Affirmed and Memorandum Opinion filed March 12, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-18-00897-CV

NO. 14-18-00898-CV

IN THE INTEREST OF K.T.E., AND M.A.E., Children 

IN THE INTEREST OF M.D.E, Child

On Appeal from the 314th District Court 

Harris County, Texas 

Trial Court Cause No. 2012-11109 

 Trial Court Cause No. 2017-04419J 

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

K.D.G. (Mother) appeals the trial court’s decrees terminating her parental 

rights as to her daughter, K.T.E., and sons, M.A.E., and M.D.E.1 On appeal, 

Mother challenges the legal and factual sufficiency of the evidence supporting the 

predicate grounds under which her parental rights were terminated and the finding 

that termination was in her children’s best interest. We affirm.

 

1 The Department of Family and Protective Services (the Department) filed motions to 

terminate K.D.G.’s parental rights in two separate suits affecting the parent child relationship, 

one as to K.T.E. and M.A.E. and one as to M.D.E. The cases were tried together.
2

Background

I. Department History 

The facts in this section are taken from an affidavit signed by the 

Department’s caseworker that was admitted at trial.2

A. Erratic Behavior 

In April 2017, the Department received a referral alleging neglectful 

supervision of K.T.E. and M.A.E. The referral alleged that Mother was driving 

recklessly with K.T.E. and M.A.E. in the vehicle and that she was swerving into 

multiple lanes of traffic. Mother was arrested for failure to maintain a single lane. 

Mother said that she was instructed by a friend who had recently died to swerve 

into traffic. 

At the time of the April 2017 referral, Mother was living with her four 

children: K.T.E., M.A.E., M.D.E., and D.G. Mother and the children had recently 

moved in with D.G.’s father, D.B. D.B. said that Mother had been acting strange 

and had threatened to kill him. 

In May 2017, the Department received a new referral alleging Mother had 

given D.G. wine and D.G. was running into walls and acting drunk. D.B. 

subsequently reported to the Department that Mother was behaving oddly. 

B. Physical Violence 

The May 2017 referral also alleged that about a year before, Mother had hit 

M.A.E. and bruised his face. After the above referrals were made and D.B. 

reported Mother’s behavior, Mother went for a psychological evaluation. After she 

returned, she hit K.T.E. in the face and head multiple times. K.T.E. told the 

 

2 Trial counsel objected to the affidavit as hearsay but does not complain on appeal of the 

trial court’s admission of the document.
3

caseworker that Mother’s hits “kind of hurt.” M.A.E. and M.D.E. also reported that 

Mother hit K.T.E. on her head. M.A.E. said it was about ten times. Mother told 

K.T.E., M.A.E., and M.D.E. to lie to the Department and the police about the 

incident. 

After another week, the Department received a new referral. This referral 

alleged that Mother had swung at K.T.E. and hit her on the head, back, and 

shoulders. K.T.E. had bruises on her back. 

In September 2017, D.B. reported that the children told him Mother 

previously had punched M.A.E. in the nose. Mother had also tried to stab D.B. 

with a boxcutter. 

Mother had a prior referral to the Department in 2006 for physically abusing 

M.D.E. “on an ongoing basis.” M.D.E. had a cut on his forehead after Mother hit 

him with a bottle of water and had bruises on his face on another occasion. Mother 

and M.D.E.’s father successfully completed family counseling and demonstrated 

the ability to provide a safe home at that time. That case was closed. 

In 2015 after K.T.E. and M.A.E. were born, the Department received 

another referral, alleging that Mother physically abused M.A.E. and K.T.E.’s father 

sexually abused her. The case was not completed because Mother moved to 

Pennsylvania with the children. The Department received another referral in 2016 

alleging Mother physically abused all four of her children. 

C. Criminal History 

After Mother was released from jail for failure to maintain a single lane, she 

was arrested for evading arrest after failing to stop at a stop sign. She was also 

charged with two counts of possession of a dangerous drug. The drug charges were 

dropped. Subsequently, Mother was arrested for trespassing. After Mother was 
4

released from jail, she returned to Pennsylvania for a few months and then came 

back to Houston. 

D. Placement of Children 

The caseworker advised D.B. not to allow Mother to be around the children. 

He agreed to do so and to take care of the children. D.B. took care of all four 

children for approximately three months, but then left K.T.E., M.A.E., and M.D.E. 

with their maternal aunt. 

The Department was contacted by the children’s aunt. The Department 

provided the aunt with a family service plan in which she agreed not to allow 

Mother to have unsupervised contact with the children and to contact the 

Department if Mother showed up. The aunt subsequently told the Department she 

did not know how she would be able to take care of the children financially, 

although she wanted to do so. 

The trial court subsequently ordered placement of K.T.E., M.A.E., and 

M.D.E. with the Department as temporary managing conservator. They were 

relocated to a group foster home. The Department’s goal for K.T.E. and M.A.E. 

was adoption by a non-relative. The Department did not seek adoption for M.D.E., 

in accordance with his wishes. At the time of the hearing, M.D.E. was seventeenyears-old, and although he did not want to be adopted, he also did not want to be 

returned to Mother. 

II. Trial Proceedings 

The caseworker testified at trial that she developed a family service plan for 

Mother, but Mother was difficult to locate because she was in and out of jail. 

Mother also relocated to Pennsylvania while the children were in Department care. 

She was unavailable to the children due to incarceration or absence from the state 
5

for over a year while the children were in Department care. Once Mother received 

the plan, she did not comply with it in several respects: Mother completed the 

required psychiatric and substance abuse evaluations but did not obtain stable 

housing, provide proof of stable employment, or maintain contact with the 

Department during the lawsuit. Mother also failed to attend hearings and parenting 

classes. 

Mother visited M.D.E. once while he was in the Department’s care but did 

not visit K.T.E. or M.A.E. There was a court order limiting Mother’s ability to visit 

the children, but the record does not show that she attempted to petition the court 

for contact with the children during the time that she was incarcerated or out of 

state. The caseworker testified that in her opinion, it was in the best interest of 

K.T.E., M.A.E., and M.D.E. for Mother’s parental rights to be terminated because 

Mother had “been putting her kids in and out of [the Department], which [is] 

trauma[tic] to a child” and had “not demonstrated or showed [the Department she 

understood] the serious [circumstances] she put her children in.” 

The caseworker testified that K.T.E. and M.A.E. were placed in a 

nonadoptive group foster home but had potential adoptive placements with one 

family. M.D.E. did not want to be adopted. In the Department’s permanency 

report, admitted at trial, the Department reported that M.D.E. was placed in a 

group foster home and was “progressing and doing great.” He attended school and 

church and was a role model to others. He would like to stay in his current 

placement, age out of the system, and go to college. K.T.E. and M.A.E. were in the 

same group home as M.D.E. K.T.E. was doing well and liked being placed with 

her brothers. She interacted well with her teachers and others in the home. M.A.E. 

similarly was doing well. 

The caseworker further testified that K.T.E. and M.A.E. wanted to be 
6

adopted and were happy and doing very well in school. They had been behind in 

school under Mother’s care. A foster family was interested in adopting them at the 

time of trial. Even though the family would not be adopting M.D.E., they would 

consider him one of their sons. M.D.E. told the caseworker that his siblings should 

be adopted and that Mother should get help. M.D.E. did not have any plans to 

return to his mother and did not want his siblings to return to her either. Mother 

was living in a temporary shelter at the time of trial but was on the shortlist for 

permanent housing. 

The child advocate volunteer testified that the children were flourishing at 

their current location and were much happier than they had been with Mother. In 

his opinion, termination of Mother’s parental rights was in the children’s best 

interest because Mother’s behavior had established a pattern of mistreatment of the 

children. This behavior included a long history of substance abuse and criminal 

activity. The advocate volunteer also testified that M.D.E. was afraid for K.T.E. 

and M.A.E. to go back into Mother’s care. 

The trial court signed final orders modifying the prior orders and decrees 

terminating Mother’s parental rights. The Department was appointed sole 

managing conservator of K.T.E., M.A.E., and M.D.E. The trial court found Mother 

engaged in conduct described in subsections (E), (N), and (O) of section 161(b)(1) 

of the Family Code. The court additionally found termination of Mother’s parental 

rights was in the best interest of K.T.E., M.A.E., and M.D.E.3

Analysis

Parental rights can be terminated upon clear and convincing evidence that 

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

 

3 The trial court also terminated the parental rights of K.T.E., M.A.E., and M.D.E.’s 

father. He is not a party to this appeal.
7

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

Code § 161.001(b)(1), (2); see also In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). 

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 S.R., 452 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2014, 

pet. denied). Although parental rights are of constitutional magnitude, they are not 

absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The child’s emotional and 

physical interests must not be sacrificed merely to preserve the parent’s rights. Id. 

Due to the severity and permanency of the termination of parental rights, the 

burden of proof is heightened to clear and convincing evidence. Tex. Fam. Code. 

§ 161.001(b); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “‘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 § 101.007; accord In re 

J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened 

standard of review. In re S.R., 452 S.W.3d at 358. “But the constitutional and 

statutory requirement that parental rights cannot be terminated unless grounds for 

termination are established by clear and convincing evidence necessarily means 

that the ultimate burden of proof based on clear and convincing evidence remains 

with the party seeking to terminate the parental rights.” In re L.M.I., 119 S.W.3d 

707, 720 (Tex. 2003). 

In reviewing the legal sufficiency of the evidence in a termination case, we 

must consider all the evidence in the light most favorable to the finding to 

determine whether a reasonable factfinder could have formed a firm belief or 

conviction that its finding was true. See In re J.O.A., 283 S.W.3d at 344; In re 

J.F.C., 96 S.W.3d at 266. We assume the factfinder resolved disputed facts in 
8

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

evidence a reasonable factfinder could have disbelieved. In re J.O.A., 283 S.W.3d 

at 344; In re J.F.C., 96 S.W.3d at 266. 

In reviewing the factual sufficiency of the evidence, we consider and weigh 

all the evidence, including disputed or conflicting evidence. See In re J.O.A., 283 

S.W.3d at 345. 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, then the evidence is factually insufficient. In re J.F.C., 96 S.W.3d at 

266. We give due deference to the factfinder’s findings, and we cannot substitute 

our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 

(Tex. 2006) (per curiam). The factfinder is the sole arbiter when assessing the 

credibility and demeanor of witnesses. Id. at 109. We are not to “second-guess the 

trial court’s resolution of a factual dispute by relying on evidence that is either 

disputed, or that the court could easily have rejected as not credible.” In re L.M.I., 

119 S.W.3d at 712. 

I. Predicate Termination Grounds 

Only one predicate finding under section 161.001(b)(1) is necessary to 

support a judgment of termination when there is also a finding that termination is 

in the children’s best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We 

begin by addressing the trial court’s finding under subsection (E). 

Termination of parental rights is warranted under this subsection if the 

Department proves by clear and convincing evidence, in addition to the bestinterest finding, that a parent has “engaged in conduct or knowingly placed the 

child with persons who engaged in conduct which endangers the physical or 

emotional well-being of the child.” Tex. Fam. Code § 161.001(b)(1)(E). “Conduct” 
9

under subsection (E) includes acts, omissions, or failures to act. In re A.L.H., 515 

S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). In this 

context, endanger means “to expose to loss or injury; to jeopardize.” In re T.N., 

180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.) (quoting In re M.C., 

917 S.W.2d 268, 269 (Tex. 1996) (per curiam)). It is not necessary that the child 

actually suffer injury from the parental misconduct. Walker v. Tex. Dep’t of Family 

& Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, 

pet. denied).

Evidence of domestic violence may be considered as evidence of 

endangerment under subsection (E). In re K-A.B.M., 551 S.W.3d 275, 286 (Tex. 

App.—El Paso 2018, no pet.). A parent’s abusive or violent conduct can produce a 

home environment that endangers a child’s well-being. In re J.I.T.P., 99 S.W.3d 

841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Domestic violence, 

want of self-control, and propensity for violence may be considered as evidence of 

endangerment. Id. A trial court can also consider a parent’s mental state as 

endangering a child. Id. Incarcerations, criminal history, and drug use can also 

show a course of conduct from which a factfinder can determine a parent 

endangered a child. In re F.H., No. 14-18-00209-CV, 2018 WL 3977931, at *6 

(Tex. App.—Houston [14th Dist.] Aug. 16, 2018, no pet.) (mem. op.). 

The record demonstrates that Mother physically abused all three children.4

Referrals to the Department for physical abuse began in 2006 when M.D.E. was 

five years old. The report stated that Mother abused M.D.E. “on an ongoing basis.” 

In one incident, Mother hit M.D.E. with a bottle, resulting in a cut on his forehead. 

 

4 Mother argues that the caseworker’s testimony regarding physical abuse is 

“insignificant” because the 2015 Department referral was “ruled out.” The caseworker testified 

that the Department was unable to finish that case because Mother moved to Pennsylvania with 

the children. Mother does not challenge the veracity of the other incidents of physical abuse.
10

Mother was also arrested after striking M.D.E. with a bottle. At other times, 

M.D.E. had bruises on his face. Several years later, Mother hit K.T.E., then eight 

years old, “in the head and face multiple times.” In addition, the Department 

reported that Mother hit M.A.E. in the face, causing bruises, and gave wine to 

D.G., causing her to act drunk. 

Moreover, Mother purposely drove her car in and out of traffic, which 

endangered K.T.E. and M.A.E. She said she did this because her friend who had 

died purportedly told her to do so. 

Mother also had a considerable criminal history. Mother was arrested for 

failure to maintain a single lane after the driving incident mentioned above. Mother 

was later arrested for evading arrest, possession of a dangerous drug, and 

trespassing. 

Mother was absent from the children’s lives during much of the time they 

were in Department care. The caseworker could not locate Mother at first because 

she was frequently in jail during that time. Mother also was in Pennsylvania during 

part of that time. Mother’s absences due to incarceration and being out of state 

while the children were in Department custody amounted to longer than a year. 

Additionally, at the time of trial, Mother did not have permanent housing. 

Given Mother’s physical abuse of the children, erratic behavior, criminal 

history and incarceration, and absence from the children’s lives, the trial court 

could have found that Mother engaged in conduct that endangered the physical or 

emotional well-being of K.T.E., M.A.E., and M.D.E. See In re F.H., 2018 WL 

3977931, at *6 (holding father’s incarcerations, criminal history, and drug use, 

along with absence from child’s life, created a course of conduct from which the 

factfinder could have determined father endangered daughter’s emotional and 

physical well-being); In re K.L.P., No. 14-18-00582-CV, 2018 WL 6684275, at *8 
11

(Tex. App.—Houston [14th Dist.] Dec. 20, 2018, pet. denied) (mem. op.) (holding 

parent’s abuse of child and spouse “created an environment which endangered 

[child’s] physical and emotional well-being”); In re J.I.T.P., 99 S.W.3d at 845 

(concluding that mother’s mental state in addition to domestic violence between 

the parents supported a finding of endangerment). 

Reviewing all the evidence in the light most favorable to the termination 

finding under subsection (E), we conclude that a reasonable factfinder could have 

formed a firm belief or conviction as to the truth of the finding that Mother’s 

conduct endangered K.T.E., M.A.E., and M.D.E. See In re J.O.A., 283 S.W.3d at 

344. Having reviewed the entire record, we further conclude the disputed evidence 

is not so significant that the trial court, as factfinder, could not have formed a firm 

belief or conviction that Mother’s conduct endangered her children. See In re 

J.F.C., 96 S.W.3d at 266. We conclude the evidence is legally and factually 

sufficient to support the predicate termination finding under subsection (E). 

Having thus concluded, we need not review the sufficiency of the evidence 

to support the subsection (N) and (O) findings. See In re A.V., 113 S.W.3d at 362. 

We overrule issues one through three. 

II. Best Interest of the Children

We review the entire record in deciding a challenge to the court’s bestinterest finding. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is a strong 

presumption that the best interest of a child is served by keeping the child with his 

or her natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re D.R.A., 

374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). 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 § 263.307(a). 
12

Courts may consider the following nonexclusive factors in reviewing the 

sufficiency of the evidence to support the best interest finding: the desires of the 

child; the present and future physical and emotional needs of the child; the present 

and future emotional and physical danger to the child; 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 which may indicate the existing parentchild relationship is not appropriate; and any excuse for the parent’s acts or 

omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); see also Tex. Fam. 

Code § 263.307(b) (listing factors to consider in evaluating parents’ willingness 

and ability to provide the child with a safe environment). This list is not 

exhaustive, and evidence is not required on all of the factors to support a finding 

terminating parental rights. Holley, 544 S.W.2d at 372; In re D.R.A., 374 S.W.3d at 

533. The evidence supporting termination under one of the grounds listed in 

section 161.001(b)(1) can also be considered in support of a finding that 

termination is in the best interest of the child. In re F.H., 2018 WL 3977931, at *8 

(citing In re C.H., 89 S.W.3d at 27). 

A. The desires of the children, the plans for the children by the 

individuals or agency seeking custody, and the stability of 

the home or proposed placement 

A child’s need for permanence through the establishment of a “stable, 

permanent home” has been recognized as the paramount consideration in the bestinterest determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 

2007, no pet.). Therefore, evidence about the present and future placement of the 

child is relevant to the best interest determination. See In re C.H., 89 S.W.3d at 28. 

At the time of trial, the children were happily placed in a group foster home. 
13

They were doing well there, and K.T.E. and M.A.E. wanted to be adopted by a 

foster family that wanted to adopt them. The potential adoptive family also wanted 

to provide a home for M.D.E. Although M.D.E. did not want to be adopted, he 

wanted his siblings to be adopted and not returned to Mother. M.D.E. similarly did 

not want to return to Mother. The caseworker testified that the adoptive foster 

family gave the children an opportunity “to have a family like they have not had in 

a long time . . . [m]aybe ever.” The potential foster mother testified that even 

though M.D.E. did not want to be adopted, “he would be considered one of [their] 

sons.” 

B. The present and future physical and emotional needs of the 

children and the present and future emotional and physical 

danger to the children 

A parent’s ability to provide a child with a safe environment is a primary 

consideration in determining the child’s best interest. In re F.H., 2018 WL 

3977931, at *8 (citing In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st 

Dist.] 2012, no pet.), and Tex. Fam. Code § 263.307(b)(7), (12)). The factfinder 

may infer from past conduct endangering the child’s well-being that similar 

conduct will recur if the child is returned to the parent. Id. (citing In re M.R.J.M., 

280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.)). 

As discussed above, Mother’s repeated physical abuse of the children, 

erratic behavior, criminal history and incarcerations, and absence from the 

children’s lives created a course of conduct from which the factfinder could have 

determined that Mother endangered the children’s emotional and physical wellbeing. Moreover, the children were very behind in school under Mother’s care and 

were flourishing in school and otherwise in the Department’s care. They were 

much happier in the Department’s care than they had been with Mother. 
14

C. Acts or omissions of the parent which may indicate the 

existing parent child relationship is not appropriate and any 

excuse for the parent’s acts or omissions 

The caseworker testified that she had difficulties contacting Mother to give 

her the family service plan because Mother was incarcerated during much of the 

period when the children were in the Department’s care. When Mother finally 

received the plan, she complied with only two of its requirements and was absent 

from the children’s lives for more than a year due to her various incarcerations and 

because she left the state while the children were in Department care. Mother did 

not contact the Department during that year. Mother likewise did not attend any 

court hearings to ask the court for visitation rights. Mother expressly states in her 

appellate brief that she “has no excuses for her acts or omissions.” 

D. Balancing the Best Interest Factors 

The best interest factors weigh in favor of the trial court’s finding that 

termination of Mother’s parental rights was in the best interest of K.T.E., M.A.E., 

and M.D.E. The record supports the following findings: (1) K.T.E. and M.A.E. 

desired to be adopted and M.D.E. desired to stay in Department care until he 

turned eighteen; (2) the Department had plans for K.T.E. and M.A.E. to be adopted 

and for M.D.E. to move in with the adoptive family in a stable home environment; 

(3) the present physical and emotional needs of the children were being met and 

would continue to be met in Department care; (4) the children would be in danger 

both physically and emotionally in Mother’s care; and (5) Mother offered no 

excuses for her absence from the children’s lives and failure to comply with the 

family service plan. Thus, we hold that the evidence is legally and factually 

sufficient to support the trial court’s finding that termination was in the children’s 

best interest. We overrule Mother’s fourth issue. 
15

Conclusion

We affirm the judgment of the trial court.

 

 /s/ Frances Bourliot 

 Justice 

Panel consists of Justices Christopher, Jewell, and Bourliot.