Affirmed and Memorandum Opinion filed October 2, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-18-00368-CV

IN THE INTEREST OF C.A.G., AKA C.G.; J.P.G., AKA J.G., CHILDREN 

On Appeal from the 314th District Court 

Harris County, Texas 

Trial Court Cause No. 2016-05227J 

M E M O R A N D U M O P I N I O N 

The trial court terminated the parental rights of A.G. (Mother) and appellant 

L.G. (Father) to their children, Carlos and Jana,1 and appointed the Texas 

Department of Family and Protective Services (the Department) to be the children’s 

managing conservator. Father challenges the sufficiency of the evidence to support 

termination. Mother does not appeal. We affirm. 

 

1

 Carlos and Jana are pseudonyms. Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
2

BACKGROUND

A. Background 

The Department received a referral in July 2016 alleging physical abuse of 

then-18-month-old Jana by an unknown perpetrator. According to the referral, Jana 

had facial injuries reportedly caused by a fall. The Department was told Carlos and 

Jana were in the care of a woman named Yolanda because Mother was incarcerated. 

When the Department spoke to Mother, she denied the children were with Yolanda, 

insisting she left them with Father. The children were located with Father a month 

later.2 At that time, Jana did not appear to have bruises or marks, and Carlos denied 

any abuse or neglect. 

In September 2016, the Department filed its original petition for protection of 

the children, seeking managing conservatorship of the children and termination of 

Mother’s and Father’s parental rights. The Department sought removal of the 

children. Following a full adversary hearing, the trial court found there was sufficient 

evidence of a continuing danger to the children’s physical health or safety and 

allowing them to remain with Mother or Father was contrary to their welfare. Based 

on that and other findings, the trial court ordered the children to be removed from 

Mother’s and Father’s care and named the Department as their temporary managing 

conservator. 

B. Trial 

The case went to trial in 2018. The Department presented testimony from 

caseworker Jessike’a Ledesma, Child Advocate Dave Gutacker, and Mother. Father 

testified on his own behalf but did not call other witnesses. The Department’s 

documentary evidence included Father’s family service plan and the court order 

 

2

 The record suggests the delay was due in part to staffing issues within the Department 

rather than acts or omissions by either parent. 
3

adopting it; written reports by Ledesma and Gutacker; Father’s drug tests results; 

and judgments of Father’s criminal convictions. Father’s evidence included 

certificates of his completion of a parenting course and a drug-and-alcohol course.3

1. Evidence about the children 

Carlos had just begun first grade when he was removed from the home. 

According to Ledesma, he was “not able to read and write properly” at that time and 

appeared to have had no social interaction. She testified Carlos “did not know his 

colors” or any letters. Father disagreed, testifying he had “worked with” Carlos 

before removal. The children were placed together in a foster-to-adopt home. Almost 

eight years old at the time of trial, Carlos had improved greatly. He had to repeat 

first grade, but the school provided him extra support and he was progressing well. 

In a permanency report to the court, Ledesma described Carlos as “very energetic, 

outgoing, playful, talkative, and not afraid to ask a lot of questions.” Jana, then three 

years old, was said to be “very engaging, friendly, and affectionate.” Ledesma noted 

both children interacted well with others and displayed age appropriate social skills. 

Child Advocates recommended termination of Father’s parental rights based 

on his long criminal history. Gutacker said the foster parents ensured Jana received 

an Early Childhood Intervention (ECI) evaluation and arranged for Carlos to 

undergo testing for attention deficit hyperactivity disorder (ADHD) and other 

conditions. The foster parents planned to adopt Carlos and Jana if the parents’ rights 

were terminated. Gutacker believed both children had assimilated well and 

characterized the foster family as a “good long term solution” for them. Gutacker 

testified Carlos recently told him he wanted to stay with his foster parents. 

 

3Because Mother has not appealed, we discuss evidence about her only when relevant to Father. 
4

2. Evidence about Father’s criminal history 

The record reflects more than 20 years of steady criminal activity by Father, 

beginning in 1996. In addition to nine convictions for theft, Father was convicted of 

making a terroristic threat, possession of a controlled substance (twice), possession 

of a dangerous drug, failure to stop and provide identification, possession of an 

unlawful weapon, and harassment. The harassment charge alleged Father threatened, 

in writing, to murder Mother. Even though he pleaded guilty to that offense, at trial 

both Father and Mother denied he made such a threat. 

Father was convicted twice of driving while intoxicated with a child younger 

than 15 years old in the car. The child underlying each of those convictions was 

Carlos, first when he was 18 months old and again when he was almost five. 

In total, Father has been sentenced to almost eight years’ confinement. Nearly 

six of those years were the result of the eight crimes Father committed when Mother 

was pregnant with Carlos or after Carlos was born. He began his most recent 

sentence—two years’ confinement for theft—about seven months after the children 

were removed. He was scheduled to be released very soon after trial, less than a year 

into his sentence. 

The trial court found (1) Father engaged in the conduct described in 

subsections E and O of section 161.001(b)(1) of the Family Code, and 

(2) termination of his parental rights was in the children’s best interest. The trial 

court appointed the Department to be the children’s managing conservator. 

ANALYSIS

Father raises two issues on appeal. First, he contends the evidence is legally 

and factually insufficient to support the trial court’s finding under subsection O of 

section 161.001(b)(1) of the Family Code. Second, he contends the evidence is 
5

factually insufficient to support the trial court’s best-interest finding. 

I. Burden of proof and standards of review 

Involuntary termination of parental rights is a serious matter implicating 

fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980); 

In re J.E.M.M., 532 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2017, no 

pet.). However, the child’s emotional and physical interests must not be sacrificed 

to preserve parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). 

Parental rights can be terminated if clear and convincing evidence shows 

(1) the parent committed an act described in section 161.001(b)(1) of the Family 

Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. 

§ 161.001(b)(1), (2). Only one predicate finding under section 161.001(b)(1), along 

with the best-interest determination, is necessary to support termination. In re A.V., 

113 S.W.3d 355, 362 (Tex. 2003). “‘Clear and convincing evidence’ means the 

measure or degree of 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.” Tex. 

Fam. Code Ann. § 101.007. This high burden reflects the severity of termination. 

The heightened burden of proof results in heightened standards of review for 

evidentiary sufficiency: 

 Legal sufficiency. We consider all the evidence in the light most 

favorable to the finding to determine whether a reasonable fact finder 

could have formed a firm belief or conviction that its finding was true. 

We assume the fact finder resolved disputed facts in favor of its finding 

if a reasonable fact finder could do so, and we disregard all evidence a 

reasonable fact finder could have disbelieved. In re J.F.C., 96 S.W.3d 

256, 266 (Tex. 2002). 

 Factual sufficiency. We consider and weigh all the evidence, including 

disputed or conflicting evidence, to determine whether a reasonable fact 

finder could have formed a firm belief or conviction that its finding was 
6

true. We consider whether disputed evidence is such that a reasonable 

fact finder could not have resolved that dispute in favor of its finding. 

C.H., 89 S.W.3d at 25. 

The fact finder is the sole arbiter when assessing the credibility and demeanor 

of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re H.R.M., 209 S.W.3d 

105, 109 (Tex. 2006) (per curiam). We may not second-guess the fact finder’s 

resolution of a factual dispute by relying on disputed evidence or evidence the fact 

finder “could easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707, 

712 (Tex. 2003). 

II. Predicate ground for termination: Endangerment 

A. Legal standards 

Section 161.001(b)(1)(E) of the Family Code requires clear and convincing 

evidence that the parent “engaged in conduct or knowingly placed the child with 

persons who engaged in conduct which endangers the physical or emotional wellbeing of the child.” Tex. Fam. Code Ann. § 161.001(b)(1)(E). “To endanger” means 

to expose a child to loss or injury or to jeopardize a child’s emotional or physical 

health. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); In re S.R., 452 S.W.3d 351, 

360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). “Conduct” includes acts 

and failures to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, 

no pet.). The parent’s conduct both before and after the Department removed the 

child from the home is relevant to a subsection E inquiry. S.R., 452 S.W.3d at 361 

(considering parent’s criminal behavior and imprisonment before and after removal).

A finding of endangerment under subsection E requires evidence the 

endangerment resulted from the parent’s conduct, including acts, omissions, or 

failures to act. Id. at 360. Termination under subsection E must be based on more 

than a single act or omission; the statute requires a voluntary, deliberate, and 
7

conscious course of conduct by the parent. Id. at 361. A court properly may consider 

actions and inactions occurring both before and after a child’s birth to establish a 

“course of conduct.” In re S.M., 389 S.W.3d 483, 491–92 (Tex. App.—El Paso 2012, 

no pet.). While endangerment often involves physical endangerment, the statute does 

not require that conduct be directed at a child or that the child actually suffer injury. 

Rather, the specific danger to the child’s well-being may be inferred from the 

parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 

533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738–39 (Tex. App.—Fort Worth 2004, 

pet. denied). A parent’s conduct that subjects a child to a life of uncertainty and 

instability endangers the child’s physical and emotional well-being. In re A.L.H., 

515 S.W.3d 60, 92 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). 

A parent’s criminal conduct, convictions, or imprisonment is relevant to the 

question of whether the parent engaged in a course of conduct that endangered the 

well-being of the child. S.R., 452 S.W.3d at 360–61; A.S. v. Tex. Dep’t of Family & 

Protective Servs., 394 S.W.3d 703, 712–13 (Tex. App.—El Paso 2012, no pet.). 

Imprisonment alone is not an endangering course of conduct but is a fact properly 

considered on the endangerment issue. Boyd, 727 S.W.2d at 533–34. Routinely 

subjecting a child to the probability he will be left alone because his parent is in jail 

endangers the child’s physical and emotional well-being. S.M., 389 S.W.3d at 492. 

B. Application 

Father concedes the evidence is legally and factually sufficient to support the 

trial court’s finding of endangerment under Family Code section 161.001(b)(1)(E). 

Unchallenged findings bind us “unless the contrary is established as a matter of law, 

or if there is no evidence to support the finding.” McGalliard v. Kuhlmann, 722 

S.W.2d 694, 696 (Tex. 1986); see In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) 

(affirming termination based on unchallenged findings supported by record). 
8

We agree the record supports the finding of endangerment. Through his 

criminal activity, Father routinely subjected the children to the probability they 

would be left alone because their parent was in jail. That endangered the children’s 

physical and emotional well-being. Further, two of his convictions resulted from 

conduct that directly endangered Carlos’ life—driving while intoxicated with Carlos 

in the car. We conclude the evidence is legally and factually sufficient to support the 

trial court’s finding under subsection E. 

Though he concedes the subsection E finding, Father challenges the 

evidentiary sufficiency of the subsection O finding because the facts underlying that 

finding are relevant to the best-interest analysis. We address that challenge in our 

discussion of best interest. We overrule Father’s first issue.

III. Best interest 

A. Legal standards 

Termination must be in the child’s best interest. Tex. Fam. Code Ann. 

§ 161.001(b)(2). Texas courts presume two conditions to be in a child’s best interest: 

(1) prompt, permanent placement in a safe environment, id. § 263.307(a); and 

(2) remaining with the child’s natural parent. In re U.P., 105 S.W.3d 222, 230 (Tex. 

App.—Houston [14th Dist.] 2003, pet. denied). 

Courts may consider these non-exclusive factors, known as the Holley factors, 

in its best-interest analysis: the desires of the child; the physical and emotional needs 

of the child now and in the future; the physical and emotional danger to the child 

now and in the future; the parental abilities of the persons seeking custody; the 

programs available to assist those persons seeking custody in promoting the best 

interest of the child; the plans for the child by the individuals or agency seeking 

custody; the stability of the home or proposed placement; acts or omissions of the 

parent that may indicate the existing parent-child relationship is not appropriate; and 
9

any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 

371–72 (Tex. 1976). This list of factors is not exhaustive, and evidence is not 

required on all the factors to support a finding that termination is in the child’s best 

interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, 

no pet.). The Family Code also identifies factors the court may consider in evaluating 

a parent’s willingness and ability to provide the child with a safe environment. Tex. 

Fam. Code Ann. § 263.307(b). Finally, evidence supporting the statutory predicate 

of termination is relevant to the best-interest analysis. S.R., 452 S.W.3d at 366. 

B. Application of relevant factors 

1. The children 

Desires. When a child is too young to express his desires, the fact finder may 

consider that the child has bonded with the foster family, is well cared for by them, 

and has spent minimal time with a parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. 

App.—Houston [14th Dist.] 2016, pet. denied); In re J.D., 436 S.W.3d 105, 118 

(Tex. App.—Houston [14th Dist.] 2014, no pet.). Uncontroverted evidence 

demonstrates both children had adjusted well and bonded with their foster family. 

Though Jana was too young to express her desires, Carlos told Gutacker he wanted 

to stay with his foster parents. 

Needs. The fact that Carlos had to repeat the first grade implies he needed 

significant academic support. His school and the foster parents provided him the 

help he required. The foster parents were arranging for Carlos to be evaluated for 

ADHD and other conditions. They also ensured Jana received an ECI evaluation. 

Stability of proposed placement. Both Ledesma and Gutacker believed the 

foster parents would provide a safe and stable home for Carlos and Jana. The foster 

parents planned to adopt both children if the parents’ rights were terminated. 
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2. Father 

Predicate grounds under Family Code section 161.001(b)(1). Evidence 

supporting termination under the grounds listed in section 161.001(b)(1) can be 

considered in support of a finding that termination is in the children’s best interest. 

C.H., 89 S.W.3d at 27. Accordingly, the evidence of Father’s endangerment of the 

children, discussed above, is relevant to the best-interest analysis. 

History with the Department. Father came under investigation in 2012 and 

2014, both times for negligent supervision of Carlos. The record does not reflect the 

details of the investigations. The Department was unable to determine the veracity 

of the 2012 allegations but found reason to believe the 2014 allegations. 

Willingness and ability to parent. Father testified he wants his children back, 

insisting he had “changed [his] whole life around.” He did everything the 

Department asked of him, he said, all while working. He contended his children were 

doing well at the time of removal and should not have been removed. He said he 

would return to his previous job and live in a halfway house when he got out of 

prison. Father’s professed willingness to parent his children cannot be divorced from 

the fact that he committed—and pleaded guilty to—at least eight crimes during his 

children’s lifetimes, two of which directly endangered Carlos’ life. The sentences 

for those offenses totaled nearly six years. 

3. Conclusion on best interest 

Considering all the evidence in the light most favorable to the best-interest 

finding, we conclude the trial court reasonably could have formed a firm belief or 

conviction that termination of Father’s parental rights was in the children’s best 

interest. J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. Further, we conclude the 

disputed evidence would not prevent a reasonable fact finder from making this 

finding. D.R.A., 374 S.W.3d at 531. Accordingly, the evidence is legally and 
11 

factually sufficient to support the trial court’s finding that termination is in Carlos’ 

and Jana’s best interest. We overrule Father’s second issue. 

CONCLUSION

We affirm the trial court’s judgment.

 

 /s/ Martha Hill Jamison 

 Justice 

Panel consists of Justices Christopher, Jamison, and Brown.