinary meaning. In re A.L., 389 S.W.3d 896, 900–01 (Tex. App.—Houston 

[14th Dist.] 2012, no pet.). “Serious” means “having important or dangerous 

possible consequences” and “injury” connotes “hurt, damage, or loss sustained.” Id.

(relying on definition adopted in C.H. v. Dep’t of Family & Protective Servs., No. 

01-11-00385-CV, 2012 WL 586972 (Tex. App.—Houston [1st Dist.] Feb. 23, 2012, 

pet. denied) (mem. op.)). The offense therefore need not involve bodily injury; 

emotional or psychological hurt suffices. C.H., 2012 WL 586972, at *5.

Certain convictions imply infliction of serious injury. In re W.J.B., No. 01-15-

00802-CV, 2016 WL 1267847, at *7 (Tex. App.—Houston [1st Dist.] Mar. 31, 2016, 

no pet.) (mem. op.) (citing In re L.S.R., 92 S.W.3d 529 (Tex. 2002) (per curiam)). 

This includes convictions for aggravated sexual assault of a child. See In re M.A.S., 

No. 06-16-00059-CV, 2016 WL 7405849, at *2 (Tex. App.—Texarkana Dec. 22, 

2016, no pet.) (mem. op.) (aggravated sexual assault committed by father at age of 

17 against unrelated 12- or 13-year-old victim serious enough offense to imply 

serious injury).
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B. Analysis

Don’s father was convicted of the sexual assault of a child in 2001. He was 

20 years old at the time of the offense and his female victim, with whom he engaged 

in fellatio and sexual intercourse, was 13 years old. The father initially was placed 

on deferred adjudication community supervision for five years, but was later 

convicted of the offense after violating the terms of his community supervision. He 

also is required to register as a sex offender for the rest of his life as a result, because 

an aggravated sexual assault conviction is categorized as a sexually violent offense.

See TEX. CODE CRIM. PROC. art. 62.001(6)(A), 62.101(a)(1).

The father admitted to the offense on the stand. He explained, “I was young, 

making mistakes.” But he insisted that he has changed since he committed the 

offense, some 18 years earlier. 

Don’s father contends that, while inappropriate, his sexual encounter with his 

13-year-old victim was consensual and that there is no evidence that she suffered 

serious injury. As an initial matter, we note that he did not testify as to the 

circumstances of the aggravated sexual assault and the record is devoid of evidence 

that the underlying acts were consensual. At any rate, his victim’s age categorically 

precluded consent. See May v. State, 919 S.W.2d 422, 424 (Tex. Crim. App. 1996) 

(child under 14 years of age cannot legally consent to sex and consent therefore is 

not an available defense); accord In re B.W., 313 S.W.3d 818, 821 (Tex. 2010). This 
21

bright-line rule rests on a longstanding judgment that “children under fourteen lack 

the capacity to understand the significance of agreeing to sex.” B.W., 313 S.W.3d at 

822. We thus reject Don’s father’s argument that the purportedly consensual nature 

of the sexual conduct underlying the offense contradicts or undermines a finding of 

serious injury. Sexual activity is always accompanied by a possibility of important 

or dangerous consequences, including emotional or psychological hurt, and the 

possibility of realizing these consequences is magnified where children under 14

years of age are concerned due to their inability to meaningfully apprehend the 

nature of sex and its possible outcomes. See id. at 822–23; see also Mathews v. State, 

918 S.W.2d 666, 669 (Tex. App.—Beaumont 1996, pet. ref’d) (defendant convicted 

of aggravated sexual assault of child younger than 14 years after deferred 

adjudication probation revoked; noting that sexual intercourse with girl of such 

tender years has high probability of resulting in mental and emotional scarring). We 

therefore hold that the jury could infer serious injury from Don’s father’s conviction 

for aggravated sexual assault of a child under 14 years of age for the purpose of

termination under section 161.001(b)(1)(L).

Don’s father also contends that his conviction for aggravated sexual assault 

was too distant or remote in time to constitute legally or factually sufficient evidence 

supporting termination under section 161.001(b)(1)(L). He relies on decisions 

stating that misconduct occurring long ago will not support termination. E.g., 
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Hendricks v. Curry, 401 S.W.2d 796, 800 (Tex. 1966). But this is not a universal 

principle; the dispositive inquiry is whether the past continues to bear on the present. 

As the Court said in Hendricks, termination may not be “based solely upon 

conditions which existed in the distant past but no longer exist.” Id.; accord Avery 

v. State, 963 S.W.2d 550, 552 (Tex. App.—Houston [1st Dist.] 1997, no writ). The 

father’s conviction for aggravated sexual assault of a child less than 14 years of age 

requires him to register as a sex offender for the rest of his life. See TEX.CODE CRIM.

PROC. art. 62.001(6)(A), 62.101(a)(1). In requiring lifetime registration, the 

Legislature has made a policy decision that the crime for which Don’s father was 

convicted will never be so remote that it will no longer be a matter of legitimate 

public concern. See Young v. State, 341 S.W.3d 417, 426 (Tex. Crim. App. 2011) 

(concern about repeat sex offenses and desire to thwart future sex crimes underlies 

registration requirement). We therefore hold that Don’s father’s 2001 conviction 

constitutes legally and factually sufficient evidence to support the jury’s finding in 

favor of the termination of his parental rights under section 161.001(b)(1)(L).

We thus conclude that the evidence was legally and factually sufficient to 

prove by clear and convincing evidence that termination was warranted under 

section 161.001(b)(1)(L). Having decided that the evidence adequately supports this 

finding, we need not consider whether it would support the other predicate grounds 

for termination—sections 161.001(b)(1)(D) and 161.001(b)(1)(E)—considered by 
23

the jury. See TEX. R. APP. P. 47.1; A.V., 113 S.W.3d at 362; S.C.F., 522 S.W.3d at 

701.

Don’s father further contends that his conviction for aggravated sexual assault 

of a child under 14 years of age is not legally and factually sufficient to support the 

jury’s finding that termination was in Don’s best interest. The father argues that he

has a close relationship with Don and has been a father to his other children without 

incident. Evidence that a parent has sexually abused one child, however, is a relevant 

consideration when a jury decides whether the parent poses a danger to the emotional 

and physical well-being of other children. See In re R.W., 129 S.W.3d 732, 742 (Tex. 

App.—Fort Worth 2004, pet. denied). Don’s father acknowledged his conviction 

and explained to the jury that he made a mistake but has changed. The jury, however, 

was free to disbelieve him based on its assessment of his demeanor and credibility 

and conclude that he posed a danger to Don’s emotional or physical well-being. See

J.O.A., 283 S.W.3d at 346; see also R.W., 129 S.W.3d at 743 (evidence of father’s 

past inappropriate sexual relationship with a 16-year-old girl relevant to jury’s 

decision as to whether he posed danger to child).

To the extent that the father contends evidence of his close relationship with 

Don fatally undermines the jury’s best-interest finding, we note that Don is merely

6 years old and that the natural affection that he feels for his father does not 

necessarily outweigh the seriousness of his father’s status as a registered sex 
24

offender. See J.J.S., 2017 WL 4518595, at *11. In addition, the record shows that 

Don’s father, for the most part, has not given Don the consistent emotional and 

economic support that a child needs to thrive. The jury heard evidence that Don’s 

father hardly saw him after the mother and father stopped seeing one another. The 

father conceded that he saw Don just twice between 2013 and 2015. He also admitted

that he did not know exactly where his son lived and “didn’t go and checkup on 

him.” Don has never been in his father’s care, and the father has not paid child 

support despite being continuously employed since his release from prison in 2008. 

On this record, a reasonable jury could have formed a firm belief or conviction

that the termination of the father’s parental rights was in Don’s best interest. Further, 

the disputed evidence was not such that the jury could not have resolved these 

disputes in favor of its best-interest finding. We thus hold that the evidence was 

legally and factually sufficient to show by clear and convincing evidence that 

termination of his father’s parental rights was in Don’s best interest.

CONCLUSION

We affirm the judgment of the trial court.

SUPPLEMENTAL OPINION ON REHEARING

The mother moves for rehearing. Her counsel advises that the mother filed a 

motion for new trial but that counsel failed to include it in the appellate record. 

Counsel has requested that the district clerk supplement the record with copies of 
25

the mother’s new-trial motion and the trial court’s order denying it. Because she 

moved for new trial, the mother contends that she preserved her evidentiary 

sufficiency points for review and requests that we decide them on the merits.

We deny the mother’s motion for rehearing, but withdraw our opinion of 

February 12, 2019, and substitute this opinion, including its supplemental opinion 

on rehearing in the original opinion’s place. Our judgment remains unchanged.

The jury found that the mother’s parental rights should be terminated under 

section 161.001(b)(1)(D), (E), (O), or (P) of the Family Code and that termination 

was in the children’s best interest. Subsections (D), (E), (O), and (P) provide for 

termination if a jury finds by clear and convincing evidence that the parent has:

(D) knowingly placed or knowingly allowed the child to remain in 

conditions or surroundings which endanger the physical or emotional 

well-being of the child;

(E) engaged in conduct or knowingly placed the child with persons who 

engaged in conduct which endangers the physical or emotional wellbeing of the child;

* * *

(O) failed to comply with the provisions of a court order that 

specifically established the actions necessary for the parent to obtain 

the return of the child who has been in the permanent or temporary 

managing conservatorship of the Department of Family and Protective 

Services for not less than nine months as a result of the child’s removal 

from the parent under Chapter 262 for the abuse or neglect of the child;

(P) used a controlled substance, as defined by Chapter 481, Health and 

Safety Code, in a manner that endangered the health or safety of the 

child.
26

TEX. FAM. CODE § 161.001(b)(1)(D), (E), (O), (P).

When the children came into the Department’s care, the mother tested positive 

for cocaine and marijuana. Her test results indicated that she had used cocaine more 

than once but not every day and that she was a chronic user of marijuana.

While this case was pending, the mother tested positive for drugs twice more. 

She tested positive for cocaine in July 2017 and her results indicated more than onetime use. She later tested positive for both cocaine and methamphetamine in March 

2018. Her test results once again indicated more than one-time use of cocaine.

The mother testified that she has been using marijuana for two decades and 

cocaine for a decade. She denied intentionally using methamphetamine, 

notwithstanding the positive test result for that drug. She speculated that perhaps 

methamphetamine had been mixed into the cocaine she used.

The mother agreed that her children deserve a sober parent and conceded that 

her drug use has harmed Don. She agreed that she failed to stay sober, contrary to 

the terms of her family service plan. She has been to rehab three times since 2000, 

including in October 2017, after which she again tested positive for drugs. She 

testified that she believes that she has quit using cocaine for good now. But she 

admitted that staying sober is difficult and that relapses are possible. 

Kimberly Isaac, a drug-recovery coach who worked with the mother for 

several months, testified about the mother’s drug use and her efforts to remain sober. 
27

Isaac described the mother as an engaged participant in the drug-recovery program.

But Isaac also had some concerns. Honesty, Isaac testified, is important to recovery, 

and the mother has not always been honest. At trial, the mother denied using 

methamphetamine, but admitted to Isaac that she did use it. Isaac acknowledged that 

the relapse rate for users of methamphetamine and cocaine is very high, and that 

there is no guarantee that the mother will not continue to use drugs. The mother 

participated in three drug rehab programs and relapsed all three times.

Based on this evidence, reasonable jurors could have formed a firm belief or 

conviction that:

● the mother continued to use illegal drugs despite her service plan’s 

directive that she refrain from doing so;

● her illegal drug use endangered the children’s health and safety; and

● her illegal drug use endangered the children’s physical or emotional wellbeing.

See J.M.T., 519 S.W.3d at 269; J.O.A., 283 S.W.3d 345; Walker, 312 S.W.3d at 617–

18; Toliver, 217 S.W.3d at 98. Given the record, reasonable jurors could have 

resolved the disputed evidence in favor of these findings. In particular, we note that 

credibility assessments belong solely to the jury, which was free to disbelieve the 

mother’s professed commitment to sobriety.

We therefore conclude that the evidence is legally and factually sufficient to 

show by clear and convincing evidence that termination was warranted under section 

161.001(b)(1)(D), 161.001(b)(1)(O), and 161.001(b)(1)(P). Having decided that the 
28

evidence suffices to support these findings, we need not consider whether it would 

support the other predicate ground for termination—section 161.001(b)(1)(E)—

found by the jury. See TEX. R. APP. P. 47.1; A.V., 113 S.W.3d at 362; S.C.F., 522 

S.W.3d at 701.

The evidence of the mother’s longstanding and continued drug abuse likewise 

is legally and factually sufficient to support the jury’s finding that termination of her 

parental rights was in her children’s best interest. See A.C., 394 S.W.3d at 642; In re 

E.R.W., 528 S.W.3d at 266. The jury reasonably could have found that she had 

habitually used marijuana, regularly used cocaine, and continued doing drugs even 

after her parental rights were at stake. The jury also reasonably could have found 

that she was not entirely honest about the extent of her drug abuse. The mother 

conceded that her children deserved a sober parent, and the jury reasonably could 

have found that it was not likely that she would remain sober, given her long history 

of drug abuse, including continued use after multiple tries at rehabilitation.

A reasonable jury could have formed a firm belief or conviction that the 

termination of the mother’s parental rights was in the children’s best interest and the 

disputed evidence was not such that the jury could not have resolved these disputes

in favor of its best-interest finding. Accordingly, we conclude that the evidence was 

legally and factually sufficient to show by clear and convincing evidence that 

termination of the mother’s parental rights was in her children’s best interest.
29

* * *

Don’s father and Sally’s father also moved for rehearing. We have denied 

their respective motions by separate orders. In an accelerated appeal, like this one, 

we “may deny the right to file a motion for rehearing.” TEX. R. APP. P. 49.4. As all

three parents have availed themselves of the opportunity to seek rehearing, the court 

will not entertain further motions for rehearing after the issuance of this opinion.

Gordon Goodman

Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.